Fluid-Intelligence Affirmative Action

September 13th, 2015 / By

I wrote in a recent post that many affirmative action programs reflect a belief in fixed intelligence. In these programs, faculty assume that affirmative-action admits have less ability than their white peers. That ability, faculty further assume, condemns those admittees to low law school grades. In addition, the presence of less qualified minority students may aggravate the stereotype threat that can impair performance by all minority students–leading to still lower performance overall.

I then, however, explained that a belief in fixed intelligence is mistaken. Intelligence is much more fluid than many individuals understand. Adopting a fluid-intelligence mindset, moreover, can itself enhance achievement. This brings us to the questions: How does a belief in fluid intelligence affect our concept of affirmative action? And how might those beliefs affect the performance of minority students?

Conceptualizing Affirmative Action

When viewed with a fluid-intelligence perspective, affirmative action programs take on a very different character than the one I described earlier. This perspective, first, assumes that college grades and LSAT scores do not fully reflect the existing intelligence of minority students. Stereotype threat, economic disadvantage, cultural signals, and other forces can reduce a minority student’s performance when compared to that of a white student with similar abilities. Thus, the true ability level of an admitted minority student may be higher than that of white students with similar scores.

Second, the fluid-intelligence perspective assumes that the minority student’s capabilities will grow throughout law school. Education expands intellectual ability, and law school offers a particularly rigorous form of education. The minority student, like white students, will be more capable at graduation than at admission.

Finally, and most important, the fluid-intelligence perspective suggests that the minority student has more potential for growth than the white student with similar credentials. Why? Because almost all minority students have been hampered by a lifetime of implicit bias and stereotype threat. They are also more likely than white students to have suffered from low-income backgrounds, few role models, and inadequate schools. All of these factors can reduce the ability that an individual displays in college or on the LSAT, but they don’t erase the potential for achievement gains.

A good affirmative action program assumes that, if we place minority students in an intellectually challenging but supportive environment, and if we eliminate the stereotype threat and implicit bias in that environment, the minority student will make greater intellectual gains than a white student who enters that environment with the same initial achievement level.

The same, of course, can be true for some white students. Some of them suffer from inferior schools, few role models, and stereotype threats of their own. These students will also benefit disproportionately from a challenging, supportive academic environment. The gaps for minority students, however, tend to be much, much larger. The potential for gain, likewise, is much greater.

The Theory In Action

This three-part discussion, I hope, shows that affirmative action programs need not create stereotype threat or harm minority students. On the contrary, properly conceptualized programs recognize the ability of minority students to make greater gains than similarly credentialed classmates.

What, then, holds them back? Why did Alexia Marks and Scott Moss find that minority law students receive lower grades than white classmates with similar entering credentials? The answer almost certainly lies in our failure to create the type of academic environment described above.

I invite law professors and administrators to reflect on their own attitudes. How many of us believe that intelligence is fixed? That belief can negatively affect student learning.

If we believe in fluid intelligence, do we recognize that minority students may be able to make special gains during law school? Do we eagerly embrace that possibility, working to create the conditions that will bring those gains to life? Are we giving students wise feedback that affirms their ability to meet high standards? The outcomes described by Marks and Moss suggest that we’re not doing nearly as much as we could.

To what extent, finally, does our traditional culture hamper the intellectual development of all students–and of minority students in particular? A lack of individualized feedback, strict grading curves, and overt tracking (e.g., election to the primary law review) probably reinforce notions of fixed intelligence.

Are there ways to change these academic traditions? Or to create new approaches that override their impact? Can we cultivate a belief in fluid intelligence–among both students and faculty–that will give more students an opportunity to grow their intelligence? That is one of the challenges facing law schools.

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Is Intelligence Fixed?

September 8th, 2015 / By

This post is part of a series discussing the challenges that minority students face in law school. You can read previous posts here, here, and here. As I noted in my most recent post, our beliefs about intelligence can affect both student performance and the impact of affirmative action programs. I also suggested that many law students and professors believe that intelligence is fixed. Indeed, the law school culture seems to promote that belief. But is intelligence really fixed?

We know that the expression of intelligence is not fixed. Individuals exhibit different degrees of intelligence under different circumstances. The phenomenon of stereotype threat illustrates that fact: individuals exhibit lower levels of intelligence when tested under circumstances suggesting that members of their identity group are expected to perform poorly.

But does intelligence itself vary? Or does it remain fixed, defining an outer limit of each individual’s potential? One answer is that it doesn’t matter much. If context can affect the expression of intelligence, as happens with stereotype threat, we can focus first on developing academic contexts that enhance the expression of intelligence among all students. Perhaps we can secure sufficient gains in the expression of intelligence–for both minority and white students–that we need not worry whether their underlying intelligence is fixed.

There is, however, significant evidence that intelligence is not fixed. There is equally important evidence that our beliefs about intelligence affect academic performance.

Fluid Intelligence

The psychologist Scott Barry Kaufman dismisses the notion of fixed intelligence as a myth. “The bottom line,” he writes, “is that intelligence was never, and will never, be fixed at birth.” Intelligence grows over the lifetime and even over generations. There is little doubt that intelligence is fluid.

Fluid does not mean completely unrestrained. As Kaufman notes in the article linked above, intelligence as measured by IQ tests remains relatively stable over an individual’s lifetime. This means that individuals at the bottom, middle, and top of the IQ scale tend to retain those relative positions–even as the intelligence of all individuals increases with age and experience. Still, there is considerable fluctuation in those relative positions, especially if individuals are exposed to enriching experiences (or removed from constrictive environments).

This has important implications for legal education. If intelligence is not fixed, then some of our traditional practices look educationally suspect. Our lack of feedback, for example, deprives students of opportunities to enhance their legal intelligence. Our assumption that skills like client counseling reflect innate personality traits similarly prevents us from expanding students’ intelligence by coaching them in these abilities.

But there’s more: Our very belief in fixed intelligence can restrain student achievement.

Fixed and Growth Mindsets

Stanford psychologist Carol Dweck has led a decades-long exploration of the relationship between achievement and beliefs about intelligence. Her work, summarized in the popular book Mindset, shows that people who believe in fluid intelligence (a “growth mindset”) achieve more than those who believe that intelligence is fixed (the “fixed mindset”).

Encouraging students to adopt a growth mindset, therefore, can spur achievement. Dweck and her colleagues have illustrated this effect in numerous studies. Their most recent effort demonstrates the feasibility of low-cost, large-scale interventions to achieve significant gains in student achievement.

This line of scholarship has even more profound implications for legal education. Our grading scales and culture seem to nourish the belief that legal aptitude is fixed. First-year performance constrains employment prospects for many students, signaling that the ability they demonstrated that year is an accurate measure of their long-term potential. Similarly, many students express frustration that they receive middling grades whether they study a little or a lot. Without more individualized feedback, they conclude that their abilities are fixed and that hard work is pointless.

Research by Dweck and other psychologists suggests that, if we could reform our culture to change these mindsets, all of our students would achieve more. That in itself would be a laudable goal.

Back to Affirmative Action

I started these posts, however, by exploring the particular plight of minority students. In my last post, I extended that journey to consider the impact of affirmative action programs. As I noted there, programs rooted in a fixed-intelligence belief may depress the grades of minority students (although those programs may still confer other benefits by opening doors to more elite schools).

In my next and final post of this series, I will describe a different type of affirmative action program–one committed to a belief in fluid intelligence. As we’ll see, that type of program could enhance performance by minority students. A culture endorsing fluid intelligence, furthermore, could improve achievement among all law students.

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Affirmative Action and Fixed Intelligence

September 6th, 2015 / By

I wrote this summer about a study demonstrating a worrisome trend among minority law students: They received lower grades than white peers with similar LSAT scores, undergraduate achievements, and work experience. Part of the problem, I suggested in a second post, may stem from the psychological phenomenon of stereotype threat. When individuals are placed in situations in which a group stereotype suggests that they will perform badly, they do just that. Remove the stereotype threat and performance improves to match that of other individuals with similar experience and abilities.

Stereotype threat arises in part from the implicit racial bias that permeates our culture. If professors, classmates, friends, and family members see minority students as less capable than white ones, those perceptions can become self-fulfilling prophecies. Unconscious bias, unfortunately, is invisible only to the holders of that bias; targets readily perceive the negative assumptions and respond to them.

What About Affirmative Action?

How does affirmative action affect this dynamic? Some critics of affirmative action suggest that special admissions programs simply aggravate stereotype threat–ultimately harming the students they intend to help. Minority students, they reason, know that at least some members of their group lack the credentials of white students; they are “less qualified” to attend law school than their peers. This knowledge, critics reason, will trigger an extreme form of stereotype threat. Knowing that their racial/ethnic group is less qualified than the dominant white group–and that professors know this–minority students will perform poorly.

Does this phenomenon explain the poor performance of minority students in law schools? Should we abandon all traces of affirmative action to improve the achievements of minority students?

Not from my perspective. Instead, we need to examine our own attitudes toward affirmative action. Those attitudes, which inform a law school’s culture, spell the difference between programs that assist minority students and those that may harm them. To explain this, we also need to explore the nature of intelligence: Is an individual’s intelligence fixed at some point early in life? Or is it fluid? I will explore these issues in a series of posts.

Fixed-Intelligence Affirmative Action

Many critics of affirmative action assume that intelligence is fixed. When we admit minority students with lower LSAT scores than their white classmates, these critics assume, we know that the minority students will perform more poorly in law school. They have less law-related intelligence (as measured by LSAT tests) and, thus, are fated to lower performance.

These critics acknowledge that intelligence is not the only factor affecting achievement. Hard work, catch-up tutoring, and faculty encouragement, they concede, may improve a student’s grades. In their view, however, this simply adds to the cost of affirmative action programs. Schools must devote special resources to tutoring programs, and faculty must provide special encouragement to minority students. The pay-off, from the critics’ perspective, is small. Minority students, they argue, would fare better if they attended schools where their fixed intelligence matched that of their white peers.

Many supporters of affirmative action programs also believe in fixed intelligence. These supporters quietly assume that minority students have less law-related intelligence than their white peers, but they blame that difference on historical and contemporary discrimination. Since society has damaged minority students, these professors reason, we owe them special consideration in admissions. We should give them the opportunities they might have had if they had not experienced a lifetime of overt and subtle discrimination. With hard work, special tutoring, and faculty encouragement, at least some of these students will achieve more than their predictors indicate. Even those who finish near the bottom of the class will benefit from the reputation and network connections of a more prestigious school than one they might have attended without affirmative action.

These attitudes, whether expressed critically or supportively, may well reduce the performance of minority students. In addition to creating stereotype threat, these attitudes tell minority students: “Intelligence is fixed by the time students enter law school and, for whatever reason, yours is lower than that of your classmates.” As we’ll see in my next post, belief in fixed intelligence harms students as much as stereotype threat. Minority students, therefore, suffer a double injury when surrounded by these attitudes.

These attitudes, it’s important to note, need not be overt to affect students. Few professors announce to their classes: “Your intelligence is fixed. You’ve either got it or you don’t. See you at the end of the semester.” The beliefs, however, are there. Law school, in fact, seems centered on a theory of fixed intelligence. Our focus on LSAT scores (aggravated by the US News ranking competition), the lack of feedback designed to enhance performance, and the strict grading curves suggest that we believe our students’ intelligence is fixed.

Add assumptions about low-performing minority students to that mix, and you have a recipe for stereotype threat and reduced performance–even among minority students with entering credentials that match those of white peers.

Another Way

Fortunately, it doesn’t have to be this way. There is a way to conceptualize affirmative action programs that is both more cognitively accurate and more supportive of minority students. If we can reform our law school culture to embrace the reality of fluid intelligence, we will reveal the true justification for affirmative action programs, allow minority students to reach their full potential, and improve learning for all students. In my next two posts, I will explore the concept of fluid intelligence and how it can inform our beliefs about affirmative action.

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Understanding Fisher

July 2nd, 2013 / By

[We are pleased to present a guest post by Ruth Colker, Distinguished University Professor and Heck-Faust Chair in Constitutional Law, Moritz College of Law, The Ohio State University. This discussion is cross-posted from Professor Colker’s blog.]

What can a law school admissions officer learn from a close reading of Fisher v. University of Texas? A bit. (more…)

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What Does Fisher Mean?

June 26th, 2013 / By

What does the Supreme Court’s enigmatic Fisher opinion mean for the daily operation of an admissions office? In particular, what does it herald for law school admissions? At first glance, Fisher seems to extend the status quo for affirmative action. The Court did not strike down the University of Texas’s race-conscious plan. Nor did it overturn the 2003 Grutter decision approving Michigan Law School’s approach to affirmative action during the 1990’s. A school that follows a procedure like the one Michigan successfully defended in Grutter, therefore, must be on safe ground–right? I’m not so sure.

Fisher Basics

On the surface, Fisher‘s holding is easy to digest. The Court held that:

(1) Courts must apply strict scrutiny to explicit consideration of race in university admissions.

(2) An “interest in the educational benefits that flow from a diverse student body” counts as a compelling interest. Indeed, the Court has recognized no other interest that counts in this context.

(3) Courts will defer to a university’s decision that it needs the educational benefits of diversity. A court must “ensure that there is a reasoned, principled explanation for the academic decision,” so academic institutions would be wise to build a record supporting their need for educational diversity. The courts, however, will not second-guess this conclusion if it is articulated and supported properly.

(4) Courts, on the other hand, must closely examine a university’s claim that its race-conscious program is narrowly tailored to achieve educational diversity. The university bears the burden of persuasion on this point, and courts will “examine with care” the university’s assertion.

What does an academic institution have to show to meet the narrowly-tailored prong of strict scrutiny? This is the key issue raised by Fisher. This is also the area in which the opinion includes more nuance than a first reading might suggest.

Narrowly Tailored

The Fisher majority pointed to two different showings that a university might have to make under the narrowly-tailored prong. The first is that the race-conscious process was “necessary” to achieve the university’s goal of attaining a diverse student body. If “workable race-neutral alternatives would produce the educational benefits of diversity,” then the university must embrace those methods instead of race-conscious ones.

This part of the ruling addresses a point that the Fisher plaintiffs stressed: Since the University of Texas had already achieved significant racial diversity through a legislatively imposed “top ten percent” plan, did the university really need additional race-conscious measures?

The Court didn’t answer this question, leaving it to the lower courts on remand. Texas, however, offered pretty persuasive justifications for its “add on” plan in the brief it submitted to the Court. The University pointed out that the ten-percent plan overlooks minority students who attend schools with no class rank; some of the state’s top private schools fall in that category. The ten-percent plan also omits minorities who perform well (but not within the top decile) at magnet schools and other challenging high schools. The University wasn’t aiming simply to enroll a given number of minority students; it wanted diverse students from a variety of backgrounds. The ten-percent plan couldn’t deliver that nuanced diversity.

I think Texas may prevail on this point in the lower courts–and even win affirmance from the Supreme Court if the case returns to that docket. But this portion of the narrowly-tailored discussion is irrelevant to law schools. We don’t have a “top ten percent” alternative, and there are no “workable race neutral” mechanisms that seem likely to create the racially diverse student bodies that law schools seek–and that seem more educationally valuable with every passing year.

Law schools may be able to show that race-conscious admissions policies are necessary to produce racially diverse classes. It’s the second, less noticed part of Fisher‘s “narrowly tailored” discussion that law schools should worry about.

Evaluating Applicants as Individuals

Justice Kennedy, writing for the Court in Fisher, stressed that a race-conscious admissions plan is narrowly tailored only if the “admissions processes ‘ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.'” This language stems from Grutter‘s majority opinion, and ultimately from Justice Powell’s opinion in Bakke, so law schools may assume that they’re on safe turf as long as they’re following processes upheld in the past–like the one Michigan successfully defended in Grutter.

The picture, unfortunately, is more complicated. Remember that Justice Kennedy dissented from Grutter, complaining that Michigan wasn’t really evaluating applicants as individuals. The school did review files holistically, without assigning a specific numerical plus to minority status. This “individualized” assessment, however, yielded a percentage of enrolled minority students that Justice Kennedy found suspiciously constant from year to year. The school’s admissions director also acknowledged that his office generated daily reports that tracked the racial composition of the evolving class. Especially during the final stage of the admissions season, this composition could affect the students chosen for admission.

Justice Kennedy concluded that this process preserved “individual evaluation” only during the early stages of admission. At later stages in the process, “an applicant’s race or ethnicity” might well become “the defining feature of his or her application.” The five Justices in the Grutter majority were willing to grant Michigan this leeway. As Justice O’Connor wrote for the Court, “‘some attention to numbers,’ without more, does not transform a flexible admissions system into a rigid quota.” (quoting Justice Powell’s opinion in Bakke). She also perceived more variation in the racial composition of Michigan’s entering classes than Justice Kennedy did.

But Justice O’Connor is no longer on the Court; Justice Kennedy is the necessary fifth vote to support any form of race-conscious admissions in higher education. And Justice Kennedy is very serious about the need for individualized evaluation throughout the admissions process. That’s what he said in Grutter and that’s what he affirmed in Fisher, this time for the Court.

Sticking to Individual Evaluation

Fisher is bad news for any school that tracks racial composition while admitting a class. As Justice Kennedy wrote in Grutter, it is hard for a school to claim that race plays a small, contextual, highly individualized role in assessing applicants when a school tracks that characteristic carefully during the final stages of admission. But don’t all schools do this if they care about matriculating a critical mass of minority students?

Apparently not. In fact, this is the ultimate irony of Fisher. UT has structured its admissions program to avoid any consideration (or even knowledge of) race during the final stages of its admissions process. Race is one factor that may affect an applicant’s “Personal Achievement Index (PAI),” but race plays a small role in generating that score. More important, once a file-reader generates the PAI score for an applicant, later decision-makers don’t know the basis for that score. Each applicant’s PAI represents a combination of work experience, extracurricular activities, community service, socioeconomic condition, minority race, and several other factors. The University extends admissions offers to applicants with PAI’s and Academic Indexes above chosen levels. When choosing those levels, however, the admissions officers do not know the races of the students they are including.

This system seems tailor-made to satisfy Justice Kennedy’s strict requirement of individual evaluation. Race truly is just one factor that the school considers in the context of an applicant’s full record. Once race has contributed to the PAI, it disappears from the decision-making process. The system furthers the school’s compelling interest in matriculating a racially diverse class, because it counts an applicant’s contribution to that end among other contributions. The system, however, does not allow race to become “the definining feature” of an applicant’s file.

Law schools that use a system like this may comply with Fisher‘s exacting standard. Schools that track race, as Michigan did before Grutter, may not fare as well.

But Isn’t Grutter Still Good Law?

It may seem odd to suggest that a school following the admissions process upheld in Grutter runs a risk today. The Fisher Court, after all, reaffirmed Grutter‘s principles and noted several times that the parties had not asked it to reexamine Grutter. Certainly a lower court might uphold a Grutter-like plan with that rationale. “Since the Court upheld this type of plan in Grutter,” a lower court judge might reason, “and the Court hasn’t overruled Grutter, then this plan must be constitutional.”

Justice Kennedy’s majority opinion in Fisher, however, offers support for a different conclusion. The opinion focuses on the need for lower courts to conduct searching scrutiny on the question of whether a race-conscious plan is, in fact, narrowly tailored. The Court specifically rebuked the Fifth Circuit and district court judge for being too deferential to the university. Lower court judges don’t like to be reversed that way; they’ll be reading Fisher closely for what the Court really wants.

On that score, there are two key sentences in Fisher. The first appears on page 12 of the majority’s slip opinion, where the Court declares: “Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.” (emphasis added) Those italicized words are the essential ones; they hark straight back to Justice Kennedy’s dissent in Grutter. Lower courts cannot just accept a university’s description of multiple factors and holistic review; the courts must examine what the university actually does throughout its admissions process. If the university does things like track racial composition of the evolving class, Fisher raises a red flag.

The second sentence appears on the same page, in the preceding paragraph. There, Justice Kennedy notes that the Grutter Court “approved the plan at issue upon concluding that it was not a quota [and] was sufficiently flexible.” The paragraph continues, however, to observe that “the parties do not challenge, and the Court therefore does not consider, the correctness of that determination.” This reservation differs from the Court’s earlier observation that it would not reexamine the legal principles in Grutter. Here, the Court notes that it has not been asked to reconsider the factual correctness of Grutter–a sure sign that the majority harbors some doubts about that result. And, of course, we know that at least five Justices would disagree with that result.

What’s a Law School To Do?

All of this is problematic for law schools, because we try to shape our classes so closely. I haven’t served on a law school’s admissions committee for twenty years, so I may be out of date. My impression as a faculty member, however, is that law schools track LSAT scores, GPAs, race, and perhaps some other indicators (such as gender or in-state status) quite closely throughout the admissions process. Schools are trying to meet certain targets for those criteria. The targets may be soft ones, rather than strict quotas, but they may not satisfy the “individual evaluation” that Justice Kennedy fervently demands.

I’m a long-time advocate of affirmative action in university admissions. I authored an amicus brief in Grutter and wrote most recently about the issues here. So I’m not trying to read Fisher in a way that would restrict the flexibility of educational institutions. Instead, I’m concerned that schools may assume that Fisher‘s “compromise” decision holds little of note. I think that would be a mistake. I would assess any race-conscious program through the prism outlined above.

This is also a good time for law schools, bar associations, and courts to invest in more pipeline programs. Race-conscious admission policies have helped diversify law school classes, but they operate at the margins. Pipeline programs reach students much earlier in their educational lives, giving them both the tools and inspiration to prepare themselves for a professional career. Students who participate in pipeline programs, furthermore, carry their ambitions back to their schools and neighborhoods, where they may inspire other students.

It’s important, finally, for law schools to continue exploring new ways of measuring and valuing diversity. Michigan Law School’s current application asks students to provide race and ethnicity for reporting purposes, but declares that the information “will have no bearing on the Law School’s admission decision.”

Instead, the school seems to gauge diversity through an open-ended personal statement and a series of optional essays. Applicants may address any issue in the required personal statement, including “significant life experiences; meaningful intellectual interests and extracurricular activities; . . . significant obstacles met and overcome; . . . issues of sexual or gender identity; . . . socioeconomic challenges; . . . or experiences and perspectives relating to disadvantage, disability, or discrimination.” These topics allow applicants of any race to paint a holistic picture of themselves, including ways in which they might contribute to diversity of the student body.

Similarly, one of Michigan’s optional essays invites applicants to “describe an experience that speaks to the problems and possibilities of diversity in an educational or work setting,” while another optional prompt asks: “How might your perspectives and experiences enrich the quality and breadth of the intellectual life of our community or enhance the legal profession?” These portions of the application, I assume, enable Michigan to assemble a diverse class (on many dimensions) without allowing race to become a “defining feature” of an application.

Skeptics might claim that schools using essays like these are “really” looking just for racial identity. That, though, underestimates both the goals of admissions committees and the complexity of race. Race has never been a simple, binary concept, but its complexities have compounded. Increased immigration, a growing number of citizens who identify as multiracial, majority-minority urban centers, and a host of other factors mean that today’s minority Americans experience race in hundreds of different ways. Schools that want to enroll racially diverse classes, as well as white students who perceive the pervasive impacts of race–need to probe racial experience more deeply than just asking students to tick off a box. Pushing ourselves to think beyond those boxes, ironically, may help us preserve the racial diversity that the boxes initially helped us achieve.

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