I am starting to wonder about the New York Times' fascination with legal education. Today's edition, right smack in the center of the first page, finds an article about "law schools that teach little about legal practice." The punch line? Law schools teach little about legal practice.
This is a great debate, even a debate worth having. But to me, the most interesting aspect of the Times' fascination is in how it reflects on the larger debate over affirmative action. Here is why. The argument, stated simply, is that justice demands that colleges, including law schools, must only look at grades and test scores when making admissions decisions, and only those students with the highest scores deserve admission to elite institutions. When pushed, critics concede that institutions may consider other factors. But the one factor that schools may not consider is race. As soon as you find one student of color who got in with lesser metrics than a white student, a constitutional violation is born. The argument is really that basic, and cares little for what happens next, or for what the purposes of higher education may be, or even what the particular profession at issue demands.
This is not only short-sighted, but if pressed, one might even choose to call it racist.
Start with the law in question. The colorblind argument should strike anyone familiar with the history of the 14th Amendment as odd and misplaced. It is particularly embarrassing for originalist justices to take a colorblind view of equal protection. One need not be a historian to know that the Reconstruction Congress intended no such thing. Consistency is indeed a virtue.
The beginning argument -- on the original meaning of the 14th Amendment -- is dead wrong, and the conservatives don't even try to pretend otherwise. They simply ignore it. And so all that remains is a debate over the wisdom of the use of race in public life. To be sure, this is a debate worth having, but we should not for one moment pretend that this is a debate about law. It is not. It is a debate about Justice Kennedy's vision of a good society, and the best way to get there.
Here is where the Times' story comes in. It is one thing to argue that law schools may not consider race because the law demands it. Once this argument goes away, all we have left is an argument that law schools may not consider race because it is bad for the legal profession, that is, because in so doing law graduates will not be properly prepared to handle the rigors of the profession.
But then, note what the real problem is, according to the Times:
“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”
Here is what a recent graduate of the George Washington University School of Law, had to say: “What they taught us at law school is how to graduate from law school.”
Put all the pieces together and tell me what you see. Law schools may not use race in admissions not because the law demands it, or because it produces better lawyers, but because . . . why exactly?
I would like to think that racism has nothing to do with it. But sometimes, I can't help but wonder . . .