Abstract

Excerpted From: Michael Conklin, Boycotts, Race, Rankings, and Howard Law School's Peculiar Position, 22 University of New Hampshire Law Review 279 (May, 2024) (197 Footnotes) (Full Document)

In 2020, novel research measured the disparities between the U.S. News & World Report's overall rankings and the peer rankings of law schools. The research uncovered a stark outlier--Howard University School of Law--whose peer rank was consistently forty-six spots higher than its overall rank. In 2023 another article using updated rankings data from 2022 and 2023 was published. This update found that the disparity has been growing in severity in recent years. The present Article updates the research with the most recent 2024 data released in May 2023. With Howard's overall ranking of 125 and peer ranking of forty-nine, the trend of increasingly disparate overall-peer rankings continues.

Because the overall rankings are largely based on objective factors, such as Law School Admission Test (LSAT) scores, bar passage rates, and after-graduation employment, and the peer ranking is purely subjective, the overall peer deviation provides valuable insight into potential bias in how law schools are viewed. Howard's increasingly pronounced disparity between how it is viewed by its peers and its objective performance measures likely strengthens the original explanation in the 2020 paper: As racial salience increases in society, so does the unique standing of Howard--the most prestigious historically Black college or university (HBCU) law school. This Article investigates potential non-racial explanations that could result in peer rankings that are seventy-six spots above the overall rankings. These include an exceptional law review, use of promotional materials, location, political ideology, notable alumni, professor quality, unwillingness to “game the system,” and statistical noise. All of these non-racial explanations come up short.

This research provides a valuable framework for examining a confluence of events at this critical juncture in time. The 2023 Supreme Court decision striking down affirmative action in college admissions dramatically altered the role of race in admissions. The American Bar Association's (ABA) removal of the LSAT requirement sparked debate about race and standardized testing. The recent explosion of artificial intelligence technologies calls into question the future of legal education and the legal profession. The expected law school enrollment cliff of 2028-29 will profoundly affect law schools. The Varsity Blues admissions scandal calls into question the ability of the well-connected to game the system. The new rankings methodology drastically decreased the significance of grade point average (GPA) and LSAT scores as well as the significance of the peer score as a contributor to the overall score. The decision of top law schools to boycott the rankings immediately after Supreme Court oral arguments in the affirmative action cases illuminated how race was likely a driver behind the decision. Additionally, there is an overall increase in racial salience in society and a movement toward replacing more objective measures with more diversity-focused measures, such as environmental, social, and corporate governance (ESG) investing. Consequently, this Article is also highly informative regarding larger questions, such as what role law school rankings should play, how law schools alter their behavior based on the rankings, and the role of race in legal education and the practice of law.

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The original 2020 study measuring Howard's rankings disparity did not reach an ultimate conclusion regarding whether racial makeup was the leading factor. With the additional data analyzed in this Article, the racial salience conclusion is undeniable. Howard's rankings disparity has not only continued but is rapidly increasing during a time of corresponding increases in societal racial salience. An eighty-seven-spot disparity in rankings that contain less than 200 law schools is an astounding disparity. The peer-overall rankings disparity for all five of the other HBCU law schools further confirms this result. Finally, the timing and underlying reason for why law schools boycotted the rankings support the racial salience explanation. Alternative explanations such as notable alumni, location, and promotional materials may also contribute slightly to the disparity but simply cannot explain a significant amount of the eighty-seven-spot rankings disparity.

The original 2020 study sparked widespread debate in legal academia regarding legal education, race, and the purpose of law school rankings. The present Article, with its updated findings, will hopefully serve as a powerful catalyst to spark further debate regarding these areas. Such discussion has never been timelier, due to a confluence of numerous, interconnected factors. The 2023 Supreme Court decision on affirmative action in college admissions will likely only further increase the focus on race in higher education. There is an impending law school enrollment cliff expected in 2028-29. The Varsity Blues admissions scandal calls into question the ability of the well-connected to game the system. The ABA removed the LSAT requirement for law schools. The new law school overall rankings place significantly less importance on GPAs and LSAT scores. Even the general notion of performing evaluations based less on objective merit seems to be gaining popularity, as seen in the rise of ESG investing.

Future analysis on this issue will provide further insight into the correlation between peer rankings and societal racial salience. There are also other, tangentially related issues that this research elicits discussion on. For example, Howard Law Review's relatively low ranking compared to flagship journals from law schools ranked alongside Howard implies that while legal scholars may be willing to vote favorably for Howard in an anonymous survey, they are not willing to extend the same favorable treatment when it comes to citing to or accepting offers to publish in Howard's flagship journal.

The pragmatism behind artificially boosting Howard's ranking due to its HBCU status is also something that should be discussed in future research. Despite the good intentions of those who do so, the practice may elicit numerous unintended consequences that harm potential students, law firms, legal education, and even Howard Law School itself. Potential law students and law firms rely heavily on the rankings to convey information regarding the quality of education delivered. If subjective, personal opinions about race in higher education--negative or positive--create distortions in the rankings, inefficiencies will ensue. For example, potential students may be mismatched to a law school where they will not live up to their full potential. These students' abilities to network with future legal thought leaders may be diminished. These distortions may also result in law firms making suboptimal hiring decisions. Additionally, the practice of artificially inflating Howard and the other HBCUs in the rankings could be viewed as an example of the soft bigotry of low expectations. In extreme cases, this could even be used as an effective recruiting tool for white supremacist groups.

Powell Endowed Professor of Business Law, Angelo State University; Lecturer, Texas A&M School of Law.