Toward a New Conception of Diversity

Induced More Economic Diversity

The New York Times recently published a ranking of "Top Colleges Doing the Most for Low Income Students."  The ranking relies upon the Times' annual "College Access Index." This index, in turn, employs three factors: (1) the percentage of students receiving Pell grants, (2) the graduation rate of students receiving such grants and (3) the net price, after financial aid, that the school charges low and middle income students.  (See here for a description of the index's methodology.)   The article characterizes schools with high scores on the index as more "economically diverse" than those with lower scores.

The top 15 schools as measured by this index include eight public universities: six from California as well as the University of Washington and the University of Florida.   While disparate in many ways, these eight schools have one thing in common: all are in states that have banned race-based preferences (one form of "affirmative action") in college admissions.  For instance, the 1996 California Civil Rights Initiative, championed by Ward Connerly (pictured above) amended the state's Constitution to provide as follows:

"The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting."

Washington's Initiative 200, enacted in 1998, added the same language to state law.  Moreover, in 1999, Governor Jeb Bush issued an executive order that "prohibit[ed] racial discrimination in education because of race, gender, creed, color, or national origin" and requested the state's universities to eliminate "racial set asides, quotas or preferences in admissions."   Thus, state law in all three states requires schools to employ exclusively race-neutral criteria when making admissions decisions.   Several other states, including Michigan, Nebraska, New Hampshire, Nebraska, Arizona and Oklahoma, have also banned the consideration of race in admissions.  The Supreme Court properly upheld state initiatives that eliminate race-conscious admissions policies in Schutte v. Coalition to Defend Affirmative Action, 572 U.S. _____ (2014).

Of course, some states have declined to ban such discrimination, implicitly authorizing their colleges and universities to consider the race of applicants when making admission decisions.  Some universities have rejected this invitation, however.  For instance, in 2004 the Board of Regents of Texas A&M eliminated the consideration of race when evaluating applicants, after then-Chancellor Robert Gates recommended that "students at Texas A&M should be admitted as individuals, on personal merit --- and no other basis."  (Texas A&M, it should be noted, ranks 29th among the 179 schools ranked in the College Access Index.)

As Richard Kahlenberg and Halley Potter have explained, state bans on race-based preferences in admissions have encouraged colleges and universities to adopt more comprehensive definitions of diversity.  These definitions focus on class and economic disadvantage instead of race and ethnicity. By re-conceiving the definition of diversity, enhancing efforts at outreach and recruitment, and increasing need-based financial aid, these schools have all increased significantly the economic diversity of their student bodies.  In so doing these schools have better fulfilled their intended roles as engines of upward mobility and equal economic opportunity. Moreover, several such schools have seen the racial and ethnic diversity of their student bodies increase or remain the same after replacing race conscious admissions policies with class and/or income based policies.  (See also here.)

The experience of the schools highlighted above provides valuable lessons to other institutions that wish to enhance the economic diversity of their student bodies.  This experience may also have ramifications for the constitutionality of race-conscious admissions policies. To be sure, the Supreme Court has, in Grutter v. Bollinger, 539 U.S. 306 (2003) narrowly upheld the consideration of race by state officials making admissions decisions.  At the same time, the Court held that such preferences are invalid if race-neutral measures will achieve the same objective.  Indeed, the Grutter Court held that schools that employ race in admissions must engage in "periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity."  The Court also observed that "25 years from now, the use of racial preferences will no longer be necessary[.]"  If, in fact, admissions policies based on class and/or income can generate a "critical mass" of diverse students, it would appear that race-conscious admissions policies constitute unconstitutional racial discrimination.

There are, however, two possible caveats to this line of argument.  First, admissions strategies that focus on applicants' class and income may stretch institutions' financial aid budgets and thus be significantly more expensive than policies that emphasize race instead.  If so, schools could argue that a class and income based approach is not a valid alternative.  Second, admissions policies that rely upon class and income may be ill-suited for graduate and professional schools, given that many applicants to such program have been in the workforce for years, thereby blurring the lines between students who are economically diverse and those who are not.

One thing does seem certain, however.  Bans on race-conscious admissions policies have caused many schools to modify their admissions and recruitment strategies, thereby creating institutions characterized by greater economic diversity.  

Tribe Defeats New Hamphsire in Williamsburg

William and Mary posted a convincing win against No. 19/20 New Hampshire today, prevailing 34-18 at Zable Stadium in Williamsburg. The Tribe rushed for an impressive 324 yards, including 174 yards and two touchdowns by running back Kendell Anderson.  Anderson's first touchdown came on a 69 yard run off right tackle at the 9:18 mark in the second quarter.  (The third and fourth photos above depict the beginning and end of the run, respectively.)  Quarterback Steve Cluley rushed for 48 yards and two touchdowns on five carries.  (The first  photo above depicts the beginning of Cluley's first quarter touchdown run, and the second depicts the end of his third quarter touchdown run.) 

Go here for the game's box score.

The Concord Monitor called today's game a "critical midseason showdown" for the Wildcats.  Look for the Tribe, ranked 24 earlier this week, to climb in the FCS rankings ahead of next Saturday's Homecoming game against local rival Hampton University.  

The Tribe is now 4-2 on the year and 3-1 in the CAA.  Go here for the Tribe's 2015 Football schedule.

Should Colleges Encourage Students to "Give Back?"

Said Americans Should Give Back

Disagreed

The September/October edition of Washington Monthly Magazine includes the publication's annual rankings of the nation's colleges and universities.  As the magazine's editors explain, these rankings self-consciously eschew some of the metrics ordinarily employed to assess the quality of institutions of higher education.  For instance, the rankings include no data on the academic quality of incoming students, instructional quality, breadth of course offerings, or whether graduates succeed at obtaining remunerative employment or admission to professional schools.   Under this system, then, a school with mediocre students, horrible teachers, a small number of over-subscribed course offerings, and armies of unemployed graduates could outrank schools that excel on all of these metrics.  

Instead, the Washington Monthly rankings purport to measure each institution's "contributions to the public good," as measured by performance in three broad categories: "(1) Social mobility (recruiting and graduating low income students); (2) Research (cutting edge scholarship and PhDs granted and (3) Service (encouraging students to give something back to their country)."  Washington Monthly asserts that these "three measures would make the whole system [of higher education] better, if only schools would compete on them."  The issue employs these measures to rank universities in four different categories: (1) national universities; (2) liberal arts colleges; (3) master's universities and (4) baccalaureate colleges.

Hopefully colleges and universities will reject Washington Monthly's invitation to compete on these three metrics to the exclusion of others.  In particular, liberal arts colleges should categorically reject calls to "encourage students to give something back to their country." Ditto for national universities that purport to offer a liberal arts education, as many do.  Free societies allow individuals to select and pursue their own vision of the good life, or, as Jefferson put it, to "pursue happiness," so long as that pursuit does not injure others.  A sound liberal arts education in a free society should provide individuals with the intellectual tools and inclination to examine their own lives and determine for themselves what obligations they have to others and society at large and how to discharge such obligations. Schools that purport to provide such an education should not, therefore, consider themselves authorized to select their own version of the good and "encourage" students to embrace and pursue that particular normative vision.  Such an approach hijacks institutions that provide a liberal education and employs them to inculcate students with a particular and controversial vision of moral virtue that reflects the political preferences of each school's leadership.

Proponents of Washington Monthly's vision would no doubt claim that it is "obvious" that individuals who attend the nation's colleges and universities have an obligation to "give back" to the larger society. Think, for instance, of John F. Kennedy's inaugural address, which challenged each American to "ask what you can do for your country[.]"  Many treat this admonition as a fundamental part of the American Creed --- as fundamental as Jefferson's right to "pursue happiness."  Some might even contend that college students have a heightened duty to "give back," in so far as they are fortunate to have received educations not always available to their fellow citizens.

If the existence and content of the duty "to give back" is so obvious, then one might ask why universities must expend scarce resources to propagate this view to their students and tout the fact that they are doing so.  Of course, the existence of such a duty is not obvious. While certainly eloquent, President's Kennedy dictum and the philosophy it expressed are not without equally powerful detractors. Indeed, just one year after President Kennedy's address, Milton Friedman, who would later receive the Nobel Prize for Economic Science, rejected Kennedy's dictum because it "implies that government is the master or the deity, the citizen the servant or the votary."  "To the free man," Friedman continued, "the country is the collection of individuals who compose it, not something over and above them."  See Milton Friedman, Capitalism and Freedom (1962).  Consistent with Friedman's views regarding the appropriate relationship between the citizen and the state, this blogger has previously argued that even billionaires have no generalized duty to "give back" over and above the hundreds of millions of dollars in taxes the State extracts from such individuals and redistributes to others. Government exists to serve the people --- to facilitate individual efforts to pursue happiness. Governments that do so are simply discharging their pre-existing obligation under the social contract; performance of such obligations does not imply that citizens must serve the State.

One need not believe that Friedman was correct and President Kennedy was wrong to reject Washington Monthly's advice to the nation's universities.  One must instead merely understand that there are competing philosophies regarding the appropriate relationship between the citizen and the rest of society, some quite inconsistent with that espoused by Washington Monthly.  Some reject altogether any duty "to give back."  Others derive such a duty from particular religious commitments, while still others invoke a purely secular basis for such a duty.  Some emphasize one's duty to other individuals, while others emphasize a duty to the State or some other manifestation of the community as a whole.  A sound liberal education equips individuals to evaluate these competing accounts and to choose properly between them.  A University whose leadership selects a particular vision and seeks to inculcate its students with it short circuits the educational process and reveals a lack of confidence in the quality of the education it provides.

Should the ABA Mandate The LSAT?

Did Not Take LSAT

Ditto

For years, the American Bar Association has mandated that accredited American Law Schools require applicants for admission to take the so-called "Law School Aptitude Test" ("LSAT") or some other "valid and reliable admissions test."  The ABA also mandates that each school consider the results of such tests when making admissions decisions. Failure to comply with these requirements can result in the loss of a school's accreditation, in which case the school's graduates may not practice law in the vast majority of American states.  (Three states, California, Alaska and Tennessee allow students who have attended unaccredited law schools to practice law.)

Just last year, the ABA relaxed this requirement, allowing a school to waive the test for up to ten percent of its entering class for: "(1) students in an undergraduate program of the same institution as the J.D. program; and/or (2) students seeking the J.D. degree in combination with a degree in a different discipline."   Some law schools immediately took advantage of this exemption, and others followed suit.  St. John's, for instance, created a "Red Storm Scholars" program, whereby undergraduates at St. John's could  apply without first taking the LSAT.

Unfortunately the ABA has pulled the plug on what many viewed as a promising relaxation of the LSAT mandate, reimposing the requirement that each and every accredited law school require and consider this standardized test.  (There is no other "valid and reliable admissions test" on which a school could rely.)  Among other things, the ABA claimed that the new exemption was unfair to so-called "stand-alone" law schools, that is, schools with no connection to a larger university with undergraduate students.  The ABA also claimed that the rule was confusing and that regulated institutions were asking "so many questions" about how to implement the rule that "it was putting a lot of stress on the [ABA] staff."  (See this story, also linked above, quoting an ABA representative to this effect.)

Neither of these rationales for withdrawing the exemption withstands scrutiny.  For instance, one could deal with the unfairness concern by allowing stand-alone schools to accept students from one or more nearby undergraduate institutions.  (For instance, Hastings, a public stand-alone law school in San Francisco, could accept students from the nearby University of California at Berkeley.)  Or, one could simply open such programs to all applicants, and not just those who are undergraduates at the same institution as the JD program or seeking a J.D. degree in combination with with another advanced degree.  Moreover, one could deal with the purported confusion by crafting less confusing regulations!  The fact that a regulation is confusing, too stringent or stressful for the regulator does not ipso facto justify defaulting to an even more stringent regime, particularly when the rationale for the underlying regime is dubious at best (see below).

More fundamentally, the ABA's herky jerky approach to this issue should highlight a more fundamental question.  That is, should the ABA and 47 states consider themselves authorized to impose centralized Procrustean diktats such as the LSAT requirement on American law schools?  Yale Law Professor and author Stephen Carter answers this question with a resounding "no," chiding the ABA for "continu[ing] its ridiculous insistence that accredited Law Schools use the LSAT as an admissions criterion."

Professor Carter is absolutely correct.  Long before the ABA mandated the use of standardized tests, American law schools were selecting students for admission and providing such students with a legal education.  Neither John Marshall nor Thurgood Marshall, both pictured above, took the LSAT or, so far as this blogger is aware, any other standardized admissions test.  Neither did their classmates. More to the point, both matriculated at their respective Almae Matres before any centralized organization required the administration and consideration of standardized tests.  This blogger knows of no showing that American law schools are now producing better lawyers because of the ABA's LSAT mandate.

Of course, individual institutions should be free to require and consider standardized tests if they so choose.  However, as is often the case with the mandates imposed on Law Schools, there is no apparent rationale supporting a coercive one-size-fits all approach to this question. Instead, each institution should be free to experiment with its own methodology of evaluating applications for admission.  Law Schools are repeat players in the marketplace.   Simply put, law schools operate in a highly competitive market for students. Each school has every incentive to select the student body that will exhibit the best chance of academic and professional success, as such success will redound to the benefit of the school in question in various ways. There is no apparent market failure that conceivably justifies mandating that each such school employ a standardized admissions test.  Hopefully the ABA and the states that enforce its requirements will see the error of their ways and abolish this unjustified interference with the institutional prerogatives of the nation's law schools.

Are Ivy League Institutions Playing Politics With Honorary Degrees?

LL.D. The University of Pennsylvania 

LL.D. The College of William and Mary in Virginia 

In a post on the Library of Law and Liberty blog, Professor John McGinnis calls out seven universities in the Ivy League for ideological discrimination in the distribution of honorary degrees. (One Ivy League institution, Cornell, does not award such degrees.)  Professor McGinnis points out that: "of the fourteen honorary degrees bestowed by Ivy League institutions to living Supreme Court justices, twelve went to those on the left of the Court."   Justice Ginsburg, he continues, "is the champ," having received "an honorary degree from every Ivy League university except Cornell[.]" In addition to the twelve degrees conferred on those on the left, he says, Brown and Yale have each conferred honorary degrees on retired Justice Sandra Day O'Connor, whom Professor McGinnis characterizes as "a moderate conservative."

According to Professor McGinnis, no Ivy League university has conferred an honorary degree on any of the sitting Justices that he characterizes as "on the right of the Court."  Presumably Professor McGinnis is referring to Chief Justice Roberts and Associate Justices Scalia, Kennedy, Thomas and Alito. 

Professor McGinnis has certainly identified a curious pattern. Additional research reveals that these schools have had ample opportunity to honor Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito.  (Justice Scalia joined the Court in 1986, Justice Kennedy in 1988, and Justice Thomas in 1991.)  These jurists have served on the Supreme Court for a combined 90 years and performed over 125 years of public service in various positions with the national government. Over the past 25 years, Yale has awarded 241 such degrees, the University of Pennsylvania  has awarded 170, Harvard has awarded 234 (see here and here), and Princeton has awarded 156.  Penn, it should be noted, has awarded the "Doctor of Laws" (LL.D.) degree to such noted jurists as Bono (pictured above), Billie Jean King, Candice Bergen, and Ted Koppel.  Harvard has awarded the LL.D. degree to Bill Russell and Oprah Winfrey, and Princeton to Harry Belafonte.  Moreover, the published criteria for the award of such degrees seem tailor-made for these five justices. Yale, for instance, awards such degrees "to signal pioneering achievement in a field or conspicuous and exemplary contribution to the common weal." Penn states that "candidates should exemplify the highest ideals of the University, which seeks to educate those who will change the world through innovative scholarship, scientific discovery, artistic creativity, and/or societal leadership."  Nonetheless, these seven institutions, which purport to value public service and inclusion, have excluded each of these distinguished public servants from the highest honors they confer.

Fortunately, some colleges and universities are more inclusive when it comes to awarding such degrees, perhaps on the theory that individuals perceived as "conservative" sometimes make positive contributions to the common weal.   Way back in 1991, for instance, the College of William and Mary in Virginia, conferred an honorary LL.D. upon Justice Scalia.  Previously the College had conferred such degrees on Chief Justice Warren Burger (1973) and (then) Associate Justice William H. Rehnquist (1977). (For a list of past recipients of such degrees, go here.)  William and Mary is not the only institution with such good judgment.  Justice Scalia has also received honorary degrees from the University of Notre Dame, Rensselaer Polytechnic Institute, and Marymount University.  He received the Marshall-Wythe Medallion from the nation's first Law School in 2013, and the Thomas Jefferson Foundation Medal in Law from the University of Virginia, which does not confer honorary degrees, in 2008.   Moreover, one or more of the remaining four jurists that Professor McGinnis characterizes as "on the right" have received honorary degrees from New York University, the College of the Holy Cross, the University of the Pacific, and St, Mary's College.  (See here).

Perhaps the seven Ivy League institutions will catch up with institutions such as William and Mary and correct the oversights that Professor McGinnis has identified.  If so, these five jurists will proudly join the ranks of Bono, Oprah, Ted Koppel, Billie Jean King and other recipients of Ivy League LL.D. degrees.   

A Victory for Choice and Competition in North Carolina

Pro-Choice

Anti-Choice

Earlier this week the North Carolina Supreme Court struck a blow for choice and competition in K-12 Education. In Hart et al. v. State of North Carolina and Richardson et al. v. North Carolina,  the Court rejected challenges to the state's Opportunity Scholarship Program in a well-reasoned opinion by Chief Justice Martin.  Like a similar program in Washington D.C. previously discussed on this blog, the program provides financial assistance --- $4,200 per student --- to low income families who choose to enroll their children in certain private schools.  Sometimes called "vouchers," such scholarships implement  the vision of Nobel Laureate Milton Friedman, who articulated the powerful case for educational choice in his now-famous essay "The Role of Government in Education," reproduced here at the website of the Friedman Foundation for Educational Choice.

North Carolina imposes various regulatory requirements on its non-public schools.  (See here).  In addition, schools that enroll students who receive such assistance must employ nationally-recognized standardized tests annually in the third grade and afterwards to evaluate the progress of students in "grammar, reading, spelling and mathematics" and submit the results of such tests to the State's Educational Assistance Authority. ("Authority")  Such schools must also provide the parents or guardians of such students with annual progress reports, including the results of standardized tests and inform the Authority of the graduation rates of such students.  A school that enrolls 25 or more such students must report the aggregate standardized test scores of such students to the Authority, and such aggregate scores are available to the public.     Schools that enroll such students cannot discriminate based on race, color or national origin.  Moreover, the Authority must annually retain an independent research organization to assess the "learning gains or losses" of students who receive such grants as well as the "competitive effects" of the program upon the learning outcomes of students who remain in public schools.  (See N.C.G.S. Section 115C-562.1-7, found here).  

The Authority selected about 2,300 students from more than 5,500 applicants to participate in the program in its first year, at a total cost to the state of $10.8 million.

Plaintiffs, backed by the North Carolina ACLU, raised numerous objections to program.  Most notably, the plaintiffs claimed that the spending authorized by the program did not serve a "public purpose" because some of the schools in which beneficiaries enrolled are not accredited by one or more accrediting agencies and/or employed some teachers that are not certified.  See North Carolina Constitution Article V, Section 2(1) ("The power of taxation shall be exercised in a just and equitable manner, for public purposes only, and shall never be surrendered, suspended, or contracted away.") Plaintiffs also made a related claim that the program failed to "guard and maintain" the privilege of education guaranteed by Article I, Section 15 of the state constitution.  Indeed, a lower court had ruled that the "General Assembly fails the children of North Carolina when they are sent with taxpayer money to private schools that have no legal obligation to teach them anything." (Emphasis added).

The North Carolina Supreme Court properly rejected these and other claims.  As explained above, the Opportunity Scholarship Program contains numerous features, including annual testing, reports of the results to the state, and annual progress reports to parents and reports on graduation rates that enhance the accountability of private schools to families and the public.  The most important such mechanism, however, is market competition, the institution on which free societies ordinarily rely to ensure the production of high quality products and services.  Such competition, bolstered by background rules of contract and tort law, includes rivalry among various private schools as well as rivalry between private schools and their public counterparts, including the State's 147 Public Charter Schools.  Contrary to the implication of the district court's reasoning quoted above, no North Carolina children "are sent" by the state to a private school. Instead, parents or guardians voluntarily choose such schools over the free public school, and any public charter school, the child is entitled to attend.  Many middle class families already have sufficient financial resources to choose private schools for their children, and the U.S. Constitution guarantees them that right.  The Opportunity Scholarship Program increases the number of competitive options available to low income families, thereby facilitating their participation in the same educational markets, and attendance at the same schools, that middle class families have enjoyed for decades. Absent some substantial market failure, and none is apparent, there is no reason to believe that educational outcomes will suffer.  Organizations such as the ACLU, which purports to stand for "choice" and even invokes the Statue of Liberty on its logo, would do well to reconsider prior opposition to such programs, opposition that, when successful, entrenches anti-liberty state monopolies subsidized by the taxpayers, many of whom would prefer to send their children to private schools.

To be sure, accreditation and professional certification can sometimes improve the quality of products offered by some market actors.  Any such improvements come with countervailing costs, however. Such costs include the out-of-pocket cost of compliance, the cost of monitoring such compliance, the reduction in innovation resulting from regulatory mandates, and the exclusion of otherwise qualified individuals from the occupation in question.  See generally Milton Friedman, Capitalism and Freedom, Ch. 9 (1962).  At the same time, many markets for complex products function quite well without such governmental intrusion.   No certification agency decides what apps Apple will include on its latest I-Phone or whether and how Amazon will attempt to compete with Wal-Mart.  Indeed, Wake Forest University, founded in 1834, was first accredited in 1921. Davidson, founded in 1837, was first accredited in 1917.  So far as this blogger is aware, faculty who have taught at such institutions were never "certified" by any independent body.  It's hard to imagine that these institutions did not serve "public purposes" until 1921 and 1917, respectively.

Presumably the North Carolina Legislature understood the role that markets play in ensuring educational quality and took account of the costs and benefits of additional regulatory intrusion.   The legislature obviously decided that, on balance, the Opportunity Scholarship Program enhanced the public welfare by facilitating individual choice, bolstering educational competition and enhancing educational outcomes. Indeed, the State has long declined to impose stringent regulatory oversight on its private schools, trusting market competition to assure quality, and the Opportunity Scholarship Program imposes additional regulatory requirements on those schools that accept scholarship recipients.  As Chief Justice Martin eloquently explained for the Court, this determination was a quintessentially legislative judgment and, of course, subject to legislative revision as new facts about the operation of the program become available.  Hopefully the Court's decision will clear the way for an expansion of the program and thus additional reliance upon choice and competition in the provision of education in the Tar Heel State.