Wednesday, November 30, 2022

Difficult Decisions on Voting in US News Rankings of Clinical Programs

The ballots for US News rankings have arrived. I am a voter for the Law Specialty Clinical Training category in my role as associate dean for clinical education. In this season of upheaval and controversy around US News rankings, I am mindful of their profound deficiencies and the complex, conflicted decisions they present to those of us who object to their hegemonic distortions in legal education. Here I wrestle with some of the ethical quandaries pressing on voters in the specialty categories, at least mine.

(In full disclosure, I am not writing on behalf of Pepperdine Caruso School of Law, where I work, or the Clinical Legal Education Association, where I sit on the board.)

The main US News law school rankings are flawed in many important ways, but I am focusing on the specialty rankings. These depend entirely on peer reputation with essentially no guidance at all for assessing programs. The ballot lists every ABA-accredited law school and asks voters to score each school on a 5 – 1 scale: Outstanding (5), Strong (4), Good (3), Adequate (2), Marginal (1), plus a “no answer” category. The ballot does not define these terms. Here are the only instructions and sole guidance for voters:

Please review the entire list of law schools before rating individual programs. Identify the law schools you are familiar with, and then rate the overall academic quality of their clinical training courses or programs. In making your choices consider all elements that contribute to a program's academic excellence, the depth and breadth of the program, faculty research and publication record, etc. Rate programs on a scale of outstanding (5) to marginal (1). If you are not familiar with a school’s faculty, programs and graduates, please mark “No answer.”

For these and all other specialty rankings, US News does not obtain publicly available data or seek more information from law schools. It could inquire about the number of programs at a school, seats in clinics and externships relative to the student body, the rank and status of clinical faculty, curriculum requirements, and the like. We provide this sort of data to the ABA, CSALE, and other rankings already. But US News determines its rankings for these programs exclusively on peer reputation which voters may base on deliberate investigation, general familiarity, proximity, vibes, or last year’s peer reputation rankings.

So these rankings are not reliable indicators of much, but they exert a gravitational pull on law schools and all our programs. To date, a dozen schools have declared that they are not participating in US News rankings (although their statements are not clear what participation means and whether they will decline to vote in addition to refusing to provide data). Other schools have affirmatively announced they are remaining. The schools who have left are mostly schools with enough market power to move without much risk and that may exert enough pressure to make US News change its ways. Other schools are not competitive in US News rankings and may rightly feel some liberty to ignore them and manifest their values in other ways. For many schools in the middle, the best option now seems to be to stay in the US News morass and urge it to improve.

For the specialty voters at the schools who remain, the option to refuse may not be available. Unless our schools have withdrawn, those of us who vote in specialty rankings may object, but we likely have an obligation to our schools to participate despite the flaws. Personally, I would scrap the entire racket or strip it of its dispositive influence, but I have a duty to my school if it designates me to vote. I also have a duty to counterparts in clinical education at other schools to vote well, honestly, and diligently. My real, moral objection to the entire enterprise compounds the tension. These are common conflicts.

For many in this position, if they refused to vote while their school participates, their schools could merely replace them. Individual conscientious objection likely could harm their school and their careers without effecting much influence. Collective action is key to improve or discard the rankings (even if there might be some risk of anti-trust exposure, however slight).

For years, CLEA has addressed this with a statement that criticizes the regime and offers guidelines for voters. (I’ve helped draft some versions of this statement for CLEA.) Here is the most recent version from 2021:

CLEA, through its Board of Directors, urges those ranking clinical programs to focus on factors that promote the principles for which CLEA advocates, namely the increased presence of clinical education (law clinics and externships) in law school curricula, security of position for clinical faculty, and diversity and equity. In evaluating clinical programs, CLEA urges voters to consider: 1) the number of law clinic and externship slots available relative to the student population at a school; 2) the breadth and quality of clinical curricular offerings available to students; 3) the school's security of position, academic freedom, and governance rights for faculty who teach clinics or externships; and 4) the extent to which the school has committed to pursuing racial justice in its clinical program through its course offerings, impact on the community, and demonstrated commitment to diversity and equity in hiring and promotion of clinical faculty. 

CLEA urges voters to score only those programs for which they have sufficient information to make informed decisions. It urges voters to choose the “No Answer” option when they have insufficient information to assess a particular clinical program.

Last, CLEA also urges those who receive ballots to consult their clinical colleagues for their views to increase the range of informed opinions reflected in the balloting.

These are material, valid factors to consider when evaluating the quality of a program, but they are not binding. There is no way to ensure that the results of US News reflect these standards, but our community hopes that they do.

We should not cede to US News the role to define standards for evaluating clinical programs, but US News could look to publicly available data or look to experts in these fields to establish sound standards and objectives. This would help the academy, the clinical movement, and US News itself.  

Until it does, I continue to struggle over whether and how to participate. In light of the systemic realities and the conflicting interests among our various institutions and obligations, perhaps the best we can do is to organize among ourselves to improve the results, to vote with honesty and diligence, and to continue to advocate for a better way. This runs of the risk of complicity, and perhaps it is insufficient to dislodge the pernicious effects of the rankings. But if our schools have not withdrawn, opting out as individual voters likely does not advance the reforms we need. Even if only one voter votes (and maybe if no voter votes), US News will still rank our programs; rankings are the product it sells.

For now, clinical colleagues at schools that have withdrawn almost certainly will not vote, and that will create distortions of its own, however admirable and needed. Some may refuse to vote even if their schools have not withdrawn, running risks to their schools and themselves, on principle, and denying the rankings their careful insights. Others, like me, will again vote under protest, applying the CLEA guidelines and doing our homework to vote as well as we can, relying on this vibrant, smart, good community to do the same.

The results will be even more suspect next year. Perhaps this will prompt US News to improve its methods or make the rankings less relevant to everyone.

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Thank you for raising these critical issues.

Posted by: Davida Finger | Dec 22, 2022 7:29:27 AM

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