Posted by olvlzl.
Happened to watch a little of a panel discussion held at Washington and Lee University yesterday, which included Lani Guinier and her polar opposite Gail Heriot sitting right next to each other. Heriot is a recent appointee to the United States Commission on Civil Rights based, in my humble opinion, on her being your garden variety, right wing, race baiter and echo of various conservative bromides. The Commissioner didn’t say much that you can’t get the gist of from reading her quite odious group blog*. No, you really don’t even have to do that. Imagine what a Bush appointee to the Civil Rights Commission would have to say on the subject of affirmative action and you’ll have the complete picture. Also in my opinion, with her extensive scholarship, Lani Guinier mopped the floor with her.
I’ve had a lot of respect for Lani Guinier since reading her ideas about using cumulative voting to make government more representative. Those were the ones that the right wing distorted and used to sink her appointment as Assistant Attorney General for Civil Rights in the Clinton Administration. Bill Clinton, to his discredit, didn’t stand up for what would have been a brilliant appointment in the face of a campaign of distortions by corporate media. His out was that some of her writings aren’t conventional. Which is all to the good. While the law, as you’re possibly getting tired of hearing me say, isn’t interested in the practical results in peoples’ lives, they are interested in propping up the theoretical constructs of the law, Guinier’s practical and innovative thinking on admissions to universities aren’t a part of that system. That system, while using the language of equality, turns out to be gamed for the benefit of established power. Focusing on the actual, real life results of present policies instead of just on the superficially neutral aspects of the process her ideas are interesting and important exactly because they focus on real life results.
Looking at the present admissions policies of universities and their real meaning beyond the superficial appearance of equity is a revelation. And, rare for a legal scholar, she never loses sight of the fact that getting into a school is not the end, that the results of the education and subsequent career are the real test of the process. That is rarely done, maybe because it takes more work and harder thinking to see the entire picture. Maybe it’s because ignoring the real life results suits the purpose of people who pretty much like the system to be biased against inclusion.
I was struck by one thing she said, that relying on standardized testing for university admissions was unnecessary. She pointed out that if you simply chose those students whose parents had the highest incomes it would give the same results. Even more important for those of us who don’t practice law, she pointed out that black and latino graduates of law school as a group were more likely to be engaged in community service activities than those coming from a more advantaged background.
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"ùdefined by income, community involvement, and professional satisfactionùand 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.
I was hoping that C-Span would rebroadcast the panel so you could hear and I could take better notes but that apparently isn’t in their immediate plans. One of the highpoints was when Heriot was forced to say that practically all of the admissions to high status law schools were eminently qualified based on the LSAT. She had to because Guinier had just pointed out that women who tended to get lower scores on the LSAT tend to perform better than men in the first years of law school. I seem to recall that Guinier’s attempt to get Heriot to admit that this was equally true of black admissions to law school went unanswered because the moderator saved her from having to say so. What was so ironic is that by virtue of her preparation and scholarship, Guinier is clearly the more qualified of the two but that the “merit based” political and media system that kept her from an appointment has allowed a conservative hack to be appointed with little comment.
Here is the article, quoted above, by Susan Sturm and Lani Guinier which covered a lot of the material she brought to the panel discussion. The follow ups by various people and the answer to them by Sturm and Guinier are worth reading too.
* I don’t know if Lani Guinier was familiar with this rather catty piece by Heriot. Though, given her thorough preparation for the discussion, miles ahead of Heriot, I’d imagine she was.
You can get a taste of the Heriot product, as well as what made her such an eminent appointee by the Bush regime by reading her own pretty dreadful group blog.
More controversially, perhaps, let me wonder what this panel would have been like if Affirmative Action hadn’t existed. I doubt that the three lawyers on the panel would have been there, since all were women. I wonder how many women were admitted to the University of Chicago Law School or taught law at the University of San Diego School of Law in the decades before Affirmative Action became law. White women, like Heriot, are beneficiaries of Affirmative Action, some hold that they are it’s greatest beneficiaries. Like Clarence Thomas, she is almost certainly a direct beneficiary of a system she wants to destroy for others. Of course, the panel itself wouldn’t have existed.