Document Type
Article
Publication
La Raza Law Journal
Year
1998
Citation Information
Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 10 LA RAZA L.J. 363 (1998), available at https://scholar.law.colorado.edu/faculty-articles/1819.
Abstract
In this article Professor Roithmayr attempts to develop in the context of law school admissions a theoretical argument from deconstruction to support the radical critique of merit. The radical critique, espoused primarily by Critical Race Theorists and radical feminists, argues that merit standards disproportionately exclude white women and people of color because merit standards were developed by dominant social groups, in ways that have disproportionately benefited their descendants. Using a critical history of law school admission standards, as well as a deconstructive reading of a defense of merit offered by Professors Daniel Farber and Suzanna Sherry, Professor Roithmayr deconstructs the distinction between merit standards and social bias, to argue that merit standards necessarily embody race-conscious social preferences existing at the time the standards were developed. Reviewing the history of law school admissions standards, she demonstrates that choices about what constitutes socially valuable ability in the legal profession and legal education historically were made in the context of the profession's explicitly race-conscious effort to exclude immigrants and people of color. Professor Roithmayr then proposes to use deconstructive and critical historical insights about merit and bias to modify Title VI doctrine to reflect the fact that merit standards historically have depended on and deferred to race-conscious social bias.
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