Equality and Transparency

Transcription

1 Equality and Transparency

2 The CERI Series in International Relations and Political Economy Series Editor, Christophe Jaffrelot This series consists of works emanating from the foremost French research center in international studies, the Paris-based Centre d Études et de Recherches Internationales (CERI), part of Sciences Po and associated with CNRS (Centre National de la Recherche Scientifique). Founded in 1952, CERI has about sixty fellows drawn from different disciplines who conduct research on comparative political analysis, international relations, regionalism, transnational flows, political sociology, political economy and on individual states. This series focuses on the transformations of the international arena, in a world where the state, though its sovereignty is questioned, reinvents itself. The series explores the effects on international relations and the world economy of regionalization, globalization (not only of trade and finance but also of culture), and transnational flows at large. This evolution in world affairs sustains a variety of networks from the ideological to the criminal or terrorist. Besides the geopolitical transformations of the globalized planet, the new political economy of the world has a decided impact on its destiny as well, and this series hopes to uncover what that is. Published by Palgrave Macmillan: Politics In China: Moving Frontiers edited by Françoise Mengin and Jean-Louis Rocca Tropical Forests, International Jungle: The Underside of Global Ecopolitics by Marie-Claude Smouts, translated by Cynthia Schoch The Political Economy of Emerging Markets: Actors, Institutions and Financial Crises in Latin America by Javier Santiso Cyber China: Reshaping National Identities in the Age of Information edited by Françoise Mengin With Us or Against Us: Studies in Global Anti-Americanism edited by Denis Lacorne and Tony Judt Vietnam s New Order: International Perspectives on the State and Reform in Vietnam edited by Stéphanie Balme and Mark Sidel Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law by Daniel Sabbagh, translated by Cynthia Schoch and John Atherton.

3 Equality and Transparency A Strategic Perspective on Affirmative Action in American Law Daniel Sabbagh

4 EQUALITY AND TRANSPARENCY Copyright Daniel Sabbagh, Softcover reprint of the hardcover 1st edition 2007 ISBN All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. First published in 2007 by PALGRAVE MACMILLAN 175 Fifth Avenue, New York, N.Y and Houndmills, Basingstoke, Hampshire, England RG21 6XS Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin s Press, LLC and of Palgrave Macmillan Ltd. Macmillan is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN DOI / ISBN (ebook) Library of Congress Cataloging-in-Publication Data Sabbagh, Daniel. Equality and transparency : a strategic perspective on affirmative action in American law / Daniel Sabbagh. p. cm. (CERI series in international relations and political economy) Includes bibliographical references and index. ISBN (alk. paper) 1. Affirmative action programs Law and legislation United States. 2. Affirmative action programs Social aspects United States. I. Title. KF S dc A catalogue record for this book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: September

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7 CONTENTS Acknowledgments ix Introduction 1 Part 1 Assessing Justifications for Affirmative Action 11 One The Corrective Justice Paradigm 13 Two The Diversity Paradigm 31 Three A Strategic and Consequentialist Perspective: Affirmative Action as an Instrument for Deracializing American Society 49 Part 2 Interpreting Legitimization Strategies for Affirmative Action 87 Four The Problems with the Deracialization Argument 93 Five The Negative Side Effects of Transparency 105 Six Evidence of Dissimulation Strategies 116 General Conclusion 163 Notes 169 Bibliography 215 Index of Cases 239 General Index 243

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9 ACKNOWLEDGMENTS This book is an updated and entirely revised translation of the second part of L Égalité par le droit: les paradoxes de la discrimination positive aux États- Unis (Paris, Économica, series Études politiques, 2003; François Furet Book Award 2004). It draws on a doctoral dissertation on affirmative action in the United States that I completed at the Institut d études politiques de Paris under the supervision of Denis Lacorne. I thank him and thank again all the persons already mentioned in the acknowledgments of L Égalité par le droit (especially Christophe Jaffrelot for his continuing support). In addition, I would like to thank the editors of the Political Science Quarterly for allowing me to incorporate the bulk of my article, Judicial Uses of Subterfuge: Affirmative Action Reconsidered (PSQ, 18 (3), 2003, pp ) into this larger project. Portions of the book were also presented in various research seminars organized by Ian Carter and David Miller, Virginie Guiraudon, Christophe Jaffrelot, Michèle Lamont, Pap N Diaye, Greg Robinson, Pierre Rosanvallon, Frédéric Sawicki, Rogers M. Smith, Sarah Song, and Laurent Thévenot. I am grateful to them and thank all the participants of these seminars for their comments. Since bits and pieces of this work have served as teaching material for courses that I taught at the Institut d études politiques de Paris from 2000 to 2005 and at the School of International and Public Affairs of Columbia University in 2006, I am also grateful to some of my former students for probing me directly or indirectly to reconsider and sharpen some of my main arguments. They include Costanza Hermanin, Constance Lombard, Sarah Mazouz, Cynthia Mar, Jean-François Mignot, and Irene Xanthoudakis. When I started the research for Equality and Transparency, about ten years ago, I spent half a semester as a Visiting Fellow at the University of Chicago and one academic year as a Visiting Assistant in Research at Yale, where I drew some valuable advice and guidance from conversations with Michael Dawson, Richard Epstein, Bernard Manin, Lynn Sanders, Cass Sunstein,

10 x Acknowledgments Bruce Ackerman, Ian Ayres, Stephen Carter, and Drew Days III. I am indebted to all of them. As I began figuring out what my argument would be and tried to develop it as well as I could, I got some particularly helpful and often encouraging responses from other scholars whose work was a source of inspiration for me, at a time when those encouragements were badly needed. In this respect, I am grateful to John Crowley, Owen Fiss, David Hollinger, Rogers M. Smith, Paul Sniderman, as well as George Fredrickson, Nathan Glazer, Glenn Loury, Anne Phillips, Jeffrey Rosen, and Martin Shapiro, who read or heard me present at least part of this book later on. I also thank the members of the award committee of the François Furet Book Award Jean-Denis Bredin, Jean-Claude Casanova, Pierre Hassner, Françoise Mélonio, Mona Ozouf, Philippe Raynaud, and Pierre Rosanvallon and Palgrave s two anonymous reviewers. Obviously, none of the persons mentioned above bears any responsibility for the content of this book. All shortcomings are my own. Finally, I want to take this opportunity for extending my thanks to some friends and colleagues with whom I have had some particularly lively conversations in recent years on issues more or less directly related to the substance of this book. By their own example, they helped me retain the kind of intellectual enthusiasm necessary for any research worth its name: Myriam Aït-Aoudia, Stéphanie and Richard Balme, Laure Bereni, Olivier Bouquet, Anne Daguerre, Etienne De Durand, Élise Domenach, Philippe Estèbe, Camille Froidevaux-Metterie, Nicolas Guilhot, Thomas Kirszbaum, Éléonore Lépinard, Grégoire Mallard, Ann Morning, Paul Schor, Graziella Silva, Patrick Simon, Sarah Song, and Joan Stavo-Debauge. My special thanks to Valérie Amiraux, Gwénaële Calvès, Muriel Domenach, Agnès Konopka, Bertrand and Isabelle Ouillon, Michelle Pinto, Hayet Zeggar, Céline, Gabriel, Jérôme, and Pascale Sabbagh. Daniel Sabbagh Paris May 21, 2007.