Wednesday, August 1, 2012

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So, there are a lot of stories out there about law school admissions, and even a new Supreme Court case on using race in admissions, but here is one that caught my eye:? Kamps v. Baylor University.? C. Michael Kamps has sued Baylor Law, and many individuals, for refusing him admission to various entering Fall classes (though he was offered admission in several Spring entering classes) because of his "low" UGPA of 3.2 from Texas A & M.? Kamps graduated with a Finance degree in 1979, and he argues that because of (documented) grade inflation at A & M, his 79th percentile UGPA should be assessed at a much higher value.? That adjusted score, combined with his 169 LSAT, would easily admit him into any Baylor Fall class. (Kamps also complains that he was not awarded a full scholarship available only to A & M graduates -- that argument is slightly different because the stated criteria were changed and he believes he would have been awarded the scholarship but for the change,?an outcome he believes?was intentional.)

Now, of course, you can't sue law schools or other schools for using criteria that puts you at a disadvantage.? If a school values work experience and I don't have any, that's too bad.? If a school values volunteer work and school activities, but I worked my way through college and had to take care of family members instead of being President of a school organization, that's too bad.? The criteria may be a bad idea, and may be "unfair," but it's not actionable.? Likewise, if a student graduated from a rigorous school that has low grades or with a major that has notoriously low grades, that student can't sue law schools for using UGPAs because UGPAs don't adequately reflect undergraduate performance.? In my time in law schools, I've seen a lot of engineering students who had more limited law school choices than they should have because of non-inflated UGPAs.? But "your admissions criteria are not perfect" is not the basis for a lawsuit.

What Kamps is counting on, however, is that the use of UGPAs may have a disparate impact, not on engineers or folks who work their way through college, but on folks that graduated a while ago.? Age is a different kind of category, and Kamps hopes that his disparate impact based on age argument will win the day based on the Age Discrimination Act of 1975.? I will plead ignorance here of precedents under this Act; however, Kamps doesn't cite any cases under the Act, but cites instead cases such as Hopwood (which is no longer good law), Brown v. Board of Education, and Sweatt v. Painter?that?rely on protections in the U.S. Constitution against race-based discrimination.

I gather, however, that under the Act, if an institution has a policy that has a disparate impact on a group based on age, that this may be permissible if it is necessary for the normal operation of the institution.? So, I would guess that Baylor's defense will be that yes, using UGPAs is not a perfect criterion for academic performance, but we get too many applications to not use some sort of rough proxy.? We simply just cannot translate UGPAs from different majors, institutions and time periods into new UGPAs that more accurately reflect academic performance.? I would suppose that the widespread use of UGPAs in graduate admissions could bolster this claim.? Also, Baylor has a "safety valve" in that those whose low UGPAs put them into the "presumptive admit" pile can be admitted?if review of the file seems to warrant special treatment.? And in fact, this happens.

Kamps argues in his complaint that the school could index UGPAs to take into account these factors.? For his argument about the A & M scholarship, that may be true because of the limited number of applicants and the fact that necessarily graduated from the same institution.? For general law school admissions, though, I am skeptical this is feasible given the large number of possible undergraduate schools and majors along the time-space continuum.? Kamps uses a federal district case from 1978 to bolster his claim that UGPAs must take into account myriad factors, including grade inflation.? However, this sex-based discrimination case, does not support his assertion.? The judge here, in shutting down a female plaintiff who felt she was passed over for a school principal position based on sex, refused to admit her academic record into evidence, stating that he couldn't possibly adjudge whether her record was better than the male applicant because of numerous factors, including institution, major, other work activities, and grade inflation.? The judge was blowing her off, and the case just doesn't seem analogous.? But, it is a case that uses the phrase "grade inflation."

The other twist is that Kamps was offered admission for the Spring quarter, which I guess has fewer applicants and a slightly less competitive pool.? So, he wasn't deprived of the benefit of going to law school, but going in the Fall.? Kamps argues this is significant and that this is analogous to admitting African-American applicants to a "separate but equal" law school.? I don't think?the Spring semester is composed of only other older students, though.? I'm not seeing it.

Nevertheless, the case is an interesting one to watch.? There are many reasons to hate the overuse of UGPAs in law school admissions, though I would put inequality of majors and institutions on the top of that list.? And of course, the elephant in the room is U.S. News, though law schools' use of UGPAs predates the rankings.? Kamps UGPA doesn't hurt the rankings if he takes a slot in the Spring, but would if he takes a slot in the Fall, maybe?

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