Hurd Statement

Illinois Admissions Review Commission July 31, 2009 Statement provided by Heidi M. Hurd David C. Baum Professor of Law and Philosophy, University of Illinois Champaign-Urbana Dean of the University of Illinois College of Law, 2002-07

I welcome the bright light that the Admission Review Commission is shining on the University of Illinois’ admissions practices and their relationship to external exercises of political pressure. The University of Illinois has brought distinction to the state for many decades, and many have dedicated their professional lives to honoring and promoting the values that are at the foundation of its legacy of academic excellence. I am confident that the Commission will honor their dedication by illuminating external pressures and internal practices that are inconsistent with the University’s long-standing meritocratic ideals. The Commission has raised questions about student admissions during the years that I was the Dean of the University of Illinois College of Law. Before I answer these in some detail I want to make very clear that during my deanship: • • •

The College did not admit any student who was unqualified or unfit to study law or to enter the legal profession. The College did not seek or receive employment opportunities in exchange for the admission of any students. And the College did not obtain scholarship dollars from campus funds that added to the benefits received by students whose contested admission to the College of Law was deemed by campus or University administrators to be in the best interests of the larger institution. ********

I was recruited as the Dean and David C. Baum Professor of Law and Philosophy at the University of Illinois College of Law in the Fall of 2002, having served as a Professor of Law and Philosophy and the Associate Dean for Academic Affairs at the University of Pennsylvania School of Law from 1989-2000, and then as the Herzog Faculty Fellow and Director of the Institute for Law and Philosophy at the University of San Diego from 2000-2002. I took the College’s deanship because I was inspired by the vision, passion, and energy that campus and University leaders brought to the pursuit of academic excellence. Administrators make mistakes, and none are without accumulated regrets as those mistakes accumulate, but during what is a standard five-year term as the College’s Dean, I had great faith in the dedication with which those in higher-level administrative positions pursued the twin ideals of equality and excellence. It will always be my great honor to have learned from and worked for President B. Joseph White, Provost and then Chancellor Richard Herman, Provost Linda Katehi, and Vice-Provost Ruth Watkins.

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Deans are hired by and report to the Provost—the chief academic officer of the campus— and the very explicit mandate that then-Provost Richard Herman gave me when I was appointed was to reverse the College of Law’s multi-year downward slide in the national rankings and restore it to its traditional stature among the nation’s premier law schools. During my time at the College’s helm, we took the national ranking of the quality of the College’s students from 34th in the nation to 15th (as measured by their median Law Scholastic Aptitude Test (LSAT) score). Our students catapulted from the nation’s 85th percentile to the 96th percentile, placing our incoming classes on par with those enrolled at Berkeley, UCLA, Vanderbilt, and Duke. Indeed, in 2006, the College was ranked #1 in the nation by the Leiter Report for making the greatest improvement in its student quality of any law school in the nation. Described as the nation’s “biggest winner,” the Illinois law school jumped thirteen places in the nation’s rankings from 33rd in 2005 to 20th in 2006 (as measured by the 75th percentile of the incoming class). And the College did all this while simultaneously sustaining its position as #1 in the Big Ten and Top-10 within the nation’s public universities for recruiting classes of rich racial and ethnic diversity, and while also achieving broad geographic representation and relatively equalized enrollment along lines of gender. In addition to these improvements in student quality, the College also hired 17 new highly-reputationed faculty members. We took the ranking of the faculty by productivity to 7th in the nation. We markedly improved the employment of its graduating students, achieving a 100% 9-month placement rate in 2006, ranking 17th in the nation for the placement of its students in the nation’s Top 50 law firms, and launching a loan-forgiveness program that made it more possible for debt-ridden students to pursue careers in government and public service. We launched ten subject-matter specific programs in areas of faculty expertise that galvanized faculty and student research and brought reputational luster to the school—e.g., the Program in Law and Economics, the Program in Corporate Law and Governance, the Program in Criminal Law and Procedure, and the Program in Legal History. And we substantially improved alumni annual giving and markedly increased the number of major gifts the College received for faculty chairs, professorships, and substantive programs. Still, notwithstanding the great gains that staff, faculty, students and alumni made during those years, I did not always win the battles for excellence that I fought on their behalf. Despite my best efforts to beat back external pressures to admit students who did not advance the College’s agenda of excellence, we were required to admit students whose benefits to the larger institution were thought to trump the burdens they imposed on the College’s ability to fulfill its mandate. During my years as dean, however, we managed to alter the way these decisions were made so as to significantly reduce their number, until, in my last year, the College was required to take not a single one of the students flagged by campus or University administrators for higher-level consideration.

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A. The “System” for Admitting “Special Interest Applicants” Prior to 2002-03 As the email records demonstrate, 1 when I arrived at Illinois in October of 2002, I received communications from members of the Provost’s staff formally introducing me to what was a seemingly well-oiled, self-described “system” for dealing with “special interest applicants” or “special admits”—one which altogether excluded the College from participating in year-end meetings at which decisions were made concerning who on the campus’s “special admit list” the College would be required to take. (UNIVER000231) By what was described to me as the standard practice, a staff member from the College’s Office of Admissions would attend a “premeeting meeting” with the Executive Director of Government Relations to discuss each applicant on the campus’s “special admit list.” Then at a meeting toward the close of the academic year, the Provost, the Executive Director of Government Relations, and the Associate Provost for Public Engagement would decide who and how many of these applicants the College of Law would be required to admit. My records in 2003 recall that in two of our regular monthly meetings, the Provost and I discussed certain special interest applicants, but there was otherwise no “pre-meeting meeting” that year, and final decisions were issued by the Provost’s Office as in previous years. The College of Law’s Associate Dean (who was handling applications by “special interest applicants” that year) thus received a notification from the Provost’s executive assistant stating: “The decisions have been made—admitting three from our hold list.” (UNIVER000245) And two days later, a follow-up email was received from the Associate Provost for Public Engagement that read: “Here are the law decisions.” Thereafter followed lists of applicant names under the headings “Admit” and “Deny,” and the email concluded with the following blunt instruction: “[L]etters to go out on Monday.” (UNIVER000247) In fact, while I boasted in an email written the following year to staff members that my efforts had played a role in keeping the number of special interest applicants admitted during that year-end meeting to three (out of at least 12 proposed applicants, according to my correspondence), records show that the College was actually required to take six candidates from the campus’s list during the 2002-03 year, for three were admitted in the early months of 2003. My efforts as a freshman dean to “push back” against such “Provostian admits,” as we called them—efforts received as new and novel by those seemingly used to having autonomy over such matters—thus yielded no better than a 50% ratio in admission and denial decisions. I surmised, at the time, that the number of special admits had been even larger in past years, and that this was a significant reason why the College’s student quality had deteriorated over previous years. B. Why Qualified “Special Admits” Were (Often) Thought to be Adverse to the College’s Agenda of Excellence The quality of a school is rightly reflected in, and measured by, the quality of its students, and a law school is no exception. The U.S. News and World Report (which is the only comprehensive source of law school rankings) uses both front-end and back-end metrics to 1

I must be clear that I have not been able to access all of the thousands of emails that I sent and received during my deanship. My statement is based on my recollections and on the compilation of emails produced for the Commission by the University.

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measure a school’s student quality. Fully 25% of the national ranking of a law school is given by the school’s front-end incoming class GPA and LSAT scores, and almost 20% of its ranking turns on the back-end combined ratios of students employed at graduation and nine months thereafter. Incoming student statistics are the variables that are the most immediately responsive to targeted efforts by a school, and improvements in student quality themselves work improvements in other areas, such as student employment at, or soon after, graduation, faculty recruitment, and alumni involvement and investment in the school. Soon after I took the College’s deanship in 2002, the College’s senior staff and I thus made the improvement of our student quality, as measured by incoming class statistics, our first priority. We well knew that the effort to improve our student quality was directly proportionate to two things: scholarship dollars with which to out-recruit rival schools for the best and brightest, and the degree of creative energy that the school’s administrators invested in making the College’s student culture vibrant. And so, we started a vigorous fund-raising campaign amongst our alumni to raise money for scholarships and we hired high-energy administrators to infuse the College community with intellectual and social vitality. Making big gains in the quality of our student body was inconsistent with absorbing students on grounds other than merit. So wrestling with campus and University administrators over decisions about the number and quality of “special” applicants that they would admit to the College became a particular ambition of mine as I headed into my second year in the job, and I pursued that goal with vigor in succeeding years. In each of those years, roughly 30 applicants would be flagged by campus and University leaders as “special interest applicants.” To the extent that this simply meant that these students were placed on a “no surprise list,” such that someone across campus needed a “head’s up” before a denial decision was communicated, I found this practice benign. No senior administrator wants to learn of the decisions of his subordinates through a surprising irate telephone call from someone with whom he or she values a good relationship. Some applicants each year whose names appeared on this “no surprise” list were amply qualified to be admitted, and were admitted entirely on their own merits. Unsurprisingly, students with impressive sponsors sometimes have independently impressive merits. Many other applicants on this “no surprise” list were denied admittance, and none contested our denial decisions when they were given the requisite “head’s up.” This was particularly true once we began to track carefully the relationship between students’ incoming predictors and their academic performance, so as to be able to explain with confidence that there were LSAT and GPA thresholds below which applicants could be expected to fail. Few wanted to hurt, rather than help, those in whom they took a special interest. But some applicants who figured on the “no surprise” list by virtue of being championed by people of power and influence fell into what we call “the discretionary pool,” the group of fully capable applicants that far outstrips in number the seats available in any given entering class. We could not deny that these powerfully connected applicants could do the work, and because, by definition, half of every class is “below average,” it was tempting for those pressing

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us to accept such students to insist that these students could hardly do us any more harm than roughly half of the rest of the students enrolled. So why did I push back against such pressures as the record, I believe, fairly indicates? The answer is two-fold. First, those whose family members and friends are politically powerful are disproportionately likely to pursue careers as lawyers; and hence, graduate applications sponsored by those with powerful political ties were disproportionately directed at the College of Law. If the College was to enhance its student quality, I could expect to do battle more often— both relative to the size of the College and in absolute terms—than other graduate school deans. And this, of course, explains why the College of Law (which has a faculty a third of the size of the Urbana-Champaign Psychology Department and enrolls only 200 of the University’s 70,000+ students) is at the center of the public inquiry concerning the University’s admission of students with clout. Second, because our incoming class statistics both directly drove our national ranking and had an immediate effect on other variables that were highly relevant to that ranking, we could not fulfill the mandate with which we were charged without being jealous of every admissions decision that was made. In a small class, it is not an over-statement to say that a single person’s admittance and graduation numbers can affect those of the whole. (See for example UNIVER000062.) But what of the argument that since half of any class will be below average, why not treat its members as fungible? The answer is that those who build an incoming class must employ other proxies to ensure that those with below-average numbers will nevertheless be academically competitive and engaged within law school, employable at or soon after graduation, and successful within the profession. This requires administrators to devote predictable lower-half class positions to those whose mixed records reflect spikes of aptitude and interest that could carry them to success and whose personal life stories include experiences that suggest wisdom and maturity that are poorly captured by test scores and grades. Despite claims otherwise, those whose applications appeared to us to be distinguished principally by the power of those who pressed them were simply not the equal of many others whose average numbers were off-set by records of community involvement, social activism, military service, the mastery of multiple languages, remote world travel, innovative work experiences, or any number of enriching experiences that favorably predict a kind of heartiness or discipline that augur well for success in life. And so I pushed back on efforts to press the admission of students whose predictors were pale in comparison to those of others. I learned to ask the staff to provide detailed studies that correlated, with increasing precision, students’ incoming predictors with their outgoing academic records. And when the end-of-year meetings came with campus administrators at which the interests of the College were compared to the larger interests of the University, I was able to prevent the balance from tipping in favor of the larger institution’s more amorphous interests in most cases, and in my final year, in all cases. My goals in discussions about special interest applicants—both in the year-end meeting and in the many conversations that would punctuate the school year—were three-fold: First, I

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sought to educate those who urged the acceptance of lack-luster students about the agenda of excellence that we had set for the College and about the ways in which non-meritocractic decisions have concrete negative effects on meritocratic goals. Second, to the extent that my educational efforts failed, I sought to deter the championship of special admits in the future by making advocates feel a sense of responsibility for harming the College’s efforts to pursue its vigorous agenda of excellence. And third, I sought means of off-setting the burdens thrust upon the College when the campus elevated its interests over those of the College by admitting such students. I would repeatedly explain that for every below-average applicant that the College was required to enroll, we would need to enroll one or more above-average applicants whose credentials would neutralize the harm done to our incoming class statistics. I would stress that students who are frustrated by poor academic performance require extra academic counseling and tutoring. And I would urge that those seeking the personal short-term gains of a student’s admission should take seriously the systemic long-term burdens that do not accrue to the school or the student until the time of graduation. Those with disappointing academic records often have to take the bar exam more than once, they find it difficult to secure employment, and their frustrations with these realities are sadly embittering. C. The Allegation that Scholarship Funds Went to Special Admits In the few cases that became real bones of contention each year, my arguments at least proved persuasive enough in some instances to motivate then-Provost and now Chancellor Richard Herman to assume a share of the front-end costs that his decisions imposed. As he had done at the close of my first year when I had expressed great frustration with the decision that he had made to admit to the College three students to whom I had objected, Dr. Herman periodically ordered transfers of campus discretionary funds—which he regularly employed to assist Colleges and departments to pursue particularly well-articulated and well-defended goals of excellence—so that the College could recruit highly-credentialed applicants whose abovemedian GPA’s and LSAT scores would off-set the negative effects that campus admissions decisions had on our incoming class statistics. As he admitted, because the College did not receive the benefits of such decisions, it should not be forced to bear all of their burdens. Typically, we could use these campus discretionary funds to clinch the acceptances of students to whom we had already made offers of admission, but who had delayed their acceptances because they were tempted by more generous scholarship offers from other schools. By matching their other scholarship offers, we were able to make an Illinois degree affordable for them, and their above-median credentials off-set the below-median credentials of the special admits admitted by campus, thus permitting us to hit the ambitious targets that were necessitated by our mandate. The sporadic email exchanges that are the evidence of Dr. Herman’s willingness to channel discretionary funds to our campaign for increasingly excellent students speak elliptically of scholarships “for” special admits. For example, in an email in December 2003 to my senior staff I wrote that I had “negotiated the list down to three and demanded full-ride scholarships for all of them from the Provost (which we got). ” (emphasis added) (UNIVER000032) And in an

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email to me in April 2006, Chancellor Herman confirmed his promise to provide “2 full tuition scholarships for [name redacted] and [name redacted].” (emphasis added) (UNIVER000036) The cryptic use of the term “for” in these emails has caused some confusion on the part of readers who are unfamiliar with the context and history of these emails. It is possible for an outside reader to infer from these exchanges that the scholarship dollars received from the campus were directed to the special admits, making all the more privileged their entrance to the University of Illinois. But this reading would be incorrect. No one who wrote or received these emails intended or understood them to mean anything other than the following: that the scholarship dollars provided by the campus were to be used to mitigate the downward pull on the College’s incoming class credentials caused by adverse special admissions decisions by allowing the College to recruit one or more students whose highend achievements would have an equilibrium effect on class quality. Since this is a far bigger mouth-full than is “scholarships for X and Y,” it became instantly natural to employ verbal shorthand. That these scholarship transfers were used for year-end recruitment efforts that were specifically designed to mitigate the harmful effects of campus admissions decisions is apparent from numerous documents in the record. Consider, for example, an April 2006 email by the College’s Assistant Dean of Admissions, Paul Pless, expressing concern that even campus scholarship dollars would be insufficient to surmount the challenge of having to off-set the negative effects of a special admit on the entering class statistics: “Because we are being forced to admit [name redacted], I will have to admit at least two additional students to ensure there is no negative impact on the profile, and I can’t say for certain that even that will be enough. Since we are so late in the process it will be unlikely that I will be able to find any single candidate that would have both the LSAT and the GPA to counteract [redacted name’s] numbers.” (UNIVER000062) One need not, however, rely on interpretive techniques or indirect evidence to settle this matter. It is a provable fact—and one that I believe Dean Pless has established through his research and testimony—that no designated special interest applicant admitted by campus administrators during the years of my deanship ever received a scholarship from the College’s funds or from the discretionary funds transferred to the College from the campus. Scholarship monies were transferred to the College from discretionary campus funds when—but only when—we could make a convincing case that, without them, we would be unable to recruit highly-credentialed students whose effect on incoming class statistics would neutralize the negative effects of campus-level special admits. D. The Allegation that Campus Scholarship Funds Were Quid Pro Quo for Special Admits Some have claimed that even though these discretionary funds were not used to benefit already privileged special admits, they nevertheless reflect illegitimate “quid pro quo” for the College’s admission of such students. It is important to understand why such a description is inaccurate, notwithstanding the “language of the marketplace” that permeates law school cultures and is thus reflected in some of the email discussions of these matters. A “quid pro quo”

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exchange is (1) a consensual transaction between free and equal parties which (2) both parties take to be in their own independent best interests and which (3) delivers independent benefits that both parties take to be worth the cost of what is traded. Military conscription is not a quid pro quo exchange, and the fact that the conscript receives compensation does not alter the fact that his is forced service. The transfer of a victim’s wallet during a robbery is a forced exchange, and remains so even if the robber accedes to the victim’s request that he be allowed to keep the pictures of his children. In like manner, after-the-fact and only occasional transfers of scholarship dollars did not convert the admission of special interest applicants into quid pro quo trades by the College: (1) The College’s admission of special interest applicants was not consensual. On the contrary, the campus’s admissions decisions were vigorously resisted, and when they were made, they were very unhappily received. The College was not in a position to choose between denying such students or admitting them in exchange for scholarship monies. Rather, decisions to admit such students were made in the face of, and despite, the College’s forceful objections. Only after such admissions decisions were made, and only if the College could prove (then or thereafter) that its ability to hit its targeted incoming class numbers had been genuinely compromised by such decisions, were we sometimes—but by no means always—able to persuade Dr. Herman to back eleventh-hour recruitment efforts of other highly-credentialed students with discretionary funds. (2) We did not take such admissions decisions to be in the best interests of the College, and after-the-fact transfers of funds designed to help us somewhat (but never fully) off-set their harmful effects did nothing to convert them into positive gains that we took to be in our best interests. For reasons explored further below, the College would have much preferred not to have received such funds if it also could have prevented the campus from requiring the admission of such applicants. (3) Finally, these scholarship funds were not benefits independently prized by the College. They did not put the College in a better position; they simply helped to off-set decisions that put it in a worse position. They did not go toward the advancement of independent goals so as to represent “gains from trade”; rather they were purely remedial of forced losses, and then only partially so. They did not come close to fully neutralizing the harms caused by campus decisions to admit special interest applicants, let alone count as valued “quid” that offset some voluntary quo. E. Special Admits as “Add-On’s,” Rather than Displacements Even though “Provostian admits” did not receive the benefits of Provostian scholarships, and even though they were qualified to study law and to enter the legal profession, it is natural to worry that they displaced other, more qualified students who would otherwise have had the advantage of receiving an Illinois degree. I do not know whether such displacement occurred in the years before I came to Illinois, but between 2002-07 we treated “special admits” as year-end “campus add-on’s” to what we took to be fully-filled classes. That is, during each academic year we deployed all of our internal scholarship funds and all of our staff energies so as to recruit the very best class possible—one that would represent improvements over preceding classes. Had

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we not been required to add any special admits at the close of the year, we would not have added any more students from our waiting list, for our incoming Fall class was projected to be of the optimal size and the highest quality possible by the time campus administrators made their yearend admissions decisions. Indeed, it is precisely because such special admits were add-on’s that we commonly required supplemental scholarship dollars from campus discretionary funds in order to balance the incoming class statistics through the further recruiting of high-end students, for our scholarship funds were entirely exhausted by our year-long efforts to achieve ambitious improvements in our student quality. Thus, for example, in an email written to me on February 4, 2007, long before campus-level admissions decisions were made in the Spring, Assistant Dean Paul Pless stated: “At this point in the cycle I believe that my current scholarship budget is adequate to meet the goals you have set for the Class of 2010. I also understand that if the need would arise to increase the scholarship budget, even slightly, that this would result in an even larger deficit for the College and thus may not be possible. . . .[W]e are currently maxed out on scholarships and any increase could only come from cutting resources to other vital areas in the College.” While the special admits that we were required to enroll thus did not displace other worthy applicants who would have otherwise been admitted, and while they were both qualified to study law and paid full tuition for the privilege to do so, we remained unhappy at having to accommodate them. And this was true even when we were able to neutralize their effect on our incoming class statistics by recruiting other students whose credentials were off-setting. Such students distorted our optimal faculty-student ratio; they required more intensive tutoring and counseling; and, most troublingly, they faced employment challenges upon their graduation—a fact that proved both disheartening to them and disheartening to those within the College’s Career Services Office who worked hard to achieve superb employment statistics both at the time of a class’s graduation and nine-months later. F. The Employment Problems Posed by Special Admits By 2005 we had substantially advanced the goal of improving the front-end indicators of student quality: the College’s students had moved from 34th to 15th in the nation, as judged by their LSAT median, and they were ranked 17th in the nation by their 75th percentile. Therefore, during the 2005-06 academic year we turned our attention to the other significant indicators of student quality—the number of students employed at graduation and within nine months of graduation. Our goal, which we promoted vigorously with the College’s Board of Visitors, as well as with faculty, staff, and alumni—was to make the same kinds of gains in student employment as we had made in the previous two years with our incoming student credentials. Unsurprisingly, campus-level admissions of special interest applicants posed burdens as significant at the back-end as at the front-end, and they came to be seen by those in the Office of Career Services in the same light as they had been seen by those in the Office of Admissions— namely, as impediments to achieving the agenda of excellence with which the Office was charged. While one might assume that students who were “clouted in” would be “clouted out,” the fact of the matter is that clout is cheap at the front-end and expensive at the back-end. Those

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willing to make phone calls to bring pressure to bear on campus and University administrators concerning admissions decisions are rarely willing or able to employ those they champion three years later or to burn valuable reputational capital with other possible employers. And thus, students whose academic performance is as lack-luster as their credentials often find themselves without viable employment options at the time of graduation. G. The Allegation that the College of Law Entered into a “Jobs-for-Entry Scheme” It is against the back-drop of my 2005-06 efforts to educate campus administrators to the College’s new focus on student employment that the now highly-publicized email exchange between Chancellor Herman and me took place—the exchange upon which the Chicago Tribune has based its allegation that the College of Law entered into a “jobs-for-entry scheme.” I had repeatedly emphasized throughout the 2005-06 academic year that the employment of graduating students was our new principal priority, and that special admits posed as great a challenge to achieving top-ranked employment statistics as they posed to sustaining Top-15 entering class statistics. I believed, and still believe, that the emails that Chancellor Herman sent in the Spring of 2006 reflected a kind of “fake flirtation” with a proposal to do at the back-end what he had done at the front-end when he helped to mitigate the negative impact of special admits with funds that would enable the recruitment of off-setting high-end students. His April 2006 communications verbally toyed with the question of whether he and those responsible for unwelcome admissions decisions might neutralize the negative effects of those decisions on our employment statistics by eliminating the employment burdens posed by special admits. But as my sarcastic responses to his inquiries were designed to make clear, it is impossible to mitigate the back-end costs imposed by students who can be predicted to do poorly in their studies. The only means of neutralizing the predicted negative effects on employment statistics three years after a special interest applicant’s admission (so as to quiet the vociferous objections of a dean at the time of that student’s admission) would be to ensure, at the time of his/her admission, that this student would have employment at the time of his/her graduation. But speaking purely practically, surely no employer—private or public—would be willing to guarantee a job to someone who, at the time of graduation, will be known to have done poorly in classes and can be expected, at that time, to struggle in passing the bar exam. I was thus not to be mollified when Chancellor Herman settled, once and for all, what had been a protracted dispute throughout the spring semester of 2006 over the admission of a particularly unimpressive special interest applicant—one which had been lost after numerous telephone calls and meetings, and which I had pleaded to have reversed in an email dated April 28, 2009, which read, “Can you turn this around, Richard? Please?” and which attached a dismayed analysis of the goal-defeating effects of the decision on our incoming class statistics carefully prepared by Assistant Dean Paul Pless . (UNIVER000062) When Chancellor Herman replied to my plea for a reversal of this admission decision on the following day, Saturday, April 29, 2006, his message introduced the first reference to jobs ever made during email discussions about special admits—a reference that suggested that a promise of jobs from the Chairman of the Board of Trustees, Larry Eppley, might function as an appeasement for this decision. He wrote:

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“Straight from the G. My apologies. Larry has promised jobs (5). What counts?” (UNIVER000062) Frustrated that the Chancellor did not use more muscle to resist the admission of this special interest applicant, angered over what I took to be a gubernatorial abuse of power, and exasperated by the Chancellor’s suggestion that he and others involved in the decision would think for a minute that they might be able to mitigate (or to appease my concerns about) the employment burdens imposed by that decision, I fired back the following dismissive reply within minutes of his sending the query that accompanied his unwelcome news: “Only very highpaying jobs in law firms that are absolutely indifferent to whether the five have passed their law school classes or the Bar.” (UNIVER000061) This was, on its face, an exercise in sarcasm, for as Chancellor Herman knew, there are no firms of this sort: one cannot practice law without passing the Bar; one cannot take the Bar without first obtaining a law degree; and one cannot obtain a law degree without passing one’s classes. My sarcasm, however, was not an effort at humor. It was unaccompanied by smileyfaces and exclamation marks precisely because I was not amused and I was not trying to be amusing; I was angry. I was angry about the admissions decision, and I was all the more infuriated by the suggestion that I might be mollified by a promise that could not be other than a false one. When Chancellor Herman wrote again, minutes later, with a query about the acceptability of government jobs (“So government jobs don’t count? (AG Office?)” UNIVER 000064), I was all the more incensed. I took the query to imply that those who might not be good enough for private practice might nevertheless be adequate for government work. Having devoted myself to building excellence within a public institution, and having taught and written about the conditions of legitimate government for more than twenty years, I was furious at the suggestion that lack-luster students might be provided sinecures within government offices as a means of absolving administrators from any responsibility for their unemployability. I thus replied with what I took to be—and which Chancellor Herman took to be—an obviously disdainful rejection that was designed to throw his assumption about the talents and qualifications of public servants in his face: “Yea, I’m betting the Governorship will be open. One of them can have that job. Other jobs in Government are fine, since kids who don’t pass the Bar and can’t think are close enough for government work.” (UNIVER000012) Two important events transpired on that morning of Saturday, April 29, 2006, between my sending this dismissive reply (at 9:56 a.m.) and the next email entries in the chain of emails that has been cited in support of the allegation that the College was complicit in a “jobs-for-entry scheme” (at 11:58 a.m.). First, upon sending my two sarcastic responses to the Chancellor’s queries about the kinds of jobs that might mitigate the employment burdens of special admits, I strode from my office to vent my frustration with senior staff members who were working overtime on year-end projects and were in the office on that Saturday morning. I told Associate Dean Ralph Brubaker, Assistant Dean Paul Pless, and a handful of others (all of whom I do not now fully recall) who happened to find us in the hallway of the fact that the Governor had succeeded in pressuring the campus to admit the special interest applicant whose long-disputed case was well-known to the senior staff. My recounting of my sarcastic dismissals of the Chancellor’s suggested “promise of jobs” was met with expressions of disdain, and in our state of shared frustration, we traded hypotheses about what could possibly have inspired such talk of jobs,

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given how ridiculous was the notion that anyone might think that jobs specifically dedicated to students predicted to do poorly in their classes and to struggle at passing the bar could be procured from anyone. Sometime during this hallway discussion I received a telephone call from the Chancellor, who had well appreciated that my sarcasm reflected anger and frustration at having our ambitious agenda whip-sawed by the most recent non-meritocratic admissions decision. He sought to calm my temper with apologies and to pursue the question of why job commitments could not function to counter-act the negative effects on class employment statistics posed by the admission of special admits. At the time, I did not take seriously his pursuit of this question, for it seemed to me that the Chancellor both could not, and did not, take it seriously either; he was pursuing it solely as a means of quieting me through a demonstration of his concern for what he knew I cared a great deal about—namely, making a significant new leap in the College’s national standing through significant gains in student employment. The conversation was very brief as he was on route to an appointment, but I recall quite forcefully expressing that anyone who would be willing to offer job opportunities to the College of Law would naturally and rightly seek to fill them with the best and the brightest of those whose talents and interests were aligned with the responsibilities of the positions. Prospective employers would, as I said, “reach for the top, not the bottom.” And I recall Chancellor Herman saying that he certainly understood that only if we were able to match poor performers with jobs dedicated to students who might be expected to be from the bottom of the class could we think of such jobs as mitigating the effects of the admission of such students. When I expressed incredulity that he would think that anyone would ever offer positions with the understanding that we would fill them with students from the bottom of the class, I believed that I had squelched what I took to be, and what I characterized as, a preposterous notion, and with that the conversation came to a close. I cannot fully account for why Chancellor Herman sent the seemingly serious request for jobs to Chairman Eppley not long after our morning telephone conversation on April 29, 2006. At the time I found it doubly puzzling because (1) he had already claimed in his earlier email that “Larry has promised jobs (5)” and had suggested during our telephone conversation that they had talked of such jobs as being specifically dedicated to students who were likely to be the least employable, and (2) I had very plainly rejected the pursuit of such a meaningless effort during our telephone conversation. I took his email to Chairman Eppley to be confirmation that earlier messages about such a promise were a charade designed to make me believe that while the Chancellor was delivering unwelcome news about an admissions case, he was nevertheless championing our agenda in ways that should win him our forgiveness for succumbing to gubernatorial fiat. In other words, I took him to be trying to soften the “bad news” that we would have to take a contested special admit with some “good news” that he was working to help us achieve the priority goal of employing our students, and particularly those represented by the special admit who came “straight from the G.” I surmised that he felt trapped by my refusal to be subdued by empty promises and that he was trying to make Chairman Eppley feel a sense of personal responsibility for his own willingness to be an instrument of gubernatorial pressure. I took the Chancellor to understand from our conversation (and really well before that) that no such jobs could be delivered by Chairman Eppley, but I thought the Chancellor found value in pretending that they could be—for by challenging Chairman Eppley to secure such un-securable jobs, he would force the Chairman to recognize that such admissions decisions imposed

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irremediable burdens on the College of Law, and he would thus blunt such demands for admission in the future. Whatever the case, I didn’t think on the matter for more than a minute, for I considered the whole discussion a distraction. I took the blind copy of his email to Chairman Eppley as an opportunity to close the loop left open with my senior staff when I broke from my earlier hallway conversation with some of them in order to take the Chancellor’s telephone call. As a means of conveying that the Chancellor’s telephone call confirmed that his earlier emails about jobs were really—and in the collective view of the staff, amazingly—inquiries about the possibility of securing jobs specifically for those at the very bottom of the class who, like the student who came “straight from the G,” could be predicted to struggle at passing the Bar, I passed along to my senior staff the Chancellor’s blind copy of his email to Chairman Eppley with the dismissive line: “FYI. The deal is supposed to be that WE get to pick the students— and they are supposed to be bottom-of-the-class students who face a hell of a time passing the Bar and otherwise getting jobs!” (UNIVER000015) Unlike my previous sarcastic messages to the Chancellor, which were not designed to convey humor, this one was, and it was so taken by those who received it. Its capitalized “WE” and its closing exclamation mark was specifically intended to convey my incredulity over the fact that the most laughable of all possible interpretations of the Chancellor’s previous emails was, in fact, the interpretation that its author purported to intend. My message was designed to settle which of the competing hypotheses advancing during our hallway gathering in fact captured the intentions of the Chancellor when he mentioned jobs in the same email breath with special admits; and because it was the most preposterous of them all, I tossed off a description of the false “deal” referenced in such emails that I knew would be taken as preposterous. Since I knew that the staff considered it ridiculous that anyone would provide jobs that we could fill with those at the bottom of a graduating class who could be expected to struggle with the Bar, I knew that they would receive this message and do nothing other than share my incredulity. And this is precisely what they did. The sole and only institutional legacy of the April 29, 2006, emails upon which the Chicago Tribune’s allegations of a “jobs-for-entry scheme” was founded was that references to jobs as the “quo” for the “quid” of having to accept special interest applicants became one of the running lines to which staff members would regularly appeal in daily banter. For example, a year later, on June 26, 2007, when Assistant Dean Pless told Associate Dean Ralph Brubaker and me about the fact that the Provost’s Office had received an inquiry from a University trustee about a transfer applicant’s prospects of admission, Associate Dean Ralph Brubaker wryly quipped: “Shouldn’t the quid pro quo on all special admits be a guaranteed full-time job at graduation from the ‘special interest’?” And Assistant Dean Pless sardonically replied: “Preaching to the choir.” The Commission need not, however, rely on my explanation of these emails in order to content itself that the College of Law did not seek, entertain, or receive jobs in exchange for the campus’s admission of “clouted students.” For it is a provable fact that such jobs were never pursued or obtained. The College keeps extremely detailed records of all of its efforts to help graduating students secure employment. Its Office of Career Services does extensive employer

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outreach, marketing Illinois graduates to employers across the nation within both the public and private sector. It documents from where and with whom employment opportunities arise and it tracks the experiences of students who have pursued such opportunities. It is a condition of graduation that students report their employment status and the details of their employment so that the Career Services Office can fulfill its reporting requirements to the College, the American Bar Association, and the U.S. News and World Report, and so that the Office can sustain ongoing relationships with valued employers that might be of advantage to future Illinois graduates. The Office works to assist alumni who seek to change jobs long after graduation, and it documents from where their new jobs emerged and tracks the experiences of those who fill them. There is thus a long-range system of detailed documentation, tracking, and reporting that accounts for the jobs secured by College graduates prior to graduation, after graduation, and for many years beyond graduation. Consider this, for example: On the Monday morning a day-and-a-half after the Saturday 29, 2006, emails referencing a “promise of jobs (5),” no senior staff member raised or pointed to that Saturday “promise” in response to a serious memorandum sent to them by Joe Gavin, the Associate Director of Career Services, asking for help with, and ideas about, placing 66 students who were soon to graduate without any prospect of employment—most of whom were in the lower half of the class. When he sent a similar plea for help two days later when there remained 64 students on the list, no one fresh with the recollection of Saturday’s exchange proposed a follow-up with Trustee Eppley or Chancellor Herman as a solution. And when Associate Director Gavin submitted his year-end Annual Report two weeks later recounting the many efforts he had made to maximize the College’s at-graduation employment ratio and mapping out his strategies for the coming months to bolster the College’s nine-month-post-graduation employment statistics, he did not list the pursuit of jobs from Chairman Eppley as among his past or intended efforts. 2 With some supposed “deal” with the Chancellor and BOT Chairman in hand, the content of which was (supposedly) to provide jobs (5) for precisely the kind of students that Associate Director Gavin was employed to help place, one would think some effort would be made to implement the “deal.” Yet Associate Director Gavin was never told there was such a “deal,” by me, by Donna Miller (the Interim Assistant Dean of Career Services, who was among those who received the Chancellor’s blind-copied message to Chairman Eppley together with my sardonic characterization), or by anyone else. And as Associate Director Gavin and other staff members would tell the Commission, neither he nor anyone else made any effort to contact Chancellor Herman or Chairman Eppley to facilitate the search for those five jobs. The reason for this should be clear: there was no deal. ............. The story that the Chicago Tribune launched weeks ago about the ways that power, politics, and influence have been corrosive of the University’s mandate to be equally accessible to the best and brightest is an important one. It is one to which the Admissions Review Commission should listen carefully. But no one, not the Tribune, and most importantly, not the 2

I provided Associate Director Gavin’s May 1, May 3, and May 15, 2006, emails and memorandum to the Commission at the time of my testimony, together with a chronological ordering of the April 29, 2006, email exchanges between Dr. Herman, Chairman Eppley, and myself, and the staff conversation and telephone conversation with Dr. Herman described above.

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Commission, should come to mistake the story’s perpetrators with its victims, those who use implicit coercion with those who regularly feel themselves under its duress. The real story is about well-intentioned administrators at one of America’s great public universities trying to protect its legacy from being corroded by public officials who are willing to exploit their connections to the University or their raw political might for personal and political advantage. A tale of self-serving politicians and pay-to-play schemes within the state of Illinois is a tired one, and it is understandable for many to have found perverse pleasure in a story that boasts new tit-for-tat schemes from new villains. But to turn those who are dedicated guardians of the University of Illinois into enemies of its ideals is not just mistaken; it is wrong. None of us who have labored on behalf of the University of Illinois over the years have left a perfectly straight wake as we have tried to navigate choppy political waters by the twin pole stars of excellence and equal opportunity. None of us are without decisions we would make differently, emails we would write more soberly, and consequences of judgments we would reverse. But it is a cruel legacy for a proud and prestigious law school to be charged with having failed to fight sufficiently vigorously for merit-based admissions when, during the five-year time period in question, it managed to restore the national ranking of its student body from 34th to 15th, while refusing to give up its #1 ranking for student diversity within the Big Ten and its Top 10 status for student diversity among the nation’s public law schools . I am optimistic that the Commission will help the College of Law, and the other colleges and departments within the University of Illinois, pursue, without distraction, a merit-based approach to admissions. Merit-based admissions have been, and remain today, the first principle of the University of Illinois College of Law’s agenda of excellence, for they are, by their nature, blind to the kinds of power, politics, influence, and wealth that conspire to make an institution substitute resignation to what is good for a continued and vigorous quest for what is great.

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