Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Friday, August 7, 2009

Mikva Commission Report on Admissions at the University of Illinois

The final report is now out.  It is a shame that it contained no real investigation of the individuals with the clout who put the gun to the head of university officials, but it will at least have the salutary consequence of making it very hard for those with political muscle to get their friends and constituents admitted to the university.  But given that the Commission qiute clearly failed to investigate the real wrongdoers, its finger-wagging at university officials, stripped of all relevant context, can only be described as disgraceful.

In essence, the Report describes in great detail how "clout" admissions worked at the university, but contains no real analysis or investigations into why this all happened.  On pages 15-19, we get details of how numerous political figures got special consideration for their candidates.  Not once does the Commission Report inquire into why it might be that these inquiries from powerful politicians elicited such solicitude.  The Report notes (p. 29) that the College of Law's "response to forced admissions from the Chancellor's Office was more one of resignation rather than resistance," but fails to ask why that might have been so.  Why would the College of Law have been "resigned" to having to admit certain students?  Isn't that relevant to this inquiry?  One might have thought so.

The problem confronting the Commission, of course, was in part that the actual wrongdoers wouldn't, for the most part, appear.  In a footnote on page 11, we learn that of the ten state legislators asked to appear before the Commission, only three did so--while none of the legislators with leadership positions in the House or Senate who used their "clout" to get special consideration for candidates deigned to appear.  This is like investigating the consequences of extortion without looking into the behavior of the extorters.

But perhaps these politicans had nothing to fear from this toothless Commission?  After all, State Senator Lauzen, who appeared voluntarily, to testify about his "inquiries" on behalf of a constituent was given a free pass by the inquiring minds on the Commission:

Senator Chris Lauzen appeared voluntarily before the Commission and testified with respect to this applicant, who he identified as a constituent. The Commission notes, consistent with Lauzen's testimony, that no documents or other information indicate that Lauzen himself applied pressure or sought to exert other undue influence, in connection with this applicant. However, Senator Lauzen’s interest in the applicant alone was enough to trigger Herman to direct a significant accommodation by the COL.  (p. 29)

Does the Commission then inquire into why his mere "interest" would "trigger" such actions?  Does the Commission opine on the "appearance of improriety" when a State Senator "inquires" on behalf of constituents applying for admission to state universities?  The answer in both cases, sadly, is no.

Here is what a real investigation might have uncovered:  that university officials knew from many years of bitter experience that failure to "jump" when "inquiries" came from State Senators, Governors, House Minority Leaders, and so on would have ramifications for the university--not for the officials who rebuffed the inquiries, but for the students and faculty of the university, whose salaries, curriculum, and extra-curricular opportunities depend heavily on public funding.  (The Commission Report spends real time on only one other source of "clout" admissions:  big donors.  In a remarkable lapse of analytical insight, it never once notes the connection between the "clout" of big donors and the clout of politically powerful officials.)  Budgets are worked out over many months, through many committees, and individual meetings and informal exchanges.  Do we know everything that is said in these meetings and sessions?  We do not.  And perhaps those wielding the gun are too careful to ever cock it or even display it; sotto voce warnings and understandings are often far more effective.   To be sure, since the Committee did no real investigation, this is merely speculative, but ask the question:  why would a mere "inquiry" from Senator Lauzen "trigger...significant accomodation"?  Why did the Chancellor of the University "jump" when the Governors and powerful state legislators mentioned on pp. 15-19 asked for "special" consideration for their favored candidates?

What other explanation could there be? 

To be sure, you might say, the Chancellor and the Law Dean could have "blown the whistle" on these shenanigans.  Even putting aside the consequences that would have had for the university, for its "innocent" faculty and students, the Chicago Tribune stories and now the Commission Report make all too clear why it never crossed any university official's mind to go this route:  they, as the easy targets, would be blamed, and those with political power would go unpunished.  Thus, the university administrators made a devil's bargain:  secure a favorable audience for university needs in Springfield by admitting a small number of less qualified candidates (something the university, of course, does all the time for a whole host of reasons unrelated to "clout").  As I noted at the start, the one salutary outcome of this whole affair is that the bargain can now be broken, without anyone with political power being able to blame the university.  It is a shame that it had to be done, though, based on a smear campaign against university administrators.

At page 32 of the Commission Report there is the following remarkable and understated admission:    "To be sure, [former Dean] Hurd should not have been placed in the position of having to fend off highly dubious administration directives in the first instance."  Well, yes, it was nice of the Commission to notice!  But then the report continues:  "[N]evertheless, more should be expected of Deans...."   Like what?  That they fall on their sword at every affront and abandon the institution--the students and faculty--they are committed to serve and protect?   Under the circumstances, former Dean Hurd actually appears to have done the right things:  she resisted when she could, and sought help for her unit when forced to acquiesce.  In the process, and lost in all this, is the fact that she improved the College of Law's faculty and national reputation quite significantly during her tenure.  Who doubts she, like any Dean, would have preferred not to make the devil's bargain--and now especially when the actual "devils" get a free pass for their misconduct.

Remarkably, the Report then cites current Dean Smith's firm statement in opposition to clout admissions as though it shows him to be higher-minded than his predecessor.   Really, now!  What did they expect the Dean to say after all the adverse publicity, publicity which now insulates him from any consequences for taking the high road on admissions policy?  

It is a shame that the Commission did not undertake an actual investigation into the causes of "clout" admissions policy at the university or into the actual wrongdoers who wielded that clout.  It is a shame they presented a cartoon caricature of administrators, with no attention to their actual motives, the constraints under which they operate, and the multiple constituencies they must serve.    But at least the Report will now give the needed cover to future administrators at the University of Illinois to do what their predecessors would have loved to do too:  namely, tell influence-peddling politicans, "sorry, our hands are tied."

http://leiterlawschool.typepad.com/leiter/2009/08/mikva-commission-report-on-admissions-at-the-university-of-illinois.html

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