Posted on by rjonakait

Finally, They Give Us Their Meritocracy

I see it gushing down the street overflowing the curbs and flooding sidewalks and yards. I look out the back window and see it successfully paddling upstream. I look up and see it reflected in the clouds. It is less than a fortnight, but meritocracy is on the move. Of course, that had to be because Trump signed an executive order against DEI and the always-right conservatives have proclaimed that DEI—Diversity, Equity, and Inclusion (or DEIA, Diversity, Equity, Inclusion, and Accessibility)—is the enemy of merit.

I, too, have been a critic of the term DEI. Like related concepts—affirmative action, political correctness, critical race theory, LGBTQ rights, and “feeling safe”– DEI gained traction in higher education before it did in the general population. I was not only in academics, I was also the chair of our faculty hiring committee for two decades. In that position, I heard often that we needed a “diverse” faculty. I bristled at such comments in a law school. I thought that a goal of a law school education was to teach precision in the use of language, but our use of the term “diversity” undercut this goal. We were not looking for faculty with differing political or religious views, or with different kinds of legal training, or even differing legal theories. Diversity did not mean diversity in general. It meant differing shades of skin color and perhaps different genitals or alternative sexual preference. A colleague hit the trifecta when he said that he hoped we would hire a black lesbian. “Diversity” was (nudge, nudge, wink, wink) a code word, and, while supporting many of the goals of this “diversity,” I was offended that we who taught law did not use well-defined words.

In his executive order of January 20, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” Trump decided to deal a death blow to DEI. I was curious to see how he defined this identified enemy of meritocracy. The president did require “the termination of all discriminatory programs, including illegal DEI . . . mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.” (Putting on my retired lawyer’s hat, I might say that if “illegal DEI” programs are banned, that must mean there are legal DEI programs that are not banned. But I am pretty sure that is not what is meant.) All federal employment is covered, and while the executive order is not completely clear on this, a Fact Sheet issued two days later (“President Donald J. Trump Protects Civil Rights and Merit-Based Opportunity by Ending Illegal DEI”) makes clear that those in the private sphere that get federal money must also eliminate DEI. The Fact Sheet states that the executive order“terminates diversity, equity, and inclusion (DEI) discrimination in the federal workforce, and in federal contracting and spending.”

 However, neither the executive order nor its follow-up contained a precise definition of DEI. They did not contain a murky definition. They contained no definition at all.

Hints to the meaning are given. The order states: “Federal employment practices, including Federal employee performance reviews, shall reward individual initiative, skills, performance, and hard work and shall not under any circumstances consider DEI or DEIA factors, goals, policies, mandates, or requirements.” It does not state, however, what those DEI factors are. I take the statement as ordering the end of affirmative action, but then why make me guess? Call it what it is. Say something along the line of “there shall be no racial, ethnic, gender, or disability preferences in hiring and performance reviews.” Query: Many institutions, including the federal government, give hiring preferences to veterans. Those practices conflict with the soaring rhetoric of rewarding individual skills and hard work. Are veteran preferences now illegal? By offering no definitions, these executive orders give no guidance.

However, the target seems larger than affirmative action. The order eliminates not only DEI offices and positions but also “environmental justice” jobs. The order uses those quotation marks but again lacks a definition. I don’t know what “environmental justice” means, but I assume that it is something different from affirmative action. But what is it? One needs to guess whether a given position falls into the category. For example, the job is to find sites for the storage or disposal of waste, and you seek to find a dumping ground that is NOT in poor neighborhoods. Are you on the chopping block for seeking “environmental justice”?

The executive order also prohibits “DEI training.” What does this mean? I can guess, but I have to guess. That is part of the danger in the lack of a definition. If I, as a manager, want to stay out of trouble and there is a clear boundary line for the forbidden, I know what I can and can’t do. If the zoning law forbids the construction of buildings over sixty feet, I know precisely how high I can build, and I plan accordingly. If, however, the law prohibits building to an “unreasonable height,” how high can I build? Some will push the vague injunction and build too tall. Many others, however, fearful about having to tear a building down, will err on the low side. Lawful activity is deterred by vague laws.

Assume you run a company or a non-profit that receives federal funding. You believe your institution runs most efficiently, most profitably, when the workforce is trained in racial, ethnic, and gender sensitivity. Fewer workplace conflicts mean more efficiency. Can you continue such programs? You have been ordered to end all DEI policies and programs. You have been told to end all DEI training programs. Can you now include in the employment manual that employees cannot use derogatory terms about race or gender? Do you need to seek preapproval from some government bureaucrat? Who decides what is best for your business or organization, you or the government?

The vaguer the legal mandate, the more likely different people will interpret it differently. A vague legal prohibition leads to arbitrary enforcement, something, I would have thought, conservatives would not want. And arbitrary enforcement is always an invitation to corruption. Is that what conservatives want? Is that what Trump wants?

And I thought conservatives were against government interference and regulation. Silly me.

When Trump tells private institutions how they should operate in their own workplace, conservatism is being twisted out of shape. It is one thing for the federal government to set rules for itself. It is another when it issues edicts for corporations and non-profits. If a federal contractor or grantee is fulfilling its contract or grant, why should free-enterprise-loving conservatives tell a business how to train its employees? Why aren’t these considered intrusive regulations?

On the other hand, perhaps we just have to bend principles so that good ol’ meritocracy can keep on flowing along. Surely Trump and those immediately around him consider themselves the meritorious. In recent days we have been given a good look at their notion of meritocracy. These meritorious ones have already issued and rescinded a “pause” in the operations of government. Good work, guys. I guess “meritocracy” and amateur hour can go together, at least in certain government circles.

Posted on by rjonakait

Define It

This country’s stark divisions are exacerbated when we don’t share the meanings of words. Conversation is useless when you and I use the same terms, but they mean different things to each of us. For example, what does “merit” and “meritocracy” mean? I have looked up definitions, and they seem understandable, but those meanings have become vague and carry unshared connotations when applied. Conservatives want institutions peopled by those with merit. So do I. However, their current measure of merit for appointments in the current administration is suspect. So, e.g., you can be appointed to office only if you believe, or at least don’t question, that Trump won the 2020 election. For me a sign of merit for a government employee is the ability to recognize and expose falsehoods. For others, merit requires mouthing and spreading them. Trump often seems unique in his insistence on loyalty, but, unfortunately, this is not the case. We have had something like this before: If “inexperienced” or “lack of expertise” replaces or perhaps is added onto “stupidity,” what Michael Dobbs wrote about Nixon’s presidency in King Richard: Nixon and Watergate: An American Tragedy (2021) applies: “Stupidity was not necessarily a disqualification for high office if combined with unthinking fealty to the commander in chief.” And how did that turn out?

We can’t agree on “merit” in our jobs and institutions unless we agree on what it means to perform well. At a track meet, it is those who run the fastest. For a corporate executive, it means higher profits. But what, for example, makes a good police officer? The one who best knows the law? The one who can shoot most accurately? The one who can best talk to a mentally ill person who is potentially violent? One characteristic I believe a good officer should have is a lack of racism. How do you measure that in a hiring or promotion process?

There is yet another factor in espousing diversity, equity, and inclusion, the DEI that is such anathema to the Right. It is not just that police performance matters. There should also be public confidence in the police. However, when the police force does not look like the community it serves, the community can become suspicious of police goodwill, and respect for the rule of law can suffer. Thus, racial, ethnic, and gender diversity and inclusion in law enforcement furthers the public good. There can be merit in diversity.

Something similar can be said of the military. Just assume for a moment that all the officers were white, and all the enlisted personnel were Black. Morale among the troops would probably be lower than if the officer corps were more racially mixed. In other words, diversity among the ranks leads to greater camaraderie in the military and is a desirable national security goal.

Let’s stick with the military for a moment. Our new Secretary of Defense finds merit in and plans to stress lethality and a “warrior culture” in our armed services. (Hegseth seems to subscribe to what Bertolt Brecht wrote in The Caucasian Chalk Circle: “A good soldier has his heart and soul in it. When he receives an order, he gets a hard-on, and when he sends his lance into the enemy’s guts, he comes.” Is this also an explanation for why Hegseth does not want women in combat?) I am unaware that an improper regard for lethality and warrioring characterizes our current soldiers. Nevertheless, those slogans are misleading, and such merit has its limits. Even when there is a war, only a minority of soldiers are in combat. Moreover, today’s armed services do many things that require qualities different from those identified by the Defense Secretary. For example, Trump has sent soldiers to the border to assist in immigration control. It is my hope that lethality and a warrior culture are not the salient qualities for this assignment.

It is easy to agree that we want a meritocracy. It is another thing to define what that is or to recognize whether it exists. While it is clear that a band of conservatives feel that DEI is its enemy, they have not told us how they define meritocracy. It seems too often to require fealty to a person and to imply exclusion of those groups who have often been excluded in the past.

But perhaps more on Diversity, Equity, and Inclusion another day.

Posted on by rjonakait

Meritocracy and Hypocrisy

It is not a new word, but the frequency of “meritocracy” coming from the mouths and pens of conservatives has made it a trendy one. The richest of them has made it a catchphrase. Elon Musk: “It’s not like America’s been purely a meritocracy, but it has been more of a meritocracy than any other place. Which I regard as good.” Musk again: “America rose to a greatness over the past 150 years because it was a meritocracy more than anywhere else on Earth. I will fight to my last drop of blood to ensure that it remains that land of freedom and opportunity.”

Musk, who is not averse to hyperbole (Isn’t your ability to fight gone long before your last drop of blood oozes onto the Tesla leather?), surprisingly qualified his meritocratic statement about America. He concedes that this country has not been a pure meritocracy, only that it has rewarded merit more than any other place.

The United States has always had limits on meritocracy. In the first place, let us not confuse merit with opportunity and advantage. The rich have always had more opportunities than others. (If you got it, you get it.) Those born into rich families have always had more opportunities. (It is easier to score if you are born on third base.)  And, of course, opportunities have always been limited in this country by race, ethnicity, religion, locality, gender, and other factors. Perhaps there has been a meritocracy in a certain pool of Americans, but that pool has been restricted. At times, it has not included Irish, Swedes, Italians, Hispanics, Asians, Catholics, Jews, women, and, of course, Blacks. Put another way, meritocracy has often been confined in this country to white male Protestants.

Even when attempts at expanding that pool have been made, they have often been circumscribed. In the 1940s, for example, some department stores started for the first time hiring Black women for sales, but there were quotas. An executive of Lord & Taylor, which was a pioneer in hiring Blacks, told The Afro-American: “It seems to me that it is only fair that the person with the best qualifications should be hired, regardless of color . . . with limitations of course. [Emphasis added] It is only natural that we don’t want to flood our place with colored people, even if they all had the best qualifications.” (Quoted from Julie Satow, When Women Ran Fifth Avenue: Glamour and Power at the Dawn of American Fashion, 2024.)

A foundational American myth has been about meritocracy and the ability to get ahead through one’s own ability. As Dara Horn says in People Love Dead Jews: Reports from a Haunted Present (2021), the legend “is that it doesn’t matter who your parents are, or who their parents were, or where you came from—that what matters is what you do now with the opportunities this country presents to you, and this is what we call the American dream. The fact that this legend is largely untrue does not detract from its power; legends are not reports on reality but expressions of a culture’s value and aspirations.” How many qualified women for how many years were rejected by medical schools and law schools because, well, they were women?

In spite of our history of the limitations on opportunities, many conservatives are furthering the legend by pretending that our meritocracy has been undermined. And what has undermined it? DEI. Yep, Diversity, Equity, and Inclusion. As though seeking the meritorious from a diverse pool, or equalizing advantages and opportunities, or seeking to include an overlooked source of qualified people is the most egregious thing that a democratic country could do even though it would seem obvious that the larger the pool from which we seek to draw talent, the more likely we are to get the best.

Another enemy, they say, is “wokeness.” I guess it’s also egregious in a “meritocracy” to want to make sure that all types of people feel as though they are equal and welcome participants in the pool.

Let Elon Musk speak again, “DEI is just another word for racism. Shame on anyone who uses it.” To say that DEI is racist implies two things: 1) You don’t believe that the previously excluded races, ethnic groups, women, or religious groups require special attention in order to join the meritocracy pool, or 2) You think that anything that undermines the hegemony of white males is threatening.  Although the opposition to DEI may have many roots, most charitably it is based on the belief that diversity is the enemy of meritocracy. It assumes that the only way diversity is achieved is by allowing less qualified people of color or women (or other groups) to leapfrog over what are assumed to be more qualified white males. Even if that is sincerely believed, those with that belief should still want to expand the pool from which the meritorious are drawn. Doubt the sincerity of those who cry out for meritocracy unless they also seek broadly for the meritorious.

At another time, Musk maintained, “The point was not to replace DEI,…but rather to be a meritocratic society.” How are you to have a meritocracy if you do not actively encourage participation by all?

Pete Hegseth, Trump’s nominee for Secretary of Defense, says Trump has told him to “clean house of the woke crap. All that stuff. Climate stuff, the (Critical Race Theory), the DEI and genderism. Get rid of it.” Not clear how “Climate stuff” got in there, but it’s clear that Trump and his cohort are fed up with trying to break down the barriers that have prevented a true meritocracy to emerge.

A familiar pattern: If something goes wrong, and if anyone other than a white male is in charge, the pejorative cry of “diversity” is uttered again and again. The mayor of Los Angeles is a Black woman, and something definitely went wrong in Los Angeles recently. However, she did not attain her position as part of a DEI movement. She was not appointed by some person who thought it would be politically correct to have a black person (and woman as mayor. No. She was picked by the electorate, just as Trump was. But still conservatives talk about her as if she were part of a DEI or woke movement.

 If a white male had been in charge, his competence might be questioned, but we don’t point to the “old boys” network that might have put him there in the first place. And we only blame DEI if a non-conservative has done the appointment or hiring of a non-white male. If Pam Bondi turns out to be a less than a stellar attorney general, diversity will not be blamed. After all, a conservative president nominated her. (Fox News presents a lot of women as hosts and commentators. Aren’t they a product of diversity?)

The anti-diversity group, however, may proclaim that the country has been successful in the expansion of the meritocratic pool and that, sadly, the pool has been exhausted. Is that why they are advocating for the expansion of H-1b visas? It is certainly the case that having more of those visas is good for businesses of rich conservatives. Among other things, they can pay those workers less. However, if the barriers to success were truly overcome in the U.S., would we need to import workers from out of the country? Shouldn’t Making America Great Again mean making sure that all Americans in fact have the opportunity to attain merit? (Not all conservatives agree that we should expand the availability of H-1b. Laura Loomer, an ardent supporter of Trump, has said, “Our country was built by white Europeans, actually. Not third world invaders from India.”*)

There are things wrong with DEI and wokeness. It is fair to criticize these movements and policies, but a meritocratic society needs more than such criticisms. It requires plans and action to expand the pool from which we seek the meritorious. I have not seen that from conservatives, and without such expansion, it sure looks as if they want to see again a future dominated by white males.