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Standardized Testing, Learning, and Meritocracy: A Reply to Professor Dan Subotnik
Touro Law Review (2016)

This article is a response to a recent book review by Professor Dan Subotnik (“Professor Subotnik”). I will show in this piece why I disagree with his position on standardized testing in general, and his critique of Professor Guinier in particular.

My friend Dan Subotnik, a former professor of mine at Touro Law School, recently published an article in the Touro Law Review, Tyranny of the Meritocracy? A Disputation Over Testing With Professor Lani Guinier, 31 Touro L. Rev. 343 (2015).  His article is a review of a book recently published by Harvard Law Professor Lani Guinier, titled THE TYRANNY OF THE MERITOCRACY: DEMOCRATIZING HIGHER EDUCATION IN AMERICA.

In a nutshell, Professor Subotnik’s piece shows that he wholly disagrees with the premises of Professor Guinier’s piece, which are that standardized testing is both unfair and unreliable, and that students that come from non-traditional backgrounds can form successful study groups and ultimately do well in college, graduate school, and law school.

I became part of this debate when Professor Subotnik kindly invited me to respond to an earlier piece he had written called Does Testing = Race Discrimination? Ricci, the Bar Exam, the LSAT, and the Challenge to Learning, 8 U. Mass L. Rev. 332 (2013). After reading that piece, I realized that I was in a unique position to add to the debate. Why? Prior to my graduating from law school and becoming a college professor myself, I was a high school dropout. If one were to look at my high school transcript today not knowing my story, one would be stunned that the owner of that transcript is the same person writing this abstract, albeit thirty-five years later. During that horrendous, hopeless time, I just could not see the relevance of the SAT to life in general, or to my own academic future. As I went through college, graduate school, and law school, I realized that exams like the SAT, GMAT, and LSAT were overrated at best, and most likely useless.

This was especially the case when I proved that my overall academic prowess was much more than a subpar score on some one-time aptitude test, plus the fact that I was something of a late bloomer academically. This was the focus of my first response to Professor Subotnik, called Standardized Testing and Race: A Reply to Professor Subotnik, 13 Seattle J. Soc. Just. 1, 23 (2014). In my piece, I cited several instances where students did well in law school and went on to successful careers despite having less than stellar LSAT scores. Professor Guinier cites similar examples of people who came from non-traditional backgrounds to overcome the culture shock of going to college to do well and eventually earn graduate degrees also.

In the face of these success stories, Professor Subotnik claims that collaborative study efforts necessarily compels the better students to carry the weaker students. I fail to see how this is the case when people study together with their friends on a regular basis. In addition, studying together can be the very vehicle that unlocks the gate, so to speak, and allows the group to solve the difficulty and ultimately master the subject matter.

Next, Professor Subotnik continues to argue that any legitimate concern about the fairness and reliability of standardized testing is automatically a misguided, de-facto attack on grades. My article shows precisely why the two are mutually exclusive; suffice to say that grades are the culmination of a student’s semester work product while a one-time “aptitude” test…well…isn’t.

Professor Subotnik’s next argument is that asking multiple choice questions prevents students from giving answers from out of left field. Admittedly, that is true to a point assuming the student has no idea how to answer the question. However, I argue that if a student has neither the academic experience nor any other personal frame of reference regarding a particular subject area, the form of a test question is irrelevant…precisely because the student is being compelled to answer a test question about a subject he knows nothing about. I discuss in this piece as well as my earlier article precisely how standardized testing was historically calibrated to be biased in favor of white Europeans to the detriment of all other test takers. I don’t need to ask how fair this setup has been.

Professor Subotnik’s final argument is that Professor Guinier is absolutely the wrong person to be critical of standardized testing because she is now a career academic far removed from the day to day competition of professional life (his exact words are “flame of competition. “) I noted in my article that this is an interesting and ironic commentary considering that he is a decades-long tenured law professor, and himself probably far removed from his self-described flame of competition.

In concluding, I do not know if Professor Subotnik is a testocrat; I will not go so far to definitively say that he is. However, the fact that he has defended standardized testing as vigorously as he has could lead one to reasonably believe that he is. Whether he is a testocrat or not, I say just as zealously that my own journey from high school dropout to law school graduate to college professor is THE absolute truth that no testocratic argument can ever overcome.

  • Standardized Testing,
  • Collective Learning,
  • Meritocracy,
  • Discrimination,
  • Bias
Publication Date
Spring April 1, 2016
Citation Information
"Standardized Testing, Learning, and Meritocracy: A Reply to Professor Dan Subotnik" Touro Law Review Vol. 32 Iss. 2 (2016) p. 387 - 405
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