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Equal Opportunity, Affirmative Action, and the Anti-Discrimination Principle: The Philosophical Basis for the Legal Prohibition of Discrimination


John Hasnas


Georgetown University - Robert Emmett McDonough School of Business; Georgetown University Law Center

2002

Fordham Law Review, Vol. 71, November 2002

Abstract:     
This article provides a comprehensive examination of the philosophical history and the moral foundations of American anti-discrimination law. Both the Equal Protection Clause and the Civil Rights Act are designed to embody a fundamental moral principle, the anti-discrimination principle. The article begins by identifying three different interpretations of this principle: the anti-differentiation interpretation that prohibits unequal treatment on the basis of irrelevant characteristics, the anti-oppression interpretation that prohibits the oppressive unequal treatment of minorities, and the anti-subordination interpretation that prohibits conduct that has the effect of subordinating or continuing the subordination of minorities. It then traces the history of the Equal Protection Clause and the Civil Rights Act, demonstrating 1) that the Equal Protection Clause was originally understood as an anti-oppression principle, that over the course of the twentieth century it evolved into an anti-differentiation principle, and that over the last three decades it was again transformed into a fluctuating mix of these two interpretations, and 2) that the Civil Rights Act was originally understood as an anti-differentiation principle but quickly shattered in a confused amalgam of anti-oppression, anti-differentiation, and anti-subordination principles. The article proceeds by performing a normative analysis of both provisions to demonstrate that the Equal Protection Clause is properly interpreted as an anti-differentiation principle and the Civil Rights Act is properly interpreted as an anti-oppression principle. Finally, it provides an explanation for the ideological strife over the issue of discrimination for the past three decades and draws some implications about how both the Equal Protection Clause and the Civil Rights Act should be interpreted in the future.

Number of Pages in PDF File: 122

Keywords: Discrimination, Equal Opportunity, Affirmative Action, Equal Protection Clause, Civil Rights Act, Antidiscrimination principle

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Date posted: October 28, 2002  

Suggested Citation

Hasnas, John, Equal Opportunity, Affirmative Action, and the Anti-Discrimination Principle: The Philosophical Basis for the Legal Prohibition of Discrimination (2002). Fordham Law Review, Vol. 71, November 2002. Available at SSRN: http://ssrn.com/abstract=334720 or http://dx.doi.org/10.2139/ssrn.334720

Contact Information

John Hasnas (Contact Author)
Georgetown University - Robert Emmett McDonough School of Business ( email )
3700 O Street, NW
Washington, DC 20057
United States
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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