A Quota by Any Other Name?

37 Const. Comm. 83

A DUBIOUS EXPEDIENCY: HOW RACE PREFERENCES DAMAGE HIGHER EDUCATION. By Gail Heriot and Maimon Schwarzschild* (eds.). New York: Encounter Books. Pp. 248. $28.99 (hardcover).

James Allan[1]

For a native born Canadian who has spent his working life in pre-handover Hong Kong, London, New Zealand and, for the last decade and a half, Australia (with a few U.S., Canadian and British law school sabbaticals thrown in), this book was in part informative, eye-opening, superbly contrary to the Zeitgeist that pervades virtually all of today’s university managerial class, and able to engender an overwhelming sense of exasperation with what passes for good policy-making in academia. The book is an edited collection of chapters on the issue of racial preferences in higher education, with much of that focus on law schools. The authors include two professors of law (also the editors), a professor emeritus of German literature who was there as a dean of graduate studies when these preferences—or, as he more bluntly describes it, affirmative action—first came in and made inroads on his campus, a bestselling author and thinktank fellow, and the President of the National Association of Scholars. Though all the proffered views are nuanced and distinct, none of the authors thinks the benefits of the last half century or so of racial preferences come near to their costs. Indeed, John Ellis, in the very first sentence of the very first chapter of the book, enumerates what he thinks the full extent of those costs have been:

We have now had some fifty years of affirmative action on college campuses, long enough for the full extent of its destructive impact on higher education to become fully apparent: affirmative action has sharply increased the professoriate’s normal leftward tilt; . . . it has spawned mischievous new pseudo-disciplines that are in reality little more than collections of political activists who undermine the academic integrity of their institutions; it has damaged the campus climate for free expression, both through speech codes designed to protect the sensibilities of minorities and through the creation of a campus political monoculture; it has led to rampant grade inflation that is in large part a response to the problem of students mismatched with academic environments for which they are not prepared and in which they cannot compete; it has damaged the prospects and the morale of countless numbers of those mismatched students; it has been the largest factor among pressures to dumb down college curricula . . . ; and, paradoxically, it has severely damaged the chance for its intended beneficiaries to enjoy the excellent education through which previous groups of “have-nots” (e.g., Italian Americans, Jews, Irish Americans) have been able to climb the social ladder to achieve full equality of opportunity.[2]

Readers of this book will not die wondering what its authors think. My guess, as a non-American, is that many American academics who pick up this book will hold strong proclivities in favor of affirmative action in general. As they work their way through the book, they will find the arguments of the nine authors quite confronting. Such, at any rate, is the normal human response when something we take to be a force for good in the world is challenged point-by-point, from all directions. Hence, many will be tempted simply to put the book down and move on to more congenial reading. My advice is to resist that temptation. Whether readers end up being convinced by this book’s anti-affirmative action stance and conclusions or not, this book makes a powerful case against such racial preferences. And that case is well worth understanding for anyone who still subscribes to the John Stuart Mill ideal that we get closest to truth after hearing both sides, after experiencing the free-flowing cauldron of competing ideas—not just in instances where our minds happen to be changed by the competing view we hear being put in its most powerful light, but just as much, and importantly, in instances where our minds are not ultimately changed but we now see far better the weaknesses, defects and fragilities in the position to which we still cling. If that ideal still commands much allegiance amongst America’s professoriate, then take my advice and read this thought-provoking book.

The rest of this Review will consist of two parts. In Part One, I will give a brief overview of the book’s chapters, with slightly more focus on three of them. Of those in the special focus category, two can be thought of as “the constitutional law chapters” (one more than the other) that make reviewing this book in these pages warranted. The other deals with some of the effects of jettisoning unapologetic meritocracy. Then in Part Two of this Review, I will turn to take a short look at three themes or issues that this book—directly or indirectly—brings forward.

Part One

John Ellis’s chapter starts the book and is in large part a personal memoir of his time as the newly appointed dean of the Graduate Division of the University of California-Santa Cruz in 1977, when he oversaw the first introductory steps of an “affirmative action [that] seemed so modest and circumscribed” (p. 8). In his words, it “is a story of how a monster grew from seemingly innocuous beginnings” (p. 8). Gail Heriot’s chapter comes next. Heriot reveals the source of the title of the book; it is taken from the opinion of Justice Stanley Mosk, writing for the California Supreme Court in Bakke v. Regents of University of California,[3] who held the racially discriminatory admissions policies to be unconstitutional on the basis that to uphold them “would call for the sacrifice of principle for the sake of dubious expediency.”[4] As a non-American I learned that this Justice Mosk was a liberal icon. More importantly, Heriot sets out a case for why preferences do not work; why entering grades matter; why affirmative action students are unlikely to catch up with the rest of their cohort; she provides the evidence for thinking it is better for students to be a big frog in a small pond rather than a tiny frog struggling to stay afloat in a very grand pond; and more of the same. Heriot reveals just how secretive U.S. law schools are about all of their racial preferences admissions data and practices.[5] She notes (initially surprising this non-American) that law school accreditation can depend on embracing affirmation action (p. 53). And there is a very powerfully persuasive dissection of the William G. Bowen and Derek Bok claim, in their book, The Shape of the River,[6] that they had disproved the mismatch hypothesis (pp. 55 ff.). Not according to Heriot, and she provides chapter and verse for her thinking.

Peter Kirsanow, who attended Cornell University in the 1970s when these things were just getting started, first looks at racially focused programs and residential colleges at private universities. Then he looks at them at public universities. He is not kind about them in either context. One thing Kirsanow said about these racially-themed dorms and student centers really hit home for me:

Why would a black kid from Cleveland have more in common with a black kid from Nigeria than with a white kid from Cleveland? Is it the experience of being a minority? Well, if you are a black person from Africa, you’re in the racial majority on that continent. How are you the possessor of a “marginalized identity”?[7]

Lance Izumi and Rowena Itchon, in their jointly authored chapter, turn the focus to Asian Americans. It soon becomes clear that if there is a biggest loser in the affirmative action game, it may well be them. The data appears damning in the extreme. Take just one example they lay out as regards University of California medical school applicants who had received their undergraduate degrees at UC Irvine (to hold constant the comparisons):

Among UCI graduates, applicants from underrepresented minority groups were nearly three times as likely to be accepted to a UC medical school as were Vietnamese American applicants, who had a group GPA of 3.8, the highest of any group. Indeed, two-thirds of Vietnamese American applicants who were denied admission had a mean GPA that was higher than the mean GPA of the underrepresented minority applicants who were admitted.[8]

This is not some “fixing the past” rationale or moral principle in play, whatever one might think of such a rationale (and I come back to this in Part Two, below). It is, in part, recently arrived Vietnamese losing out to recently arrived Hispanics. The authors also look at California and its so far unsuccessful attempts to overthrow Proposition 209; they look at the Harvard University race preferences federal court case; and they look at Yale University’s admissions practices. All in all, there is much complaining about the plight of Asian Americans, not least because there seems to be much to complain about.

Maimon Schwarzschild, in his chapter to end the book, considers the following question. If you think race preferences are not the way to go, for all the reasons given up to that point in the book and nicely summarized by Schwarzschild,[9] would preferences based on social class—loosely, preferences aimed at benefitting those at the bottom of the social and economic hierarchy—do better? Schwarzschild answers his own question with a resounding “no,” based on plenty of convincing arguments and some blunt speaking.

That leaves three chapters, ones I will spend slightly more space discussing. Gail Heriot and Carissa Mulder write the chapter most directly focused on the constitutional law issues. They start in 2003 with the twin cases of Grutter v. Bollinger[10] and Gratz v. Bollinger.[11] In the former, the Supreme Court upheld the University of Michigan Law School’s race-preferential admissions policy; in the latter, the same university’s undergraduate policy was condemned as unconstitutional (which may lead us lawyers to think we are better at fitting within, and finding loopholes throughout, the relevant rules—a not terribly surprising or implausible conceit). The gist of the authors’ argument is that “Grutter was an enormous loss for those who advocate nondiscrimination. The win in Gratz, on the other hand, was trivial and easily circumvented.”[12] Indeed for proponents of affirmative action, the Court’s takeaway message appeared to be to avoid transparency at all costs. The undergraduate policy involved use of a fairly transparent points system, roughly adding a letter grade or 20 points to some applicants based on their race. The law school knew better than to jettison opacity. Its weighting on the basis of race was in fact greater—so to be clear, its race-based preferences were more virulent—but it wholly shunned any explicit formula. Put bluntly, the open and transparent and at least comparatively objective approach was ruled unconstitutional; the opaque, “let’s just eyeball these applications” strategy that eschewed any and all mathematical formulae or explicit points systems was ruled constitutional. And this despite the underlying reality, a reality the Court was surely made aware of, being that the opaque process was more virulently preferential than the transparent one. It is enough to make a cynic smile. Or for this non-American to wonder what is in the minds of your top judges. The authors are frank and candid in the message they believe is being sent here: “In essence, the Court told the college that it needed to hide what it was doing better” (p. 168). And, as a sidenote, it did; it went on to modify its procedures to make them law-school-like opaque, and more virulently preferential too.

The authors move on to examine the two Fisher cases,[13] but conclude they added nothing much to Grutter. I quite enjoyed the pages in which the authors take apart the “idealized view of higher education” (p. 168) of Justice O’Connor in the majority opinion in that Grutter case, with her rosy notion of academics and their presidents, provosts, et al., as guardians of wisdom and what not. Maybe it is just universities outside the U.S., all the ones I have worked at around the Anglosphere, but in my experience the managerial class of university academics is about as pusillanimous, self-serving and (when it comes to actual stuff related to the outside world) incompetent as any managerial class anywhere.[14] And I include government bureaucrats in that sweeping claim. At any rate, the authors of this chapter proceed to give the reader a thorough analysis of the Grutter and two Fisher decisions, ending their chapter with their case for overruling Grutter, and with some ten pages on how the various accrediting agencies are making the affirmative action situation worse, not better.

The chapter by Heather Mac Donald is bracing, if also, for those like me, depressing. In a nutshell, Mac Donald’s thesis is that there are some hefty costs that go along with the discarding of unapologetic meritocracy, and she enumerates them in unrelenting fashion in the context of the STEM (sciences, technology, engineering and math) subjects. Along the way, she details the extent to which group-based equity outcomes thinking has traveled out from the humanities and social sciences into the hard sciences; she details (chapter and verse) how standards are being dropped in the hard sciences to accommodate these sort of equity (or identity politics) concerns from the National Institutes of Health through grant-giving bodies and various universities and right up to the National Science Foundation. It is in despair that Mac Donald writes that:

Somehow, NSF-backed scientists managed to rack up more than two hundred Nobel Prizes before the agency realized that scientific progress depends on “diversity.” Those “un-diverse” scientists discovered the fundamental particles of matter and unlocked the genetics of viruses. Now that academic victimology has established a beachhead at the agency, however, it remains to be seen whether the pace of breakthroughs will continue.[15]

Meanwhile Mac Donald does not spare what is happening at Oxford University, or at Berkeley. In fact, after taking the reader through recent changes at UC Berkeley’s Life Sciences Department—changes to how they hire and on what basis (pp. 149–50)[16]—she plausibly concludes that “[f]ew of Berkeley’s Nobel laureates in medicine, physics, and chemistry would be hired today under the Diversity-Equity-Inclusion test” (p. 150). You do not have to be a thorough-going skeptic of affirmative action to be worried about these sort of developments. Read Mac Donald’s chapter and my guess is that most readers of this Review will be very uneasy, whatever the views they bring to the table. I cannot resist raising one tangential point that comes up in this chapter. It is when Mac Donald is discussing the evidence from Duke University on whether student beneficiaries of affirmative action do or do not move some way to catching up with the grades of the non-preference students by the time they are all graduated. It turns out many affirmative action students improve their GPAs by switching out of STEM and economics courses into humanities and social sciences ones. That, in turn, moves the debate to the new terrain of whether “the intellectual demands of humanities and science majors are indistinguishable” (p. 160), as a good few defenders of affirmative action at Duke contend. My first degree in Canada was in mathematics. I know what I think. I leave it to readers to make their own calls on that one. Suffice it for me to observe that Mac Donald finishes her chapter by noting that:

The extraordinary accomplishments of Western science were achieved without regard to the complexions of its creators. Now, we are to believe that scientific progress will stall unless we pay close attention to identity and try to engineer proportional representation in schools and laboratories. The truth is exactly the opposite: lowering standards and diverting scientists’ energy into combating phantom sexism and racism is reckless in a highly competitive, ruthless, and unforgiving global marketplace. Driven by unapologetic meritocracy, China is catching up fast to the United States in science and technology. Identity politics in American science is a political self-indulgence that we cannot afford (pp. 164–65).

That brings us to the last of the book’s chapters, the one by Peter Wood. Although an extended essay of sorts on “diversity,” it starts with a review of the relevant Supreme Court rulings, going back to Bakke.[17] That review is both excellent and funny. Make that very funny. After tracing how the notion of “diversity” evolved from speculation in the Opinion of Justice Powell in Bakke, to a possible rationale for race preferences in Grutter, Wood comes to the two Fisher cases.[18] He notes that university racial preferences admissions policies technically must meet a “strict scrutiny” standard. Hence, to make racial classifications a key factor doing so must “serve a ‘compelling public interest’ and [there must] be no other, less invasive way to advance that interest.”[19] So, asks Wood, how are any of us to know whether a university racial preference policy “was the result of [some] wholesome motive [or] an effort to dodge the restriction of race preferences for their own sake” (p. 90)? The answer from the Fisher cases, says Wood, “turned out to be that the Court would simply trust the word of the university . . . . [This sort of] ‘strict scrutiny’ is like the costume of a burlesque dancer: it simply disappears as the show heats up, and the Court doesn’t complain” (p. 90). As Wood moves from constitutional law on to analyzing the notion of diversity and its connections with equity, inclusion and multiculturalism, he is just as funny and biting. The reader is left in no doubt that he thinks diversity is the slenderest of incoherent reeds on which to rest the whole edifice of affirmative action, or race-based preferences. Actually, it is plain that Wood thinks it more of an Emperor with no clothes at all strolling past vast swathes of academics all pretending that that Emperor is wearing the latest Savile Row bespoke suit. Put differently, some readers will love this chapter. Some will loathe it. All, though, will be given clear definitions of such things as “intersectionality”[20] and a good sense of why universities must cling on to this diversity rationale.

Part Two

I turn now briefly to consider three themes or issues that this book—directly or indirectly—throws up. Let me call the three Honesty, Responsibility, and Merit. I take each in turn.

  1. Honesty

For a non-American academic, it became painfully clear as I made my way through this book that the “diversity” rationale to justify affirmative action or positive discrimination or racial preferences (any of these being more descriptively apt) is dishonest. It hides, and is meant to hide, an underlying reality. Its use has been forced on the universities by the courts and by strong judicial review. That is because “[t]he pursuit of race preferences by colleges and universities must still pass the Supreme Court’s rubric in which all such racial impositions have to be justified as the pursuit of diversity” (Wood, pp. 108–09).

There are a cascading series of issues here. First off, there is a debate to be had over the value of affirmative action. Indeed, there is an extensive literature on the question from both sides, this book being a worthy addition to that literature. Smart, intelligent people will disagree. That reasonable disagreement will be with us for the foreseeable future, maybe always. However, and here is a second issue, what reasons are there for thinking it is better to hide what is actually in debate behind the diversity banner? Yes, I well realize that in extreme situations utilitarians will argue that truth must lose out to good consequences cashed out in terms of human welfare or happiness.[21] Yes, the odd last resort defender of non-originalist constitutional interpretation might do so too, suggesting that hiding the reality of what judges are doing[22] from the average voter will deliver better long-term consequences.[23] But that sort of “can’t trust the masses with this knowledge” seems wholly unpersuasive here. Either the arguments for affirmative action and racial preferences convince you, or they do not. Channelling the practice out of sight, under the guise of delivering the supposed benefits that a “diverse racial composition of students on campus will bring” not only drives from sight some of the real disagreements, it likewise raises the further question of whether anyone really believes that new assertion of these supposed benefits. If so, I have never read any defense of it nor seen any account of what levels of racial representation might be needed to deliver these mooted (but unspecified, perhaps unspecifiable) benefits. Meanwhile, if not, if the real game in town is affirmative action and that is what is desired by proponents, then this forced masking of it under the guise of diversity looks to be very suboptimal. It may well carry with it its own costs too.[24] Its only justification is that that is all the courts will allow.

And that raises yet another issue. Do we as a society end up with good outcomes when moral and political disagreements (here, over the desirability or otherwise of racial preferences) are transmogrified by the practice of strong judicial review, and by top judges unaccountable to the voters, into a debate no one much wants to have—a debate about diversity’s benefits when next to no one actually wants to, or does, argue on that plane? That is not where the real action and real disagreement lies. I am a long-time critic of strong judicial review and of justiciable bills of rights, probably to an extent few American legal academics encounter.[25] I know what I think about this transmogrification. I leave it to readers to ponder what they think.

  1. Responsibility

Arguments for and against racial preferences and affirmative action can and will take place on various planes. The most damning attack, if successful, is the one that claims that “these policies do not help the very people they are intended to help.” Think here of Thomas Sowell. Or of Gail Heriot in her chapter of this book, setting out the data for the mismatch theory, which in effect argues that similar minority students who go to lower ranked universities without relying on preferences end up earning more—doing better in that sense—than ones who accept the racial preference aided offer to the higher ranked university. That empirical attack aims to cut off support for preferences at the knees on the basis they hurt the very people proponents claim to want to help. But let us suppose that that empirical argument does not convince you. Another debate thrown up by affirmative action then concerns responsibility for the past. An obvious rationale for preferences, perhaps its main rationale, is to try to fix the past. Or at least to go some way to remedying it. Yet, virtually all of the victims who deserve such remedial action are long dead. They cannot be helped now. And the perpetrators, too, are long dead. That raises the ticklish issue of responsibility. Is it assigned to individuals or groups? To actual wrongdoers in the past or to individuals and groups in the present? If the latter, on what basis?

None of these questions is new. Still, the most obvious way to understand a world that indulges in racial preferences is in terms of group responsibility, not individual responsibility.[26] And that raised big worries for me, and for the authors of this book.

  1. Merit

What Heather Mac Donald’s chapter does so well is to attack affirmative action and racial preferences, traveling under the judicially imposed banner of diversity, as impediments to unapologetic meritocracy. But diversity has strong critics on the other side of the political divide too. Peter Wood mentions some in his chapter of this book. One of those mentioned by Wood is Daniel Markovits and his recent book, The Meritocracy Trap (pp. 107ff).[27] Markovits there attacks the very idea of meritocracy, for him a sort of gilded cage that imprisons the elite and excludes most others, while accentuating class differences and economic inequality. It is not much of a stretch to say Markovits’s jeremiad assigns the cause of most of America’s current problems to unapologetic meritocracy.[28]

For our purposes, the point is that both Mac Donald and Markovits dislike the claims of diversity, but take very different positions on whether the pursuit of an unapologetic meritocracy is a good or bad thing. If it is bad, then presumably out goes any attacks on affirmative action based on a Mac Donald-type pursuit of meritocracy. Conversely, if merit is important and a force for social advancement, and hence meritocracy is worth pursuing, then racial preferences and affirmative action are harder to defend.

For what it is worth, the arguments against merit can take various forms. One is the claim that in today’s world of super rich plutocrats who use their immense wealth to buy their children any- and everything, including a world’s best education, few top places really are up for competitive grabs. Talent does not win out nearly as much as it should, in other words. It is trumped by privilege. Of course, that is not actually an argument against merit; it is an argument that today’s institutions and practices do poorly in seeking to discover and foster it.

Another one is the Markovits-type claim that those who supposedly benefit from meritocracy are in fact made miserable—endless billable hours per year as a top lawyer; hundred-hour work weeks as investment bankers; that sort of thing. Again, though, that is not an argument against meritocracy per se, just against a way of life that comes with some financially lucrative careers (ones that are freely chosen to boot), and possibly against current labor laws.

Another again, the really thought-provoking challenge to meritocracy, is the one Michael Young hinted at back in 1958.[29] If merit is to some extent a genetic reward, and if—as is more and more the case—we see assortative mating (the winners of the genetic lottery marrying other winners and producing yet more winners), then what happens if, over time, we develop a sort of hereditary elite who in some sense really are the most meritorious? And what if they keep scooping up most of the social rewards because, well, they deserve it? Would that not be pretty awful? It would, I suspect, though we are nowhere near there yet. Meantime, the justification for pursuing merit, and for making an unapologetic meritocracy society’s lodestar, is not that individual people somehow deserve all the rewards that come with their inherited genes (remembering that one’s capacity for hard work and effort may be just as much a natural endowment). No, it is that when important (and indeed all sorts of other) jobs and positions and educational places go to those who are most capable and most deserving, and they then use them to make scientific discoveries, found companies, be the best any person could be in that role, then the vast preponderance of us living in an open, market economy all benefit. Because the rewards from a system where talent and hard work prevail flow widely. If that is largely true as a matter of fact, meritocracy is delivering. If it is not, it is considerably harder to defend meritocracy in my view.

These three issues, and a good few other speculations, will stimulate you when reading this book. Wherever you currently stand on the issue of racial preferences and affirmative action I recommend it to you.


        *     Professor of Law, University of San Diego and Member, U.S. Commission on Civil Rights; Professor of Law, University of San Diego and Affiliated Professor, University of Haifa.

        [1].      Garrick Professor of Law, University of Queensland.

        [2].     John M. Ellis, Starting Down the Slippery Slope, pp. 7–8.

        [3].     553 P.2d 1152 (Cal. 1976), aff’d in part, rev’d in part, 438 U.S. 265 (1978).

        [4].     Id. at 1171.

        [5].     Gail Heriot, A Dubious Expediency, pp. 46–50.

        [6].     William G. Bowen & Derek Bok, The Shape of the River (2000).

        [7].     Peter Kirsanow, Segregation Now, p. 113.

        [8].     Lance Izumi & Rowena Itchon, Race Preferences and Discrimination against Asian Americans in Higher Education, p. 201.

        [9].     See Maimon Schwarzschild, A Class Act? Social-Class Affirmative Action and Higher Education, p. 238.

      [10].     539 U.S. 306 (2003).

      [11].     539 U.S. 244 (2003).

      [12].     Gail Heriot & Carissa Mulder, The Sausage Factory, p. 167.

      [13].     Fisher v. Univ. of Tex., 570 U.S. 297 (2013); Fisher v. Univ. of Tex., 136 S. Ct. 2198 (2016).

      [14].     See, e.g., James Allan, The Administration of Australian Universities: A National Scandal? Or Amiss in Funderland?, in Campus Meltdown: The Deepening Crisis in Australian Universities 23–42 (William O. Coleman, ed., 2019).

      [15].     Heather Mac Donald, Breaking the STEM, pp. 145–46.

      [16].     For instance: “At the University of California, Berkeley, the Life Sciences Department rejected 76 percent of the [hiring] applications it received in the 2018–19 academic year because the applicants’ diversity, equity, and inclusion statement was not sufficiently effusive” (p. 149).

      [17].     Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

      [18].     See supra note 13.

      [19].     Peter Wood, Diversity’s Descent, p. 90.

      [20].     P. 102: “intersectionality, the doctrine that all victim groups have a deep commonality by virtue of their oppression.”

      [21].     The foundation text is Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (many editions, first written in 1780 and first published in 1789).

      [22].     The premise being that the top judges are in fact largely unconstrained and imposing their own moral and political druthers when adopting non-originalist interpretive approaches.

      [23].     This, in effect, is the argument Rick Kay has recently made. See Richard S. Kay, Democracy, Mixed Government and Judicial Review, in Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy 199, 212ff (Lisa Burton Crawford et al. eds., 2019). I replied to that argument in James Allan, The Special Kay Defence of Non-Originalist Judges: A Serial with an Unhealthy Final Ingredient, 52 Conn. L. Rev. 1529 (2021).

      [24].     Peter Wood in his chapter moots various such costs. My favorite focuses on the rise of university top bureaucrats whose job is to push this new agenda, creating a “dynamic on campus [that] is a fitful combination of accelerant and fire extinguisher. The university hires diversity deans and provosts whose job is, in large part, to stoke group resentment” (Wood, p. 104). If you accept anything like that characterization, that is a pretty big cost.

      [25].     For a short selection of such writings see James Allan, Democracy in Decline (2014); James Allan, Human Rights, Doubts and Democracy, in The Political Approach to Human Rights 113–30 (Tom Campbell & Kylie Bourne, eds., 2018); James Allan, A Churchillian and Benthamite Defense of Democracy, 56 San Diego L. Rev. 853 (2019); James Allan, Why Politics Matters—A Review of Why Law Matters, 9 Jurisprudence 132 (2018); and for one going way back, James Allan, Bills of Rights and Judicial Power—A Liberal’s Quandary, 16 Oxford J. Legal Stud. 337 (1996).

      [26].     There are other possibilities of course. A utilitarian could defend such racial preferences without any resort to notions of group responsibility—for him it merely requires an account of how society’s future welfare (all of us counting equally in terms of our welfare and happiness) will go up if we indulge in such preferences now. Rule utilitarians will do this in terms of rules—that future good consequences will flow from laying down rules that mandate affirmative action. Of course that only works if there are grounds to believe such rules are in fact likely to deliver future good consequences in terms of welfare—imagine that quotas for native Indians for medical school induce many of them to go back to work in remote areas where no one else would work, something like that. And that brings one back to the empirical attack on the benefits of affirmative action, the mismatch theory.

      [27].     Daniel Markovits, The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite (2019); see also Michael J. Sandel, The Tyranny of Merit (2020).

      [28].     Markovits is not the first to walk this path. The term “meritocracy” was coined by British writer Michael Young in 1958; see Michael D. Young, The Rise of the Meritocracy (Thames and Hudson, 1958). Young there predicted or prophesied a problem with societies that fostered a cognitive elite—they would deprive the non-elite of hope for social advancement which would end in a bloody revolution. Readers can dismiss such Marxist-sounding predictions and still worry about what Young was worried about.

      [29].      See id.