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Excerpted From: Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 10 La Raza Law Journal 363 (Spring 1998) (231 Footnotes) (Full Document)


DariaRoithmayr02The results from Proposition 209 are finally in and the numbers are quite dramatic. Administrators on law school campuses in the University of California system have released the demographic profiles of the first class of students admitted and enrolled under the edicts of Proposition 209, which precludes the use of race in educational admissions decisions. Not surprisingly, the number of Latino/a and African-American students enrolled in U.C. law schools had dropped sharply. But even the most prescient of commentators could not have predicted that the University of California-Berkeley School of Law (Boalt Hall) would not enroll a single African-American student admitted for the 1997-1998 year.

Reaction to the numbers has been mixed. Supporters of affirmative action point out the obvious, that the new admissions policy has disproportionately excluded people of color from University of California and Texas law schools, and fear that the new admissions programs will resegregate these institutions. Opponents of affirmative action argue that the new policy is appropriately meritocratic and race-neutral, and that the policy's disproportionate impact on applicants of color can be explained by poor schooling or cultural differences. Those explanations notwithstanding, the U.S. Department of Education's Office of Civil Rights recently has agreed to investigate whether the SP-1 admissions process, as the new process is called, violates Title VI, which prohibits discrimination on the basis of race or ethnicity in higher education.

In many ways, what is at stake in the California affirmative action debate is not just quibbling over the fate of the so-called “talented tenth.” Rather, the controversy focuses on a concept at the heart of contemporary race politics in the idea that merit and bias are opposites, and that merit is a race-neutral concept, while bias is race-conscious. As is reflected in the opening citation, the conventional understanding of merit assumes that merit standards measure an individual's potential ability to produce something of social value--good lawyering, or high performance in law school, for example--by assessing certain traits, qualities, or skills that reflect potential ability. Law schools admit students on the basis of their grades and LSAT scores--on their “merits”--because admissions committees think that a high score on the LSAT and a high GPA reflect an applicant's potential ability to achieve and produce social value in legal education and the legal profession.

In contrast, bias is understood as the direct opposite of merit. Biased selection standards--those based on race, ethnicity, family connections, social status--are condemned because society does not think that these factors rationally correlate to the ability to produce value in legal education or the legal profession. To the extent that statistical analysis might demonstrate some correlation between race and success in law schools, scholars search for some external and theoretically race-neutral factor--e.g., poor schooling--to explain the correlation. But they begin with the presumption that the standards by which they measure merit are race-neutral, and that merit itself--the ability to produce something of social value--is race-neutral as well. Within that framework of analysis, policy-makers seek to eliminate racism by rooting out bias and ensuring that opportunities are distributed on the race-neutral basis of pure merit standards.

And then comes the radical critique of merit, which literally stands the distinction between merit and bias on its head. The radical critique, articulated primarily by critical race theorists and some radical feminist scholars, argues that merit standards disproportionately exclude people of color and women because the standards historically have been developed by members of dominant groups in ways that end up favoring them. Scholars like Patricia Williams have argued that merit standards are simply socially acceptable subjective preferences, developed by members of social groups who were in power at the relevant time and place in history, and whose descendants continue to disproportionately benefit from decisions made under those standards. We have forgotten or suppressed the standards' subjective history, according to Williams, and now represent the standards to be ahistorical, objective measures of ability. Having separated the standards from their history, we do not contemplate the notion that what constitutes ability itself is subjective and constructed under particular historical circumstances by particular social groups.

Although several scholars have sketched the outlines of the radical critique of merit, those outlines have been more general in nature. This article attempts to develop more fully a deconstructive theoretical argument in support of the radical critique of merit, using a critical history of law school admissions to illustrate that merit standards are necessarily the effect of subjective, social and contingent race-conscious preferences for particular kinds of abilities.

The Article takes as its point of critical departure the objectivist conception of merit defended by Professors Daniel Farber and Suzanna Sherry in their latest work. In their book Beyond All Reason: The Radical Assault on Truth in American Law, Farber and Sherry continue their long-standing defense of the conventional notion that merit standards, when properly applied, provide some measure of excellence that is objective and independent of ideology or culture.

Farber and Sherry do not defend merit on theoretical grounds. Rather, they start with the empirical claim that Jews and some Asian groups have had disproportionate success under current meritocratic systems. Armed with this assumption, they level two political objections to the radical critique. First, they argue that radical critics cannot reconcile the success of Jews and Asian Americans with the argument that merit standards were constructed to exclude people of color. Second, they contend that the radical critique unfairly characterizes the successes of Jews and Asian Americans as undeserved, and seeks to deprive members of those groups of their hard-won successes. The better argument, say the authors, is that Jews and some Asian-American groups have succeeded because they possess an objective quality called “merit” that is independent of race or ethnicity. To explain why other people of color have failed to achieve comparable success, Farber and Sherry argue that the most likely explanation (given that it disturbs status quo assumptions the least) is that dominant groups have applied objectively valid merit standards to those groups in a discriminatory manner.

Although the authors studiously avoid metaphysical discussions about the existence of “objective merit,” their work nevertheless relies on a conventional theoretical distinction between merit and bias. According to the authors' logic, society should prefer merit standards because they efficiently select for the ability to create social value, and therefore are logically associated with justice, rationality, objectivity and color-blindness. In contrast, society should disfavor “biased” criteria such as race, wealth or family connections, because those criteria derive from status, and are associated with subjectivity, irrationality and race-consciousness.

To be sure, Farber and Sherry's distinction between merit and bias comports with conventional mainstream understandings of why merit standards should be preferred over standards that are biased. But the conventional distinction between merit and bias ignores the way in which ideas about what constitutes value in a particular institutional setting, and what constitutes an appropriate way to measure for the potential to create that value, are necessarily contingent, subjective, and historically specific ideas.

This Article deconstructs the authors' conceptual opposition between merit and bias to make three related arguments. First, merit standards necessarily defer to and depend on the very ideas that define social bias and distinguish it from merit. For merit standards to measure the ability to create social value, as they are said to do, the standards must necessarily defer to social preferences about what constitutes social value, and how that value is produced. These preferences are necessarily subjective and race-conscious; they are developed in a historically contingent social context and are authored by members of groups who have enough social power--which historically has been based in part on their race and ethnicity--to define what counts as social value. Thus, merit standards necessarily reinscribe the very qualities that Farber and Sherry associate with bias--subjectivity, nonrationality, race-consciousness and social status. In some meaningful sense, then, merit standards can be redescribed as a form of bias that has come to be socially accepted.

This Article uses the example of law school admissions to illustrate that choices about social value in the legal profession and education--and the merit standards designed to promote that social value--historically have been tied to the social status of professional leaders and, in this case, to the profession's desire to bar entry to immigrants and people of color. In particular, choices about the way law is practiced, and more specifically about the way law is taught, were made in the context of the profession's explicit effort to stem the tide of immigrants and Black men who sought to become lawyers in the early 1900s. Those choices still govern much of legal practice and education today.

Second, the Article suggests that, because determining what constitutes “social value” in any particular context is necessarily an historically-specific, contingent phenomenon, Farber and Sherry might better explain the disproportionate success of Jews and some Asian-American groups by conducting a critical historical inquiry. Given the historical differences between groups, it would be more useful to determine the conditions under which these groups achieved their success, rather than reasoning abstractly and ahistorically about why each group has or has not succeeded.

Finally, the Article proposes that the deconstructivist interpretation of merit be put to practical use. Using deconstructivist insights in conjunction with the critical history of law school admissions criteria, litigators might be able to argue that current merit standards in the SP-1 law school admissions process in the University of California system violate Title VI (which precludes discrimination in educational institutions that receive federal money), because these standards historically were developed in the context of racial exclusion, and because the standards as they are currently operated serve to disproportionately exclude Latinos/as and African Americans. At the very least, this argument based on history and statistics should shift the burden of proof to proponents of merit standards, who should have to prove that the standards are “pure”--that is, they were not adopted or developed in a context where people of color were routinely excluded, or they do not disproportionately affect people of color.

Part I of this Article attempts to provide a primer on the method of deconstructive practice, in order to translate and make accessible concepts that are relevant to this project. This section briefly traces the theoretical evolution of deconstructive practice from structuralism and post-structuralism. It demonstrates, using an example of deconstructive redescription, that concepts like merit or reason are rhetorical categories that are historically created in the context of particular social institutions, and are not objectively grounded in “true” or “real” accounts of the way things really are.

Part II applies this deconstructive method to the passage in Farber and Sherry's text in which the authors attempt to justify the conventional preference for merit by contrasting it to bias. In particular, the deconstructive reading of the authors' defense of merit demonstrates that “merit” standards necessarily and inevitably defer to arbitrary, race-conscious, subjective and historically contingent preferences--i.e., to socially acceptable biases--about what constitutes social value. The Article illustrates this argument by showing how law school admissions standards deferred to and relied upon subjective, historically and socially contingent choices, made by leaders of the profession--whose status was based in large part on race--in the context of a concerted effort by the profession to keep immigrants and Blacks out of practice and legal education. To the extent that law school admissions standards were developed in the context of racial exclusion, and perhaps for the explicit purpose of racial exclusion, it should come as no surprise that these standards continue to exclude disproportionately on the basis of race and ethnicity.

This critical history of law school admissions demonstrates the limits of the objectivist defense of merit, which purports to rely on reason and not politics for its justification. By demonstrating the indeterminacy of the distinction between merit and bias, deconstruction clears the way for an explicitly political discussion about how we want to distribute opportunity in educational institutions and the workplace.

Part III explores several additional implications of the deconstructive reading for Farber and Sherry's defense of merit. First, the section suggests that, rather than drawing “logical” conclusions about Jewish and Asian-American success, Farber and Sherry might find it more useful to conduct a critical historical inquiry into the matter. For example, an historical inquiry might reveal, as the authors themselves have suggested, that some Asian-American groups and Jews have overcome some forms of historical discrimination by using their own cultural capital to beat the dominant discourse at its own “merit” game. Perhaps these groups have taken advantage of their own independently developed cultural emphasis on formal education in certain professions to excel at the kind of merit valued by conventional standards. In any event, ahistorical comparisons and abstract analyses are problematic, given that merit is necessarily a historically and culturally contingent assessment.

More pragmatically, the section proposes that litigators deliberately and strategically make use of deconstructive insights into merit and bias to argue under Title VI that SP-1 admissions standards are both historically and currently discriminatory. This section proposes a new hybrid category of claim under anti-discrimination law, an “intentional impact” category, which combines elements of intentional discrimination with elements of disproportionate impact doctrine. Under “intentional impact” claims, plaintiffs could mount a prima facie case upon showing that a merit selection process can be traced in some way to historical discrimination (even if that discrimination is not institution-specific), in conjunction with a showing that the procedure currently disproportionately excludes applicants of color. Defenders of a selection process like SP-1 would then have to prove either that the standards were not developed in the context of early efforts by legal institutions to exclude applicants of color from the bar or that they have no disproportionate impact on protected groups.

Finally, Part IV disputes the author's charge that the radical critique is nihilistic. This section argues that, to the contrary, deconstruction deploys rigorously analytical reasoning to expose the limits of that rationality, and to clear the way for a necessarily political discussion on how society should distribute its resources. Indeed, the radical critique is nihilist only when one already accepts the need for and the possibility of transcendent and uncontroversial criteria to choose between competing accounts of merit.

[. . .]

Critical Race Theory scholars have noted that deconstructionist critical theory is theoretically in tension, and may in fact be incompatible, with Critical Race Theory. Angela Harris has pointed out the tension within Critical Race Theory between its theoretical critique of purportedly race-neutral legal institutions and its commitment toward fashioning an affirmative program of racial emancipation, an effort which she calls “reconstruction.” Indeed, Critical Race Theory evolved at least in part because Critical Race scholars believed that Critical Legal Studies' general emphasis on theoretical critique, and use of deconstructionist methods in particular, served to undercut the possibility for practical transformation.

This Article demonstrates that deconstruction can be used to argue for practical, transformative change. By exposing how legal concepts like merit defer to, and possess the qualities of, bias, the Article suggests ways in which litigators can make use of deconstructive interpretations of merit to undercut the assumption that merit standards simply reflect objective, race-neutral measurements of social value. As a strategic matter, with its emphasis on critical historical inquiry, deconstruction can produce critical historical accounts, such as the law school admissions narrative, that are consistent with our political and moral commitments to racial emancipation.

In particular, deconstructivist insights and strategies can be used to expose the overtly political commitments behind a defense of merit like Farber and Sherry's. Under the lens of a deconstructive critique, Farber and Sherry's conventional distinction between merit and bias no longer seems self-evident because merit necessarily defers to the social bias it seeks to exclude. Thus, we are left with the task of reconstructing new meanings for merit by having difficult political conversations about what constitutes social value in the legal profession, whether exams accurately predict the ability of a practicing lawyer, whether case law instruction or practical clinical instruction is more appropriate for certain kinds of law, and finally, whether we want our law schools to become resegregated under an admissions process that looks only at the number of a person's LSAT score and GPA, rather than at the content of her character.

Associate Professor of Law, University of Illinois College of the Law.

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The University of Dayton School of Law

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