By Dale Whitman

At its core, being ethical means that we will do the right thing even when it is contrary to our perceived self-interest. Good behavior is easy when it conforms to self-interest, but most of us believe and hope that we will have the moral courage to act well despite the fact that we will suffer some negative consequences.

The large and apparently increasing influence of the law school rankings published by U.S. News and World Report is putting this hope to the test, and I fear that we are not always meeting the test admirably. The desire for high rankings seems increasingly to induce us to behave in ways that we would not otherwise choose, and to distort our educational judgments and priorities.

Let me offer a few illustrations. All are couched in terms of anonymity, for my purpose here is not to embarrass anyone or any institution, but rather to encourage dialogue and introspection on these issues.

Item: Law School A has rigorous admission requirements and draws from a national applicant pool. The school obtains nationwide lists of students whose credentials are well below the typical admission levels, and writes letters to them (accompanied by glossy color brochures, of course) encouraging them to apply for admission at Law School A. The letter implies, without quite saying so, that the recipient has a good chance of admission. Of course, the vast majority of students who receive these letters and apply are rejected.

Why would Law School A engage in this program? Because it increases the number of applicants, and hence the ?selectivity ratio? of the school, thus improving the school?s U.S. News ranking. (The $50 application fee from each of these disappointed students is a small fringe benefit. The school may even be willing to waive it.)

Item: Law School B is a relatively elite school in an urban area that includes several less prestigious schools. Each summer after Law School B?s ?competitors? award the final grades to their first-year students, Law School B contacts those at the top of their classes and aggressively encourages them to transfer to Law School B. Many of them do so. The effect is to ?skim the cream? from the competing law schools? classes.

How does Law School B benefit from this practice? It can maintain the overall student body size that fits its building and budgetary needs, while admitting a smaller and more selective first-year class. Hence, its first-year class credentials can be higher than would otherwise be the case, thus improving its position in the U.S. News ranking. It can assuage any feelings of discomfort with its practices by reminding itself that it is really doing a favor for the transfer students, allowing them to bask for two years in the glow of its greater prestige. The faculty and administration at the competing law schools across town do not share this enthusiasm.

Item: The Admissions Committee at Law School C, a second-tier school, is meeting to make the final decisions of the year. Among its pool are two students. John has a 3.6 gpa and a 158 LSAT. He is just graduating from college, and there is nothing in his background to suggest that he has any peculiarly attractive qualities. Mary has a 3.7 gpa, but her LSAT is only 154. She has taught in the public schools for two years, and has served as a Peace Corps volunteer in Africa. The committee is enthusiastic about Mary, believing that she will add maturity and perspective to the entering class. The associate dean, after doing a brief calculation, informs the committee that admitting Mary and a few others with similar credentials will probably bring the entering class median LSAT down from 157 to 156 ? which in turn, may just be enough to ?drag? Law School C from the second tier to the third tier. If John and others like him are admitted, on the other hand, they will maintain the existing median LSAT or perhaps raise it slightly. The committee, seeing the wisdom of keeping the school in the second tier, admits John and rejects Mary. It follows a similar approach with the other remaining applicants in filling its class.

Item: The dean of Law School D is talking with her placement director. ?Do we have any students from last spring?s graduating class who are still unemployed?? ?Unfortunately, we do,? the placement director replies. ?There are six of them who just can?t seem to land a job anywhere.? ?Hmm,? says the dean. ?It?s almost nine months after graduation. Those folks are going to ruin our placement statistics. Our library director mentioned to me that he needs some help with shelving and cataloging. Let?s see if some of those students would like to work for the law library ? for a few months, at least. That ought to make our placement numbers look a lot better.?

Item: A professor at Law School E approaches the dean. ?I?ve just received a visiting offer for next fall semester from Maximum State U. It?s a good opportunity for me. Do you mind if I?m on leave next fall? I think you can replace my courses with a couple of adjuncts.? The dean?s response is cool. ?I?d like to work with you on this,? he replies, ?but if you?re gone in the fall semester, it will drag down our faculty-student ratio. The rankings are calculated on the basis of our fall semester numbers. Couldn?t you arrange to take your leave in the winter semester instead??

Item: The editor-in-chief of the law review at Law School F receives a phone call. ?This is Assistant Professor Jones at Old Line Law School. You?ll remember that you e-mailed me last week to inform me that you had accepted my article on antitrust space law for your winter issue. I?m sorry to tell you that I?m going to have to withdraw the article.? ?Why?? asks the editor. ?I thought we had an agreement.? ?That?s true,? replies the professor, ?but the new rankings are out, and the F Law School has fallen from the second to the third tier. I?m not tenured yet, and if I publish with you, my own school?s promotion and tenure committee won?t count the article toward my tenure obligation. They only consider articles placed in first and second tier schools? journals.?

Each of the cases mentioned above has actually occurred. I cannot say how widespread they are, since these are matters about which many people are reluctant to speak freely, but I suspect that they are far from unique. Indeed, they probably only scratch the surface of a long list of techniques by which people in legal education are tempted to ?cook the books? or manipulate the data on which rankings are based. In each case, someone has made a decision about legal education ? a decision that would have been made differently if the specter of the U.S. News rankings were not haunting the decision-maker. In each of the six cases mentioned above, a person who ordinarily regards herself or himself as ethical has felt compelled to place rankings above honesty or sound educational judgment.

I?ll mention one additional illustration. In the past, a substantial portion of student scholarships were typically awarded on the basis of financial need. Today, that factor has declined markedly in importance, and most scholarships are awarded on the basis of ?merit? instead. Merit, of course, means high LSATs and gpas. Pretty obviously, many law schools are increasingly using scholarships to ?buy? high-credentialed students who will improve the school?s U.S. News ranking. The decision to allocate scarce scholarship funds as between need and merit is fairly debatable, with good arguments on both sides. But surely that decision should be made on the basis the school?s mission and educational philosophy, not the impact on its ranking.

One can rationalize decisions like those described above by saying, ?It?s true that my actions may not be completely candid or serve the best interests of my present colleagues and students. But we must preserve or enhance our school?s ranking at all costs, for otherwise we will lose resources and prestige, and in the long run everyone associated with our school will suffer as a result.? But isn?t that merely a rationalization? Isn?t our concern about rankings really driven primarily by our institutional and personal egos?

I believe some facts are beyond serious dispute. First, U.S. News will continue to publish law school rankings, with little likelihood of significant change in format, for the foreseeable future. The publication is simply too popular and profitable to expect much change. Second, in a general sense the rankings have some value; they reflect with rough accuracy, though with many quibbles, the overall prestige of American law schools. (Whether they reflect actual educational quality is a much harder question, and one that can?t be answered objectively for any broad group of schools.)

Third and most important, the specific rankings, and any comparisons of schools that are fairly close to one another in the rankings, are utterly meaningless. The fact that a school has ?risen? or ?dropped? to a higher or lower tier than last year is much more likely to be a result of statistical vagaries (a ?good? or ?bad? year on the bar examination, a couple of additional faculty members on leave, a one-time appropriation from the central administration to boost the law library, or what have you) than a product of genuine change in the school?s quality. The same is true of a school that ?rises? or ?drops a few positions within the first tier. In terms of real quality, such changes aren?t even worth talking about.

No doubt law school applicants, alumni, and sometimes central administrators give the rankings more credence than they deserve. But we ourselves bear considerable responsibility for this overemphasis, for our actions speak louder than our words. We continue to act as if the rankings were important, even at the same time we protest that they are not.

Let me make two modest suggestions that might ameliorate things a bit. First, no law school ought ever to brag about its ranking, or an improvement in its ranking; likewise, no law school should or needs ever to provide an ?alibi? or rationalization for a drop in its ranking. Since neither sort of change is likely to have any basis in terms of real quality, it is intellectually dishonest to speak as though it does. To imply that my law school or yours is qualitatively better than others on the basis of the published rankings is at best a most doubtful proposition.

Second, can we resolve that we will always make decisions about our schools on the basis of our best professional judgment and not on account of their likely or possible impact on rankings? Whether we are considering recruiting, admissions, hiring, tenure, promotion, or placement, can?t we make policy on the basis of what is good for our students and our faculty and staff colleagues, rather than on the basis of our decision?s likely impact on our rank or tier?

In short, can?t we begin acting as if we believe what we say?

* This article appeared in the April 2002 AALS Newsletter.