Abstract
The first category of problems is a function of the apparent contradiction between the requirement of neutrality and universality typical of legal discourse and the content of the sociological judgment underlying the justification for affirmative action that I have been arguing for. Indeed, this judgment involves acknowledging the sui generis nature of the disadvantage experienced by black Americans, a task for which judges are particularly ill equipped.
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Notes
See generally Jürgen Habermas, Moral Consciousness and Communicative Action, Cambridge (Mass.), MIT Press, 1990.
See generally Ruth O’Brien, Crippled Justice: The History of Modern Disability Policy in the Workplace, Chicago, University of Chicago Press, 2001;
Linda Hamilton Krieger, ed., Backlash against the ADA: Reinterpreting Disability Rights, Ann Harbor, University of Michigan Press, 2003. Broadly speaking, the Americans with Disabilities Act amounts to extending the reach of the Supreme Court’s Griggs decision—construing Tide VII of the 1964 Civil Rights Act as prohibiting disparate impact discrimination, whether intentional or not (see supra, pp. 118–124)—to discrimination based on handicap. To consider a most basic example, making it impossible for people to access their workplace other than by a staircase, because this has a (particularly obvious) disparate impact on those who are confined to a wheelchair, is now held to be “discriminatory” under statutory law;
see generally Christine Jolls, “Antidiscrimination and Accommodation,” Harvard Law Review, 115, December 2001, pp. 642–699; Michael Ashldey Stein, “Same Struggle, Different Difference: ADA Accommodations and Antidiscrimination,” University of Pennsylvania Law Review, 153 (2), 2004, pp. 579–673.
Mary Waters, Ethnic Options: Choosing Identities in America, Berkeley, University of California Press, 1990, pp. 157–158.
Ibid., pp. 155–164. In this connection, see also John David Skrentny, “Policy-Elite Perceptions and Social Movement Success: Understanding Variations in Group Inclusion in Affirmative Action,” American Journal of Sociology, 111 (6), 2006, especially pp. 1782–1787.
This example was initially offered by Paul Brest; see Paul Brest, Processes of Constitutional Decision-Making, Boston, Little, Brown, 1975, p. 489.
See Andrew Koppelman, Antidiscrimination Law and Social Equality, New Haven, Yale University Press, 1996, pp. 24–27.
Koppelman justifies this project of cultural transformation by emphasizing the permanence of racism, the effects of which are all the more unaffected by antidiscrimination legislation that mem-bers of the dominant group are not necessarily aware of it (pp. 45–46). Yet, while unconscious racism and discrimination are surely at play in many cases (see generally Charles Lawrence III, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,” Stanford Law Review, 39, January 1987, pp. 317–388;
Samuel Bagenstos, “The Structural Turn and the Limits of Antidiscrimination Law,” Califomia Law Review, 94 (1), 2006, pp. 1–47, as well as the “Symposium on Behavioral Realism” published in the Califomia Law Review (94 (4), 2006, pp. 945–1190); for a critique of the unconscious discrimination paradigm, see Gregory Mitchell and Philip E. Tetlock, “Antidiscrimination Law and the Perils of Mindreading,” Ohio State Law Journal, 67 (5), 2006, pp. 1023–1121), one should also pay attention to those “dogmatic belief[s]” discussed by Tocqueville, that are not usually subject to scmtiny and stand as the informational background against which individual actions are carried out. Indeed, “if man were forced to demonstrate to himself all the truths of which he makes daily use, his task would have no end. He would exhaust his strength in preparatory exercises, without advancing beyond them. As, from the shortness of his life, he has no time, nor, from the limits of his intelligence, the capacity, to accomplish this, he is reduced to take upon trust a number of ficts and opinions …; nor is he led to proceed in this man-ner by choice, so much as he is constrained by the inflexible law of his condition” (Tocqueville, Democracy in America, vol. 2, pp. 8–9). These “dogmatic belief[s]” pertaining to racial identities, or a fraction of them, are precisely what affirmative action is meant to transform: as Tocqueville suggests, such beliefs “may change [their] object or [their] form” as a result of some recurring “experience,” which is actually the only way of “shaking the majority in an opinion once conceived” and of “uproot[ing] the prejudices of a democratic people” (pp. 8, 309).
François Furet, “Préface,” in Alexis de Tocqueville, De la démocratie en Amérique, Paris, Gamier-Flammarion, 1981 [1835–1840], vol. 1, p. 30.
On the notion of “role model,” see Adeno Addis, “Role Models and the Politics of Recognition,” University of Pennsylvania Law Review, 144 (4), 1996, pp. 1377–1468.
See Bernadette Gray-Little and Adam R. Hafdahl, “Factors Influencing Racial Comparisons of Self-Esteem: A Quantitative Review,” Psychological Bulletin, 126 (1), 2000, pp. 26–54;
Jennifer Crocker and Brenda Major, “Social Stigma and Self-Esteem: The Self-Protective Properties of Stigma,” Psychological Review, 96, 1989, pp. 608–630.
See Sniderman and Piazza, The Scar of Race, pp. 44–46. Some argue that it is paradoxically the disappearance of official discrimination against blacks that have made them more vulnerable to these rumors of inferiority, since they are now supposedly able to demonstrate their invalidity by dint of their own accomplishments; see Jeff Howard and Ray Hammond, “Rumors of Inferiority,” The New Republic, September 9, 1985, pp. 17–21; see also Brenda Major, Steven Spencer, Toni Schmader, Connie Wolfe, and Jennifer Crocker, “Coping with Negative Stereotypes about Intellectual Performance: The Role of Psychological Disengagement,” Personality and Social Psychological Bulletin, 24 (1), 1998, pp. 34–50.
See Samuel Huntington, American Politics: The Promise of Disharmony, Cambridge (Mass.), Harvard University Press, 1981, pp. 33–37.
Jon Elster, Psychologie politique (Veyne, Zinoviev, Tocqueville), Paris, Editions de Minuit, 1990, pp. 78–79.
Ibid.; Elster, Psychologie politique, p. 51 ; Jon Elster, “Is There (or Should There Be) a Right to Work?” in Amy Gutmann, ed., Democracy and the Welfare State, Princeton, Princeton University Press, 1988, p. 74.
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© 2007 Daniel Sabbagh
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Sabbagh, D. (2007). The Problems with the Deracialization Argument. In: Equality and Transparency. The CERI Series in International Relations and Political Economy. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230607392_5
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