When Merit Becomes the Constitutional Problem

What if a law designed to protect merit is now being challenged in the name of restoring merit? That’s the puzzle at the center of this special Conversation on Justice. In our last episode, The Reality of the Numbers, I argued that statistics are not verdicts. A racial disparity does not automatically prove discrimination. Numbers tell us where to look. But what happens when the law begins making it harder to look? In June 2026, the Department of Justice issued a memorandum challenging the traditional disparate-impact framework associated with Griggs v. Duke Power Co. DOJ raises a serious concern: if employers respond to racial disparities simply by manipulating outcomes to achieve preferred racial numbers, a law intended to prevent discrimination can itself pressure employers toward race-conscious decision-making. I don’t dismiss that concern. If disparate impact required racial quotas, discarded legitimate qualifications, or choosing one person over another because of skin color, I would have a problem with it too. But that isn’t the only possible response to a racial disparity. Suppose an employment test disproportionately excludes qualified Black applicants. One response is: “We need more Black employees. Change the results.” But another is: “Does this test actually predict who will perform the job well?” Those are fundamentally different questions. The first focuses on race. The second focuses on merit. And that is what I believe gets lost in the current debate. Griggs didn’t tell employers to lower their standards. It told them to validate them. It didn’t require employers to hire unqualified people. It required them to make sure their definition of “qualified” actually identifies qualification. Griggs didn’t eliminate merit. It interrogated merit. In this episode, I examine how DOJ’s new approach changes that inquiry—and why the difference may be far more consequential than it first appears. A standard can be traditional without predicting performance. It can be convenient without measuring ability. It can sound perfectly rational while unnecessarily excluding qualified people. And when nobody remembers why a requirement exists, yet everyone assumes those who fail it are “less qualified,” we may not be protecting merit at all. We may be protecting false merit. I’ve seen this movie before. In juvenile justice, zero-tolerance policies were facially neutral. Teachers wanted safe classrooms. Police officers wanted to protect children. Judges wanted fair outcomes. Yet Black children were entering the system at disproportionately high rates. Had we required proof that someone intended to discriminate before examining the system, we would have missed the problem entirely. Instead, the numbers made us ask: Why? We investigated. We redesigned the system. Arrests declined. Court referrals declined. Graduation increased. We didn’t establish racial quotas. We didn’t tell police officers to treat Black children differently. We didn’t lower standards. We improved the system. That experience taught me the distinction at the heart of this episode: Choosing somebody because of race is not the same thing as investigating race. One can be discrimination. The other is inquiry. And inquiry is what Griggs gave us. Colorblindness remains a worthy aspiration. But colorblindness should never require us to become blind to evidence. Because perhaps the real choice before us isn’t: Merit versus equality. Perhaps it’s: Real merit versus inherited assumptions about merit. And perhaps Griggs, far from being an attack on merit, was one of the strongest defenses of merit the Supreme Court ever gave us. The numbers don’t tell us who is guilty. They tell us where to look. And justice should never be afraid... to look. Get full access to Justice ReDesigned at steventeske.substack.com/subscribe