Oxford needs quotas

I’m on sick leave, and so missing the delicious pleasures of Schadenfreude.   My colleagues will shortly begin interviewing teenagers to decide who should get one of the  few places to study law here at Oxford.  I say ‘Schadenfreude’ because, owing to seniority and other things, the closest I ever get to undergraduate admissions these days is dining with colleagues who, over claret at High Table, moan about what an awful job theirs is: having to choose which students they would quite like to teach, and  which ones are then most likely to go to careers at the Bar or in England’s judiciary.

My colleagues mean well.  Most of them mean better than I did when I was charged with selecting England’s elite-to-come, years ago.   There is now more centralization and standardization of interviewing than when I did it.  There is better training;  almost everyone is alert to  the possibility of unconscious bias.  (Having completed their online training, none of my colleagues is conscious of any unconscious bias on their own part.)  There is better institutional outreach, and more evidence that the senior administration are serious about these issues.  There has been real, non-negligible, improvement.

Still: however you slice or dice it, year on year, in subject after subject, Oxford admits a class of undergraduates who not only fail to mirror–even roughly–the relevant population in their age cohort; they look like an entirely different species.  Apart from sex, Oxford (and Cambridge) have made too little progress in admitting disadvantaged groups. The facts are not in serious doubt.  We debate only responsibility and remedies.

Our responsibility–setting aside our inefficient and ineffective system of interviews– -is limited.  This is mostly not our fault.   But we do want to teach in a very special way.  In some subjects, we want to teach in a class size of two or three (no; you did not misread), and so we select students who, we think, will flourish in the unique way we intend to teach.  Of course we know there are other ways to teach undergraduates.  After all, Princeton, Yale, and Harvard all seem to turn out brilliant graduates (and even to replenish the US class system) without anything like our commitment of resources.   I’ve taught in both systems, and I know that, for the faculty, it is more fun and more illuminating to teach students in pairs than in scores.  But it has been a long time since Oxford (or Cambridge) has seriously examined the tutorial model,  though I think the Equality Act probably requires us to do so.  So some share of the blame is ours.

What is manifestly not our fault is the huge disproportion of good applicants who were privately educated–pupils whose parents could give them not only the social capital, but also the cold cash, to be educated in private schools that prepare pupils well for how Oxford has decided to teach.  This state of affairs is not unique.  In most capitalist societies, such advantages can be purchased either directly, by paying school fees, or indirectly, by buying a house in the catchment area of an excellent state school.  England is unique only in how pervasive, overt, and toxic the transaction is.  There is a nice philosophical question whether it is more opprobrious to  buy advantage on the open market or to buy it as a foreseen, welcome, but strictly unintended, consequence of one’s housing choices.  (And these are, for some people, real choices: my own parents gave up a lot of personal pleasures to buy a house in an area where I was likely to get the sort of education that would prepare me for the right sort of university.  Yet being on the (far) left, they would never have considered paying school fees.)

But the fact that something is not Oxford’s fault, in the sense that we are not morally or politically responsible for causing it in the first place, does not show that we are blameless when we have the power to change it yet decline to do so. I think that is our actual position.  We could quickly improve things with quotas:

I propose that Oxford (and Cambridge) should require the over-representation of privately educated undergraduates stay below 300%, which quota should be reassessed every 10 years.

You may be thinking that a 300% over-representation of any social group is already outrageous.  Maybe.  But depending on how one counts it, the current over-representation of private-school students at Oxford is around 600%.   So we could make a huge reduction in offers to the privileged and still leave them with triple what they would be entitled to under mirror-representation.   That would be a lot easier than expanding the size of the university, or spending more on ‘outreach’ to attract new applicants who we might still reject.

Or you may be thinking that my proposal would be discriminatory.  In English law anyway, it would not.  ‘Wealth and status‘ are not ‘protected characteristics’ under  discrimination law.  There are many good reasons we should not set caps on the number of Jewish or Asian students we admit.  But these do not apply to those elevated by economic and social privilege alone, and there is no solid evidence to show that a cap on the (relatively) rich would be indirect discrimination against one of our protected groups.  In practice, all this means is that some children of the privileged will not make the cut at Oxford or Cambridge, but will instead get accepted at one of England’s other, still excellent, universities.

But maybe you are thinking that this would violate a moral norm: ‘each person should be treated as an individual, on her own merits, and not just as a member of some group or other!’  (Myself, I’d dread being treated on someone’s view of my ‘merits’.)   But if that norm is sound, it would already require a huge change in our admissions standards.  We do not now treat the hundreds of applicants ‘each on her own merits’.  Each is treated as a member of a group:  the group who got three A’s at A-level, or the group who scored high on the LNAT,  or the  group that impressed the interviewer, or the group that came from a school we know and respect.   The fantasy that our existing system is attuned to individual merits is laughable.  (And adding ‘contextual’ data–‘he grew up in a rough neighborhood’–is just another form of group-based prediction.)

So here’s an idea.  Let’s experiment.  Let’s set a 300%–or, if you like, 400%–cap on the over-representation of the over-privileged at Oxford.  Without expanding enrollment, that will make lots of space for other good students.  Then let’s see how that works out for us, and for the legal profession in England.  This would, I admit, be a big change.  So I suppose we will have to confront the Ultimate Objection:

‘How many Oxford dons does it take to change a light-bulb?’

‘What do you mean, “CHANGE”???’

Self-Identification, Sex, and Gender

The UK House of Commons Report Report on Transgender Equality was needed, and overdue, and I hope that at least some of its recommendations find their way into law.  There is no doubt that, in the UK as elsewhere, trans people are routinely humiliated, abused, and discriminated against–not only by ‘usual suspects’ (the far right, decadent religions, and men who pathetically cling to the status that gender gives them).  They also suffer at the hands of those who are, or  say they are, here to help: in healthcare, in education, and in the legal system.

At the same time, the Report tries to do too much, on the basis of advice that is too narrow, and on a research foundation that is far too thin.  Here are some questions that need to be at least confronted, if not answered, ahead of any legislation.

  1.  We need to get a lot clearer, at least in medicine and law, about what ‘sex’ and ‘gender’ actually amount to and about the (fairly rare) instances in which it is essential for law or medicine mark either of them.  This will not be easy.  In English law, and in common usage, ‘gender’ is sometimes used as synonym for ‘sex.’  (As in ‘the gender imbalance in the judiciary’. )  But the law’s concept of ‘sex’ is a mess.  And the gender-studies shibboleth that ‘sex is gender, all the way down’, repeated by lazy if well-meaning lawyers, is incoherent.  Yet there is a lot of good work by social theorists and philosophers on these problems.  It has left no mark on the Report.
  2. We need to acknowledge more forthrightly than the Report does that there are real, material conflicts of interest that need to be addressed, in particular, conflicts between the interests of non-trans women and trans-women.  This work is not done in the Report, although a background assumption of a harmony of interests among non-trans women, trans-women, and gay people seems to hover over it, along with the hope that the lawyers will iron out any residual kinks.  Professor Kathleen Stock has shown that this is improbable.  And the furious, often hate-filled responses to Stock’s measured arguments–arguments that raise questions but do not dictate solutions–are one index of how serious these conflicts of interest are.  If the Committee and Parliament cannot even acknowledge them, the chances of coming to a fair accommodation among them are slim.
  3. We need to distinguish, as the Report does not, between (a) the claim that people’s  gender is at present wrongly medicalized, and (b) the claim that a fair and feasible solution to (a) would be for the law, or medicine, to adopt and use everyone’s gender self-identification,  and for every purpose.  I assume there is no serious argument, in the ordinary course of life, against referring to people, and treating them, according to whatever gender with which they wish to identify.  But it does not follow that we never need–for therapeutic reasons, or scientific reasons, or reasons of justice– other standards for other purposes.  Of course, that does not mean that they should be the very standards now in use.  Those are so tainted by sexism and heterosexism that that would be unlikely.   But we do need to think this through.
  4. We need to explore what should count, for legal or medical purposes, as self-identification.   Many contributors to the Report, and many more activist groups, (including Stonewall) seem to assume that it will be a matter of sincerely saying that one is female, or male, or neither.  Just tick whatever box you prefer.  But whatever we think the role of self-identification should be, this is a poor test for it. In medical procedures, saying ‘yeah, fine’ does not count as informed consent in the absence of a complex range of background conditions.  In law, saying ‘I promise’ does not count as a contract in the absence of another range of such conditions. We need to think through the parallel case of ‘gender self-identification.’ It is hard to resist the thought that behind some self-identification views is the idea that ‘no one ever has the right to tell me who or what I am!‘  But that is like saying ‘no one has the right to tell me whether or not I consented,’ or ‘no one has the right to tell me whether or not I promised.’  None of these things are simply ‘in the head’.  The inner conviction that, say, one is a woman stands in need of some sort of public criteria for it even to count as a conviction of the right kind, let alone a conviction that the law can and should use.   It is no help to say we should go by self-identification until we know what counts as self-identification.
  5. At least in law, we should probably disaggregate the policy questions more thoroughly than the Report does.   There is no reason to think that the concept of ‘gender’ that is relevant to who has access to which passports or toilets is going to be the same concept that is relevant to determining who has access to the women’s locker room or to a job in a rape crisis centre.   The law does this sort of thing all the time:  ‘For purposes P, X shall count as Y.’   In some areas, the law is too quick to set up ‘package deals’ where everything comes together; sometimes it is too slow.  But I can think of no reason to assume, a priori, that the current package deal of gender must be maintained.

The Report is worth reading; its criticism of the medicalization and stigmatization of trans identities is correct and important.   Many proposed technical adjustments to the law will benefit trans people (and others).  But when it comes to the central issue of the role of self-identification, it is hard to resist the conclusion that the Report has missed, or perhaps avoided, the questions that matter most.

The US as a borderline case of law

Legal theorists often wonder what we should think about things that are quite a lot like  law but are not, in fact, legal systems.  I’m not thinking  of the rules of board games or the Mafia, but of cases where the similarities are more compelling: soft law, indigenous law, Masonic law, and so on.  These have some features of the paradigm case of law and are missing others.  But, as HLA Hart pointed out long ago, it would be silly to say they are ‘not law’: the term ‘law’ is quite open and flexible.   Anyway, it is too late to say that ‘soft law’ is a misnomer.  There are books about it, courses in it, and no doubt someone will soon start to offer degrees in it.

Moreover, such forms of social order can over time come closer to the paradigm case than they used to be.   International law, for instance, is now more systematic and (a bit) more efficacious than it was when H.L.A. Hart said, in the 1950s, that it is more like ‘set’ of rules than a ‘system’.   As things stand, these are still borderline cases of law, but some of them are on the move.  My own preference is to call them ‘para-legal systems’.

Just as a form of social order can become more law-like over time, it can also become less law like.   Some jurisprudents think that can happen when law fails to live up to certain moral ideals, such as democracy, liberalism, or human rights.  My own view is more parsimonious.  I count Roman Law and Canon Law as paradigm cases of legal systems, even though neither of them has much interest in democracy or liberalism, and both are overtly hostile to important human rights.  Yet law they are.

But even on the more parsimonious view, other kinds of decay can cause law to unravel.   The law can cease to be generally effective.   Under this heading we usually  think of ‘failed states’, but even when state power  gets its way it may nonetheless escape the regulation of law, that is, the positive law of the land.   Is there anyone who believes that the widespread use of terror and violence against African-American men is generally in accord with state and federal law in the US, and that their mass incarceration simply reflects their just deserts, legally speaking? Whole social groups in the US  live in conditions of near lawlessness, and not because they disproportionately violate the law.

A different kind of decay results when the most basic ground rules of a legal system crumble.  I don’t just mean the (formal) Constitution–though in the US that is looking pretty shaky too.  Beneath every Constitution there is a constitution: a set of norms, standards, principles and practices that, together, identify the formal Constitution and regulate how it should be applied by judges and others.  These norms have always been much less settled in the US than in countries at comparable levels of development: the more extreme American ‘legal realists’  wondered whether there was any settled law or convention at this level.   No doubt that was an exaggeration, but there was some  truth in it.  When the highest officials are deeply divided on the relative importance of text, history, and principle in interpreting a Constitution, the most basic parts of a legal system are in rickety shape.

Now critical observers have a fresh worry, focused on the evident corruption of the Presidency and the Senate.  Commentators of all political convictions (though not all commentators of all convictions) agree that they are being  badly damaged by their incumbents.   Not (just) because of probable unchecked violations of the  Constitution, but also  because of the toleration of grotesque assaults on the norms that make that document binding as law.  American commentators lament a lack of ‘civility’ or a rise of ‘tribalism’ in their country, but a legal system can survive  both.  What it cannot long survive is official contempt for the informal norms that underpin the Constitution itself, and that is where the US seems to be heading.

It is not only  apex officials that are responsible for the basic norms of a legal system.   Ordinary lawyers and even, to a lesser degree, law professors and law clerks also play a part.   We read that over 2,400 American law professors signed a letter urging Senators to do their duty in good faith and refuse to confirm an accused sexual harasser, a proven liar, a bully,  a lickspittle, and a man who is said to choose female clerks who have a certain ‘look’.  (Which appears, coincidentally, to be the same ‘look’ that the President prefers among his female attendants and wives.)  Like many law professors, I read that list.  (I was as surprised by the names that were absent as I was by some of those that were present.)  The letter proved pointless.  Anyone willing to do to Dr Christine Blasey Ford what President Trump was willing to do, and anyone willing to do whatever Trump wills, is beyond reason or shame, never mind the constraints of law.  But I think the existence of the letter shows that one vital sign  remains near normal limits.  The bar, or at least some influential members of it, understand well what is now at stake and are pushing  back.   But should they give up, or be sidelined, it will not be long before we should move the US over to the category of ‘para-legal systems’.  Quite a bit like law, in several respects, but not actually a legal system.