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There is no rigorous definition of affirmative action. This Article argues that this remarkable circumstance has distorted and undercut American antidiscrimination law.

Though affirmative action is vigorously and widely debated, it has not been defined in the rigorous manner legal commentators would normally demand. Rather, commentators have deferred to policymakers' descriptions of affirmative action programs and employed those “definitions” to set the terms of policy debates over the propriety of affirmative action. Typically, commentators take for granted that affirmative action is “discriminatory” and seek to justify its use in certain contexts. This approach is also prominent in the United States Supreme Court's jurisprudence, beginning with it's Bakke decision, which equates racial classification with discrimination. Since Bakke, the Court has consistently equated “discrimination” with racial (or other) “classification,” focusing its energies on whether “discrimination” in justified. By assuming away the key “causation of harm” question, this approach renders discussions of affirmative action open-ended policy debates that turn on competing views of the value of particular affirmative action programs. This framework is duplicated in Grutter and Gratz which continue a flawed approach to affirmative action litigation that signals reduced requirements for affirmative action opponents than other discrimination claimants.

This Article develops a more rigorous definition of affirmative action around the question of discrimination, as such. The particular claim is that affirmative action disputes occur in and can be defined as being limited to situations in which neither of two traditional approaches to identifying discrimination are applicable. Affirmative action disputes thus occur in “hard” discrimination cases where the Court's and commentators' policy-based definitions have the effect of validating, as neutral, objective decision-making devices, even those decision-making bases that are strictly underdeterminative. From this perspective, affirmative action is revealed to always be about the use or abandonment of such underdeterminitive selection criteria. Attacks on affirmative action plans are less about clear-cut discrimination against one group or another than about validations of these criteria in contexts where they do little work. This problem can be mostly ameliorated by simply focusing affirmative action cases on the question of causation. Since that inquiry already typifies discrimination litigation, such a move would eliminate the perceived double standard between those areas of law, while also stemming the ongoing assault on the antidiscrimination principle that affirmative action challenges ironically represent.

Publication Citation

78 Tul. L. Rev. 2117 (2004).