The Future of Affirmative Action
Promoting diversity in education and employment
requires us to rethink testing and "meritocracy."
Susan Sturm and Lani Guinier
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.
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
Doe and others in similar circumstances
advance two basic claims: first, that they have more merit than
beneficiaries of affirmative action; and second, that as a matter
of fairness they 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 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
Fairness, like merit, is a
concept with varying definitions. The stock story defines fairness
formally. Fairness, it assumes, requires treating everyone the
same: allowing everyone to enter the competition for a position,
and evaluating each persons results the same way. If everyone
takes the same test, and every applicants test is evaluated
in the same manner, then the assessment is fair. So affirmative
action is unfair because it takes race and gender into account,
and thus evaluates some test results differently. A crucial premise
of this fairness challenge to affirmative action is the assumption
that tests afford equal opportunity to demonstrate individual
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 measuring qualification. Institutions are assumed
to know what they are looking for (to continue the yardstick analogy,
length), how to measure it (yards, meters), how to replicate the
measurement process (using the ruler), and how to rank people
accordingly (by height). Both critics and proponents of affirmative
action typically assume that objective tests for particular attributes
of merit—perhaps supplemented by subjective methods such
as unstructured interviews and reference checks—can be justified
as predictive of performance, and as the most efficient method
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.
For present purposes, we accept
the idea that capacity to perform—functional merit—is
a legitimate consideration in distributing jobs and educational
opportunities. But we dispute the notion that merit is identical
to performance on standardized tests. Such tests do not fulfill
their stated function. They do not reliably identify those applicants
who will succeed in college or later in life, nor do they consistently
predict those who are most likely to perform well in the jobs
they will occupy. Particularly when used alone or to rank-order
candidates, timed paper-and-pencil tests screen out applicants
who could nevertheless do the job.
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
But this measure does not reflect successful overall academic
achievement or performance in other areas valued by the educational
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 institutions 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.
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
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.
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
If the job of policing is
defined as subduing dangerous suspects, then it makes sense to
favor the strongest, fastest, and most disciplined candidates.
But not every situation calls for quick reaction time. Indeed,
in some situations, responding quickly gets police officers and
whole departments in trouble.
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.
The retention and success of
new entrants to institutions often depend on expanding measures
of successful performance. But because conventional measures camouflage
their bias, one-size-fits-all testocracies invite people to believe
that they have earned their status because of a test score, and
invite beneficiaries of affirmative action to believe exactly
the opposite—that they did not earn their opportunity. By
allowing partial and underinclusive selection standards to proceed
without criticism, affirmative action perpetuates an asymmetrical
approach to evaluation.
In addition to arbitrarily
favoring certain standards of performance, conventional selection
methods advantage candidates from higher socioeconomic backgrounds
and disproportionately screen out women and people of color, as
well as those in lower income brackets. When combined with other
unstructured screening practices, such as personal connections
and alumni preferences, standardized testing creates an arbitrary
barrier for many otherwise-qualified candidates.
The evidence that the testocracy
is skewed in favor of wealthy contestants is consistent and striking.
Consider the linkage between test performance and parental income.
Average family income rises with each 100-point increase in SAT
scores, except for the highest SAT category, where the number
of cases is small. Within each racial and ethnic group, SAT scores
increase with income.
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
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
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.
Such rethinking should begin
by reconsidering the connection between predetermined qualifications
and future performance. The standard approach proceeds as if selection
were a fine-tuned matching process that measures the capacity
to perform according to some predetermined criteria of performance.
This assumes that the capacity to perform—functional merit—exists
in people apart from their opportunity to work on the job. It
further assumes that institutions know in advance what they are
looking for, and that these functions will remain constant across
a wide range of work sites and over time.
But neither candidates nor
positions remain fixed. Often people who have been given an opportunity
to do a job perform well because they learn the job by doing it.
Moreover, on-the-job learning has assumed even greater significance
in the current economy, in which unstable markets, technological
advances, and shorter product cycles have created pressures for
businesses to increase the flexibility and problem-solving capacity
of workers. Under these circumstances, access to on-the-job training
opportunities will contribute to functional merit—the opportunity
to perform will precede the capacity.
The concept of selection as
a matching process also presumes that institutions have a clear
idea of what they value, and of the relationship of particular
jobs to their institutional goals. Even in a relatively stable
economic and technological environment, institutions rarely attempt
to articulate goals, much less develop a basis for measuring successful
achievement of those goals. But without a definition of successful
performance, it is difficult to develop fair and valid selection
criteria and processes.
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
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
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 individuals
capacity for creativity and collaboration.
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 bachelors 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.
How, then, can we develop a
model of selection that expresses a more inclusive, transparent,
and accountable vision of democratic opportunity—an approach
to selection that will benefit everyone, and advance racial and
An Emerging Model
Because of the importance in a
democracy of ensuring opportunities to perform, we can start by
shifting the model of selection from prediction to performance.
This model builds on the insight that the opportunity to participate
helps to create the capacity to perform, and that actual performance
offers the best evidence of capacity to perform. So instead of
making opportunity depend on a strong prior showing of qualification,
we should expand opportunities as a way of building the relevant
To follow this model, organizations
need to build assessment into their activities, integrate considerations
of inclusion and diversity into the process of selection, and
develop mechanisms of evaluation that are accountable to those
considerations. The result would be a dynamic process of selection,
with feedback integrated into productivity. At the level of individual
performance assessment, it would mean less reliance on one-shot
predictive tests and more on performance-based evaluation.
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 lotterys 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 institutions 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
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 take the next step in developing
an experience-based approach to opportunity and assessment, it
would be necessary to consider the needs, interests, and possibilities
of the particular institutional setting. The central challenge
is to develop systems of accountable decision-making that minimize
the expression of bias, and structure judgment around identified,
although not static, norms. For each assessment, decision-makers
would articulate criteria of successful performance, document
activities and tasks relevant to the judgment, assess candidates
in relation to those criteria, and offer sufficient information
about the candidates performance to enable others to exercise
For this model to work, institutions
would also need to change the relationship between race, gender,
and other categories of exclusion to the overall decision-making
process. Institutions would continue to assess the impact of various
selection processes on traditionally excluded groups. But institutions
would use that information in different ways. Rather than operating
as an add-on, after-the-fact response to failures of the overall
process, race and gender would serve as both a signal of organizational
failure and a catalyst of organizational innovation. We will return
to this issue later, but lets first try to imagine what
this more integrated approach would look like.
Consider the case of Bernice,
now the general counsel of a major financial institution. Initially,
she was hired as local general counsel to a bank, after having
previously been partner in a prestigious law firm. (She left the
firm after reaching the glass ceiling, unable to bring in enough
new clients to progress further.)
Bernice ultimately became general
counsel to a major national corporation that previously had no
women in high-level management positions. Her promotion resulted
from the opportunities presented in an interactive and extended
selection process. Her local bank merged with a larger company.
In part to create the appearance of including women, she was permitted
to compete for the job of general counsel for the new entity.
Three lawyers shared the position for nine months. She initially
did not view herself as in the running for the final cut.
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
Now, as general counsel, she
is positioned to expand opportunities for women, and corporate
culture in general. She can structure the same kind of collaborative
decision-making in selection that provided her the opportunity
to work her way into the job. She determines who is promoted within
the legal department, and who is hired as outside counsel. She
is also in a position to influence how women are assessed as managers
within the company.
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 institutions performance
and its need to adapt to changing conditions. It also keeps institutions
from developing more responsive, integrated, and dynamically efficient
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
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 organizations 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.
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
Diversity in culture, style,
and background also enhances the knowledge base and repertoire
of skills and responses available to a particular group or institution,
which can enhance institutions capacity to perform and innovate.
Again, the example of the Los Angeles Police Department illustrates
this theory. The benefits of racial and gender diversity may be
most obvious in the educational and human services areas, where
customers, clients, and perspectives may themselves be identified
by race and gender.
Racial and cultural diversity
in a workforce can also provide opportunities for companies marketing
products that serve racially and culturally diverse client groups.
As David Thomas and Robin Ely have documented, customers and clients
from different racial, ethnic, and cultural communities constitute
distinctive market niches that companies have sought to address
by diversifying their workforces.
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 organizations 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
Similarly, sexual harassment
of graduate students sometimes reveals a more general institutional
inadequacy that would otherwise remain hidden. Faculty and students
frequently lack shared understandings about fair, respectful,
non-exploitative supervisory relationships between students and
their faculty advisors. Addressing sexual harassment—a problem
ordinarily associated with women—can prompt a conversation
on ways to promote productive and successful working relationships
These observations answer a
large question about the status of affirmative action in the performance-based
model: Once we use the lens of the margins to rethink the whole,
why do group status and performance continue to be crucial in
assessing the adequacy of selection criteria? If we are successful
in transforming the discourse and practice of merit and selection
for everyone, why are race, gender, and other categories of exclusion
still relevant to the discussion?
In responding to this question,
we take the world as it currently exists. The workforce is becoming
increasingly diverse: almost two-thirds of entrants to the civilian
workforce in the period between 1992 and 2005 are projected to
be women and racial minorities. Women and people of color have
long been excluded and marginalized, and continue to experience
exclusion in many institutional settings. Race continues to be
a divisive issue for many Americans, one that prompts skepticism
and mistrust. Our continued focus on race and gender moves forward
from the current legal and organizational landscape. In many institutions,
particularly those that are private and non-union, categories
such as race and gender offer the only avenue for challenging
decisions and practices.
Under these conditions, race-
and gender-based inquiries continue to form the cornerstone of
an integrated approach to a progressive economic agenda. Many
members of marginalized groups predicate their willingness to
participate in collaborative conversation on the majoritys
recognition of the ongoing significance of group-based exclusion.
For members of historically excluded groups, a meaningful program
of inclusion is a prerequisite to participating in ventures that
benefit the whole community. Affirmative action has become a symbol
of societys recognition of its responsibility for its history
of legal disenfranchisement, and of the equal citizenship and
respect of those who have historically been excluded. History
shapes the perception and experience of those who have experienced
formal exclusion, and this historic pattern of racial inequality
will continue to be experienced unless it is affirmatively acknowledged
Without the cooperation of
those concerned with race and gender justice in building this
new progressive agenda, the dialogue will continue to be polarized,
divisive, and adversarial. Unless we can build the concerns of
racial and gender inclusion into the process of collaboration,
these issues will continue to be addressed in settings that undermine
the capacity of institutions to adapt to changing conditions.
In addition, research consistently
shows that ignoring patterns of racial and gender exclusion causes
these patterns to recur. A proven method of minimizing the expression
of bias in decision-making consists of reminding decision-makers
of the risk of bias or exclusion and requiring them be fair and
unbiased. Unless we continue to pay attention to the impact of
our decisions on members of groups that are the target of subtle
bias and exclusion, those group members will continue to be marginalized.
Using the margins to rethink the
whole—by using performance to develop opportunity—will
help with fairness as well as functionality. The functional approach
to selection reduces the importance of criteria that have excluded
women and people of color and favored wealthier applicants. It
enables previously excluded people to "show their stuff."
Moreover, by rethinking the standards of selection for everyone,
this approach destabilizes the idea that the existing meritocracy
is fair. Embedding the role of diversity enables other people
to see how benefiting women and people of color benefits them.
In addition, the functional approach has the potential to create
a participatory and accountable selection process, which can enhance
individuals autonomy and institutions legitimacy.
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
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
citizens 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
Increasingly, the opportunity
to work in a non-contingent, full-time position that provides
these benefits of citizenship depends on access to higher education.
People who are not educated do not get jobs, and thus cannot participate
in the responsibilities and benefits of citizenship. Moreover,
those without the benefits of higher education increasingly work
in shifting, temporary, and task-centered jobs. Such individuals
may fail to develop a sense of personal worth, institutional or
communal loyalty, or positive agency, all attributes essential
to functioning as citizens.
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
If, as we believe, work and
education are basic components of citizenship, screens or barriers
to participation should be drawn in the least exclusive manner
consistent with the institutions mission. Access and opportunity
to participate is critical to equipping citizens to fulfill their
responsibilities, to respecting their status and autonomy as individuals,
and to legitimating societys decisions as reflecting the
participation of the community. People who feel they have a voice
in the decision-making process are more likely to accept the ultimate
decision as legitimate, even if it is different from the one they
first two centuries of our nations 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.
is professor of law at Columbia Law School and the co-principal
investigator, with Lani Guinier, of the Racetalks project.
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.
in the December 2000/January 2001 issue of Boston 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.
1 See Johnson
v. Transportation Agency, 480 US 616 (1987); Wygant v.
Jackson Board of Education, 476 US 267 (1986). The most politicized
version of the anti-affirmative action narrative is typified by
the campaign strategy used by Sen. Jesse Helms, the white incumbent,
against Harvey Gantt, his black challenger in 1990. The Helms
campaign commercial displayed a white working class man tearing
up a rejection letter while the voice-over said, "You needed that
job, and you were the best qualified
. But it had to go to
a minority because of a racial quota." See Andrew Hacker, Two
Nations: Black and White, Separate, Hostile, Unequal (New
York: Scribner, 1992), p. 202.
2 Laura K.
Bass, "Affirmative Action: Reframing the Discourse" (unpublished
manuscript, December 4, 1995).
3 No tester
claims that the LSAT or SAT, which is designed to predict academic
performance, has ever been validated to predict job performance
or pay. One study by Christopher Jencks finds that people who
had higher paying jobs also had higher test scores. One problem
with this conclusion is that higher test scores were used to screen
out applicants from earlier, formative opportunities. Another
study, by David Chambers, et al., of graduates of the University
of Michigan Law School finds no correlation between LSAT and either
job satisfaction or pay.
4 See David
K. Shipler, "My Equal Opportunity, Your Free Lunch," New York
Times, 5 March 1995.
5 As Walter
Willingham, an industrial psychologist who consults with the Educational
Testing Service (the organization that prepares and administers
the SAT), points out, leadership in an extracurricular activity
for two or more years is also a good proxy for academic performance,
future leadership, and professional satisfaction.
6 "In all decades,
those with higher index scores tend to make fewer social contributions
than those with lower index scores." See Richard O. Lempert,
David L. Chambers, and Terry K. Adams, "The River Runs Through
Law School," Journal of Law and Social Inquiry 25 (2000):
468. See also, William G. Bowen and Derek Bok, The Shape of
the River: Long-Term Consequences of Considering Race in College
and University Admissions (Princeton, N.J.: Princeton University
7 See Mary
Anne C. Case, "Disaggregating Gender from Sex and Sexual Orientation:
The Effeminate Man in the Law and Feminist Jurisprudence," Yale
Law Journal 105 (1995): 88-89.
8 See the Report
of the Independent Commission on the Los Angeles Police Department,
pp. 83-84. "Female LAPD officers are involved in excessive use
of force at rates substantially below those of male officers....
The statistics indicate that female officers are not reluctant
to use force, but they are not nearly as likely to be involved
in use of excessive force," due to female officers perceived
ability to be "more communicative, more skillful at de-escalating
potentially violent situations and less confrontational."
9 J. Phillip
Thompson, director of management and operations for the New York
City Housing Authority from 1992-93, told us that an internal
evaluation conducted by the Housing Authority revealed that women
housing authority officers were policing in a different, but successful,
way. As a result of this evaluation, the authority sought to recruit
new cops based on their ability to relate to young people, their
knowledge of the community, their willingness to live in the housing
projects, and their interest in police work. They also offered
free housing to any successful recruit willing to live in the
10 See James
Crouse and Dale Trusheim, The Case Against the SAT (Chicago:
University of Chicago Press, 1988), p. 128.
11 See Phyllis
Rosser, The SAT Gender Gap: Identifying the Causes (Washington,
D.C.: Center for Womens Policy Studies, 1989), p. 4. Also,
"ETS Developing New GRE," FairTest Examiner,
Fall/Winter 1995-96, p. 11. "Research ... shows the GRE under-predicts
the success of minority students. And an ETS Study concluded the
GRE particularly under-predicts for women over 25, who represent
more than half of female test-takers."
and Trusheim, p. 103.
and Trusheim, pp. 107-08.
14 See John
G. Belcher, "Gainsharing and Variable Pay: The State of the Art,"
Compensation & Benefits Review 26 (May-June 1994):
50-51. Belcher advocates the use of a family of measures approach,
which "utilizes multiple, independent measures to quantify performance
15 See, for
example, Claude M. Steele and Joshua Aronson, "Stereotype Threat
and the Intellectual Test Performance of African Americans,"
Journal of Personality and Social Psychology 69 (1995): 797-811.
there is debate about the degree of fundamental change in approaches
to management, a significant portion of private businesses have
adopted some form of collaborative or team-oriented production.
See Edward E. Lawler III et al., Employee Involvement and Total
Quality Management: Practices and Results in Fortune 1000 Companies
(1992), which analyzes the employee-involvement programs many
corporations have adopted; Paul Osterman, "How Common is Workplace
Transformation and Who Adopts It?" Industrial & Labor Relations
Review 47 (1994): 173, 176-78, which finds that over 50 percent
of firms surveyed had introduced at least one innovation such
as quality circles and work teams, and that 36.6 percent have
at least two practices in place with at least 50 percent of employees
involved in each.
Gardner, Multiple Intelligences: The Theory in Practice
(New York: Basic Books, 1993), p. 172.
18 See Karen
W. Arenson, "Study Details Success Stories in Open Admissions
at CUNY," New York Times, 7 May 1996. A study of open-admissions
policy at City University of New York (CUNY) found more than half
of the students eventually graduated, even though it took many
as long as ten years to do so. Many of these students had to work
full time while they attended college. According to Professor
David Lavin, one of the co-authors of the CUNY study, open admissions
"provided opportunities that students used well, and that translated
into direct benefits in the job market and clearly augmented the
economic base." Similarly, at Haverford College, professors of
biology, chemistry, and mathematics told one of us in interviews
that many students of color with weak preparation in the natural
sciences took two years to catch up with their better prepared
peers. However, by junior year, those same students managed to
excel, having overcome their initial disadvantages.
When one of us was on the admissions
committee in the early 1990s at the University of Pennsylvania
Law School, the process of admitting people who had some "special"
quality to be consideredwhich included being a poor, white
chicken farmer from Alabamawas an openly deliberative process.
It included students who knew more about the specific localities
in which many of the applicants resided. The applications were
redacted to eliminate personal identifying information but were
otherwise available to the entire committee. The recommendations
were read and considered (by contrast to the 50 percent of the
class who were admitted solely on a mathematical equation based
on their LSAT scores, their college rank, and the "quality" of
their college as determined by the median LSAT score of its graduating
class). In this process, the committee of both faculty, students
and admissions personnel had a sense we were admitting a "class"
of students, not just random individuals. Thus, we might give
weight to some factors over others, depending upon the "needs"
of the institution to have racial and demographic diversity, but
also upon our commitment to fulfilling the needs of the profession
to serve the entire public and to train private and public problem-solvers
who would become the next generation of leaders. Thus, not all
students were admitted primarily because of their academic talents.
We considered those who might be better oral advocates and eventual
litigators. Others were already accomplished negotiators or future
practitioners of alternative dispute-resolution practices. None
of these students were admitted if we felt they were unqualified
to do the work demanded of them at the institution.
Multiple Intelligences, pp. 171-73.
21 She learned
that she was proficient in skills that she did not previously
identify as related to lawyering: problem solving, thinking about
the public-relations management of crises, strategic planning,
and dealing with internal disruption stemming from crisis and
22 For example,
the court in Hopwood v. Texas rejected the concept of diversity
as a basis for using affirmative action. The opinion lacked almost
any reflection on the functional role diversity plays in higher
education. It simply asserted that "the use of race, in and of
itself, to choose students simply achieves a student body that
looks different." 78 F.3d 932, 945 (Fifth Circuit, 1996), cert.
denied, 116 S. Ct. 2582 (1996).
D. Casper, "Restructuring the Traditional Civil Jury: The Effects
of Changes in Composition and Procedures," in Verdict: Assessing
the Civil Jury System, ed. Robert E. Litan (Washington, D.C.:
Brookings Institution Press, 1993), p. 420.
24 See Susan
P. Sturm, "From Gladiators to Problem Solvers: Women, the Academy,
and the Legal Profession," Duke Journal of Gender Law &
25 See Samuel
L. Gaertner et al., "The Contact Hypothesis: The Role of a Common
Ingroup Identity on Reducing Intergroup Bias," Small Group
Research 25 (1994): 224, 226; Samuel L. Gaertner et al., "How
Does Cooperation Reduce Intergroup Bias?" Journal of Personality
& Social Psychology 59 (1990): 692.
26 See Elizabeth
Bartholet, "Application of Title VII to Jobs in High Places,"
Harvard Law Review 95 (1982): 947, 967-78, which discusses
courts reluctance to scrutinize high-level employment decisions;
Deborah L. Rhode, "Perspectives on Professional Women," Stanford
Law Review 40 (1988): 1163, 1193-94 notes courts deference
to employers judgments.
27 This is
a complex argument that requires more elaboration than the limits
of this article permit. Suffice it to state the obvious: we are
experiencing a retreat from public life on many levels, evidenced
by, among other factors, declining voter turnout. See also Lani
Guinier, "More Democracy," University of Chicago Legal Forum
Harper v. Virginia Board of Elections, 383 US 684 (1966)
(Harlan, J., dissenting).
29 See United
States v. Louisiana, 225 F. Supp. 353, 355-56 (E.D. La. 1963).
The decision found that the interpretation test as a prerequisite
for registration "has been the highest, best-guarded, most effective
barrier to Negro voting in Louisiana," and that the test "has
no rational relation to measuring the ability of an elector to
read and write," affd., 380 US 145 (1965).
v. Sims, 377 US 533, 544 (1964).