A Market-Based Solution to the Affirmative Action Debate

Let law schools honestly state their priorities and applicants make knowing choices

As I wrote here, Yale, Harvard and Berkeley law schools have abandoned the USN&WR rankings, largely because they are based in significant part on the objective and achievement-oriented LSAT. Those schools have now been joined by other highly ranked places, to wit, Stanford, Columbia, Georgetown (where I teach as an adjunct) and Michigan. More may follow. In addition, and shortly thereafter, the ABA voted to end its requirement that law schools use the LSAT or other standardized test when admitting students. The assault on standards is underway full bore.

The NYT today has an interesting opinion piece predictably applauding the coordinated attack on objective testing and ranking. The piece contains a good deal of fluff and diversion, but at least obliquely mentions what’s actually going on:

And their reasons for boycotting U.S. News are not just quibbles about ranking methodology or unreliable statistics. The deans are making a powerful claim that the formula used by U.S. News rewards wealth and privilege by subtly penalizing law schools that seek to provide access to the legal profession for people from less privileged backgrounds and help prepare their graduates for careers in public service.

Some observers have speculated that this explanation may conceal other motives, such as a desire to circumvent the Supreme Court’s expected decision outlawing racial preferences for admissions. Or that Harvard (No. 4) and Berkeley (No. 9) are simply dissatisfied with their current rankings, though that would hardly explain top-ranked Yale. The risks of being punished by U.S. News are so big, however, that I think we must take the deans at their word and therefore focus our attention on the merits of their objections, rather than speculate about their motives.

You can’t miss how tepid this is. We’re supposed to “take the deans at their word” rather than explore the extensive evidence, presented by plaintiffs’ counsel in the Harvard and UNC cases, that the real purpose of the “diversity” rationale is simply to increase — to whatever level is satisfactory to the Princes of Wokeness — the number of black and Hispanic students regardless of their readiness, or lack of readiness, to succeed in a rigorous academic program. If, as we know will happen, this results in invidious racial discrimination against white and Asian applicants (discrimination most frequently plastered over with euphemisms although sometimes spoken out loud) — well, hey, look, that’s how the cookie crumbles. Besides, we need to “get over our privilege.” Since in this view all of American history, including and especially its educational elites, is but a footnote to the slave trade, Amerika has it coming. And if the particular segment of Amerika that winds up paying the price is a bunch of 22 year-old’s who had less than nothing to do with slavery or Jim Crow, well, too bad, guys. Whiteness is so yesterday.

One of the reasons I stopped being a litigating lawyer and started being a teacher is that it dawned on me that culture is more powerful than law. We see that here. The Supreme Court seems poised to strike down racially rigged admissions procedures as illegal, either under the Civil Rights Act or the Equal Protection Clause or both (more likely the former). Rather than accept this ruling, the Law School Elite, far more devoted to their view of social justice than to either obeying the law or teaching their students mastery of it, will defy the Court’s decision. The defiance will take the form of just erasing the objective criteria from which anti-white and anti-Asian bigotry can be shown, and replacing them whole cloth with gossamer pretend-criteria that do a much better job of hiding what’s going on.

(Anyone who thought that one of the things law schools were supposed to teach students was fidelity to transparency and candor, well, ummmm, see me after class).

Still, I want to be fair to the pro-affirmative action side. There are people who believe in good faith that blacks are so far behind the structural Eight Ball that affirmative action, even with its unfairness to whites and Asians, is our only way toward a level playing field and giving blacks a decent chance in life. I think this is entirely misguided for several reasons — that we’ve tried it and it doesn’t work; that it approves the social poison of racial classification; that it sets up for failure the very people it’s supposed to help; and that the real problem isn’t even race to begin with but patterns of marriage, employment and child rearing that occur in childhood, not early adulthood. But I’m unwilling to brand everyone who disagrees with me as execrable or anti-American. There still is such a thing as just being wrong. And the wrong side has lots and lots of members, including in the White House and a majority in the Senate, among other places.

Given the standoff between the anti-race conscious forces who appear likely to win in the Supreme Court, and the pro-affirmative action forces whose iron grip on academic culture continues, what is to be done?

This is hardly my area, but let me make a suggestion based on that long-time conservative favorite, free markets and consumer choice. Let law schools say out loud and honestly what their priorities are, then let applicants decide for themselves. That is (so long as they don’t take government money), places like Harvard, Yale, and Stanford, et al., should just go ahead and say that, while academic rigor is desirable, their criteria for admission will be geared toward creating — as they put it — a more diverse, inclusive and egalitarian society and legal profession, and their admission decisions will be undertaken in that light and will prominently include racial preference. Other law schools can say that they aren’t focused on what the student body will look like, and that admission decisions will be based for by far the most part on objective measures of aptitude and achievement. The goal of what they will offer in the classroom is insight, scholarship and excellence, and everything else is in second place.

Then let the market sort it out. I confess I have no idea how this will work. It could be that the Harvard-Yale-Stanford group will continue to draw the most talented applicants, based simply on brand name. Indeed, I think that’s the most likely outcome in the short run. But the long run might look considerably different. Ironically, if that’s what happens, it will have the more egalitarian effect the Wokesters say they want, as, say, the Notre Dames of the law school world begin to compete more successfully for the top students, or at least those top students who stay convinced they weren’t wasting all that time in studying rather than partying.

A market-based solution is another way of saying a freedom-based solution. Let the diversity-equity-inclusion priority compete honestly and openly with the excellence-scholarship priority. Law school applicants (and, later, employers who make their money winning cases) can decide who wins.