June 24,1997

Written by Lani Guinier

Those of us committed to racial justice might try this thought experiment: Cheryl Hopwood, the white woman who successfully challenged the University of Texas Law School's affirmative action plan last year in Federal court, is our ally.

She is our ally because her case points to a serious problem with the way all students are selected for academic programs. This is not a call to remove race from the picture. Rather, it is a challenge to both supporters and opponents of affirmative action. The problem is not with affirmative action, it is with traditional admission standards.

This year, not a single African-American student is enrolled in the incoming class at the University of Texas Law School. And in California, which adopted so-called race-blind admissions in 1995, black and Latino enrollment at state colleges has dropped precipitously.

Opponents of affirmative action say these results show that minority students are poorly prepared for academic rigor. Supporters of affirmative action say the results prove that it is needed.

But both sides have ignored the real problem, which is that we are basing admissions for all students mainly on test scores. This approach favors students who do well on such tests -- and these tend to be students from well-off families.

The Hopwood case challenged the admission of 62 of the 93 black and Latino students accepted into the Texas law school in 1992. But that year, when the Texas law school rejected Ms. Hopwood, more than 100 white students were admitted who had lower test scores and grade point averages than she did.

Had opponents of affirmative action looked beyond race to see why Ms. Hopwood was not admitted, they would have discovered that she lost points because she went to a community college and a state university. The University of Texas penalized Ms. Hopwood, who grew up under difficult circumstances and worked her way through school, because she graduated from a less competitive but more affordable college.

What many of us in academia call "merit" really reflects an overemphasis on test scores, driven by U.S. News & World Report's annual rankings of the nation's law schools. But less than a third of the students who score high on the Law School Admission Test -- which is the most important factor in law school admissions as well as the basis of the magazine's rankings -- have high grades the first year.

Indeed, my colleague Susan Sturm and I have found that the LSAT is only slightly better than random selection at predicting law school achievement for all students. Upper-income applicants, most of whom are white, tend to score highest on the LSAT. That should not come as a surprise, given that many blacks and Latinos, in Texas and elsewhere, come from economically deprived backgrounds and have been educated in school districts that are still largely segregated.

But within every racial and ethnic group, test scores go up with family income. One explanation for this may be that students who come from better-off families can afford coaching for the test. Students from wealthier families also have other advantages. They are more likely to have been exposed to books and travel.

Even so, their higher test scores reflect the opportunities they have had, rather than how well they are likely to do in school. Indeed, a recent Harvard study of graduates over three decades found that students with low Scholastic Aptitude Test scores and blue-collar backgrounds tended to be more successful, with success defined by income, community involvement and professional satisfaction. This suggests that a student's drive to succeed -- along with an opportunity to do so -- may be a better indicator of future success than test scores.

The real issue is how we define merit. Should we be trying to predict a student's future achievement by a single measure that mainly reflects past opportunity? Putting less emphasis on test scores doesn't mean giving up on excellence.

One alternative is for schools to set a minimum test score as acceptable and then hold what is in effect a lottery for admission among the applicants who meet the minimum standard.

Prospective students who offer qualities that are considered valuable would have their names entered more than once in this lottery, to increase their chances of being selected.

These could be students who have overcome adversity, who have particular skills or credentials, who have outstanding academic records or who have special and worthy career aspirations.

Schools could also embrace variations of a plan recently passed by the Texas State Legislature that calls for all students who have graduated in the top 10 percent of their high school to be eligible for admission to the flagship public institutions.

Affirmative action is neither the real problem nor the whole solution. The challenge for public educational institutions is to rethink how they admit everyone.

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