an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The March edition of National Jurist has an article by Rebecca Larsen entitled "Most Diverse Law Schools," along with a "Diversity Honor Roll" showing the top 45 schools graded for diversity from A+ to B+. There has been some talk about including a diversity measure in the annual law school ranking U.S. News publishes. Though U.S. News has always deployed a methodology that would embarrass any statistician, National Jurist has set a new low in the utter cluelessness behind its new ranking.
Diversity is a goal that law schools pursue on the view that the educational experience for all students is enhanced when they learn among students from different backgrounds. Recognizing this interest, in Grutter v. Bollinger (2003), the Supreme Court held that in assembling a law school class, a public law school can take account of an applicant's race among other factors in the quest for classroom diversity. Schools cannot engage in racial balancing or use any sort of quota system. Race can also never be a decisive factor in law school admissions but just one consideration as part of a holistic review of a candidate's application. (The same rules are presumed to apply to private law schools under federal statutory law.)
National Jurist's report on the most diverse law schools is entirely ignorant of these ground rules. Its "honor roll" is derived from a methodology focused entirely on race. National Jurist explains that the grades it has assigned law schools
reflect the percent of students and faculty who are minorities, modified by how the school compares with its state average for minority population. First, we sorted all law schools by a calculation that counted percent of minority students in 2009 for 66 percent and percent of minority faculty in 2009 for 33 percent. We then assigned a letter grade, using a modified curve--assigning a roughly equal amount to each letter grade (A, A-, B+, B, C+, C, C-, D and F). We then improved the letter grade by two levels if the school's minority student population was 60 percent higher than the state average (four schools), and we improved it by one level if it was 25 percent higher (12 schools). We lowered the letter grade by one level if it was 40 percent less than the state average (53 schools) and we lowered it by two levels if it was 60 percent less (22 schools).
In other words, while Grutter rejects a singular focus on race and rejects efforts to calibrate racial composition in light of general population levels, these things produce the highest grades in the National Jurist study.
(There are also some outright curiosities to National Jurist's report. Howard University, for example, receives an A+ on the diversity honor roll for its 78.2% Black students--making Howard surely one of the least racially diverse schools in the nation.)
The strangest aspect of producing the honor roll in this way is that it provides entities like the Center for Individual Rights (the organization that has led anti-affirmative action litigation around the country) with the list of law schools that might be ripe for attack for their admissions practices and their faculty hiring (for Grutter says nothing about diversity among professors as being a compelling interest).
This is not to say, of course, that the schools on National Jurist's honor roll are flouting the law. There might be, and probably there are, perfectly lawful reasons why those schools have ended up with high percentages of racial minorities among their student and faculty. But this only highlights an additional shortcoming of the National Jurist report.
Throughout Rebecca Larsen's story, there are interviews with deans from law schools that score high grades on the diversity index. The deans don't talk only about race when they talk about the diversity of their institutions. Instead, they identify students from abroad, students from different faiths, students from low-income families, and students with a range of political viewpoints. That's what Grutter meant by diversity--and that's the context in which Grutter permits law schools to take account of race.
Constructing a single diversity index true to Grutter is obviously much harder than ranking numbers of students and faculty who fall into certain racial groups. But the difficulty of that task reflects the precise point of Grutter: race, standing alone, is not a measure of anything.