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Chapter One
THE FUTURE OF AFFIRMATIVE
ACTION
SUSAN STURM AND LANI GUINIER
For more than two decades, affirmative action has been undersustained assault. In courts, legislatures, and the media,opponents have condemned it as an unprincipled programof racial and gender preferences that threatens fundamentalAmerican values of fairness, equality, and democratic opportunity.Such preferences, they say, are extraordinary departuresfrom prevailing "meritocratic" modes of selection,which they present as both fair and functional: fair, becausethey treat all candidates as equals; functional, because theyare well suited to picking the best candidates.
This challenge to affirmative action has met with concertedresponse. Defenders argue that affirmative action isstill needed to rectify continued exclusion and marginalization.And they marshal considerable evidence showing thatconventional standards of selection exclude women andpeople of color, and that people who were excluded in thepast do not yet operate on a level playing field. But this responsehas largely been reactive. Proponents typically treataffirmative action as a crucial but peripheral supplement toan essentially sound framework of selection for jobs andschools.
We think it is time to shift the terrain of debate. We needto situate the conversation about race, gender, and affirmativeaction in a wider account of democratic opportunity byrefocusing attention from the contested periphery of thesystem ofselection to its settled core. The present systemmeasures merit through scores on paper-and-pencil tests.But this measure is fundamentally unfair. In the educationalsetting, it restricts opportunities for many poor andworking-class Americans of all colors and genders whocould otherwise obtain a better education. In the employmentsetting, it restricts access based on inadequate predictorsof job performance. In short, it is neither fair norfunctional in its distribution of opportunities for admissionto higher education, entry-level hiring, and job promotion.
To be sure, the exclusion experienced by women and peopleof color is especially revealing of larger patterns. Therace- and gender-based exclusions that are the target of currentaffirmative action policies remain the most visible examplesof bias in ostensibly neutral selection processes. Objectionablein themselves, these exclusions also signal theinadequacy of traditional methods of selection for everyone,and the need to rethink how we allocate educationaland employment opportunities. And that rethinking is crucialto our capacity to develop productive, fair, and efficientinstitutions that can meet the challenges of a rapidly changingand increasingly complex marketplace. By using the experienceof those on the margin to rethink the whole, wemay forge a new, progressive vision of cross-racial collaboration,functional diversity, and genuinely democratic opportunity.
Affirmative Action Narratives
Competing narratives drive the affirmative action debate.The stock story told by critics in the context of employmentconcerns the white civil servant—say, a police officer orfirefighter—John Doe. (Similar stories abound in the educationalsetting.) Doe scores several points higher on thecivil service exam and interview rating process, but loses outto a woman or person of color who did not score as high onthose selection criteria.
Doe and others in similar circumstances advance two basicclaims: first, that they have more merit than beneficiariesof affirmative action; and second, that as a matter of fairnessthey are entitled to the position for which they applied.Consider these claims in turn.
The idea of merit can be interpreted in a variety of ways:for example, as a matter of desert (because they were next inline, based on established criteria of selection, they deservethe position), or as earned recognition ("when an individualhas worked hard and succeeded, she deserves recognition,praise and/or reward"). But, most fundamentally, argumentsabout merit are functional: a person merits a job if heor she has, to an especially high degree, the qualities neededto perform well in that job. Many critics of affirmative actionequate merit, functionally understood, with a numericalranking on standard paper-and-pencil tests. Those withhigher scores are presumed to be most qualified, and thereforemost deserving.
Fairness, like merit, is a concept with varying definitions.The stock story defines fairness formally. Fairness, it assumes,requires treating everyone the same: allowing everyoneto enter the competition for a position, and evaluatingeach person's results the same way. If everyone takes thesame test, and every applicant's test is evaluated in the samemanner, then the assessment is fair. So affirmative action isunfair because it takes race and gender into account, andthus evaluates some test results differently. A crucial premiseof this fairness challenge to affirmative action is the assumptionthat tests afford equal opportunity to demonstrateindividual merit, and therefore are not biased.
Underlying the standard claims about merit and fairness,then, is the idea that we have an objective yardstick for measuringqualification. Institutions are assumed to know whatthey are looking for (to continue the yardstick analogy,length), how to measure it (yards, meters), how to replicatethe measurement process (using the ruler), and how to rankpeople accordingly (by height). Both critics and proponentsof affirmative action typically assume that objective tests forparticular attributes of merit—perhaps supplemented bysubjective methods such as unstructured interviews and referencechecks—can be justified as predictive of performance,and as the most efficient method of selection.
Merit, Fairness, and Testocracy
The basic premise of the stock narrative is that the selectioncriteria and processes used to rank applicants for jobs andadmission to schools are fair and valid tests of merit. Thispremise is flawed. The conventional system of selectiondoes not give everyone an equal opportunity to compete.Not everyone who could do the job, or could bring new insightsabout how to do the job even better, is given an opportunityto perform or succeed. The yardstick metaphor simplydoes not withstand scrutiny.
Fictive Merit
For present purposes, we accept the idea that capacity toperform—functional merit—is a legitimate considerationin distributing jobs and educational opportunities. But wedispute the notion that merit is identical to performance onstandardized tests. Such tests do not fulfill their stated function.They do not reliably identify those applicants who willsucceed in college or later in life, nor do they consistentlypredict those who are most likely to perform well in the jobsthey will occupy. Particularly when used alone or to rank-ordercandidates, timed paper-and-pencil tests screen outapplicants who could nevertheless do the job.
Those who use standardized tests need to be able to identifyand measure successful performance in the job or atschool. In both contexts, however, those who use tests lackmeaningful measures of successful performance. In the employmentarea, many employers have not attempted to correlatetest performance with worker productivity or pay. Inthe educational context, researchers have attempted to correlatestandardized tests with first-year performance in collegeor postgraduate education. But this measure does notreflect successful overall academic achievement or performancein other areas valued by the educational institution.
Moreover, "successful performance" needs to be interpretedbroadly. A study of three classes of Harvard alumniover three decades, for example, found a high correlationbetween "success"—defined by income, community involvement,and professional satisfaction—and two criteriathat might not ordinarily be associated with Harvardfreshmen: low SAT scores and a blue-collar background.When asked what predicts life success, college admissionsofficers at elite universities report that, above a minimumlevel of competence, "initiative" or "drive" are the best predictors.
By contrast, the conventional measures attempt to predictsuccessful performance, narrowly defined, in the short run.They focus on immediate success in school and a short timeframe between taking the test and demonstrating success.Those who excel based on those short-term measures, however,may not in fact excel over the long run in areas that areequally or more important. For example, a study of graduatesof the University of Michigan Law School found a negativerelationship between high LSAT scores and subsequentcommunity leadership or community service.
Those with higher LSAT scores are less likely, as a generalmatter, to serve their community or do pro bono serviceas lawyers. In addition, the study found that admission indexes—includingthe LSAT—fail to correlate with otheraccomplishments after law school, including income levelsand career satisfaction.
Standardized tests may thus compromise an institution'scapacity to search for what it really values in selection. Privilegingthe aspects of performance measured by standardizedtests may well screen out the contributions of peoplewho would bring important and different skills to the workplaceor educational institution. It may reward passivelearning styles that mimic established strategies rather thancreative, critical, or innovative thinking.
Finally, individuals often perform better in both theworkplace and school when challenged by competing perspectivesor when given the opportunity to develop in conjunctionwith the different approaches or skills of others.
The problem of using standardized tests to predict performanceis particularly acute in the context of employment.Standardized tests may reward qualities such as willingnessto guess, conformity, and docility. If they do, thentest performance may not relate significantly to the capacityto function well in jobs that require creativity, judgment,and leadership. In a service economy, creativity and interpersonalskills are important, though hard to measure. Inthe stock scenario of civil service exams for police and firedepartments, traits such as honesty, perseverance, courage,and ability to manage anger are left out. In other words,people who rely heavily on numbers to make employmentdecisions may be looking in the wrong place. While JohnDoe scored higher on the civil service exam, he may not performbetter as a police officer.
Fictive Fairness
Scores on standardized tests are, then, inadequate measuresof merit. But are the conventional methods of selectingcandidates for high-stakes positions fair? The stockaffirmative action narrative implicitly embraces the idea thatfairness consists in sameness of treatment. But this conceptionof fairness assumes a level playing field—that if everyoneplays by the same rules, the game does not favor or disadvantageanyone.
An alternative conception of fairness—we call it "fairnessas equal access and opportunity"—rejects the automaticequation of sameness with fairness. It focuses on providingmembers of various races and genders withopportunities to demonstrate their capacities and recognizesthat formal sameness can camouflage actual differenceand apparently neutral screening devices can be exclusionary.The central idea is that the standards governing the processmust not arbitrarily advantage members of one groupover another. It is not "fair," in this sense, to use entry-levelcredentials that appear to treat everyone the same, but ineffect deny women and people of color a genuine opportunityto demonstrate their capacities.
On this conception, the "testocracy" fails to provide a fairplaying field for candidates. Many standardized tests assumethat there is a single way to complete a job, and assessapplicants solely on the basis of this uniform style. In thisway, the testing process arbitrarily excludes individuals whomay perform equally effectively, but with different approaches.
For example, in many police departments, strength, militaryexperience, and speed weigh heavily in the decision tohire police officers. These characteristics relate to a particularmode of policing focusing on "command presence" andcontrol through authority and force.
If the job of policing is defined as subduing dangeroussuspects, then it makes sense to favor the strongest, fastest,and most disciplined candidates. But not every situationcalls for quick reaction time. Indeed, in some situations, respondingquickly gets police officers and whole departmentsin trouble.
This speed-and-strength standard normalizes a particulartype of officer: tough, brawny, and macho. But othermodes of policing—dispute resolution, persuasion, counseling,and community involvement—are also critical, andsometimes superior, approaches to policing. One study ofthe Los Angeles Police Department, conducted in the wakeof the Rodney King trials, recommended that the departmentincrease the number of women on the police force aspart of a strategy to reduce police brutality and improvecommunity relations. The study found that women oftendisplay a more interactive and engaged approach to policing.
Similarly, an informal survey of police work in some NewYork City Housing Authority projects found that manywomen housing authority officers, because they could notrely on their brawn to intimidate potential offenders, developeda mentoring style with young adolescent males. Thewomen, many of whom came from the community theywere patrolling, increased public safety because they did notapproach the young men in a confrontational way. Their authoritywas respected because they offered respect.
The retention and success of new entrants to institutionsoften depend on expanding measures of successful performance.But because conventional measures camouflagetheir bias, one-size-fits-all testocracies invite people to believethat they have earned their status because of a testscore, and invite beneficiaries of affirmative action to believeexactly the opposite—that they did not earn their opportunity.By allowing partial and underinclusive selection standardsto proceed without criticism, affirmative action perpetuatesan asymmetrical approach to evaluation.
In addition to arbitrarily favoring certain standards ofperformance, conventional selection methods advantagecandidates from higher socioeconomic backgrounds anddisproportionately screen out women and people of color, aswell as those in lower income brackets. When combinedwith other unstructured screening practices, such as personalconnections and alumni preferences, standardizedtesting creates an arbitrary barrier for many otherwise-qualifiedcandidates.
The evidence that the testocracy is skewed in favor ofwealthy contestants is consistent and striking. Consider thelinkage between test performance and parental income. Averagefamily income rises with each hundred-point increasein SAT scores, except for the highest SAT category, wherethe number of cases is small. Within each racial and ethnicgroup, SAT scores increase with income.
Reliance on high school rank alone excludes fewer peoplefrom lower socioeconomic backgrounds. When the SAT isused in conjunction with high school rank to select collegeapplicants, the number of applicants admitted from lower-incomefamilies decreases. This is because the SAT is morestrongly correlated with every measure of socioeconomicbackground than is high school rank.
Existing methods of selection, both objective and subjective,also exclude people based on their race and gender. Forexample, although women as a group perform worse thanmales perform on the SAT, they equal or outperform men ingrade point average during the first year of college, the mostcommon measure of successful performance. Similar patternshave been detected in the results of the ACT and otherstandardized college selection tests.
Supplementing class rank with the SAT also decreasesacceptances and enrollments of blacks. Studies show thatthe group of black applicants rejected based on their SATscores includes both those who would likely have failed andthose who would likely have succeeded, and that thesegroups offset each other. Consequently, the rejection ofmore blacks as a result of using SAT scores "does not translateinto improved admissions outcomes. The SAT does notimprove colleges' ability to admit successful blacks and rejectpotentially unsuccessful ones."
Thus, it is incontestable that the existing meritocracy disproportionatelyincludes wealthy white men. Is this highlyunequal outcome fair? Even if the "meritocracy" screens outwomen, people of color, and those of lower socioeconomicstatus, it could be argued that those screens are fair if theyserve an important function. But the testocracy fails even onthis measure; it does not reliably distinguish successful futureperformers from unsuccessful ones, even when supplementedby additional subjective criteria. Therefore, racial,gender, and socioeconomic exclusion cannot legitimately bejustified in the name of a flawed system of selection.
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Excerpted from WHO'S QUALIFIED? by LANI GUINIER AND SUSAN STURM. Copyright © 2001 by Beacon Press. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
