Fourth Tier My . . .

Commentary

Don LeDuc, President and Dean | October 29, 2012

 

It's time for some plain talk about the major attitude problem in education—particularly legal education—elitism. In America, the country that fought a revolution to rid itself of hereditary monarchy, the titled aristocracy, and governance by a privileged few, we accept a hierarchy within legal education based on very similar characteristics and accorded similar entitlements. In the land of opportunity, law schools that provide access and opportunity are treated as inferior, if not as wrongdoers. And in a culture that has succeeded based on innovation, the legal education establishment discourages change and rewards tradition.

A Caste System

Reinforced by accreditation standards, reliant on peer review to judge quality, and wed to rankings that further entrench the privileged elite, educational institutions are categorized, pigeon-holed, and dismissed in a caste system as restrictive as any in historical Asian culture. Legal education is just about the worst offender in all of education. A school is second-, third-, or, shudder, fourth-tier. Assigning a lower tier label to a school consigns it to law school oblivion; deprives it of being judged on the merits of its program, faculty, staff, and facilities; and makes it a target for the disaffected and mean-spirited denizens of the Internet. 

Law schools like to blame the rankings done by U.S. News and World Report for this condition. That organization's disingenuous ranking system is certainly deserving of blame. But the law schools are fellow travelers. While they denigrate the rankings, they quickly trumpet any move up in those rankings, publicize any mention of their schools on one or another of the specialty lists, and some even lie to improve their position.

Of course, U.S. News favors the elite. The lynch pins of their ranking system are exclusivity and reputation.  Each involves reinforcing prejudices that further reinforce that very prejudice, assuring that the same privileged few retain their privileged position.

Exclusivity Does Not Equate With Quality

Exclusivity rewards exclusion and punishes access and opportunity, exactly the opposite of the needs of our country regarding law schools and lawyers.  A school is better if no one can get into it, worse if anyone who wants a chance to be a lawyer can get into it. A key measure of exclusivity is the percentage of applications a school rejects. A school that rejects lots of applicants gets a higher ranking, which in turn attracts more applications from those who are taken in by this flawed reasoning. 

Most of the applicants to these exclusive schools are pawns. In the fall of 2011, most of the elite schools experienced double-digit declines in applications, but managed to retain their entering class size and entering class profiles despite this substantial downturn. How did they manage this? They have more high-profile applicants than they enroll. Applicants not meeting that profile level, who apply in large numbers, have no chance of getting in, but continue to dream of doing so. Thus, the schools continue to tout their exclusivity, and the U.S. News continues to reward them for being exclusive. And they are exclusive, but how many applications they can induce hopeless candidates to submit is not a valid measure of their quality. 

The only measures used by the schools and U.S. News to evaluate a school's profile are undergraduate grade point averages and LSAT scores. LSAT is a measure of only one thing—predicted first-year class rank based on projected first-year academic performance. And even that measure is a school-specific measure, validated only by studies examining the first-year grade point performance of each school's entering class. The LSAT is not a valid indicator of any other quality or outcome. It is certainly not a measure of the character of a student or of the teachers of that student or of the educational program of that school or of the likelihood that the graduate will be a good and ethical lawyer. 

Likewise, college grade points are not valid measures of anything other than first-year law school performance.  And over the past few decades, the predictive capacity of college grade points has eroded measurably as grade inflation and soft evaluation processes at American colleges and universities have undermined the meaning of the "B" grade point average that once commonly stood for "good" academic performance.     

Good grades in college and high LSAT scores are indicative of the potential for success of an individual in law school and after. But they are not predictive at the level of the minute differences emphasized in law school entering criteria. The idea that the students the law schools at Harvard and Yale are superior to those at Columbia and New York University because the former schools have median LSATs of 173 and the latter have medians of 172 is ridiculous. So is the notion that the students at Western New England and New England are inferior to those at Pace and Albany, whose median LSAT score is one point higher. But that is the way the ranking system works and it is driving admissions decisions at some schools.

The flaw is that none of this measures what happens with and to these students at the law schools they select. The elitists quit thinking about this at the front door. They do not measure the quality of the instruction the students get, they do not measure the improvement in performance of the students attributable to the schools faculty, and they do not measure how these students perform as lawyers. They do not, because they cannot.  And elite law schools do not wish for new measures that might compare how their products do in practice.  Why should they change, when the current system rewards them with prestige and unquestioned, continued high status?

To emphasize these measures so heavily that they largely control judgment about the quality of the law schools is like ranking the quality of vehicles based upon the quality of the steel and aluminum used to build them.  Design, engineering, and performance would be irrelevant, if the exclusive profile premise of the law schools were applied to the automotive world.  Similarly, college and professional football teams would be measured by the quality of their recruiting classes and draft choices; the coaches would be irrelevant and the games meaningless, if the legal education concept were applied to football.

Reputation? Reputation for What?

The reputational aspects of the rankings are even worse, enforcing even more the undeserved importance of elitism.  In the first place, the question "reputation for what?" is never asked, and the concept of reputation is never defined.  The surveys are meaningless.

Half the practicing lawyers in America are in solo or small practice, but the reputational surveys are distributed only to judges--who constitute a tiny fraction of the practicing bar and who tend to hire clerks only from the elite schools—and to unknown "hiring" partners at unidentified law firms.  Of course, only the larger law firms have hiring partners and most of them hire exclusively from their own favored few law schools, mostly the current elite schools that many of them attended. Small firms and solo practitioners do not have hiring partners. Government and business employers, who hire significant numbers of law school graduates, are not surveyed.  How could the reputational surveys do other than confirm that the elite law schools are elite?

Another group of reputational surveys goes to selected law school faculty members, which on its face seems likely to produce better results.  But these surveys are likewise flawed because the legal academy is dominated by graduates of the elite law schools to nearly the same extent as the big law firms. 

The law school faculty surveys have another flaw shared with the hiring partner/judge survey—they solicit the views of the woefully ignorant. While it might seem that law school teachers would know a lot about the nation's 200 law schools, that is simply not the case. 

At best, the most informed individuals in both surveys know only a handful of things about a handful of schools. Most of those surveyed have the attitude that if they do not know anything about a school, that school can't be too good, or they would know it. Most participants in the surveys would fail an easy test regarding the simplest facts about the law schools they attempt to rate, such as which are public and which are private or in which state are they located.

The Legal Academy's Commitment to Elitism Stifles Opportunity and Diversity

Although the leadership of the legal academy echoes the call of the American Bar Association to increase diversity in the profession, its commitment to elitism deters schools from achieving diversity, since to increase diversity means to lower the profile standards they hold so dear.  Blinded by the notion that the sole measure of quality is entering student profile, they cannot accept that a school can have quality if student profile is lowered. 

Some Valid Measures for Law School Quality

This is not to say that the so-called elite schools are not good schools, because at least in my view they are. But so are the schools snobbishly characterized as fourth-tier. What should be the measure of quality of a law school?  I suggest that the following should be considered: (1) the mission of the school and its ability to satisfy that mission; (2)the ability of its education program and curriculum to prepare the graduates of the school for the practice of law; (3) the ability of its faculty and staff to provide the school's graduates with the knowledge, skills, and ethics of the legal profession; (4) the level of service that the school renders to the legal profession and the community in which it is located, including pro bono services; (5) the quality of the school's facilities in providing a conducive learning, training, and working environment; (6) the size and quality of the school's library and information technology; and (7) the value that the school adds to the students it educates. 

Of course, these are hard to define and hard to measure, being inherently subjective. But most of these qualities are measurable. They are certainly superior to the mindless reinforcement that assures that those who were elite yesterday will be elite tomorrow. 

My own school is very good at providing legal education and preparing our graduates for the practice of law. We have a great program of legal education that prepares our graduates for practice in a superior collection of facilities, while providing a climate that fosters professionalism and service. Our access mission, which stresses opportunity and demands performance, allows us to have a highly diverse student body that provides an opportunity to study law to more minority students than any other law school. 

Cooley is not alone in this. All the independent law schools and many university-related schools are automatically considered inferior because of their educational missions or geographical locations or affiliation with particular universities. We all deserve better.