Race, Racism and the Law 
Speaking Truth to Power!!

Susan Sturm and Lani Guinier, The Future Of Affirmative Action: Reclaiming The Innovative Ideal,, 84 Calif. L. Rev. 953-1036, 983-987 (1996). Copyright (C) 1996 by the California Law Review, Inc.; Susan Sturm and Lani Guinier. 

Standardized tests adopt a one-size-fits-all approach to measuring successful performance. In addition to ignoring many of the abilities and skills that are crucial to successful performance, this insistence on narrow, uniform criteria of success fails to take account of the variety of ways in which successful performance on the job can be achieved. There may be a range of styles and approaches to doing a job, each of which may be effective in some circumstances. Indeed, diversity introduces a variety of job approaches that can complement one another and offer new and potentially more effective styles and strategies. 

. . . . The existing culture normalizes only one approach to performance and, in the process, reinforces the capacity of some people to be fairly evaluated and to perform. A recent study of University of Pennsylvania law students observed a similar phenomenon operating for many women in law school. Even though men and women may be afforded the same treatment, the study found that women do not participate in class as much as men, and that they are significantly less comfortable speaking with professors outside of class. The law school may be treating all students the same, but this does not mean that this approach will enable all students to participate, learn, and feel included. Sameness may not be fairness in this context. Indeed, hostility or marginalization within a work or educational environment may account for certain anomalies in reported correlations between test scores and performance for women and people of color. For example, women's differential experience both in and out of the classroom . . . . may explain why many women who come to the law school with LSAT scores virtually identical to those of the men do not perform as well. Although men and women who enter the Law School possess virtually identical entry-level criteria, by the end of the first year, the men are three times as likely to be in the top 10% and 1.5 times as likely to be in the top 50%. Indeed, when controlled for LSAT (meaning if you take two people with identical LSAT scores), race and gender are better predictors of performance in law school. A white male with an LSAT score identical to that of a white female or black male will do better in law school. Environmental factors may also explain why there is a higher correlation between SAT scores and performance for black students enrolled in predominantly black colleges than for black students enrolled in predominantly white colleges. 

The retention and success of new entrants to institutions often depend on expanding or altering the measures of successful performance. But because those institutionalized or structured preferences camouflage their bias, one-size-fits-all testocracies invite some beneficiaries to believe they have earned their status solely on the basis of objective indicators. These so-called meritocracies also invite beneficiaries of affirmative action to believe exactly the opposite--that they did not earn their opportunity. Affirmative action in this sense perpetuates an asymmetrical approach to evaluation. It allows partial and underinclusive selection standards to proceed without criticism. But those "exceptions," who bring alternative approaches that do not conform to the traditional ones developed without their participation, are visible evidence of the limitations of one-size-fits-all standards. 

Thus, the insistence that sameness is fairness marginalizes the legitimate capabilities and approaches of those who do not conform to the "normal" or traditional attributes of a particular position. Not only does this mono- dimensional approach fail to predict accurately the potential success of applicants, it also unfairly disadvantages some women, people of color, and members of other traditionally marginalized groups. In doing so, it deprives institutions of access to information and insights that could enrich everyone's capacity to perform effectively.