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Susan Sturm and Lani Guinier: The Future of Affirmative Action
This is the second half of an article originally published in the December 2000/January 2001 issue of Boston Review. The entire article, the first half of which discusses concepts of merit, fairness, and capacity to perform, can be read at http://www.bostonreview.net/BR25.6/sturm.html.
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 meritÐthe 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 opportunityÐan 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 cliche 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 organizationÕs 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 diversityÐin particular, an interactive dynamic among individuals with different vantage points, skills, or valuesÐappears 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 institutionsÕ 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 harassmentÐa problem ordinarily associated with womenÐcan 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.
Fairness
Using the margins to rethink the wholeÐby using performance to develop opportunityÐwill 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, votingÐthe process that has traditionally served to permit participation and influence public decision makingÐdoes 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.
Susan Sturm is professor of law at Columbia Law School and the co-principal investigator, with Lani Guinier, of the Racetalks project.
Lani Guinier is professor of law at Harvard Law School. She is author of the Tyranny of the Majority and Lift Every Voice, and co-author of Becoming Gentlemen. Her essay on majority rule appeared in the September/October 1992 issue of the Review.
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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.
17Howard 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 courtsÕ reluctance to scrutinize high-level employment decisions; Deborah L. Rhode, "Perspectives on Professional Women," Stanford Law Review 40 (1988): 1163, 1193-94 notes courtsÕ deference to employersÕ 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," affÕd., 380 US 145 (1965).
30 Reynolds v. Sims, 377 US 533, 544 (1964).
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