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 . . . 

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.