Hastings Law Journal


Efforts at progressive educational reform in general, and affirmative action in particular, frequently encounter a rhetorically powerful objection: Merit. The story of "merit" proclaims that highachieving applicants -those who have already made effective use of educational opportunities in the past and demonstrated a likelihood of being able to do so in the future-enjoy a morally superior claim in the distribution of scarce educational resources. Past achievement, in other words, "entitles" an applicant to a superior education. This moral framework of "merit" serves as a constant counterpoint in debates over affirmative action. It provides the first rejoinder to any suggestion that the race of non-White applicants might play a role in a university's admission policy. It is presumed by many to define the arena within which all admissions decisions must be made. That presumption, in turn, is the central principle from which affirmative action is said to derogate. The "harm" associated with affirmative action, under this received view, is not merely the consideration of race in the abstract. Rather, it is the use of race to distort or displace an evaluative process, the tenets of which are presumed to be an essential element of university admissions.

This Article challenges that received view. It offers a robust illustration of a principle that has long been recognized by philosophers but has yet to find effective voice in constitutional debates over educational reform: The distribution of resources that results from rewarding the most accomplished applicants is neither necessary nor inevitable, nor imbued with any a priori moral superiority. Rather, rewarding "merit" constitutes a distributive choice in the allocation of scarce educational resources, and there is good reason to think that, standing alone, it is neither the most efficient distributional policy nor the most just. Using the narrative device of a debate between two law professors punctuated by a keynote address at a conference, this Article draws a comparison between the vastly different distributional policies that our American systems of health care and education employ. It thereby exposes the distributional policies that predominate in American higher education-policies that the story of "merit" threatens to conceal-and subjects those distributional policies to rigorous analysis. Finally, the Article considers the implications of this shift of focus for the constitutional treatment of affirmative action following Gratz and Grutter and concludes that the Court should move away from strict scrutiny and adopt the type of "predominance" analysis that it already employs in reapportionment disputes.

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