Legal Education hits the big time, Again . . . and its connection to the affirmative action debate

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 . . . 

Further Thoughts on College Recruiting . . . and Admissions

College coaches zig-zag across the country looking for players for their teams.  Players similarly zig-zag across the country looking for their college campus of choice.  And between them we find a number of recruiting services willing to tell you what they think about any particular player.  Scout.  Rivals.  ESPN.  Any guy with a clipboard and an internet connection can start one.

So here is what I find intriguing about all of this: how accurate are these services?  How accurately can these recruiting outfits prognosticate whether a high school player will become a college star or bust?  For all the angst and energy that college fans now spend on national signing day, this would appear to be the only question worth asking.  The answer should not surprise anyone. 

Fuentes-Rohwer in the NY Times

Luis has an essay in the Times that you can find here.  The essay is about race and merit in college admissions.  Well done Luis.

Why is it that we get stupid when we talk about race?

I was in O’Brien County earlier week, a piece of the heartland tucked away in the northwest corner of Iowa.  This county is in the fifth congressional district, home to none other than congressman Steve King.   While there, I read with great interest Ross Douthat’s comments on “the root of white anxiety.”   I also had a great conversation with an old farmer, now retired, about economics, politics, and even a little political theory.  Whatever is the matter with Kansas, if my conversation with this one farmer is a true reflection of the fifth congressional, is also the matter with Iowa.

I’ll set aside the latter conversation for a future post.  For now, I am far more interested in what Douthat is trying to tell us, and why I think he’s not even close to the mark.

What Bryce Harper Teaches Us About Promotions, Hiring and Admissions

Bryce Harper is the talk of Major League Baseball. He is the next can’t miss prospect, a 17 year old kid on a direct path to stardom. He graced the cover of Sports Illustrated last year, and today he became the first pick in baseball’s amateur draft.

The hype is extraordinary: to some, "He might be the greatest amateur player of all time," and to others, "He's the best position player I've seen come through here," or “the LeBron James of baseball.” He has been called “a prodigy” and “the chosen one.” According to Sports Illustrated’s Tom Verducci:

So good and so young is Bryce Harper, however, that he explodes baseball convention. He has hit the longest home run in the history of Tropicana Field, home of the Tampa Bay Rays, and he did so in January, at age 16, with a blast that would have flown farther than the measured 502 feet had it not smashed off the back wall of the dome. Still only 16, Harper stands 6'3", weighs 205 pounds, has faster bat speed than Mark McGwire in his prime and runs so fast that he scored on wild pitches six times this season from second base. As a catcher he picks off runners from his knees, and when he pitches, he throws a fastball that has been clocked at 96 mph. He also does volunteer work, holds down a 3.5 grade point average and attends religious education classes nearly every morning before school.

I can’t help but wonder: does he leap tall buildings in a single bound?

In thinking about Bryce Harper, I also can’t help but think of college admission debates, or firefighter promotion tests, or law school hiring. These things are never sure things – this is true whether we are talking about promotions, admissions, or hiring – and to be behave as if they are is simply foolish.

Merit is in the eye of the beholder.

Affirmative Action for [almost] All

In case you needed any proof, a recent report by the Associated Press concluded that athletes applying to college "enjoy strikingly better odds of having admission requirements bent on their behalf." While this is not terribly surprising in and of itself, what is surprising is how widespread the practice is. According to the report, colleges in every major conference bend their admission standards on behalf of applicants with athletic aspirations.

Amused?

Thus, to be clear about one thing: the debate over affirmative action and higher education is about the meaning of merit, often defined narrowly by test scores and gpa. By my rough count, many exceptions exist: residency, geography, and legacy, among others. To this list we may add "athletic proficiency." The reasons for admitting athletes as "special admissions," according to Gerald Gurney, incoming president of the National Association of Academic Advisers for Athletics and senior associate athletic director for academics and student life at the University of Oklahoma, is because the practice "does add value to a university."

How is this for value: at the University of Texas, the average SAT score for freshman football players between 2003 and 2005 was a full 320 points lower all other typical admits to the university. They also happen to sit atop the Forbes list of college football's most valuable teams, at $119 million.

Go 'Horns!

Tell it to the state of Alabama, of course, as they get ready to battle Texas for football supremacy. There is no better value than cold, hard cash, I suppose, and Alabama comes in fifth on the Forbes list, at $92 million.

Try to make sense of this tangled web. A university can consider anything under the sun and nobody cares or objects. In some places, they even demand it. But once a university decides to diversify its student class, lawsuits ensue and propositions spring up in state after state.

Where are Ward Connerly and Barbara Grutter when you need them? Isn't merit the name of the game, and unfairness to none?

Help?

Please?

Don't hold your breath.