The Volokh Conspiracy

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Judge Ho Boycotts Yale. Yale Boycotts U.S. News Rankings.

Boycotts can be used to fight bias against conservatives and progressives.

|The Volokh Conspiracy |


Yale Law School is withdrawing from the rankings compiled by the U.S. News World Report. The rationale? The rankings are biased against the progressive institution!

"The U.S. News rankings are profoundly flawed," Yale Law School Dean Heather Gerken said. "Its approach not only fails to advance the legal profession, but stands squarely in the way of progress."

Specifically, she said, the rankings devalue programs that encourage low-paying public-interest jobs and reward schools that dangle scholarships for high LSAT scores, rather than for financial need.

I would add one other possible rationale. This decision was made in the shadow of Students for Fair Admission v. Harvard. The Supreme Court will very soon make it difficult for elite private universities to use racial preferences for admission. Post-SFFA, the law school could no longer justify wide gaps between admission rates for applicants of different races. They can no longer rely on "personal" scores and other subterfuges. As a result, if Yale wants to keep its racial diversity numbers high, the overall LSAT and GPA scores would have to drop. And that decrease would affect the law school's rankings.

Justice Thomas aptly described the dilemma facing Yale in Grutter.

One must also consider the Law School's refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce "academic selectivity," which would in turn "require the Law School to become a very different institution, and to sacrifice a core part of its educational mission." Brief for Respondent Bollinger et al. 33–36. In other words, the Law School seeks to improve marginally the education it offers *356 without sacrificing too much of its exclusivity and elite status. [FN4]

[FN 4]: The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of "diversity" are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School's reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all.

The proffered interest that the majority vindicates today, then, is not simply "diversity." Instead the Court upholds the use of racial discrimination as a tool to advance the Law School's interest in offering a marginally superior education while maintaining an elite institution. Unless each constituent part of this state interest is of pressing public necessity, the Law School's use of race is unconstitutional.

Yale can can maintain its racial diversity by sacrificing its elite status. But these elite universities do not want to sacrifice their elite status. Cam Norris made this point during arguments in SFFA:

Cameron T. Norris: I mean, I think that's our point, that—that SAT scores would go from the 99th percentile to the 98th percentile. That's not sacrificing academic excellence. That's moving Harvard from Harvard to Dartmouth. Dartmouth is still a great school. They get 98th percentile SAT scores. We've got to make some sacrifices.

Sonia Sotomayor: I—I—I don't—I—I actually —

Elena Kagan: There are those who love it.

Sonia Sotomayor: Yeah. (Laughter.)

Harvard could become Dartmouth. Yale could become Virginia. And so on. Or Yale can remain Yale, in a bubble. Withdrawing from the U.S. News program now gets ahead of those shifts.

Let me add a point in closing. Yale is boycotting U.S. News because it is biased against progressive institutions. I would be remiss if I did not draw an analogy to Judge Ho. He is boycotting Yale because it is biased against conservative institutions. Boycotts work to change behavior!

Update: Harvard Law School is also boycotting the rankings. Stanford and the other Ivies will probably follow. U.S. News may soon implode like FTX.

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the President of the Harlan Institute. Follow him @JoshMBlackman.