Vikram David Amar and Alan Brownstein

Why U.S. News and World Report Should Include A Diversity Index in its Ranking of Law Schools

Friday, March 12, 2010

'Tis the season to be, if not jolly about, at least aware of, one of the most prominent law school rankings systems; the U.S. News and World Report's annual law school survey will issue in about a month. There are many law school rating schemes out there, and people who care about evaluating law schools would do well to consult a variety of them before forming impressions. But there is no denying that the U.S. News ranking system is currently the most visible. And for that reason it is – for better or worse – the one that influences the behavior of law schools the most.

In this column, we begin to analyze one way in which the U.S. News rankings can negatively affect schools and the legal profession – by deterring schools from taking steps to diversify their student bodies – and possible responses to the problem.

U.S. News's Bob Morse Creates An Opening for Diversity to Be Considered

Many observers have voiced important qualms about various aspects of U.S. News's law school rating methodology. In spite of sustained attacks, U.S. News has thus far declined to make major changes. This resistance may be explained by many reasons, among them the fact that some complaints might come across as self-interested attempts by schools to improve their own particular rankings, as well as the reality that no methodology will be entirely free from plausible criticism. And some of the resistance may owe to inertia, or to a misunderstanding of some of the criticism itself.

Given this seeming immovability of U.S. News's ranking approach, it was a welcome development when Bob Morse, U.S. News's point person for law school ratings, recently expressed openness to thinking about incorporating a "diversity index" into the ratings methodology. Mr. Morse was reacting to an article, "Rankings and Diversity," by sociology professors Wendy Espeland and Michael Sauder, published in the Review of Law and Social Justice. Espeland and Sauder criticize an aspect of the current U.S. News methodology; they argue that by rewarding schools that boost their median LSAT and GPA numbers and reduce the percentage of applicants they let in, U.S. News creates disincentives for schools to admit and enroll applicants from underrepresented groups that have not – as groups – fared particularly well in grades or on standardized tests. Espeland and Sauder suggest many reforms, including the notion that U.S. News should incorporate the diversity of a school as a factor in its overall ranking.

Mr. Morse, in an online post, tried to provide some context for U.S. News's current stance. One thing he (correctly) observed is that law schools may have more latitude than they realize, within the U.S. News methodology, to admit some students with lower scores and grades, given that U.S. News makes use of LSAT/GPA medians, rather than means. To be sure, a focus on medians instead of means does give schools some flexibility to take some applicants with lower numbers; in most instances, for example, a school's LSAT median is unlikely to change even if an additional handful of persons with scores below the median are admitted, whereas its mean might be affected in a non-trivial way by the admission of those additional persons, depending on how low their scores were.

But the use of medians, rather than means, creates its own problems and perverse incentives, and in any event it frees schools to take applicants who have lower numerical indicators only up to a point. If a school's LSAT median might drop by one whole number if additional folks below the median are admitted (as is sometimes the case), then the school has a tremendous disincentive to accept those folks. And since applicants' GPAs, unlike LSAT scores, are reported not in whole numbers but rather in hundredths (e.g., 3.56), and because they occupy most points along a broad GPA spectrum, the admission of even a few additional students who have GPAs below the current median will often move the median down a bit.

Morse's Diagnosis of the Methodological Problem

That may be why Mr. Morse himself seemed to recognize the potential value of affirmatively rewarding schools for diversifying their ranks. As attractive as this option is, however, Mr. Morse identified what he viewed as the key problem:

"[M]easuring how successful law schools are at achieving diversity is a very complicated issue that cannot easily be included in our rankings formula in a fair and meaningful way. . . For example, U.S. News would need to determine what scale would be used to measure diversity for each law school. How should law schools be compared in ethnically diverse states like California and Florida, say, with those in far less diverse states like Maine and Kansas? U.S. News is willing to work with legal educators and others to develop such fair diversity yardsticks, but we cannot do it without outside assistance."

In the spirit of providing such "outside assistance," we agree wholeheartedly with the first part of Mr. Morse's analysis – that measuring diversity is a very complicated issue. Identifying those racial groups that should be included in the definition of diversity, and determining the extent to which the diversity index should go beyond race and ethnicity – to include socio-economic class, gender, sexual orientation, geography, age, and perhaps religion and other characteristics – are very tricky matters. Looking at a law school's faculty in addition to its student body in the diversity calculus also seems to us to make good sense, but is an issue that must be discussed. And deciding whether diversity should be judged in terms of the presence of "critical masses" or by some other metric is another question that must be confronted.

We hope to explore these and other complexities in a subsequent column. For today, suffice it to say that when Mr. Morse observes that incorporating diversity measures in a "fair" and "meaningful" way is far from easy, he is right on the money.

But we believe that the latter part of Mr. Morse's analysis – his suggestion that schools in Maine and Kansas ought to be judged by different standards than schools in places like California and Florida – is mistaken. And the mistake seems to be premised on a misunderstanding of why diversity is a factor that should count in the U.S. News law school rankings in the first place.

Why Diversity Is Pursued, and Why It Belongs in Law School Rankings

At one point in time, government programs designed to include more racial and other minorities in schools, public contracts, government agencies, etc., were justified primarily by a desire or need to remedy past discrimination against these underrepresented groups. We do believe in the remedial rationale, and think that, whenever consistent with federal and state law limitations, all governmental institutions should try to remedy past discrimination. And if providing such a remedy were the sole or dominant reason that law schools try to accomplish diversity, then perhaps it would make sense to take into account the varying demographics and conditions of prior discrimination in each state or region, in order to decide whether a school in a particular location was living up to its obligations.

But the U.S. News survey is not – and never has been – designed to measure how well each law school is accomplishing broad social objectives, or how much social justice each law school is achieving. (If the survey were designed for that, it would look completely different. For example, the quality and number of a law school's clinical programs, or the percentage of its recent graduates who practice public-interest or public-sector law – currently not included as direct factors – might be the largest rankings inputs.)

Instead, U.S. News seems to try to measure, albeit imprecisely, how good a job each law school is doing in producing top-notch lawyers and leaders for national and international roles in the bar, bench, business community, government and academy.

Diversity is relevant to what U.S. News is trying to gauge, but not because a diverse school is doing a good job in redressing past injustice in its state. Diversity is relevant because – as the Supreme Court has recognized and proclaimed in recent years – a diverse school provides a richer learning environment for its students, who will then be better prepared, going forward, to enter and succeed in the realm of diversity that is the entire United States and the world.

As we have just intimated, the pedagogical justification – and not the remedial explanation – for diversity is the basis on which the Supreme Court has permitted schools to engage in carefully crafted race-conscious affirmative action. (Again, we don't disparage the remedy/social justice idea as an independently adequate basis for government action, but we do note, with some regret, that it has not been embraced by recent equal protection doctrine. And, in any case, it is certainly not what U.S. News purports to try to capture in its rankings.)

This pedagogical rationale was spelled out clearly by Justice O'Connor in 2003, in the case involving affirmative action at the University of Michigan Law School, Grutter v. Bollinger. Writing for the Court, Justice O'Connor credited as "compelling" the University of Michigan's goal of having a diverse student body:

"[The law school defendants] assert only one justification for their use of race in the admissions process: obtaining the educational benefits that flow from a diverse student body. . . .The Law School's educational judgment that diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by [the defendants] and amici."

Justice O'Connor went on to detail the educational benefits, which she termed "substantial," that follow from diversity. Among other things, a diverse student body facilitates "cross-racial understanding," helps break down stereotypes, and leads to "livelier classroom discussion" that is "more enlightened and interesting." A diverse student body "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." Moreover, the "skills needed in today's increasingly global marketplace can only be developed though exposure to a widely diverse people, cultures, ideas and viewpoints."

Thus, the sole reason why diversity should be considered in rankings – because diversity leads to a better educational environment, and thus a better education – argues against treating law schools differently simply because they happen to be located in cities or states that themselves lack broad diversity.

Does – or Should – Diversity Matter to, and Thus Count at, All Law Schools?

Of course, some law schools in some locales might argue that since their graduates do not tend to go out into the big, diverse country or world but rather remain local, the educational benefits of diversity are less relevant to them. There are numerous responses to this argument.

One is that many of the current U.S, News criteria are less relevant to the graduates of some schools than others, and yet each is applied universally. A school's national reputation, for example, as measured by surveys of academics, lawyers and judges across the country, may not be important to graduates of a somewhat insular law school, who tend to live and practice within a short distance of the school, but U.S. News does not alter this rankings criterion accordingly.

More generally, the U.S. News rankings of law schools do not – unlike the magazine's ranking of universities – break schools down into "national" and "regional" institutions that are assessed separately according to different criteria. All ABA-approved law schools purport to produce lawyers who can aspire to, and are capable of, success on the national and international stages – that is how schools bill themselves – and if diversity is understood to facilitate success on these stages, then all schools should be judged along this dimension.

But what about the residual sense of unfairness that some may perceive from applying a generic diversity index to schools in places like Kansas, which at present might (in spite of recent changes in demographics) lack large, diverse pools from which to draw students? As we suggest above, that kind of "unfairness" pervades the U.S. News methodology itself. U.S. News does not purport to rank how well a law school does given the legal, demographic, budgetary or geographic constraints within which it operates, or how well the school meets the objectives it has set for itself; rather, U.S. News purports to rank how well a law school does in producing first-rate lawyers.

Indeed, if, say, Kansas law schools have a legitimate beef with a generic diversity index, then most of the other criteria U.S. News uses are also open to challenge as being "unfair" in that they have a disparate effect against some types of schools. We would expect that rural schools in small states don't have nearly as many high-LSAT performers in their local applicant pool as do schools on the coasts (even accounting for the differences in the number of entering first-year spaces in the respective law schools), simply because metropolitan areas often have far more college students and recent college graduates who are taking the LSAT and applying to law school. And yet no one argues U.S. News should adjust its median LSAT score criterion based on a school's location.

Similarly, some public schools have far less financial support than other public institutions, and yet the "number of library books" and "dollars expended per student" remain factors that apply to all the schools in the country. So, too, with the placement criteria; schools located in states or cities where legal employment opportunities are few are not treated any differently than schools located in employer-rich areas. And public schools in states that (like California, regrettably) prohibit race-based affirmative action should not be treated, under any diversity index criterion, differently than schools in other states, simply because laws like Proposition 209 (in California) make the accomplishment of diversity more difficult. And so forth.

In fact, there is, as far as we can tell, only one (very small) U.S. News input that is tailored to take account of differences in the various states – the bar pass rate criterion. U.S. News divides a law school's bar passage rate by the bar pass rate of all takers (from ABA-approved schools) in the same state, to minimize the distortion that might otherwise be caused by the widely varying bar passage rates among the states. Yet this is the exception, not the rule.

And this exception is justified by the fact that some state bar exams are truly different from others in their degree of difficulty. But the educational advantages that diversity provides in enriching the learning experience – like the advantages that come from having fellow students with high LSATs and grades, the advantages that come from having good employment opportunities, etc. – are advantages from which students at all law schools would benefit. Those advantages, where they exist at a school, accrue regardless of the particular state in which a student is trying to learn how to be an effective lawyer in the twenty-first century.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Kevin R. Johnson is the Dean of the School of Law and the Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at the University of California, Davis.

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