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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

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Publication Date

Fall 2011




Georgetown University




Education law and policy debates often focus on whether college and graduate school admissions offices should take race into account. Those who advocate for a strictly merits-based regime emphasize the importance of colorblindness. The call for colorblind admissions relies on the assumption that our current admissions criteria are fair measures, which accurately capture talent and ability. Recent social science research into standardized testing suggests that this is not the case.

Part I of this Article explores the psychological phenomenon of stereotype threat. Stereotype threat has been shown to detrimentally impact the performance of individuals from negatively stereotyped groups when performing tasks that may confirm the relevant stereotype. The result is that many standardized tests, including the LSAT, are likely under-measuring the ability of negatively stereotyped test-takers, especially Black and Latino applicants. This mismeasurement challenges our traditional acceptance of the LSAT as a neutral judge of talent.

Part II of this Article proposes a rescaling intervention that would correct for LSAT mismeasurement by adjusting test scores based on the observed mean effect of stereotype threat on LSAT-takers. Rescaling would not only bring the LSAT closer to the fair measures ideal, but would promote institutions’ diversity objectives and help mitigate existing race-dependent burdens on underrepresented minority students.

Rescaling is an explicitly race conscious policy, and thus raises numerous legal concerns. Part III defends the constitutionality of the policy, calling for an updated understanding of the well-established compelling interests of diversity and remedying discrimination. I argue that when understood through this hybrid diversity-remedying discrimination rationale, rescaling not only satisfies our need for fair measures, but brings us closer to the colorblindness that the constitution demands.

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