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Brian Leiter
University of Chicago Law School

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Sunday, August 9, 2009

An Illinois Law Student Comments on the Mikva Commission Report

I was forwarded a copy of this e-mail sent by C. Chad Henson, a law student at the University of Illinois, to Illinois Law Dean Bruce Smith.  Since it struck me as a very astute analysis of the Mikva Commission Report about admissions, I asked his permission to post it, which he kindly granted.  The text of his message follows:

I am writing in response to the State of Illinois Admissions Review Commission (Commission) report....Though I understand you are very busy, I feel compelled to offer a brief outline of my views. While not consulted on this particular message, some of these views are shared in part by a small group of students and recent alumni who have been writing letters and posting internet messages in support of the College and its former administration. In deciding your response to the report, I hope you will take this perspective into consideration.

 

The Commission's report rightly recognizes [Admissions] Dean Pless's consistent, strong opposition to giving special consideration for admission to politically-connected prospectives. Under Dean Pless's continued leadership, the reduction or elimination of political influence in admissions will continue. Unfortunately, the Commission has recommended broader involvement in admissions decisions and a more formal admissions policy. According to Dean Pless and Prof. Hurd, the reason that the College originally moved to a single locus of discretion for admissions decisions was that multiple loci decrease control over incoming class statistics, which will lower the prestige of the College when it results (as it inevitably will, for obvious reasons) in decreased, inconsistent admissions standards. For this reason, while certain formal admissions procedures may increase student quality, it is important to place a large amount of discretion in Dean Pless's able hands. Full file review of law school applications is a time-honored tradition that should not be lightly abandoned. While the College of Medicine creates a "diversity index" that gives almost-explicit weight to race, I would hate to see the College embroiled in the Constitutional fight that would result from our making such a policy explicit.

 

The Commission also castigates Prof. Hurd for a failure of leadership in her role as Dean. In my view, the error in judgment made by the Commission on this issue dwarfs any that they may lay at Dean Hurd's feet.

 

First, the Commission recognizes that a Dean is subordinate to a Provost, who is subordinate to a Chancellor. As such, a Dean is obligated to acquiesce to a Provost's or Chancellor's instructions so long as they are not illegal or inconsistent with any reasonable interpretation (not just the best interpretation) of broader policy - a chain-of-command issue common to a number of organizations. Since every single instance of decision-reversal indicated in the report was conducted at the behest of the Provost or Chancellor, responsibility for misinterpretations of policy directives lies with those officers if they choose in insert themselves in the admissions process - even if it is not their direct responsibility.

 

Second, the arbitrary decision to examine admissions post-2002 creates a false comparison. By contrasting Dean Hurd's treatment of special admissions with your Administration’s, the Commission effectively ignores evidence that it was Dean Hurd's response to political pressures that brought down the number of special admissions to zero in the last year of her tenure and discouraged University officials from pressuring you. This, incidentally, makes it easy for your Administration to make claims about you would have acted and will act, certain that you will not face the same pressures she did due to her efforts.

 

Third, the Commission's claim that demanding payment for clouted admits represents "resignation rather than resistance" is deeply flawed. As anyone who has taken a basic economics class knows, given a typical demand curve, quantity demanded decreases as price increases. Prof. Hurd's choice to engage in a strategy of reduction rather than a strategy of immediate elimination is not morally problematic and is an effective strategy of resistance - especially if she reasonably believed the elimination strategy would result in harms to law school resources or direct contact between Dean Pless and Provost/Chancellor Herman. By raising the price of special admits (and keeping it high), she was able to reduce the quantity of special admits, gain resources for the school, and ensure that those special admits who were admitted were more likely to have the most value to the University (as reflected in the price the University was willing to pay for them).

 

Fourth, the Commission claims that demanding additional resources to offset the damage caused by special admits creates the appearance of impropriety.  This relies on wrongly comparing refusal special admits to admitting students in exchange for additional resources. Naturally, demanding payment for admits looks worse than refusing, but that makes accepting the special admits in the first place problematic, not the payment demanded. The appropriate comparison would be between accepting special admits without exacting payment and exacting payment. Given these two, I would infinitely prefer a Dean who engaged in the latter action. The former would have caused real harm to the College, encouraged increased corruption, and generally turned our College's Administration into nothing but tools of the University's.

 

Fifth, the Commission criticizes the tone of several e-mails for insulting the People of Illinois. For the most part, those e-mails insulted the Officials of the People of Illinois - hardly the same thing. It's like saying those who protested Bush (or Obama) are denigrating America. For the most part, Hurd's e-mails were contemptuous of the University and Government officials because their actions and character were worthy of her contempt.

 

Fortunately, the Commission has clearly indicated that they expect Deans to act with reasoned judgment and take responsibility for the decisions made at their institutions. This means that the decisions you make are fully your responsibility, and the pressure you may feel from the new Trustees, advisory groups like the Commission, and even elected officials does not relieve you of the moral, ethical, legal, and practical consequences of your decisions. I respectfully request that you take some or all of the following steps in response to the report, in addition to those you have already taken.

 

First, clearly and decisively indicate that you will not initiate and will actively oppose personnel changes at the law school in response to the report. Dean Pless worked hard to fight clouted admissions procedures, and deserves the thanks and respect of our College. Prof. Hurd also deserves our thanks and respect for her efforts to reduce corruption. Even if her strategy was sub-optimal, and I am not convinced that it was, her value to the College as a teacher and scholar remains undiminished and she has indicated no desire to return to the Dean’s Suite.  Her presence at the College, along with Prof. Moore’s and Prof. Ulen’s, initially persuaded me to accept a place here; she has undoubtedly performed that function for many other students – notably female students in a field where strong female role models are sorely lacking.

 

Second, if you wish to add checks to the admissions process, do so in a way that establishes automatic and minimum admissions thresholds. By doing this, you create a baseline “qualified” standard where you can reasonably claim that no unqualified applicant was admitted and a baseline “superior” standard where you can reasonably claim that no superior applicants were denied. Within these broad categories (all applicants “qualified” but not “superior”), Dean Pless should still have the maximum discretion possible, as he has shown he deserves. Right now, the assertion that no “unqualified” applicants are admitted has no basis in fact, but only in verbal manipulation of the term “unqualified” to mean (apparently) whatever the person uttering it wants it to mean. I suggest that anyone with GPA and LSAT scores above the 75th percentile of the previous class be automatically admitted, and anyone with GPA and LSAT scores below the 25th percentile be automatically denied. A slightly more relaxed standard for automatic admission would be to take a cognitive index using (a multiple of GPA) + LSAT and say that anyone who has a cognitive index equal to or higher than the cognitive index of 75th percentile GPA/LSAT is automatically admitted.

 

Third, as part of your initiative to ensure professionalism and courtesy, which you will undoubtedly conduct given the Commission’s “trust” that you will do so, please consider utilizing a closed instant messaging circuit or chat room with no recording, thus enabling necessary frankness in discussion among colleagues. Fidelity Investments used this sort of system (though it was recorded per SEC regulations) to enhance communication across practice groups. In fact, you could even consider a “best practices” investigation in non-recordable communication media.

 

Thank you for taking the time to read this message. I look forward to the next two years under your leadership, and hope to experience even more one day as a member of the faculty. As a student and teacher of argumentation, the problems with the Commission's rhetorical construction of facts and their recommendations are troubling to me. As an ethical human being, the prospect that either will be uncritically accepted is even more troubling. Any steps you could take to mitigate the impact of the flaws in the Commission's report will be welcome. This should begin with your explicit recognition that sometimes moral courage requires strategic engagement with a corrupt system rather than repudiation of it, and that the person who fights corruption is of higher moral stature than both the person who embraces it and the person who runs from it in a moralistic effort to preserve personal purity.

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