You might recall that there has been some controversy over Bowen Law School’s LEAP program; it’s not just that some faculty members think the program might be unconstitutional, but also that faculty members could not agree on how the program works or, indeed, what it is. The program was hastily amended; faculty members couldn’t agree on what the amendments meant. The national law blog Above The Law criticized our coverage from the left, immediately followed by Max Brantley’s robotic repetition of Above the Law’s charges. Then a second columnist for Above The Law agreed with what we had to say; mysteriously, Brantley was silent.
In short, there’s been plenty of back-and-forth. We thought it might be best to get the chief administrator of Bowen Law School to explain his perspective on these matters. We sent Dean Schwartz a few questions, and he asked us to be sure to provide his answers in full. Here they are, unmediated: anybody who wants to see Dean Schwartz’s answers in full should click this link. Below is a summary of our questions and his answers: I would suggest that, in a few respects, his answers obscure matters more than they clarify them.
Question: Will race be a factor anywhere in the LEAP program – and, if so, what is the nature of how that factor operates or works?
Dean Schwartz answered that race would not be a factor. He then reiterated that one aspect of the LEAP admissions process would invite students to describe their relevant life experiences, “such as working while completing undergraduate or graduate degrees, type of employment, family structure and dynamics, and challenges the person has to address to continue to move forward in life.” He added that “It is possible that some students who are racial minorities will detail particular challenges they have had in life that they will argue are the product of their status as racial minorities.” Notably, however, if racial-minority status will sometimes create a special credential for admission while non-minority status will not, then it appears race will at some point be a factor.
Question: During the faculty meeting, my notes say that a faculty member, Theresa Beiner, expressed the view that making race a factor in LEAP admissions would not be constitutional. I don’t want to ask you to opine on precisely what was said during the meeting (I have recordings for that), but would you agree or disagree with the statement that it’s unconstitutional to make race a factor in LEAP?
Dean Schwartz answered by explaining that the law is unclear and that the question couldn’t be answered with certainty. But he added that “many would argue that” making race a factor in admissions might be constitutionally proper, “given the fact that the law school has seen a significant decline in diversity applications and admissions.” (In a follow-up email to his comments, Dean Schwartz emphasized that he isn’t making this argument; it is others that are.) First, I think it is fair to note that any construction that uses the phrase “many would argue that” sometimes involves putting a point of view on the table while attempting to avoid taking responsibility for advocating it. Second, while there will always be differences in how best to interpret the leading cases, I think Dean Schwartz is just wrong to say that a history of “decline in diversity applications and admissions” might justify using race as a factor in admissions. That isn’t an element in the constitutionality of any affirmative-action plans.
Question: During the faculty meeting, my notes say that a faculty member, Ken Gallant, expressed the view that race would be a factor in LEAP. Again, I don’t want to ask you to opine on what was said during the meeting, but I hope you’d agree with me that the following question is reasonable given his statement: do you anticipate that there will be any measures taken or safeguards needed to ensure that race doesn’t become a “de facto” factor in LEAP administration?’
Dean Schwartz answered that all LEAP administrators will receive formal training on how to properly administer a race-neutral program.
Question: Do you think admitting students with low LSAT scores into Bowen will affect Bowen’s national rankings and standing?
Dean Schwartz explained in part that the effect of admitting students with low test scores would be too tiny to measure, and added that the success of LEAP students would bolster the school’s reputation. One flaw in his reasoning is that it assumes that a current and required reduction in test scores will be compensated by a future and hypothetical increase in reputation; another flaw in his reasoning is that even slight drops in average test scores can affect competitive rankings. And although I agree with Dean Schwartz’s suggestion that the law school has a duty to serve all Arkansans, I think it’s more than a little controversial for him to suggest that the best way for the school to serve all Arkansans is to lower its admissions standards. That suggestion is more than a little reminiscent of a famous statement on the U.S. Senate floor by Senator Roman Hruska in 1970:
It was his defense of President Richard M. Nixon’s nominee to the Supreme Court, Judge G. Harrold Carswell of Tallahassee, Fla., that brought him some uncomfortable celebrity in 1970.
Liberal Democrats had mounted a strong campaign against Judge Carswell, a member of the Fifth Circuit Court of Appeals in Florida, contending that he was too ”mediocre” to deserve a seat on the nation’s highest court.
When Senator Hruska addressed the Senate in March 1970, speaking on Judge Carswell’s behalf, he asked why mediocrity should be a disqualification for high office.
”Even if he were mediocre,” Mr. Hruska declared, ”there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.”
Question: If you were able to go back in time and change the way that LEAP has been presented and discussed, would you do anything differently?
Schwartz answered somewhat abstractly by criticizing earlier reporting on LEAP, suggesting that “what gets reported is much more likely to premature and inaccurate,” and by claiming that it “demonstrates how the faculty governance process can yield excellent results.” My view of the media’s impact on this proposal is much more positive (I think our reportage led to constitutional improvements), but my view of this particular instance of faculty governance is not nearly so rosy. In fact, what happened here was that two professors sought to force a vote on the matter at the first LEAP faculty meeting when race was explicitly included in the proposal — when the university hadn’t even reviewed the proposal — after only 15 minutes of debate. And the final vote was taken after debate was ended by a faculty member who called the question because she had to go to a meeting after one hour of debate — while the role of race remained indeterminate because one member of the committee proposing the plan said that race was a factor, but another said it was not. If this is excellence in faculty governance, I’d hate to see mediocrity.