restricted access 68 Is the Radical Critique of Merit Anti-Semitic?
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68 Is the Radical Critique of Merit Anti-Semitic? DANIEL A. FARBER AND SUZANNA SHERRY [According to critical race theory,] a group's success cannot be justified on the basis of any presumed excellence in the performance of its members. [Critical race theory holds that notions of merit are manipulable and based on culture. Ed.] As applied to socalled "model minorities" like Jews or some groups of Asian Americans, however, this creates a paradox, for these groups seem to have succeeded in important social arenas beyond the average achievements of the dominant majority of white Gentiles. In 1970, Jewish family income was 172% of the average American income, Japanese-American family income was 132% of the average, and Chinese-American family income was 112 % of the average. By 1980, native-born Chinese Americans were earning 150% of the non-Hispanic white average , with Japanese- and Korean-American families not far behind the Chinese Americans. As of that year, unemployment rates for Chinese, Japanese, and Korean Americans were approximately half that of the general population. Poverty rates are also significantly lower for some Asian-American groupS.l More recent data similarly reveal that Jewish family income remains well above the average income for Gentile families. Educational attainment accompanies this economic success. Jews and Asian Americans are disproportionately represented in higher education: In 1982, Jews obtained undergraduate degrees at nearly twice the rate of the general American population; in 1990, the percentage of Jews with some college education was almost twice that of the general population.2 Asian Americans also completed college at twice the rate of the general population. Americans of Japanese, Chinese, and Korean ancestry comprise approximately one-fifth of the student body at some prestigious universities, even though they are less than two percent of the national population.3 Although many universities implemented quotas to limit Jewish students and faculty from the early 1920s through at least the early 1960s,4 by 1975 Jews" constituted 10 percent of all faculty members but 20 percent of those teaching at elite universities."s If there is no such thing as merit, what explains the success of these two groups, both of whom, like blacks, have been victims of discrimination by white Gentile America?6 Focusing on Jews, we can identify only a few conceivable explanations unconnected with merit. If merit is wholly irrelevant, the four possible explanations for Jewish success are: (1) that a Jewish conspiracy exists; (2) that Jews are parasitic on American culture; (3) that American culture is essentially Jewish; or (4) that there is no such thing as a distinct Jewish culture or identity. Without evaluating any of the explanations, we will note their antiCopyright © 1995 by California Law Review, Inc. Reprinted from California Law Review, Vol. 83 (1995), pp. 853, 869-78, by permission. Copyrighted Material Is the Radical Critique of Merit Anti-Semitic? 415 Semitic overtones. Unless there is yet another explanation besides merit for Jewish success in a Gentile world, denying the role of merit has clear anti-Semitic implications. The first theory is that Jews succeed as a consequence of a powerful and pervasive Jewish conspiracy. Some Americans believe that there is a Jewish or Zionist conspiracy, which has been posited as an explanation for everything from violence on television to the spread of AIDS. The existence of a powerful Jewish conspiracy would certainly explain why Jews as a group are successful even if success has nothing to do with merit. It is also one of the most ancient anti-Semitic myths. With roots dating back at least to medieval Christianity, the Jewish conspiracy theory persisted through the Reformation and into modernity.? Martin luther, for example, viewed Jews as a menace to Christianity and as the "storm troops of the devil's forces." s The Jewish conspiracy theory both feeds on and fosters anti-Semitism, portraying Jews as using devious or evil means to gain power over innocent non-Jews. It has spawned various myths, including the belief that Jews used the blood of Christian babies in the Passover seder and that Jews caused the Black Death by poisoning wells.9 It takes its most powerful modern form in the fraudulent Protocols of the Elders of Zion, which purports to document a Jewish conspiracy to destroy the Christian world.lO Although the Protocols have been thoroughly discredited, and were admitted to be a forgery by their publisher, some still believe in them. Similar myths of an Asian conspiracy also abound. Fears of a "yellow...