Those of you familiar with affirmative action litigation (Bakke, Grutter, Gratz, Hopwood) may know that all these cases dealt with claims by white students who felt they were unjustly denied admission because of preference programs. These cases all asked: how should the use of preferences be balanced against the rights of those not receiving preferences?

But no case has ever asked: how should the use of preferences be balanced against the rights of those actually receiving the preferences? That's the issue at the heart of the risk disclosure question.

If students receiving preferences will be subjected to greater risk of dropping out or failing the bar, don't they deserve to know this in advance? Or should law schools – who know in detail about the gap in performance – be allowed to remain silent?

When I discuss this idea with people, this is usually the point at which they say "MB, give me a break. Why should law schools disclose risk? That's a silly idea." So if that's you, don't worry. I hear ya.

Think about the public policy behind other risk disclosures. There are products out in the world (e.g. Vicodin) that have a lot of positive benefits. We want access to these benefits, especially if we've had painful dental work. But these products also come with risks (e.g. they might make you loopy & depressed & crash your car).

The law says those risks have to be printed on every bottle of Vicodin. Does that mean if you take Vicodin, you will crash your car? No. But once you're notified of the risks, you accept your Vicodin prescription subject to those risks. You have the information you need to make an informed choice about whether the benefits are worth it. And you waive your right to complain later if you're injured.

Admissions preferences, I would argue, are no different. People who take Vicodin are more likely to crash their car. People who receive preferences are more likely to drop out or fail the bar. Why should one carry a warning label, and not the other?

One criticism of risk disclosure is that it potentially "stigmatizes" students. If we tell Ashley she's at higher risk of failing the bar, the argument goes, we'll be sending her a message of low expectations.

That strikes me as the kind of reasoning that's been used over and over to justify institutional paternalism. It suggests that it's more respectful to the student's intellect to deny her the opportunity to see historical information about performance outcomes. Who's in a better position to decide what's best for Ashley: Ashley, or the school admitting her?

The duty to disclose is proportional to the risk being assumed. Students attending law school are making one of the biggest investments of time and money in their lives. If there's a risk out there that could cause them to lose their investment, that's something they probably would want to know.

They may choose to accept admission in spite of the risks. Or not. But either way, they'd be making a choice as an informed consumer. Currently, they don't have that choice.

But MB, you say, car crashes are really really bad. That's why we warn Vicodin users about them. Can the bar results for students receiving preferences really be that bad?

Tune in next time.

09 Jun 06