During the second half of high school, I learnt the phrase “affirmative action” and what it meant. I was in the US with my father—he was in the country for work reasons—and met some of his American colleagues’ children.

The system outlined to me did my head in. They recounted how personal essays—plus things like volunteering, sport, and church—played a large role in admission to one of the nation’s better universities.

I could no more imagine writing an essay telling the University of Queensland why I wanted to study law than I could imagine milking a bull. The reason was simplicity itself: I got straight As and couldn’t stand the sight of blood, so medicine was out.

At various points in multiple conversations, I attempted to describe the Australian system

“We do a test, the ASAT,” I said.

“Oh, we have SATs, so that’s the same.”

“And then you get results in your high school subjects…”

“Right.”

“Which are added to your ASAT result. You get a score. The higher the score, the better—means you can do harder courses, like law or medicine or vet science.”

“And that’s it?”

“Yeah. Every year, the uni publishes course cut-offs in the paper. As soon as they come out, you know if you got in, or have to settle for your second or third preference.”

The Australian alien had landed. I could have been speaking Esperanto or Igpay Atinlay.

“Oh,” one teenage American interlocutor went on, “it’s easier to get in if you’re black, or if your parents went there, or if they’re professors there, or if they’re rich.”

My teenage brain was unable to cope with the idea that every American university academic went by the honorific professor—at home a title of rare distinction only earned after many years’ exemplary service—let alone the expectation that employees’ children would gain automatic admission to their parents’ workplace.

And I’m afraid—when I encountered affirmative action, legacy admissions, athletic eligibility, and big donors—the first sentence to fly out of my mouth was “people who get into university like that are cheats.”

If you get a higher mark in an exam by, say, secreting a list of formulae in your sock and surreptitiously using it when you can’t remember how to do indefinite integrals—and thereby get a better result—you are a cheat.

If you use your ethnicity to get into a prestigious university when your results would not otherwise be good enough to get you into that university, you’re a cheat. If your parents buy you a place, you’re a cheat. If you get in because you’re good at sport but would misspell “cat,” you’re both a cheat and an academic passenger who holds your fellow students back.

“It’s not cheating if you’re playing by the rules, when you don’t make the rules.”

“Just because you can doesn’t mean you should.”

“Black people used to be slaves.”

“They’re not slaves anymore.”

“They were still oppressed until 1964 and got discriminated against. Often, they couldn’t go to college at all.”

“Two wrongs don’t make a right.”

“Legacies raise money for colleges.”

“So, Harvard is a hedge fund with a university attached?”

At this point, my father stepped in, reminding me I was in someone else’s country and that suggesting our hosts had been dropped on the head as kids was rude. I shut up and fumed as only sullen adolescents can fume.

I realise only affirmative action was before SCOTUS in Students for Fair Admissions v. Harvard, and the courts can’t wade in and end all forms of unmeritorious admission to leading American universities. I may not be an American lawyer, but I am a lawyer in other places. I know there must be a law: in this case, the 14th Amendment and Title VI of the Civil Rights Act.

I realise, too—despite my foreigner’s perspective—that I’m criticising unmeritorious admissions as a job lot, including some that wealthier, more-likely-to-be-Republican voters may like. I don’t care. All these people are cheats. Yes, the universities built and maintained this pernicious system, and it’s only open to SCOTUS or legislatures to fix some of it. But every single student wrongly admitted thereby is a cheat.

Meritocracy is not flawless. People forget that when British peer Lord Michael Young of Dartington coined the term he meant it as a pejorative. Meanwhile, say “meritocracy” to most people, and those north of 45 will likely define it by reference to “the right person for the job.” If that’s all it were, meritocracy would be a genuine social good—pace Lord Young.

However—in tandem with the expansion of higher education and almost certainly because of it—meritocracy has become something quite sinister, closer to Lord Young’s original conception.

People under 30 are often open in their belief that it means some forms of work or certain occupations are intrinsically better than others. Certain people are seen as more worthwhile and valuable. Lots of folk believe the way to decide who gets “higher” jobs should be based on merit as identified by formal academic attainment. Some people—including Justice Jackson in her dissent—also think the rest of us should defer to experts. This privileges one kind of talent or ability over others and, more profoundly, means some kinds of position or role are demeaning and others elevated.

We shouldn’t be in the business of rewarding people materially or socially simply because they’re clever…. But we have made a complex world, a world of machines and systems and processes, a world in desperate need of the 90th percentile and above.

Problems with that sort of privileging are twofold. First, if higher education is about signaling academic attainment, then it helps no-one when the signal is scrambled. Admitting underpowered cheats for whatever reason (and then inflating their grades) increases the noise-to-signal ratio. No-one wants to be treated by a doctor who failed anatomy or advised by a lawyer who failed contract—or who had to have goalposts moved so he could pass. In the wake of SCOTUS’s ruling, I read piece after angry piece about programmes designed to get black people into medical and law school despite poor results. These schemes would now, of necessity, come to an end.

Good.

Secondly, employers still have no way of correcting for higher education’s scrambled signal, even if SCOTUS has unpicked the scrambling in one area. Other important legal precedents mean affirmative action (in particular) is pervasive throughout American society. To my mind, the worst precedent is Griggs v. Duke Power Co., where SCOTUS stopped firms using straightforward cognitive batteries for quantitative competency evaluation.

I’ve written previously for Law & Liberty about America’s low state capacity. Other similarly rich countries, with a bit lower GDP per capita and a bit higher wealth per capita—think Switzerland, Australia, or Norway—feel appreciably richer when you visit them and are notably better governed.

There is an explanation for this.

The US has been selecting against competence for decades, not only with affirmative action, but particularly there. What was done historically to Jews and recently to “Asians” (Justice Gorsuch is correct to criticise a category comprising 60 per cent of the world’s population) represents nothing more and nothing less than a squandering of the upper half of the US’s top academic decile.

Investor Harold Robertson points out how a shift away from selection for capacity towards selection for diversity manifests:  

The resulting norms have steadily eroded institutional competency, causing America’s complex systems to fail with increasing regularity. In the language of a systems theorist, by decreasing the competency of the actors within the system, formerly stable systems have begun to experience normal accidents at a rate that is faster than the system can adapt. The prognosis is harsh but clear: either selection for competence will return or America will experience devolution to more primitive forms of civilization and loss of geopolitical power.

Justice Thomas suspected his Yale law degree tattooed “diversity hire” to his forehead and made life more difficult. He once quipped how he’d “peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale. I never did change my mind about its value.”

However, Thomas was born in 1948, before affirmative action’s march through American institutions. As Robertson points out, people who’d been around the traps from 1920 to 1970 could still remember hiring only on merit, wielding standardised scores like a cudgel. Once selection away from competence became the norm, university signaling stopped enshrining capacity requirements. With this came the rhetoric of belonging. “I belonged,” the underpowered admissions would say. Pride-in-place replaced Thomas’s unease and shame. Cheats did prosper—at the nation’s expense.

A country’s top decile is precious. The top half of that top decile even more so. Those people not only win Nobel Prizes and write symphonies, but treat disease, keep the innocent out of gaol, build bridges and dams, and govern the country. It’s worth finding them—pre-Griggs-style cognitive assessments being one of the best ways to do so—and then imposing duties on them. For practical jobs like civil engineering, public administration, and corporate finance, quantitative evaluations help employers bypass the woke madrassas that are modern universities entire. Waiting until people start university also leaves it too late to find talent among the disadvantaged.

Australia once had no affirmative action. The malign influence of American culture means it now has some, although the country is still distinctive enough to permit various tiers of government in its federal system to serve as the laboratory of the states. In 2016, the “single courageous State” to “try novel social and economic experiments without risk to the rest of the country” was Victoria.

The Victorian state government spent 18 months trialling a regime where personal details—including name, gender, age, and location—were removed during the job application process. This was not a small exercise. It took in multiple large government departments, including the police. Private sector participants included Westpac, one of Australia’s “Big Four” banks.

Launched with great fanfare—to overcome unconscious bias, increase female hiring, and prevent the binning of CVs with ethnic names on them—it proceeded to explode in Harvard academic Michael Hiscox’s face.

“We anticipated this would have a positive impact on diversity—making it more likely that female candidates and those from ethnic minorities are selected for the shortlist,” he told the ABC, Australia’s state broadcaster. “We found the opposite, that de-identifying candidates reduced the likelihood of women being selected for the shortlist.”

Numbers of ethnic minority recruits also dropped, while that most despised of demographics—white males—zoomed up the ranks. “The results showed that overall, de-identifying applications at the shortlisting stage does not appear to assist in promoting diversity within the Australian Public Service in hiring,” the Department of Prime Minister and Cabinet admitted primly. Re-adding names and other identifying details meant “overall, APS officers discriminated in favour of female and minority candidates.”

Women and minorities have just as much interest in keeping the lights on and making sure planes don’t fall out of the sky as everyone else. The systems that keep complex America running do not require equality of hiring outcomes for that to be true. It’s not good enough to give people access to the levers of power because you feel sorry for them, or because their parents are big donors, or because they can throw a football for miles. Doing so risks discovering another way to make a desert and call it peace.

I recognise I’m counselling selection for competence and not for character. While all ethical traditions have a version of two wrongs don’t make a right and just because you can, doesn’t mean you should, no great ethical tradition considers high intellect a per se good. Something more is always needed. Historic civilisations made huge demands on the gifted, especially boys. Societies where at least some women had high status loaded the fairer sex up as well. The Romans demanded posh women control their emotions in a way we moderns find ferocious and unsettling.

I get that we shouldn’t be in the business of rewarding people materially or socially simply because they’re clever. That—to pinch one of Adam Smith’s insights—is like holding people in high esteem simply because they’re rich. That’s how you finish up with the bad sort of meritocracy, the type Lord Young excoriated when he invented the word.

But we have made a complex world, a world of machines and systems and processes, a world in desperate need of the 90th percentile and above. And look, America, at what your leading universities have done to them.

Select for competence. And while you’re doing that, think hard about how to combine competence with character. Your country needs you—and them—to stay ahead.