Justice Is Blind and The Rule of Law

Justice is blind. That's what we expect from our justice system. In America, police and prosecutors don't decide whom to investigate or prosecute based on who they are - what political party they belong to, what religion they subscribe to, how wealthy or poor they are - but soley on what evidence suggests they may have done. Dictators in authoritarian regimes use the state's power to prosecute people for political purposes. That is not how things are done in America. Until now.

President Trump made it plain he wants the Department of Justice to investigate Hillary Clinton. The Attorney General has now ordered the Justice Department to investigate whether, when she was Secretary of State, Clinton agreed to permit a sale of American uranium mines in return for contributions to the Clinton Foundation, and maybe her email practices as well. It doesn't matter what you think about Hillary Clinton. It doesn't even matter whether you believe she may have engaged in illegal activities. The rule of law in America is far, far more important than Hillary Clinton.

When he became President, Donald Trump took an oath to "preserve, protect and defend the Constitution of the United States." When he became Attorney General, Jeff Sessions took an oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic." Is that what they are doing?

The Constitution is under attack, and all genuinely patriotic Americans should be alarmed. 

Make American Colleges Great Again

American colleges have been getting worse – and something must be done about it.

The greatest value of a college education is in enhancing a student’s ability to engage in critical thinking and analytical reasoning. The educated person can think. Among other things, she can evaluate arguments from politicians, pundits, salespeople, business associates, and others. She may not know whether a particular claim is correct, but she has a meaningful capacity to gage whether a claim makes sense and to figure out how to investigate it. That makes her no one’s slave and no one’s patsy. She can employ those skills in whatever career or other endeavors she decides to pursue.

For decades, researchers have been measuring how much college enhances these skills. A standard yardstick has been Collegiate Learning Assessment, or as it is known in its current iteration, the CLA+. That test is designed to measure critical thinking, analytical reasoning, problem solving, and writing. For decades, it has been given to undergraduate students at the beginning of their freshman year and at the end of their sophomore year to see how much their analytic skills have improved.

The CLA+ is an open-ended test; students are given performance and writing tasks, not multiple choice questions. In one section of the test, students are asked to read a set of documents and write a memorandum presenting their conclusions about questions relating to the material. For example, students may be told they are working for a city mayor who plans to combat rising crime by increasing the number of city police officers. The mayor is running for reelection against a candidate who advocates spending available resources on a drug education program for addicts instead of on more police. Students are asked to read a set of newspaper articles, statistics, and research briefs about crime and drug addiction and then write a memorandum for the mayor that evaluates the validity of both the opponent’s proposal the opponent’s criticisms of the mayor’s plan. The CLA+ does not test general knowledge. Its designers claim that the only way to successfully prepare students for the test is to teach how “to think critically, reason analytically, solve problems, and communicate clearly.”

In one study, researchers administered the CLA in 2005 and again in 2007 to 2,322 students at 24 colleges that varied in admissions selectivity and other factors. Students increased their CLA scores by the equivalent of only seven percentile points over their first two years of college. Thus, on average, students who entered college at the 50th percentile on the CLA scored at the 57th percentile near the end of their sophomore year. That is considered anemic progress. As the researchers put it, the first two years of college today “have a barely noticeable impact on students’ skills in critical thinking, complex reasoning, and writing.” By contrast, students in the 1980s increased their performance by the equivalent of 34 percentile points – rising from the 50th to the 84th percentile. Other data confirm those findings

Why have colleges gotten worse?

Researchers suspect that the principal reason is that colleges have become less rigorous. Colleges more readily tolerate students doing little work, and more readily give good grades for mediocre performance. In the 1960s, students studied, on average, more than 24 hours per week outside of class. Even that is rather low. Undergraduates should be studying at least two hours outside of class for each hour of class. That would mean that for the average load of fifteen hours of class time they should be spending at least 30 hours on homework. But students today study only twelve hours per week on average. More than a third of students report studying less than five hours per week. Moreover, 20% of students say they frequently go to class unprepared. Yet the average GPA in colleges today is 3.2. According to one recent study, 43% of all grades awarded in American colleges today are A’s. Meanwhile, the percentage of C’s has declined from 35% decades ago to 15% today. Grades and GPAs have become almost entirely meaningless.

Researchers also believe that a factor with a great impact on critical thinking skills is whether students take classes from instructors with high expectations. They define “high expectations” as assigning more than 40 pages of reading per week or more than 20 pages of writing per semester. Half of the students who took the CLA in their sophomore year reported that in the preceding semester they did not take a single class that required more than 20 pages of writing, and a third did not take a course requiring more than 40 pages of reading per week. Researchers observed: “If students are not being asked by their professors to read and write on a regular basis in their coursework, it is hard to imagine how they will improve their capacity to master performance tasks – such as the CLA – that involve critical thinking, complex reasoning, and writing.”

After controlling for many differences, including the selectivity of the college attended, students who reported they had taken high-expectation courses scored 27 points higher on the CLA than did students who had not taken such courses.

What should be done? I have three proposals.

First, colleges should designate high-expectation courses in their catalogues and on student transcripts so that graduate schools and employers can see how many of such courses applicants have taken. As someone who often sits on my law school’s admissions committee, I know we would find this information extremely useful. It would indicate both how intellectually ambitious an applicant is and how well his studies prepared him for law school and for a career in the law. Making this information publicly available in the college catalogue will also encourage colleges to increase the number of their high-expectation offerings. No college – and few instructors or academic departments – would want to be known as a purveyor of low expectations. Colleges must, of course, adopt mechanisms for ensuring that the designations are honest, and those mechanisms should be reviewed by accrediting agencies.

Second, instead of receiving a letter grade in courses student should receive a number designating the quartile of the class in which the student ranked. Students whose performance placed them in the top quartile of the class would receive a 1, students ranking in the second quartile would receive a 2, and so on. This is would be far more meaningful than our current system. It would also end grade inflation; after all, 43% of students could not be awarded the top grade of 1. Instead of GPAs, colleges should employ AQRs – average quartile ranks. For example, a student who ranked in the top quartile in half of her classes and in the second quartile of the other half her classes would have an AQR of 1.5. Colleges might also consider giving grades earned in high expectation courses a boost for AQR purposes, just as some high schools give a mathematical boost to grades earned in AP classes for the purpose of calculating GPAs.

Third, so-called output assessments are all the rage in education today. What could be a better measure than an instrument such as the CLA+? Colleges should be requiring at least a significant cohort of their students to take such a test both on upon entering and again perhaps two years later, and should be making that information publicly available.

Do I think colleges will leap at my proposals? No, I don’t. Colleges will be resistant to adopting AQRs because doing so will make many students and their families unhappy. Letter grades hide a multitude of sins; performance by quartile is brutally transparent. However, graduate schools could pressure undergraduate colleges to provide quartile ranks and AQRs, if not instead of, then at least in addition to, GPAs. And for their own sake in being able to effectively evaluate applicants, graduate schools have good reason to do so. If graduate schools preferred students from programs that provided this information, undergraduate schools would be pressured to comply.

Designating high-expectation courses should be a bit easier. Some instructors will not like it. There may be something of a tacit agreement between some instructors and their students: the instructor demands little and awards high grades; in return students reward the instructor with high student evaluations. However, colleges and departments that pride themselves on their rigor will see a competitive advantage in designating high expectation courses. Once some begin doing that others will have a hard time not following suit.

Accrediting agencies could require colleges to use a test like the CLA+ to assess their performance. And if U.S. News began using that information in its ranking calculations, colleges would be scrambling to figure out how to perform better.

(For more about the research discussed in this piece, see Richard Arum and Josipa Roksa, Academically Adrift: Limited Learning on College Campuses, U. Chicago Press, 2010).

Baylor's and Rutgers' Dreams

In previous posts on this blog, I have pled with my alma mater, Syracuse, to stop playing Division I men’s football and basketball. Why? Because universities become so besotted by the money and limelight these programs can generate that they wind up selling their souls.

Universities must succumb to academic fraud to succeed as those sports. There is really no choice. Recruiting only players who are academically qualified places programs at too much of a competitive disadvantage. To succeed at these highly-competitive endeavors, men’s football and basketball programs must recruit from the wider pool that includes both students who do, and do not, have the capacity to perform well academically at their respective universities.

The universities create elaborate academic support programs for their players and delude themselves into believing that, with that support, all of their players legitimately succeed. But academic support programs can do only such much, especially with students who must spend forty hours a week playing, practicing, and training for their sports – not to mention missing classes to travel for distant games.

You can access my previous posts on this topic here, here, and here.

Two recent New York Times stories provide further evidence of the blindness and decay resulting from chasing dreams of football glory.

The first story is about Baylor University. In 2008, Baylor, which had not had a winning season in thirteen years, decided to pursue football greatness. It hired a new head coach – Art Briles, who had turned around a losing program at Houston University. Baylor paid Briles what was reputed to be of the highest salaries in college sports, and it also spent $266 million for a new football stadium to help him recruit. And behold: Art Briles worked his second miracle! Two years later, Baylor started having winning seasons and going to increasingly prestigious bowl games – Texas Bowl in 2010, Alamo Bowl in 2011, Holiday Bowl in 2012, Fiesta Bowl in 2014, and Cotton Bowl in 2015. Baylor reveled the glory.

But there was a dark underside to the Baylor’s success. Briles did what he needed to do to win, and Baylor deliberately turned a blind eye to his methods. Baylor recruited athletically-talented football players who had been dismissed for disciplinary reasons from other universities. Baylor asked attractive female students – called hostesses – to show prospective recruits a good time on their visits to Baylor. Allegedly, this included having sex with the recruits.

Chickens come home to roost. At least five students (and probably more) claimed they were raped or otherwise sexually abused by Baylor football players during the Briles era. The University knew of these allegations but cruelly turned their back on these women, and sought to keep their allegations secret. Journalists ultimately revealed the ugly truth. The University wound up getting rid of Briles, its athletic director, and its president, Ken Starr (who previously became famous as the Watergate special prosecutor). Baylor’s glory turned to disgrace. In addition to spending $266 million for that new football stadium, Baylor has now spent an estimated $223 million in settlements and legal expenses resulting from lawsuits and an internal investigation.

Though it has had some scandals too, the Rutgers story is mostly about money. Rutgers has never been a sports power – at least not in recent history. But that did not stop it from dreaming. It too hired expensive football coaches. In addition, since 1994 it has spent more than $130 million constructing, expanding, and enhancing its football stadium. In 2012, Rutgers joined the Big Ten Conference. The University announced that this would be a “transformative” event in its history. How has that worked out? According to the New York Times, Rutgers’ athletic department had been consistently running annual deficits of more than $20 million. Its 2016 deficit was $28.6 million. Moreover, that figure does not tell the whole story. The athletic department listed in its 2016 budget “other operating revenue,” which the New York Times discovered was a $10.5 million loan, at 5.75% interest, which will cost $18 million to repay.

Rutgers is a great University. I have a son who did both his undergraduate and graduate work there, and I am grateful for the first-rate education he received. But Rutgers is also a financially-strapped public University, increasingly squeezed by a state. Rutgers: Isn’t it time give up the dreams of football greatness (along with the grim reality of how such dreams are achieved), and redirect your resources to your core mission of education and research?

image of edmund burkeEDMUND BURKE


Edmund Burke -- the great eighteenth century British statesman -- was both a liberal and a conservative.  For a relatively concise but complete profile of Burke, and an explanation of why by today's standards Burke may be considered either a liberal or a traditional conservative -- but emphatically not a libertarian, neoconservative, or social conservative -- read Professor Bogus' article Rescuing Burke, 72 Missouri Law Review 387 (2007).

Here are some quotes from Edmund Burke:

"We must all obey the great law of change.  It is the most powerful law of nature, and the means perhaps of its conservation."

"Society become a partnership not only between those who are living, but between those who are dead, and those who are to be born."

"The individual is foolish; the multitude, for the moment is foolish, when they act without deliberation; but the species is wise, and, when time is given to it, as a species it always acts right."

"Whatever each man can separately do, without trespassing upon others, he has a right to do for himself; and he a right to all which society, with all its combinations and skill and force, can do in his favor.  In this partnership all men have equal rights; but not to equal things."


EDMUND is a blog by Professor Carl T. Bogus.


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