In today's LA Times, Boalt Prof. (Young) Goodwin Liu has an op/ed piece countering some of UCLA Law Prof. Rick Sander's conclusions about the effects of affirmative action in law schools. Prof. Sander has an abridged version of his findings at Volokh beginning here.
I'm not taking issue with the effects of affirmative action or any of the traditional debate around the issue (suffice it to say I find Prof. Liu's points persuasive, while Prof. Sanders raises some tough questions about means and ends of affirmative action). And this may come as a heresy to some on the Left Coast, but I for one think affirmative action is a noble idea, but it's inherently flawed. I'll let that statement speak for itself.
My main concern is with the more global issue at stake. Those opposed to affirmative action (or even Rick Sander who's not opposed per se) work on the assumption that a pure academic merit system is the best. THAT is what I want to question. Simply put, why should access to legal education be limited to GPA and LSATs? Now before any libertarian or underachieving white males (kidding) dismiss this question as preposterous, I ask that you lend me your ears.
MAYBE, if our goal was to create the best legal thinkers possible, i.e. academics, I might see such a constraint in admissions as, well, admissable. But we're not. In a profession that's heavily based on writing ability, candidates are only evaluated on a three-page max personal statement (I dare not count the writing section of the LSAT). Going further, there's been considerable discussion in the blogsphere regarding the nature of legal education as a whole, with some calling for more practical training. Again, if our goal is not to train the best legal thinkers but the best lawyers, then why aren't clinical programs a core part of the training? Would GPA and LSAT scores continue to be the best predictors available if for example half of a law school's curriculum was clinical?
Those are all questions I'm throwing out there, but fundamentally, I don't see legal education as an exercise in intelligence but more as a right of passage to gain access to a commodity...a very precious commodity. In this age of the regulatory state, I really can't imagine anyone arguing that a knowledge of the law is meaningless. Al Pacino had a line in the movie "The Devil's Advocate" where he said something to the effect, "We're the new clergy." I think it's a somewhat valid comparison. Imagine if we were in medieval Europe where access to God defined power. Who gets such access? On what basis do we evaluate those worthy of such access? WHY WAS THERE SO MUCH RESISTANCE TO LUTHER WHEN HE GAVE THAT ACCESS TO THE MASSES???Of course, everyone was more than welcome to choose a second-tier religion.
Just so we're clear, I think that there is great injustice when access to something as powerful as a legal education is denied to certain segments of society. I don't know if race-based initiatives are the answer to this, in fact, I'm fairly sure they're not. But I'm even more certain that the traditional merit-based only systems proposed by those opposed to affirmative action, are without...dum dum dum...merit.
[UPDATE: In re PG's Post above, replace every time I say legal education with good legal education as defined by the profession. That is all.]