Testing, Diversity, \u3ci\u3eand\u3c/i\u3e Merit: A Reply to Dan Subotnik and Others

The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. “Merit” judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam that led to the Supreme Court decision in Ricci v. DiStefano, as well as the LSAT and Bar Exam, the Article questions the way standardized tests are used in making critical gateway decisions. It argues, consistent with Title VII, that racially disparate test outcomes should prompt inquiry into whether better ways exist to determine merit. Based on studies indicating that cognitive tests predict academic and workplace success for a relatively small percentage of test-takers, and on research into assessing a wider range of skills in many fields, the Article suggests we can both better predict who will succeed as future lawyers and reduce the impact of test score racial disparities by modifying law school admissions and bar licensing processes. The Article concludes that questioning over-reliance on cognitive tests to measure merit will lead to the development of better assessment measures with more diverse outcomes, more fairness for all applicants, and more comprehensive decision-making processes that better reflect true merit