Industry 1, intelligence 0

How often do you see something like this? The 1L from a compass-point state college beats the Ivy League alumna. The C-average graduate, not the law review's editor in chief, eventually donates $1 million. The tier-four law school graduate becomes the faculty star, while the Supreme Court clerk hired the same year is grudgingly voted tenure and becomes an unproductive curmudgeon dedicated to guarding his sinecure. One underlying factor may be driving the entire phenomenon.

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The fable at work here, of course, is that of the tortoise and the hare. Folk wisdom and anecdote find further support in the latest report of the National Mathematics Advisory Panel.

Much of the report covers ground that is as depressing as it is familiar. The report cited a 2007 assessment concluding that 15-year-olds in America ranked 25th among their peers in 30 developed nations in math literacy and problem solving. The National Assessment of Educational Progress found that almost half the eighth graders tested could not solve a word problem requiring the division of fractions. According to the advisory panel, the failure to master fractions posed the greatest obstacle separating American students from mastery of algebra.

There is no shortage of reports lamenting the woeful state of American education and the vast extent of ignorance in which many young Americans languish. We live in a country, after all, where even top-tier law school graduates routinely bomb the distinction between lie and lay, even though lie is an intransitive class 5 strong verb that readily retains a separate identity from the equivalent of lay, a transitive weak verb, in other Germanic languages. Repeat in an accent vaguely reminiscent of Arnold Schwarzenegger: "How can you hope to distinguish liegen from legen in German when you can't even conjugate lie and lay in your own language?" In a single generation, Americans of all classes and educational backgrounds will have eliminated all verb uses of lie except the intransitive weak verb denoting prevaricate. And so ends one of the most vivid manifestations of ablaut, a rich phonological and morphological tradition stretching back to the origins of the Indo-European languages. Lay down, Sally.

But I digress. The Advisory Panel made one additional finding of special interest to our educational system as a whole. Its report cited findings that students who draw upon their native intelligence learn less math than those who believe that success depends on hard work. The panel's chairman, Larry Faulkner, condemned the current “talent-driven approach to math, that either you can do it or you can’t, like playing the violin.”

So much of the rhetoric of prestige and rankings in education, especially in universities, treats academic achievement as a function of talent rather than a function of hard work. Shortcuts such as the identity of one's alma mater, one's class rank, and the academic reputation of a law school reinforce the assumption that innate talent, or access to elite institutions and resources more easily attained by families to the manor born, outweigh persistence, resilience, and industry. If it were otherwise, our profession would give ample opportunities to the graduates of less well regarded colleges and law schools — to say nothing of our own students who land well short of Coif, Latin honors, or the law review — to prove themselves through raw, hard work.

As a rule, of course, we do no such thing. This profession's nonelite tortoises, whatever they might lack in resources or opportunities, will simply have to keep outworking and outracing their hare-legged counterparts. I'll be betting on members of family Testudinidae.