The Future of Affirmative Action
December 1, 2000
With Responses From
Dec 1, 2000
42 Min read time
We need to situate the conversation about race, gender, and affirmative action in a wider account of democratic opportunity. The present system measures merit through scores on paper-and-pencil tests, but this measure is fundamentally unfair.
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
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 most deserving.
Fairness, like merit, is a concept with varying definitions. The stock story defines fairness formally. Fairness, it assumes, requires treating everyone the same: allowing everyone to enter the competition for a position, and evaluating each person’s results the same way. If everyone takes the same test, and every applicant’s 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 of selection.
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 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.
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
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.
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.
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.
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.
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.
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.
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 gender justice?
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 qualifications.
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.
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.
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 independent judgment.
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 let’s 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.
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
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 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
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 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
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 in general.
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 majority’s 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 society’s 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 and altered.
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.
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.
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.
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
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 institution’s 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 society’s 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 initially supported.
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.
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 Press, 1998).
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 projects.
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 Women’s Policy Studies, 1989), p. 4. Also, "ETS Developing ‘New’ GRE," Fair Test 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."
12 Crouse and Trusheim, p. 103.
13 Crouse 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 improvement."
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.
16 Although 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.
17 Howard 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.
19 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 considered—which included being a poor, white chicken farmer from Alabama—was 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.
20 Gardner, 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 change.
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).
23 Jonathan 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 & Policy (1996).
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 (1995): 16-22.
28 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," aff’d., 380 US 145 (1965).
30 Reynolds v. Sims, 377 US 533, 544 (1964).
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