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Lani Guinier: She is a professor of law at Harvard University and has written about the Law School Admission Test (LSAT) and its limitations in predicting success in law school and after. She co-authored Becoming Gentlemen: Women, Law School and Institutional Change and wrote Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice.
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Let's take the popular conception or misconception in many people's mind of what affirmative action is.

As a society we have come to use a proxy for merit that is essentially scores on a blind, graded, timed, paper-and-pencil test. And we believe that those scores stand in for quote-unquote merit. And affirmative action, which does not rely exclusively on test scores, is therefore seen as a departure from otherwise sound principles of meritocracy. So in order to understand affirmative action and in order to understand misconceptions about affirmative action, you have to take a step back to understand the misconceptions about the testocracy.

What are those misconceptions? Don't we have a neutral and impersonal meritocracy measuring merit?

Well, it is certainly impersonal. I don't know I'd go so far as to say it's either neutral or meritocratic. It, some people would say--Fair Test for example would say that these tests--and I want to be clear, I'm [not] talking about all tests. I'm a professor. I believe in methods of evaluation. I think some methods are not only more fair but also more valuable. And what I'm talking about here in the guise of tests is aptitude testing, tests which are used to predict future performance, not tests which are used to give feedback, either to the teacher to the student, as to what they have actually mastered or what they are learning. I'm not talking about diagnostic tests. I am talking only about aptitude tests. Because it is the aptitude test that we are using as the proxy for merit. And it is as if this test functions as a thermometer. And you give each person the test as if you were taking their smartness temperature. And that unfortunately, is not how the test functions. Even the test makers do not claim it is a thermometer of smartness. All they claim is that it correlates with first year college grades. And if it's the LSAT, with first-year law school grades.

We have to start with an understanding of merit as a complex concept. That merit has to encompass what we expect graduates of institutions of higher education to be able to do.  Merit is not simply an efficient way of scoring or ranking people. Now, correlate--that's a big word. What does correlate mean? There's some consistency. There's some relationship between the score on this aptitude test and your first year college grades. That's true. There is some relationship. The problem is it's a very modest relationship. It is a positive relationship, meaning it is more than zero. But it is not what most people would assume when they hear the term correlation. For example, your height correlates better with your weight than your test score correlates with your first year grades.

Jane Balin, Michelle Fine and I did a study at the University of Pennsylvania Law School where we actually looked at the first year law school grades of 981 students and then looked at their LSAT scores. And it turned out that there was a relationship between their LSAT and their first year law school grades. The LSAT predicted 14 percent of the variance between the first year grades. And it did a little better second year: 15 percent. And I was at a meeting with a person who at the time worked for the law school admissions council who constructs the LSAT. And she said, well, nationwide the test is nine percent better than random. Nine percent better than random. That's what we're talking about.

So it may be an efficient tool in that you get the students to pay for it. The schools don't pay for it. It allows the schools to then rank order people based on a number that is assigned to them. But it is a fairly arbitrary tool. And it is certainly not a thermometer of merit, if by merit--and I'm assuming we don't mean merit is the equal of first-year college grades or first-year law school grades. Merit is a big word. And it has to encompass, it has to carry a lot of weight. It does a lot of heavy lifting. It means more than just how you're going to do first year in college. Because if all we cared about is how well you do first year in college, we would have college as one year. Right? Why would you have to be there and pay tuition for three more years if this is only about first year of college? If it's such a good predictor, why do you even go to college? Just take the test and then get a diploma.

So there must be something going on within the institution of higher education or within the legal academy that we think also carries, quote, merit. In which people are learning how to work and play well together with others, in which people are learning intellectual self-confidence, in which people are being exposed to research skills, in which people are being trained to be leaders. None of this has any relationship to the testocracy. No one claims that aptitude tests predict leadership, predict emotional intelligence, predict the capacity to make a contribution to the society. The only relationship is between the test and first-year college grades.

And what I was about to say earlier was that, with FairTest and others, they will say that what the test actually judges is quick strategic guessing with less than perfect information. Boys, for example, do better on the math portion of the SAT than girls. They routinely score 40 to 50 points higher. Many people say, well that's because girls are ignored in high school math. That may be true. And yet the girls do just as well in college when they take math courses as the boys, despite their lower SAT scores on the math portion. And when you interview the boys as to how they approach the test, the answer is they basically viewed it as a pinball machine. And the goal was speed and winning. And the girls on the other hand, wanted to work through the problems before they put down the answer. That, apparently, is not merit.

Somebody who wants to work through a problem before concluding with an answer, is not guessing and they're not fast. And so on some level, what we are confusing as a result of this over emphasis on the testocracy, what we're confusing merit with is speed and the confidence to guess.

So what do you mean when you say, we need to change the paradigm, that we have to move beyond one size fits all testing?

Well, it means that we have to start with an understanding of merit as a complex concept. That merit has to encompass what we expect graduates of institutions of higher education to be able to do. Merit is not simply an efficient way of scoring or ranking people. It is not simply a tool for US News and World Report to be able to rank colleges so that it can promote its news magazine. Its college edition is apparently such a popular issue that it out sells all the other issues of US News and World Report combined. And then that particular issue begins to influence admissions officers as to what they rely on because they're afraid that their ranking in US News and World Report will go down if they don't emphasize the SAT. So you set in motion a really difficult cycle to break.

So when I say we have to change the paradigm, I'm suggesting that we have to understand that you can't grade or score merit as if merit were your basal temperature. Right? Merit is something that is complicated, that has to relate to what is it that we want you to do before we understand how skilled you are at doing it. How competent are you at doing what we want?

Now that opens up a very big question, a very big conversation. What is the mission of higher education? And that's a conversation that I think we need to have before we start to understand admissions as a matter of selection. You have to link admission to mission. Admission should be a subset of mission. And the mission of institutions of higher education can vary. Public institutions, for example, have a democratic function. They're being subsidized by all of the taxpayers of the state. Presumably they should afford all of the citizens of the state an equal opportunity to not only attend institutions of higher education that they are in fact paying for, but in some states such as Texas, graduates of the University of Texas Law School are over-represented in leadership positions throughout the state. So in some ways, access to the University of Texas Law School, a public institution, should be distributed so that all citizens of Texas are then represented by people who can be trained to be leaders of the state.

So it's not just that each individual has the right to go to the school. I'm making that argument. But each individual within the state should have an equal opportunity to qualify to get to the school, as well as an equal opportunity to be represented in a democratic sense by people who then go to the school, function as leaders, and make important public policy decisions for the state. So that's in a public context.

The Ford Foundation, for example, did a study of a national survey of voters, asking them what they thought the goals of higher education should be. Many of the voters, an overwhelming majority, said that it should be career training or skills development. But a very large majority--not 82 percent as with those who said that higher education should provide basic skills--but a very large percentage, about 67, 69 percent said that one of the important goals of higher education is to train people to work in a diverse society. And then another group, about the same--two thirds--said an important goal of higher education is to prepare people to work and play well, to go work and play well together with others in a diverse society, not just a diverse work force.

Why are people only focused on race, not on gender, class, or legacy?

In this society race is a flag that you can wave in front of people as a means of distracting them and diverting their attention from the real issue. And so people are scapegoating. That's what I would argue happened in the Hopwood case, that people were encouraged to scapegoat the black and Mexican American students who were the beneficiaries of affirmative action, and identify them as if they were the problem, when in fact the real problem is elsewhere and is affecting all of us.

I use the metaphor of the miner's canary. The experience of those black and Chicano--or in Texas, Mexican American--students is the experience of the miner's canary. The miners used to take a canary into the mines to alert them when the atmosphere in the mines was too toxic--not only for the canary but for the miners. And the canary's more fragile respiratory system would give way, alerting the miners that it was dangerous for them to remain.

And my argument is that the experience of those black and Mexican American students at the University of Texas is the canary. And they are alerting us that the testocracy that we are using to admit everyone is poisoning the atmosphere, the educational atmosphere in the society as a whole. It's affecting all of us. But in this society, because of the legacy of racism and because of many problems that we have having access to a big conversation in which people can have more than a single opportunity to speak--and therefore they have to use their most dramatic claim, because they only get one time to say something and get people's attention--because of that, we think we have to locate the problem in the canary. We pathologize the canary. And then we say, well we have to fix the canary, as if the solution is to outfit that little canary with a pint-sized gas-mask so that it can withstand the toxic atmosphere in the mines.

And my argument is, heed the canary. It is signaling us that we are not doing much good for the society focusing simply on fixing the canary. We have to fix the atmosphere in the mines.

Do you think that the past 30 years have been the era of the great multiracial university?

So your question is, will we look back at the era of 1965 to 1999 as--with some nostalgia and regret--as the era of the multiracial university? and comfortably continue with an all-white or predominantly white and Asian, and predominantly affluent student population? And my answer is no. Because once people understand that the canary is simply standing in for all of us, and they begin to understand that this testocracy can be manipulated by those with money, so that academic standards or what purport to be academic standards or admission criteria are actually ways to credentialize a social oligarchy. They are not, quote, meritocratic and democratic--even more important--systems for distributing a scarce resource. Then more people are going to begin to question the over emphasis on test scores. That's one answer.

The second is this. Part of what's happening--and it's not coincidental in my view that 209 was addressed to problems in California. Part of what's happening is that, as I said, affirmative action and the debate about admissions criteria is a distraction from the real issue. California is presently investing more money in prison construction than in construction of institutions of higher education. And Victor Hugo over 140 years ago said, every time you build a prison you close a school. And that's what's happening. We are making higher education an increasingly valuable resource because we have more demands for an educated and literate citizenry in terms of getting good jobs in the work force. But at the same time, it's a valuable gateway to citizenship. And citizenship here means not just a good job but also a critical voice, leadership skills, the ability to learn how to work with other people so that you can actually function in a diverse work force, in a global economy. So it's not only increasingly valuable but it is increasingly scarce.

And so rather than address the question of scarcity--why are we withdrawing state funds from higher education and investing them instead in prisons--we're going to have a conversation about affirmative action, as if affirmative action were responsible for the increasing scarcity of educational resources. And that's just not true.

Do you think there's a fundamental conflict between a meritocracy and a democracy?

No. I think there's a fundamental conflict between a testocracy and democracy.

We have a new elite that is passing on its privileges in the same way that the old elite passed on its privileges. But here's the danger or the even more worrisome aspect of the new elite.

The old elite felt that it inherited its privileges. The new elite feels that it has earned its privileges. And the problem is that the new elite thinks that it earned its privileges based on its intrinsic merit. And therefore the message to those who are not part of this elite is, "You are stupid. You simply don't matter." Whereas, at least with the old elite,there was this sense of noblesse oblige, that in order to defend or legitimate the social oligarchy, you had to give back--as you said, the notion of service, of public service, of some commitment to the greater good. And there was the sense that even though you were privileged, it was simply luck that you inherited the privilege. So those who were out of luck, so to speak, did not necessarily think that that they were stupid. They were unlucky and unfortunate but not necessarily stupid.

And I think the damage that we are doing through this testocracy, which is credentializing a different elite, is the damage to both the people who have an inflated sense of their own merit and an unwillingness to open up to new ways of problem solving, an arrogance that there's only one way to answer a question. Right? Because on that SAT it only gives one credit for one right answer. So that means all problems have a single right answer. And the question is, can you guess it within a short period of time. And it also conveys to those who are left out a very damaging sense that they internalize. And I think it really paralyzes true democratic experimentation.

What are your views about the gap and what we can do about it?

I'd have to start the question from a different place because the problem I have with focusing on the test score gap--and I'm not opposed, in fact I'm committed, to improving access to educational resources across the board. And if in fact, the test score gap reflects the failure of this society to provide equal access to educational resources, then we should solve that problem and make sure everyone has the same opportunity to get an excellent education. But I think the preoccupation with the test score gap, again, over-emphasizes the value of the tests as a value in and of itself rather than as a proxy for some other set of concerns.

Michael Feuer, who works at the National Academy of Science, tells the story of walking down the street and seeing a woman with a baby in a carriage. And he stops. And he admires the baby. And the woman turns to him. And she says, "Oh, if you think the baby is beautiful, you should see her pictures." And his point is that the way were are using tests is the same way the mother was using the photograph of the baby, that we think the test somehow is a better picture of the baby than simply looking at the baby in context.

Now, when you say to me, well there's a test score gap, part of what I hear is that we have been taking pictures of these babies using a particular kind of camera that seems to show white skin and middle class experience in all its glory. And that those with a different kind of experience don't show up very well using this particular film, or this particular angle.

Now, I'm not saying we shouldn't take pictures. But maybe we also need to figure out ways that we can demonstrate--because I think Christopher Jencks and others would concede that when given the opportunity to succeed, those who are motivated to take advantage of that opportunity, do succeed. Harvard, for example, did a study of three classes of its graduates. And it was trying to determine what correlates with success as Harvard defined it. Harvard defined success as financial satisfaction, professional satisfaction and contribution to the community. And two things correlated with success as Harvard defined: low SAT scores and a blue collar background. And part of the analysis or the conclusion from that study is that those who are motivated to take advantage of an opportunity, when given the opportunity, will succeed. That's certainly the message of Derek Bok and William Bowen's The Shape of the River, that those who are motivated to take advantage of the opportunity, when given the opportunity, can and often do succeed, often in ways that are different than their more privileged peers. The African Americans for example in the Bok-Bowen study became leaders within their community at much higher rates than their more affluent and better-scoring white counterparts.

Are you then saying that instead of focusing on merit we should be focusing on opportunity? Or are you saying that merit is opportunity?

I'm saying that you cannot know merit until you see it in the context of opportunity. So merit, in my view, is a function of mission. It is not an abstract concept that is genetically endowed. I think in this society we tend to believe that you are born smart or you are born not smart and the goal of education is the goal of that thermometer. We are going to dip your brain in some particular, sort of neutral environment and determine whether you were born smart or whether you are smart. And then if we determine you are smart, then we give you an education. Then we give you the opportunity to become a capable and functioning member of this society. And my claim is that we can't tell who is smart until we know what it is we want them to do. And it is only in the context of investigation of someone's capacity, that you know who can do the job and who can do the job well.

What we have now is a complete diminution of standards. What do you say to that?

If what we mean by standards is the ability to memorize facts, then we are not keeping up with either cognitive, sociological or most scientific data about how people learn and how they use what they learn. Because, to me, standards are only valuable if they can predict problem solving ability. Because ultimately, what we want as a society is to train people who can solve problems, not just train people who can take tests.

Aren't we saying that here's living proof that the standard actually predicted something, that being a longer time to graduate, and in smaller numbers?

But the goal is not simply to graduate. And the goal is not simply to pass the bar. The goal is to become a lawyer. The goal is be a lawyer who can solve problems. And that's where the standards advocates fall down. Because they can't predict who is going to be a good lawyer and who is going to be a lawyer who makes a contribution--not only to his or her family in terms of making a good living, but to the society as a whole. We have to be willing to consider that the goal is ultimately to see how people function in the society, not simply in little isolated units of analysis.

What do you think of the implementation of affirmative action?

Affirmative action was always a very modest remedy. And in many ways, the demise--and I do think that affirmative action is not only under serious assault but is withering on the vine--but in many ways the demise of affirmative action also represents an opportunity. Because it represents an opportunity to reconsider a modest remedy and actually go after the true source of the problem. If affirmative action was justified because conventional criteria failed to provide adequate information about the capacity of a certain previously under represented group of people to perform and to succeed, then perhaps it is now time to go after those conventional criteria--which it turns out, also failed to provide adequate information about the capacity of a very large group of people, some of whom have been included but others who have also been excluded but nobody has noticed. Because in this society, if you are poor and white and you don't do well on these tests, nobody notices because your situation is invisible in the larger pool of affluent whites who are doing just fine.

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