U.S. News & World Report's "Best Graduate Schools 2012" law school rankings were released last week. Once again, the magazine refuses to consider diversity as a factor in its ranking system. I am happy that my school's rank improved again this year - mostly because I can criticize the decision to ignore diversity without sounding like a crybaby.
There is a broad consensus among law school deans and professors that diversity enriches law school education. The Association of American Law Schools identifies diversity as a core educational value. In Grutter v. Bollinger, which involved a diversity admissions program at the University of Michigan Law School, Justice O'Connor wrote:
[The Law School asserts] 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.
If diversity makes a law school education better, what justifies refusing to consider diversity in ranking the "best" law schools? Robert Morse, the director of data research for U.S. News, makes the following argument on his blog:
U.S. News doesn't incorporate its current diversity index into the law school rankings, because measuring 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. The current U.S. News diversity index does not measure how successful law schools are at achieving diversity against a benchmark. 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?
In other words, Morse says it would be unfair to include diversity in the rankings without adjusting for the advantage this supposedly gives to schools located near a diverse population. And, he seems to say, making that adjustment would be far too complicated. Putting aside the validity of his assumption that geographic location provides such an advantage, Morse's argument raises this question: Did U.S. News consider "fairness" in deciding to include the factors that are already a part of its ranking methodology, or is fairness only a concern when it comes to excluding diversity as a factor?
Malcolm Gladwell's essay on the U.S. News rankings, which appeared last month in the New Yorker, suggests the answer:
Both its college rankings and its law-school rankings reward schools for devoting lots of financial resources to educating their students, but not for being affordable. Why? Morse admitted that there was no formal reason for that position. It was just a feeling. "We're not saying that we're measuring educational outcomes," he explained. "We're not saying we're social scientists, or we're subjecting our rankings to some peer-review process. We're just saying we've made this judgment. We're saying we've interviewed a lot of experts, we've developed these academic indicators, and we think these measures measure quality schools."
It is true that U.S. News explicitly considers the amount of money spent per student as a factor in its ranking methodology. In fact, virtually all the factors that are part of that methodology are driven by spending money. A rich school can have a lower student/faculty ratio because it can afford to hire more professors and enroll fewer students. Money buys students with top grades and test scores, just as it buys professors with the credentials that influence academic reputation. In fact, it is hard to find any aspect of the U.S. News methodology that cannot be manipulated by throwing money at it. It is no surprise, then, that the law schools at the top of the rankings all have endowments in the hundreds of millions, even billions, of dollars. As Gladwell points out, the dominance of money in the rankings methodology has played a large role in driving up the cost of higher education in this country.
Morse understandably doesn't try to justify this methodology on the grounds it is fair. After all, it would be hard to justify a system that rewards entrenched wealth on the grounds of fairness. His justification is, he admits, only his subjective judgment, backed by so-called experts, that "these measures measure quality schools." Maybe they do. But notice that Morse does not suggest that the rankings need a complex system to adjust for the advantage of wealth, or any other factor, in his current methodology. All that seems to count, he says, is whether a factor is a measure of quality.
So why does the magazine consider fairness to be irrelevant when a rich school exploits the benefits of its resources, while fairness only becomes an issue when a school serving an urban population asks that the benefits of diversity be recognized? The conclusion is hard to avoid: The fairness argument is a smokescreen for the subjective judgment that diversity is irrelevant to educational quality. In this, U.S. News is at odds with the "experts" in the legal academy.
Victor Gold is the dean of Loyola Law School, Los Angeles, where he has been a member of the faculty since 1984. He recently launched the Advocacy Institute, designed to give Loyola students enhanced opportunities for practical skills training.