Tony Varona∞

U.S. News and World Report recently released its law school rankings1 and, as happens every year, readers have focused almost exclusively on the many extreme fluctuations in ranks. Why did Schools A, B and C suddenly jump 20 spots? Did the learning experience at Schools X, Y and Z really erode so dramatically as to justify their 25-spot freefall? What will this big drop (or climb) mean for student and faculty recruitment, and alumni employment rates, at these schools?

Instead, or in addition, we should be asking more probing questions, like: Does the U.S. News measuring stick itself measure up? Is it measuring the right things? And what effects have the U.S. News rankings had on legal education and society itself?

If we were to carry a miner’s canary2 into the depths of the U.S. News ranking methodology,3 we quickly would have a dead bird on our hands. Why? Let us look at just one flaw that, standing alone, discredits the U.S. News rankings altogether.

Experts in diversity point to how composites and alloys of diverse elements produce building materials that are much stronger and more robust than their individual parts.4 They reference how reproductive diversity is crucial for the collective health of species.5 There is no dispute that biodiversity itself is a linchpin of the planet’s ecosystem.6 Philosophers such as Montesquieu and Condorcet credited random transactions among diverse merchants for promoting community and trust among different peoples; doux commerce civilized the motley hordes.7 “Effective competition” requires the participation of a diversity of market competitors in delivering the best consumer value. And financial advisors urge us to diversify our investments so that we can better optimize the performance of our portfolios in uncertain markets. 8

In short, diversity pays off in many areas.

In legal education, diversity among students is indispensable. We train law students, after all, to be “social architects”—to serve as ministers of justice among the nation’s very diverse communities. Unsurprisingly then, an awareness of and comfort with the diversity of races, ethnicities and backgrounds that make up our society—and that are dependent upon our legal system—help law students become better and more effective lawyers.9 In his plurality opinion in 1978’s Bakke10 decision, Justice Powell wrote that “[i]t is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this nation of many peoples.”11 Justice Powell’s words later played a prominent role in the Court’s landmark Grutter12 decision, upholding the University of Michigan Law School’s diversity-promoting admissions policy.

Precisely how does a high rate of student diversity benefit all law students?

I teach Contracts to a full section of approximately 80 first-year students every fall at my law school, the American University Washington College of Law. Ours was “the first law school in the world founded by women” (in 1896), 13 “the first . . . founded especially for women,”14 and one of our two founders, Ellen Spencer Mussey, became “the first woman dean of an American law school.”15 Valuing diversity is in our school’s genome. Nearly 60 percent of our last entering class was comprised of women.16 Fully 40 percent are racial and ethnic minorities.17 We welcome many international, LGBT, and disabled students, and students from a spectrum of faiths, cultures and worldviews.

To train advocates, we law professors prefer to conduct our classes less like virtuoso lecturers and more like conductors of well-tuned symphony orchestras.18 Law teaching is a rigorous, high-energy, and interactive exercise. What my students contribute from class to class, therefore, determines to a significant degree the quality, sophistication and rigor of the teaching we are able to achieve together. It should come as no surprise, therefore, that our school’s high rate of student diversity enriches the educational experience for all of my students throughout the semester.

Here are just a few examples from my last Contracts class:

• In our first session, I had the students puzzle over an introductory hypothetical. In what cases should a gift shop’s prominently displayed sign saying “You Break It, You Buy It” lead to contractual liability? Almost immediately, some of my multilingual, multicultural students asked something like: “Would the answer not depend on whether the customer in question could read and understand English?” “What if she were blind, or functionally illiterate?” Important, challenging questions.

• Later, we analyzed a case study involving sex work contracts and the legal bases for their criminalization. In response to several students’ liberty-based arguments for decriminalization, another student presented an eloquent appeal for the subjugation of personal autonomy in favor of communitarian objectives. This value of community over self, tribe over individual, was a decidedly foreign counterpoint delivered by my student from West Africa – a former Christian pastor and community servant.

• When we discussed the Civil Rights Act of 1866 and its provision against racial discrimination in contract formation and enforcement, we considered the refusal of certain hairstylists to “do African-American hair.”19 Some of my African-American students offered enlightening and unique observations, stemming from their personal experiences, about how our legal analysis should consider racial differences in hair texture, the manner in which the customer was addressed and treated, the salon’s clientele, and its neighboring community. These inquiries enabled us to go far beyond the otherwise facile substantive framing provided by casebook.

• In another class, we discussed a viral social media story, likely a hoax but still instructive as a hypothetical case, in which a Chinese father claimed breach of contract against his wife after their biological baby came out, as he put it, “extremely ugly.”20 The father alleged that his wife had surreptitiously undergone facial plastic surgery in order to induce him into marriage. Our analysis was made all the more sophisticated and culturally competent by the contributions of two of my students – one an Asian-American and the other a native-born Chinese student – who described the prevalence of plastic surgery among unmarried young women within Far Eastern societies.

• Our examination of the 1902 Alaska Packers’ Association v. Domenico decision21 was especially telling. Mostly Italian immigrant fishermen in San Francisco were contracted by a salmon fishing and packaging company to sail to Alaska and work in exchange for a flat $50 fee and a commission of 2 cents for every fish caught. The fishermen expected to earn most of their money catching salmon and so were alarmed to find upon arriving in Alaska that the company had plenty of salmon already caught for the fishermen to can and would only provide low-grade fishing nets.22 They refused to work until the company’s representative granted their demand for a doubling of the base fee. After the company broke that promise, the fishermen sued, and lost. The court held that Alaska Packers’ representative had promised the doubled fee under duress, rendering the promise unenforceable.

• Our casebook presents Alaska Packers as a cut-and-dry application of doctrine, but some of my immigrant, working class, and non-native English students argued for the fishermen. They helped show how the fishermen were at a bargaining disadvantage due to a lack of facility with both the English language and American business practices. It was Alaska Packers who acted in bad faith and breached the contract, they argued, by unfairly saddling the fishermen with a backlog of fish and low quality nets. Their arguments were instrumental in bringing to light a more sophisticated and critical legal analysis found only in the best scholarly writing on the case.23

The different perspectives provided by these diverse students, rooted in their own experiences and backgrounds, added depth, nuance and quality to our discussions and debates. Their contributions turned what otherwise would have been rote and simplistic coverage of dusty doctrines into rigorous and careful analyses of the kind that we expect from the most sophisticated of practicing attorneys. Their presence and contributions added significantly to the academic rigor and sophistication of our course, and grounded it in the real world. In other words, they helped produce precisely the sort of learning experience we law professors strive to provide to all of our law students but that would be impossible to achieve in the absence of student diversity.

So, in light of how valuable diversity among students is to legal education, you might be wondering how much weight U.S. News devotes to student diversity in rating America’s law schools. Ten percent? Fifteen?

The answer is… zero.

The U.S. News ranking methodology ignores student diversity altogether in calculating the rankings. It treats a law school with little diversity as virtually indistinguishable from a very diverse school where pedagogically rich exchanges like those above abound.

For a variety of reasons,24 the average underrepresented minority student tends to have lower GPA and LSAT scores – the myopic25 academic credentials that U.S. News “counts” – than his or her White, nonminority counterpart. So, it is easy to see how schools that trade student diversity for higher numbers tend to move up in the U.S. News ranks. By contrast, schools that refuse to sacrifice diversity pay a big U.S. News price for pursuing what most educators agree is best for all our students. U.S. News actually rewards less diverse schools for admitting less diverse classes, and altogether ignores the clear learning advantages at the more diverse schools.

It is no secret that law schools have gone as far as admitting much smaller and significantly more homogenous first-year classes, and then letting many more students in through the 2L transfer “back door” (where U.S. News’s methodology does not look), thereby hiding the true credentials of their students from the magazine and artificially inflating their U.S. News ranks.26 U.S. News does nothing to stop schools from engaging in this obvious manipulation.

The U.S. News editors in charge of the magazine’s law school rankings have known about these (and other) glaring flaws in their ratings methodology for years. I myself, together with colleagues, have spoken about some of these serious shortcomings with Robert Morse,27 the editor in charge of the U.S. News rankings, twice. Despite the professoriate’s reticence to acknowledge and (we fear) legitimize U.S. News’s rankings, colleagues have made some of the same arguments I have made, as well as many others, again,28 and again,29 and again30 (and again31). But to no avail. U.S. News remains unmoved.

Since U.S. News goes so far as to provide diversity data32 separately from the main rankings, why does it not reward schools that are more diverse than others by incorporating a diversity score in the rankings themselves? Mr. Morse insists that doing so would be difficult.33 He has argued that “measuring how successful law schools are at achieving diversity goals cannot be included easily in our rankings formula in a fair and meaningful way.”34 Mr. Morse also has pointed to demographic, statistical and other hurdles.35 And I agree with him that it would not be easy, particularly in light of the challenge of accurately defining, quantifying and weighting indicia of diversity without inadvertently penalizing schools (like historically Black institutions) that serve underrepresented minorities primarily but are not, in the technical sense, “diverse.” (Sociologists Wendy Espeland and Michael Sauder addressed these and other challenges brilliantly in a 2009 article.36) These ambiguities, however, are far less intractable than U.S. News’s current corrosive approach.

Furthermore, it should give pause that Mr. Morse, the guru of the U.S. News law school (and numerous other) rankings, betrays a disturbing ignorance of the significant pedagogical value of student diversity in law school classrooms. He has said that “an important issue” impeding the incorporation of a diversity element into the law school rankings is the “question of whether diversity should even be included in the rankings, given that the main purpose of the rankings is to identify the best schools academically.”37 Apparently, Mr. Morse believes that student diversity and academic quality are competing instead of complementary objectives. Student diversity, he suggests, detracts from academic excellence, despite the Supreme Court’s own findings to the contrary38 and the experience of many law students and law professors in diverse classrooms across the nation, including–as I demonstrate above–my own.

The sad truth is that the U.S. News law school rankings have hurt, and not helped, American law students, the legal profession and, thus, society as a whole. The U.S. News rankings have resulted in the denial of a quality legal education to minority law school applicants with great promise and drive but modest, rankings-unfriendly credentials. It has kept deserving students with great potential in the legal profession outside the doors of quality law schools and the profession itself by encouraging restrictive admissions policies geared more towards gaming the rankings than doing what is right societally, and what is best pedagogically.

Adding insult to injury, U.S. News has done all of this at a time when the demographic complexion of the legal profession continues to lag far behind the increasingly rich diversity of the nation’s population. No less than the president of the American Bar Association, James R. Silkenat, recently bemoaned the fact that the American legal profession looks very little like the population it serves. He noted that “[w]hile people of color will soon be the majority in this country, racial and ethnic minorities constitute just 13 percent of lawyers, and minority women are only 6 percent.”39

None of this, of course, is to say that White, non-minority students do not have a lot to contribute to in-class analyses, discussions and debates. They very much do. The issue is not about who already is present in many American law school classrooms – it’s who is absent. And there is no disputing the reality that U.S. News’s anti-diversity ranking methodology has led to more homogenous and less effective law school classrooms, harming all of our law students and producing a less sophisticated, worldly and diverse legal profession–a result that hurts us all.

Prospective law students should keep these criticisms in mind as they review the new U.S. News rankings. Applicants are right to choose among their law school options with great care and a skeptical eye. But they also should be wary of the U.S. News law school rankings themselves, which are so flawed and misleading that they may very likely do these students – like so many students before them – a whole lot more harm than good.