The recent 5-4 Supreme Court ruling on the New Haven Fire Department vocational advancement exam in Ricci v. DeStefano once again stirs the waters on the question of how to choose the best from among a crowd. (See our entry "The Outliers of Law–Embracing Heresy".) The "best" in this case was determined to be simply the highest scorers, even if those scores seem to imply discrimination against a particular group.
What’s Sonia Got to Do With It?
A lot of press has been devoted to parsing whether Sonia Sotomayor’s vote with the majority at the appeals court, which affirmed throwing out the test results, implies her personal position on affirmative action.
A look at Sotomayor’s own test scores gives an interesting gloss to the discussion. She was, by her own admission, an "affirmative-action baby" who did not do well on her SATs and LSATS, or at least not as well as her fellow students at Princeton and Yale. Yet she went on to graduate from Princeton with highest academic honors and has reached the upper echelons of law practice. As Walter Kirn said in a recent New York Times article about his own experience at Princeton, "the poorer and browner of my classmates — particularly the women — seemed to study twice as hard as I did, clocking endless hours in the library and forgoing weekend parties for late-night cram sessions. Maybe their SAT scores were lower than mine, but they ranked higher than I did on the effort scale. And on the bravery scale too."
So was this a case of retrospective justice-making by Ms. Sotomayor?
Regardless of what Sotomayor was doing in the public sector, the glaring lesson to be taken from her own story is that aptitude assessments are not the last word on potential for achievement.
The Texas Experiment
In 1997, Texas House Bill 588, better known as the "Top 10 Percent Law," was passed, guaranteeing high school graduates who ranked in the top 10% of their senior class, regardless of their SAT or ACT scores, admission to a state institution. While hotly contested at the time as risking the influx of less able students, it is a law that school administrators and legislators agree "by any measure of public policy is a success."
Not only did the 10% plan in Texas get more minority students into top public universities with race-neutral criteria, it spawned similar programs in California and Florida and the consideration of many other states. (Due to its immense popularity, last month the Texas Legislature agreed to limit to 75% of its freshman slots the number from the program that their flagship school, the University of Texas at Austin, had to admit.) According to the most recent issue of Inside Higher Ed, "every internal study that… the UT system conducted and every external study has shown that the 10 percent students, relative to others, have done better by any measure — lower attrition rates, graduate in shorter time periods," etc.
As Malcolm Gladwell wrote in his 2001 New Yorker article "Examined Life": "Critics of the policy said that it would open the door to students from marginal schools whose SAT scores would normally have been too low for admission to the University of Texas—and that is exactly what happened. But so what? The ‘top ten percenters,’ as they are known, may have lower SAT scores, but they get excellent grades. In fact, their college GPAs are the equal of students who scored two hundred to three hundred points higher on the SAT [emphasis added]. In other words, the determination and hard work that propel someone to the top of his high-school class—even in cases where that high school is impoverished—are more important to succeeding in college (and, for that matter, in life) than whatever abstract quality the SAT purports to measure. The importance of the Texas experience cannot be overstated."
Predicting the Best Lawyers
A number of studies have looked for what might predict eventual success as a practicing lawyer. Evidently LSAT scores, and not undergraduate grade point averages, are the best indicators of academic performance in the first year of law school, and academic performance in the first year of law school appears to be the best predictor of whether the new graduate will pass his/her state bar exam on the first attempt. There is also a very strong correlation between the personality attribute of pessimism and law school grades, i.e., the higher the pessimism, the higher the grades.
But none of these factors–undergraduate grades, LSAT scores, law school grades–gives us the key to determining who is likely to be at the top of the lawyering heap.
A New Kind of Test