About a decade ago, I was approached by a group of law
school admissions directors. They asked whether I, as a cognitive psychologist
interested in new forms of assessment, could help to redesign the law
school aptitude test. I asked one question, which effectively terminated
the mission of these good people. The question: "Do you want to
change law school?"
Buried in this question are two assumptions that dominate
assessment in this country at this time. We might call the first the
"end state" assumption. It is assumed that the capacities
purportedly measured by an instrument like the LSAT are critical for
successful execution of an ultimate goal or "end state." I
am not an expert on law school, but I suspect that the LSAT is much
better as a predictor of who will make law review or become a good professor
of law than as a predictor of who will be a good litigator or good arbitrator,
or even who will make the most money. Law school, however, remains the
domain of law professors, so we could reasonably expect that they would
favor instruments that allow them to replicate themselves.
The second assumption could be termed the "trait"
assumption. Drawing on a long (but perhaps prejudicial) tradition in
Anglo-American thought, such instruments assume that individuals possess
(or fail to possess) certain "traits," and that not much can
be done about this state of affairs. Some individuals have the "it"
required to be an effective law student and lawyer; the earlier and
more unequivocally we can ascertain who has "it," the better
for all concerned.
I join Susan Sturm and Lani Guinier in questioning both
of these assumptions. I suspect that there are many legal "end
states" and that present instruments are heavily skewed toward
just a few of the more readily measurable ones. In addition, I doubt
that "lawyerness" (whatever it is or isnt) is something
that individuals possess (or fail to possess) to a certain degree. I
think it far more likely that many individuals have the potential to
be lawyers of quality andkey pointthat much more powerful
ways could be developed to ascertain that potential.
Until now, I have limited my remarks to the practice of
law. I must stress, therefore, that these same assumptions about assessment
dominate every sphere of educational and professional life. From admission
to independent school to admission to the bar, from the police force
to the teaching force, we assume too blithely that we know the relation
between the "entry point" and the "end state." Moreover,
we assume too blithely the existence of traits or aptitudes that individuals
either possess or lack. Indeed, it was less than a decade ago that the
College Board reluctantly removed the word "aptitude" from
the SATwhile keeping largely unchanged the assumptions built into
Without explicitly noting it, Sturm and Guinier have built
their case on a concept developed 75 years ago by a brilliant Russian
psychologist named Lev Semonovich Vygotsky. Vygotsky speculated about
two individualslets call them Boris and Mikhailwho
received the same score on some tasksay, a set of items on an
intelligence test. The average observer would assume that these individuals
had the same ability, trait, aptitude, or skill. Vygotsky had the clever
idea of providing the same amount of training or tutelage to both of
these individualsto use a current word of art, he provided them
both with considerable "scaffolding." If both individuals
scores remained the same at the end of this period, or if both improved
by the same amount, we could reasonably infer that they had similar
Suppose, however, that Boriss score went up just
a tad while Mikhails score improved by 25 percent. Moreover, a
few weeks later, Boriss score remained steady, while Mikhails
had continued to rise. We should properly infer that there is an important
difference between the two ladsthat Mikhail has a greater potential
to learn and would presumably benefit more from an enriched educational
environment. Vygotsky labeled his concept "the zone of proximal
development": application of this concept allows one to ascertain
amount of improvementparticularly lasting improvementunder
conditions of moderate help.
I read Sturm and Guinier as witting or unwitting Vygotskians.
They are arguing that we should identify skills and capacities that
are important and determine the extent to which individuals exposed
to an appropriately rich environment can pick up or amplify these skills
and capacities. To put it in vernacular terms: they seek to import the
mindset of "on-the-job training" to the terrain of "assessing
potential." To put it in terms of the assumptions I introduced
above: Sturm and Guinier would like us to discard the notion that there
is a pure trait that is presumed to be a phenotype of future success
in a domain. Instead, they urge us to place a candidate in an environment
in which experts are exhibiting requisite skills and capacities, and
then determine the extent to which, and the speed with which, the candidate
can acquire these skills and capacities. Instead of a presumed distant
end state, we provide actual "living" instances of the end
state. And instead of a mysterious inborn "trait," we look
for individuals who can begin to exhibit the desired skills and behaviors
as the result of limited but targeted immersion in the appropriate environment.
The critiques of standardized tests offered by Sturm and
Guinier are familiar ones. Indeed, the journalist Walter Lippmann offered
most of them in the 1920s. Various attempts have been made to overthrow
this orthodoxy, from logical arguments to legal challenges to blatant
ridiculesome thirty years ago, psychologists developed the "Chitlin
test" of intellectual competence, which (as the name implies) presupposed
cultural literacy in the African American world.
Observers sympathetic to the critiques must ask why standardized
tests remain so robust, particularly in this country. Sturm and Guinier
identify some of the reasons. To them, I would add two more: the lack
of an alternative way of thinking about assessment and the paucity of
alternative instruments or methods.
In their essay, Sturm and Guinier contribute chiefly to
our thinking about new ways of assessing. I broadly endorse their stress
on performance of relevant tasks rather than on measurement of hypothesized
abilities or traits, and I think that the Vygotskian analysis can provide
intellectual support for this position. In the absence of demonstrated
alternatives, though, standardized tests (as we have grown to love or
hate them) will continue to hold sway.
Let me offer two modest proposals, which might allow one
to explore the applicability of their ideasfor the sake of argument,
in the case of prospective law students. The first involves a summer
or term-long internship. Interested candidates could agree to work in
a law office as volunteers or for a modest stipend. They would be involved
immediately in tasks for which they do not require special training,
but which could test their capacity to "pick up" needed understandings.
Those who catch on most successfully to relevant legal roles (including
the social, creative, and flexible skills emphasized by Sturm and Guinier)
would earn special credits toward admission to law school. Of course,
we would have to ascertain whether students thus admitted could succeed
in (standard or revised) law school and go on to practice law successfully
The continuing improvement of computer software suggests
a second approach. One could create simulations of skills and proficiencies
important for success in the study and actual practice of law. Some
law schools now include a special course called "lawyering,"
which seeks to cultivate a wide gamut of skills relevant to successful
legal practice. The simulations could be drawn from the lawyering curriculum.
Vygotsky-style, they could provide varying degrees of scaffolding. Those
students who perform well in such simulations, and who continue to improve
over successive trials, would earn similar credits toward admission.
Again, it would be necessary to determine whether success in such simulated
environments predicts success in law school and in the law office.
Until now, we have skewed education everywhere toward
"uniform" approachesone way of teaching, one
way of assessment, one standard of success. Reflective practitioners
know, however, that this is at best an oversimplification and perhaps
an ultimate disservice to candidates, to the profession, to the larger
society. Sturm and Guinier have put forth an appealing alternative vision.
Only a powerful sense of purpose, artful technology, and support to
carry out needed experiments can reveal whether this alternative vision
teaches psychology at the Harvard Graduate School of Education. He is
author of Multiple
Reframed, and The
New Democracy Forum: Click here
to read other responses to "The Future of Affirmative Action," by Susan
Sturm and Lani Guinier.