Monday, September 14, 2015

Fluid-Intelligence Affirmative Action

Deborah Jo Merritt has a three-part series on the Law School Cafe in which she proposes a new type of affirmative action--fluid-intelligence affirmative action.  She writes, "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."  "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."

Merritt argues, "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."  She continues, "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."

Thus, "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."

She concludes, "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?. . . .  The answer almost certainly lies in our failure to create the type of academic environment described above. . . .  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."

I believe that Professor Merritt has come up with an innovative approach to affirmative action.  There is considerable research in general education that backs up the notion of fluid-intelligence (the growth mindset), especially the work of Carol Dweck.  Law professors can help students by convincing minority students that they have the ability to improve their intelligence.

However, I don't think that Professor Merritt has gone far enough.  Helping minority students to change their mindsets is just the beginning to helping them do better in law school and as lawyers.

As I mentioned in yesterday's post, many minority students come to law school behind.  This is partially due to a fixed mindset and partially due to fewer educational opportunities than white students, beginning with elementary school.  As I discussed in detail in my article How to Help Students from Disadvantaged Backgrounds Succeed in Law School, law schools need to use better teaching approaches to help minority students succeed.

Paramount among these approaches is active learning techniques.  As Annie Murphy Paul declared in the New York Times, "The partiality of the lecture format [in favor of white students] has been made visible by studies that compare it with a different style of instruction, called active learning. This approach provides increased structure, feedback and interaction, prompting students to become participants in constructing their own knowledge rather than passive recipients. . . .  Research comparing the two methods has consistently found that students over all perform better in active-learning courses than in traditional lecture courses. However, women, minorities, and low-income and first-generation students benefit more, on average, than white males from more affluent, educated families."

Similarly, minority students often enter law school lacking the metacognitive skills that are important to becoming a self-regulated learner.  Metacognition concerns thinking about thinking–controlling one’s cognitive (thinking) processes.  It involves knowing strategies and when to adopt a particular strategy.  It concerns monitoring one’s learning and activities.  It requires thinking about one’s learning processes and problem-solving methods so the student can improve those processes.

Law professors also need to explain concepts clearly, rather than hiding the ball.  Those of us who became law professors may have thrived on the hiding the ball method when we were in law school, but students who are already behind on the first day do not.

Moreover, law schools need to help students develop better study habits.  Most students use the same study habits in law school that they did in undergraduate school regardless of whether those habits worked well.  In addition, law school involves a different type of learning that involves a different approach to studying.

Finally, law professors need to adopt new types of textbooks--textbooks that include active learning exercises, which drill students in legal reasoning, such as here, here, and here.

Professor Merritt is correct that law schools can do much more to help minorities succeed.  However, this will take a strong commitment by law schools and law professors.  I believe, though, that helping minority students succeed is worth it.

(Scott Fruehwald)

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