Wednesday, November 25, 2015

Khaitan on Discrimination Law

Andrew Koppelman

Tarunabh Khaitan’s valuable book, A Theory of Discrimination Law, proposes a general account of a type of law that now can be found in many countries.  He proposes four conditions which are individually necessary and cumulatively sufficient to make a norm of discrimination law: the norm should have some connection with a ground that divides all persons between two or more groups, at least one of whose members must be significantly more disadvantaged in relation to members of another group defined by the same ground; and the norm must be designed to distribute the direct substantive benefits or burdens in question to some, but not all, members of a protected group.  The book analytically disaggregates the elements of antidiscrimination law thus defined.  It also aims to specify the conditions under which it makes sense for such a law to operate.  The consequence is a work that is both analytic and normative.  It is executed with admirable care.  It convincingly establishes that this kind of law is a transnational phenomenon with distinctive characteristics. 

The book is impressive but somewhat frustrating.

Chapter Five is entitled “The Point of Discrimination Law.”  That point, Khaitan thinks, is to make an adequate range of valuable opportunities available to everyone.  But he observes, as many commentators on antidiscrimination law do not, that only some members of the protected group benefit from the law.  This point is worth emphasizing.  William Julius Wilson noted long ago that both antidiscrimination law and racial preferences benefit the black people who are best qualified, and so have been least injured by racism.  (The Truly Disadvantaged 109-24 (1987).  So the benefit to a limited number of people must lead to some benefit to all the members of the group.

This benefit, Khaitan thinks, is a general elimination of discriminatory behavior.  “It is only the cumulative effect of a critical mass of such [legal] actions, including the deterrent effect of the threat of these actions and the internalization of the antidiscrimination norm, which systematically connects the antidiscrimination duty with its broader purpose of ameliorating relative group disadvantage.”  (192-93)  If this broader purpose is understood, then it is possible to dispel certain characteristically American confusions that regard discrimination as an ordinary tort, like carelessly breaking someone’s leg, and focusing exclusively on the intentions of the alleged discriminator.  The legitimacy of antidiscrimination law depends on “its assumptions about a complex, dynamic, and contested set of social facts.”  (246)

This is a valuable corrective to the Supreme Court’s tendency, noted long ago by Alan Freeman, to regard discrimination as merely "the misguided conduct of particular actors" in "a world where, but for the conduct of these misguided ones, the system of equality of opportunity would work to provide a distribution of the good things in life without racial disparities and where deprivations that did correlate with race would be 'deserved' by those deprived on grounds of insufficient 'merit.'"  (Legitimizing Racial Discrimination Through Antidiscrimination Law, 62 Minn. L. Rev. 1049, 1054 (1977).)  The demand that any civil rights claimant show that he is the individual victim of intentional discrimination implies "that Black Americans can be without jobs, have their children in all-black, poorly funded schools, have no opportunities for decent housing, and have very little political power, without any violation of antidiscrimination law."  (1050) 

Khaitan’s correction, however, does not answer Wilson’s concern.  Even if deterrence is perfect and discrimination is eliminated – even if unconscious, discriminatory behavior is eliminated - discrimination might not be the only reason why the group is systematically disadvantaged.

In the contemporary United States, for example, discrimination is certainly one reason why so many black Americans are poor and marginalized.  But another is the continuing consequence of a long history of marginalization, the social consequences of a punitive war on drugs, and the disappearance of industrial jobs in the rust belt. The consequence is a self-sustaining pattern of disadvantage that itself is a powerful driver of racism.  In obstetrics wards on the south side of Chicago right now, there are newborn boys who, we can feel confident, will commit stupid, pointless homicides in 16 years, and others who will be the victims of those homicides.  The high crime rate among African-Americans itself reinforces old American tropes about black male dangerousness.  Stopping discrimination won’t stop this from happening.  It would require intervention on a massive and expensive scale, of a kind that the United States today shows no interest in.  (We don’t know enough about what kinds of intervention would work, but we’re not investing much in the way of resources to find out.)  The conditions Freeman described in 1977 are still with us.  No clarification of or change in antidiscrimination law is likely to fix it.

I argued, in my book Antidiscrimination Law and Social Equality, that discrimination law only makes sense as part of a larger project of changing cultural norms to eliminate such malign ideologies as racism and sexism.  Those ideologies, and patterns of group disadvantage, form a self-sustaining cycle, in which each reinforces the other.  Discrimination law can only be one element of the larger project of disrupting this cycle of reproduction of a racist social reality.  It can’t do the job itself.  A theory of medical care presupposes a theory of disease.

Khaitan acknowledges this. “The antidiscrimination duty, even when effectively implemented, is likely to make but little impression upon relative group disadvantage, and at best prevent its exacerbation. The reason is simple. In order to make its imposition legitimate in a liberal state, the duty had to be action-regarding and wrong-sensitive, and limited to a small set of duty-bearers. ... Given these limitations, its impact on abiding, pervasive, and substantial advantage gaps between groups is likely to be small. This does not, of course, make the duty pointless. It plays an important role in seeking to ensure that this advantage gap does not widen. Group dominance is self-reinforcing. If the duty just manages to resist its expansionary pressures, it would be successful. But that merely maintains the status quo, which is freedom-inhibiting, even as it prevents it from worsening. Unraveling relative group disadvantage will take more than successful internalization of the antidiscrimination duty by its bearers. It calls for a good deal of affirmative action.” (216-7) It is for this reason that he underscores the “importance of acknowledging the conceptual and normative continuity not only between the prohibition on direct and indirect discrimination but also between this prohibition on the one hand and the provision for affirmative action on the other.” (165)  But of course affirmative action won’t end relative group disadvantage either.

Khaitan notes at the end of his book that there might be, outside his data set, “countries that have sought to address the problem of relative group disadvantage through tools entirely distinct from (and, perhaps, more effective than) discrimination law.”  (249)  This raises a serious question about the point of discrimination law.  It may be that discrimination law aims at remedying group disadvantage, and does so, but less effectively than other tools.  If this is so, than any defense is radically incomplete.  High fructose corn syrup is a way of preventing death by starvation.  The body must have glucose, but that is not a defense of high fructose corn syrup, because there are other ways of preventing starvation and delivering glucose that are far healthier.  Sometimes discrimination law is the right tool for the job.  Sometimes it isn’t.  A theory of discrimination law ought to be able to tell us which is which.

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