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NOTES:

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2 Laura K. Bass, "Affirmative Action: Reframing the Discourse" (unpublished manuscript, December 4, 1995).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," 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."

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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