Who should be the beneficiaries of race-conscious affirmative action? Conspicuous by its absence in the US affirmative action debate, this question takes us beyond conventional majority/minority discourse and forces us to confront questions of comparative entitlement. Asking the “Who Question” serves to illuminate a much larger debate over the nature of equality itself. Two paradigms of equal protection compete in modern scholarship: antidiscrimination vs. antisubordination. Yet, neither offers a satisfactory method to select affirmative action beneficiaries on its own.
The Supreme Court’s current antidiscrimination approach to affirmative action remains incomplete. In focusing solely on remedying particularized underrepresentation, the Court tells us how to count, but not who gets counted. Silence on the Who Question has led to doctrinal incoherence in lower courts; yet, a complete answer hinges on a societal understanding of race that antidiscrimination theory is unable to supply.
To examine an antisubordination alternative in action requires a comparative international perspective. By making the eradication of societal hierarchies its explicit goal, India presents a stark alternative to US affirmative action. It has developed a sophisticated methodology to assess group disadvantage empirically. This Article considers whether India’s approach could be replicated in the US, as other commentators have proposed. Highlighting obstacles posed by patterns of immigration and social mobility, the Article concludes that an antisubordination approach would be practically unworkable and normatively undesirable in the US context.
Appreciating the shortcomings of each of these equality paradigms on their own paves the way for an integrated understanding of equal protection in which antisubordination values serve to give normative content to antidiscrimination doctrine. India’s example also suggests ways to improve on our current method of selecting beneficiaries and provides the basis for a clearer allocation of decisional authority between the judiciary and the political branches in matters of race.
- affirmative action
Available at: http://works.bepress.com/nancy_ammons/3/