The Future of Affirmative Action

Promoting diversity in education and employment requires us to rethink testing and "meritocracy."

Susan Sturm and Lani Guinier

8 For more than two decades, affirmative action has been under sustained assault. In courts, legislatures, and the media, opponents have condemned it as an unprincipled program of racial and gender preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Such preferences, they say, are extraordinary departures from prevailing "meritocratic" modes of selection, which they present as both fair and functional: fair, because they treat all candidates as equals; functional, because they are well suited to picking the best candidates.

This challenge to affirmative action has met with concerted response. Defenders argue that affirmative action is still needed to rectify continued exclusion and marginalization. And they marshal considerable evidence showing that conventional standards of selection exclude women and people of color, and that people who were excluded in the past do not yet operate on a level playing field. But this response has largely been reactive. Proponents typically treat affirmative action as a crucial but peripheral supplement to an essentially sound framework of selection for jobs and schools.

We think it is time to shift the terrain of debate. We need to situate the conversation about race, gender, and affirmative action in a wider account of democratic opportunity by refocusing attention from the contested periphery of the system of selection to its settled core. The present system measures merit through scores on paper-and-pencil tests. But this measure is fundamentally unfair. In the educational setting, it restricts opportunities for many poor and working-class Americans of all colors and genders who could otherwise obtain a better education. In the employment setting, it restricts access based on inadequate predictors of job performance. In short, it is neither fair nor functional in its distribution of opportunities for admission to higher education, entry-level hiring, and job promotion.

To be sure, the exclusion experienced by women and people of color is especially revealing of larger patterns. The race- and gender-based exclusions that are the target of current affirmative action policies remain the most visible examples of bias in ostensibly neutral selection processes. Objectionable in themselves, these exclusions also signal the inadequacy of traditional methods of selection for everyone, and the need to rethink how we allocate educational and employment opportunities. And that rethinking is crucial to our capacity to develop productive, fair, and efficient institutions that can meet the challenges of a rapidly changing and increasingly complex marketplace. By using the experience of those on the margin to rethink the whole, we may 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 employment concerns the white civil servant—say a police officer or firefighter—John Doe. (Similar stories abound in the educational setting.) Doe scores several points higher on the civil service exam and interview rating process, but loses out to a woman or person of color who did not score as high on those selection criteria.¹

The idea of merit can be interpreted in a variety of ways: for example, as a matter of desert (because they were next in line, based on established criteria of selection, they deserve the position), or as earned recognition ("when an individual has worked hard and succeeded, she deserves recognition, praise and/or reward"²). But, most fundamentally, arguments about merit are functional: a person merits a job if he or she has, to an especially high degree, the qualities needed to perform well in that job. Many critics of affirmative action equate merit, functionally understood, with a numerical ranking on standard paper-and-pencil tests. Those with higher scores are presumed to be most qualified, and therefore most deserving.

Merit, Fairness, and Testocracy

The basic premise of the stock narrative is that the selection criteria and processes used to rank applicants for jobs and admission to schools are fair and valid tests of merit. This premise is flawed. The conventional system of selection does not give everyone an equal opportunity to compete. Not everyone who could do the job, or could bring new insights about how to do the job even better, is given an opportunity to perform or succeed. The yardstick metaphor simply does not withstand scrutiny.

Those who use standardized tests need to be able to identify and measure successful performance in the job or at school. In both contexts, however, those who use tests lack meaningful measures of successful performance. In the employment area, many employers have not attempted to correlate test performance with worker productivity or pay. In the educational context, researchers have attempted to correlate standardized tests with first-year performance in college or post-graduate education.³ But this measure does not reflect successful overall academic achievement or performance in other areas valued by the educational institution.

Moreover, "successful performance" needs to be interpreted broadly. A study of three classes of Harvard alumni over three decades, for example, found a high correlation between "success"—defined by income, community involvement, and professional satisfaction—and two criteria that might not ordinarily be associated with Harvard freshmen: low SAT scores and a blue-collar background.⁴ When asked what predicts life success, college admissions officers at elite universities report that, above a minimum level of competence, "initiative" or "drive" are the best predictors.⁵

By contrast, the conventional measures attempt to predict successful performance, narrowly defined, in the short-run. They focus on immediate success in school and a short time-frame 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 are equally or more important. For example, a study of graduates of the University of Michigan Law School found a negative relationship between high LSAT scores and subsequent community leadership or community service.⁶

Those with higher LSAT scores are less likely, as a general matter, to serve their community or do pro bono service as a lawyer. In addition, the study found that admission indexes—including the LSAT—fail to correlate with other accomplishments after law school, including income levels and career satisfaction.

Standardized tests may thus compromise an institution’s capacity to search for what it really values in selection. Privileging the aspects of performance measured by standardized tests may well screen out the contributions of people who would bring important and different skills to the workplace or educational institution. It may reward passive learning styles that mimic established strategies rather than creative, critical, or innovative thinking.

Finally, individuals often perform better in both workplace and school when challenged by competing perspectives or when given the opportunity to develop in conjunction with the different approaches or skills of others.

The problem of using standardized tests to predict performance is particularly acute in the context of employment. Standardized tests may reward qualities such as willingness to guess, conformity, and docility. If they do, then test performance may not relate significantly to the capacity to function well in jobs that require creativity, judgment, and leadership. In a service economy, creativity and interpersonal skills are important, though hard to measure. In the stock scenario of civil service exams for police and fire departments, 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 employment decisions may be looking in the wrong place. While John Doe scored higher on the civil service exam, he may not perform better as a police officer.

Fictive Fairness

Scores on standardized tests are, then, inadequate measures of merit. But are the conventional methods of selecting candidates for high-stakes positions fair? The stock affirmative action narrative implicitly embraces the idea that fairness consists in sameness of treatment. But this conception of fairness assumes a level playing field—that if everyone plays by the same rules, the game does not favor or disadvantage anyone.

An alternative conception of fairness—we call it "fairness as equal access and opportunity"—rejects the automatic equation of sameness with fairness. It focuses on providing members of various races and genders with opportunities to demonstrate their capacities and recognizes that formal sameness can camouflage actual difference and apparently neutral screening devices can be exclusionary. The central idea is that the standards governing the process must not arbitrarily advantage members of one group over another. It is not "fair," in this sense, to use entry-level credentials that appear to treat everyone the same, but in effect deny women and people of color a genuine opportunity to demonstrate their capacities.

On this conception, the "testocracy" fails to provide a fair playing field for candidates. Many standardized tests assume that there is a single way to complete a job, and assess applicants solely on the basis of this uniform style. In this way, the testing process arbitrarily excludes individuals who may perform equally effectively, but with different approaches.

For example, in many police departments, strength, military experience, and speed weigh heavily in the decision to hire police officers. These characteristics relate to a particular mode of policing focusing on "command presence" and control through authority and force.⁷

This speed-and-strength standard normalizes a particular type of officer: tough, brawny, and macho. But other modes of policing—dispute resolution, persuasion, counseling, and community involvement—are also critical, and sometimes superior, approaches to policing. One study of the Los Angeles Police Department, conducted in the wake of the Rodney King trials, recommended that the department increase the number of women on the police force as part of a strategy to reduce police brutality and improve community relations. The study found that women often display a more interactive and engaged approach to policing.⁸

Similarly, an informal survey of police work in some New York City Housing Authority projects found that many women housing authority officers, because they could not rely on their brawn to intimidate potential offenders, developed a mentoring style with young adolescent males.⁹ The women, many of whom came from the community they were patrolling, increased public safety because they did not approach the young men in a confrontational way. Their authority was respected because they offered respect.

Reliance on high school rank alone excludes fewer people from lower socioeconomic backgrounds. When the SAT is used in conjunction with high school rank to select college applicants, the number of applicants admitted from lower-income families decreases. This is because the SAT is more strongly correlated with every measure of socioeconomic background than is high school rank.¹⁰

Existing methods of selection, both objective and subjective, also exclude people based on their race and gender. For example, although women as a group perform worse than males on the SAT, they equal or outperform men in grade point average during the first year of college, the most common measure of successful performance. Similar patterns have been detected in the results of the ACT and other standardized college selection tests.¹¹

Supplementing class rank with the SAT also decreases black acceptances and black enrollments.¹² Studies show that the group of black applicants rejected based on their SAT scores includes both those who would likely have failed and those who would likely have succeeded, and that these groups offset each other. Consequently, the rejection of more blacks as a result of using SAT scores "does not translate into improved admissions outcomes. The SAT does not improve colleges’ ability to admit successful blacks and reject potentially unsuccessful ones."¹³

Thus, it is incontestable that the existing meritocracy disproportionately includes wealthy white men. Is this highly unequal outcome fair? Even if the "meritocracy" screens out women, people of color, and those of lower socioeconomic status, it could be argued that those screens are fair if they serve an important function. But the testocracy fails even on this measure; it does not reliably distinguish successful future performers from unsuccessful ones, even when supplemented by additional subjective criteria. Therefore, racial, gender, and socioeconomic exclusion cannot legitimately be justified in the name of a flawed system of selection.

A New Approach

We have seen how the stock affirmative action narrative normalizes and legitimates selection practices that are neither functional nor fair. Now it is time to use these criticisms as an occasion to move from affirmative action as an add-on to affirmative action as an occasion to rethink the organizing framework for selection generally.

Defining successful performance has also become more complicated in the current economic and political environment. Traditional measures of success, such as short-term profitability, do not fully define success, and may in fact distort the capacity to evaluate and monitor employee performance. In addition, standards must increasingly change to adapt to technological developments and shifting consumer demand. Students of economic organization and human resources now emphasize the importance of developing complex, interactive, and holistic approaches to measuring both institutional and individual performance.¹⁴ Conventional matching approaches to selection do not easily accommodate this move toward more dynamic and interrelated assessments of successful performance.

Current selection approaches also focus on the decontextualized individual, who is assumed to possess merit in the abstract and to demonstrate it through a test or interview. Social science evidence shows that the testing environment can selectively depress the test performance of highly qualified individuals.¹⁵ And individual performance does not take into account how an applicant functions as part of a group. Increasingly, work requires the capacity to interact effectively with others, and the demands of the economy are moving in the direction of more interactive, team-oriented production. The capacity to adapt to rapid changes in technology, shifts in consumer preferences, and fluid markets for goods requires greater collaboration at every level.¹⁶ Paper-and-pencil tests do not measure or predict an individual’s capacity for creativity and collaboration.

Assessment through opportunity to perform often works better than testing for performance. Various studies have shown that "experts often fail on ‘formal’ measures of their calculating or reasoning capacities but can be shown to exhibit precisely those same skills in the course of their ordinary work."¹⁷ Those who assess individuals in situations that more closely resemble actual working conditions make better predictions about those individuals’ ultimate performance. Particularly when those assessments are integrated into day-to-day work over a period of time, they have the potential to produce better information about workers and better workers.

Moreover, many of those who are given an opportunity to perform, even when their basic preparation is weaker, catch up if they are motivated to achieve. Indeed, a recent study of a 25-year policy of open admissions at the City University of New York found that the school was one of the largest sources in the United States of undergraduate students going on to earn doctorates, even though many of its undergraduates come from relatively poor backgrounds and take twice as long to complete their bachelor’s degree.¹⁸

Reclaiming Merit and Fairness

Critics of affirmative action defend prevailing selection practices in the name of meritocracy and democracy. We have argued that those practices put democratic opportunity fundamentally at risk. Even when they are modified by a commitment to affirmative action, current modes of selection jeopardize democratic values of inclusiveness (no one is arbitrarily shut out or excluded); transparency (the processes employed are open and are functionally linked to the public character or public mission of the institution); and accountability (the choice of beneficiaries is directly linked to a public good). The failure of existing practice to achieve inclusiveness is perhaps the most telling. Although some people will lose as a result of any sorting and ranking, a democratic system needs to give those losers a sense of hope in the future, not divide us into classes of permanent losers and permanent winners. But that is precisely what happens when we make opportunity dependent on past success.

One fundamental change resulting from our framework would be a shift away from reliance on tests as a means of distinguishing among candidates. Tests would be limited to screening out individuals who could not learn to perform competently with adequate training and mentoring, or be simply discontinued as a part of the selection process. Of course, decreasing reliance on tests to rank candidates would create the need to develop other ways of distinguishing among applicants. There is no single, uniform solution to this problem. One approach would be a lottery system that would distribute opportunity to participate among relatively indistinguishable candidates by chance. Concerns about a lottery’s insensitivity to particular institutional needs or values could be addressed by increasing the selection prospects of applicants with skills, abilities, or backgrounds that are particularly valued by the institution. A weighted lottery may be the fairest and most functional approach for some institutions. Particularly in the education arena, where opportunity lies at the core of the institution’s mission, a lottery may be an important advance. Above that test-determined floor, applicants could be chosen by several alternatives, including portfolio-based assessment or a more structured and participatory decision-making process.¹⁹

A more institutionally grounded approach might work in non-educational contexts. In some jobs, for example, decision-makers would assume responsibility for constructing a dynamic and interactive process of selection that is integrated into the day-to-day functioning of the organization. Recent developments in the assessment area, such as portfolio-based and authentic assessment, move in this direction. These might build on the tradition and virtues of apprenticeship, and indeed might "more closely resemble traditional apprenticeship measures than formal testing."²⁰ They would build from and acknowledge the effects of context on performance and the importance of measuring performance in relation to context.

During this time period, Bernice had a series of contacts with high-level corporate officials, contacts she never would have had without this probationary team approach. As it turned out, Bernice was able to deal unusually well with a series of crises. If standard criteria, such as recommendations and interpersonal contacts, had been used to select a candidate, it is doubtful Bernice would have been picked. But teamwork, decentralized management, and collaborative and flexible working relationships allowed her to develop the contacts and experiences that trained her. The opportunity to interact over a period of time allowed her to demonstrate her strengths to those who made promotion decisions. Bernice did not know she had those strengths until she took the job.²¹

This story illustrates the potential for integrating concerns about diversity into the process of recruitment and selection. It also shows the value of using performance to assess performance. At the core of this integrative move is a functional theory of diversity animated both by principles of justice and fairness (the inclusion of marginalized groups and the minimization of bias) and by strategic concerns (improving productivity). It is crucial to this integration that decision-makers and advocates understand and embrace a conception of diversity that comprises normative and instrumental elements. In public discourse, diversity has become a catchall phrase or cliché used to substitute for a variety of goals, or a numerical concept that is equated with proportional representation.²² Too often, the different strands of diversity remain separate, with those concerned about justice emphasizing racial and gender diversity as a project of remediation, and those concerned about productivity emphasizing differences in background and skills. Without an articulated theory that links diversity to the goals of particular enterprises and to the project of racial justice, public discussion and public policy-making around race and gender issues is more complicated.

Selection and Productivity

One argument for more closely integrating selection and performance is that doing so has the potential to improve institutions’ capacity to select productive workers, pursue innovative performance, and adapt quickly to the demands of a changing economic environment. The conventional top-down approach short-circuits the capacity of selection to serve as a mechanism for feedback about an institution’s performance and its need to adapt to changing conditions. It also keeps institutions from developing more responsive, integrated, and dynamically efficient selection processes.

Instead of relying on standardized tests, the system of performance-based selection would focus decision-makers’ attention on creating suitable scenarios for making informed judgments about performance. This would improve the capacity of institutions to find people who are creative, adaptive, reliable, and committed, rather than just good test-takers. In some instances, these structured opportunities could directly contribute to the productivity of the organization.

A more interactive process of selection also provides an ongoing opportunity to assess and monitor organizational performance and to perceive and react to the changing character and needs of clients and employees. It provides information learned through the process of selection to the rest of the organization. In the process of redefining the standards for recruitment, the organization also redefines how those already in the institution should function. Selection operates at the boundaries of the organization. It exposes decision-makers to the environment they operate in, provides access to information about the world in which the organization operates, and forces choices about its relationship with that environment. The process of defining the standards for positions also reflects and reinscribes the organization’s priorities and direction. Emphasizing one set of skills over another in the selection process communicates to employees and students how the organization defines good work. Thus, the selection process provides the opportunity and challenge of continually redefining standards in relation to stakeholders, both inside and outside of the organization.

The Benefits of Diversity

More open-ended processes of selection also embrace and harness difference. And the resulting diversity—in particular, an interactive dynamic among individuals with different vantage points, skills, or values—appears to help generate creative solutions to problems.

Studies have shown that work-team heterogeneity promotes more critical strategic analysis, creativity, innovation, and high-quality decisions. Analyses of group decision-making suggest that participation of groups with different prior beliefs or predispositions in decision making improves the quality of the decision for everyone. Studies of jury deliberations support the contention that diversity of participants contributes to improved deliberation. A jury consisting of people from diverse backgrounds has more accurate recall and "more nuanced understanding of the behavior of the parties than [a more homogeneous jury]."²³

Inside an organization, the experience of those who have been excluded or marginalized often signals more general or systemic problems that affect a much larger group and may hurt the organization’s overall productivity. Race and gender complaints may be symptomatic of more general management problems, such as poor organization or arbitrary treatment of workers. For example, recent studies documenting that many women find law school silencing and exclusionary reveal patterns of problems that many men experience as well.²⁴

Finally, conditions for sustained contact, genuine collaboration, and fair assessment provide outsiders with a meaningful opportunity to learn, perform, and succeed. Studies of multi-racial teamwork suggest that the opportunity to work as relative co-equals in interdependent, cooperative teams may also reduce bias.²⁵ Indeed, carefully structured, accountable, and participatory work groups may replicate the conditions most likely to reduce bias and permit genuine participation by women and people of color.

To be sure, these more interactive and informal forms of selection and management rely explicitly on discretion and subjectivity. Preconceptions and biases will likely affect evaluations of performance in ways that often exclude women and people of color. And unstructured discretion exercised without accountability or participation by diverse decision-makers will likely reproduce biased and exclusionary results. But these biases have not been eliminated by formal selection practices and paper-and-pencil tests. More importantly, the model of formal fairness that is outcome-driven, rule-bound, and centralized will not reach many of the places where women and people of color seek to enter.²⁶ If the economy is moving in the direction of creating and restructuring work along more team-oriented, participatory lines, we need approaches to selection and performance that permit women and people of color to participate fairly and to succeed in this changing environment. Otherwise, women and people of color will remain on the margins of the new economy. Moreover, as business entities become more fluid and rely more on subcontracting and temporary work, we must devise new and more interactive strategies for inclusion and empowerment that embrace a workforce existing in the margins of traditional legal categories. The exercise of discretion cannot and should not be eliminated. Instead, discretionary decision making must become the subject and site of participation, accountability, and creative problem-solving.

A Democratic Imperative

Access to work and education is a fundamental attribute of modern citizenship. Work provides an identity that is valued by others. Work organizes and shapes the citizen’s sense of self. Virtually every aspect of citizenship is channeled through participation in the workplace. For most people, medical care, pensions, and social insurance are linked to workplace participation. In these ways, work has become a proxy for citizenship.

In addition, voting—the process that has traditionally served to permit participation and influence public decision making—does not afford individuals the capacity to deliberate and exercise much influence over the conditions of day-to-day life. Without the opportunity to participate in intermediate institutions, such as places of work and schools, many citizens have no sense that their voices are being heard.²⁷

Through the first two centuries of our nation’s history, restrictions on voting based on race, gender, and wealth were gradually lifted "only after wide public debate" about "the very nature of the type of society in which Americans wished to live."²⁸ These barriers were invalidated because they came to be seen as unduly burdening access to this fundamental aspect of citizenship. Courts also recognized that these burdens, through the exercise of selective discretion by local officials, fell disproportionately on disempowered groups such as African Americans.²⁹

We believe a national debate on the terms of participation in equivalent forms of citizenship is long overdue. Just as "history has seen a continuing expansion of the scope of the right of suffrage in this country,"³⁰ so we would argue that 21st-century democracy will depend on a commensurate expansion of the scope of access to higher education and opportunities for on-the-job training. Even if there are justifications for requirements relating to the capacity to exercise citizenship responsibilities effectively, these requirements must be drawn in the most narrow way possible because of the importance of assuring democratic access and legitimacy in the distribution of citizenship opportunities and responsibilities. A performance-based framework of selection is the equivalent, in employment and education, to the elimination of poll taxes and restrictive registration laws in the arena of voting.

We seek to open up a conversation about issues that many people treat as resolved. Our institutions do not currently function as fair and functional meritocracies. Only by rethinking our assumptions about the current system and future possibilities can we move toward the ideals that so many Americans share. This enterprise offers the possibility of bringing together many who are adversaries in the current affirmative action debate but share an interest in forging fairer, more inclusive, and more democratic institutions. It reconnects affirmative action to the innovative ideal. In this way, affirmative action can reclaim the historic relationship between racial justice and the revitalization of institutions to the benefit of everyone.

Susan Sturm is professor of law at Columbia Law School and the co-principal investigator, with Lani Guinier, of the Racetalks project.

Lani Guinier is professor of law at Harvard Law School. She is author of the Tyranny of the Majority (click here for a review by Mark Tushnet) and Lift Every Voice, and co-author of Becoming Gentlemen. Her essay on majority rule appeared in the September/October 1992 issue of the Review.

New Democracy Forum: Click here to read responses to "The Future of Affirmative Action" by Ward Connerly, Howard Gardner, Stephen Steinberg, Mary Waters, and others. Beacon Press will publish a version of this forum as a book in 2001.