Who's in and Who's Out? Confronting the 'Who Question' in Affirmative Action: Can We Learn from India's Answer?

74 Pages Posted: 24 Mar 2006 Last revised: 26 Jun 2013

See all articles by Sean A. Pager

Sean A. Pager

Michigan State University - College of Law

Date Written: March 12, 2006


Who should be the beneficiaries of affirmative action? Despite intense controversy surrounding such programs, we rarely ask the "Who Question" in the United States, and courts have struggled to find adequate answers. By contrast, India has developed a sophisticated methodology to determine beneficiaries through empirical analysis of societal disadvantage. This Article highlights the inadequacy of this country's equal protection jurisprudence to resolve the definitional conundrums underlying the "Who Question." It also investigates the feasibility and desirability of applying Indian methodology as an alternative. And it uses India's contrasting example as a lens to examine ambiguities and unarticulated values embedded in American affirmative action jurisprudence. The Article argues that India's model does not provide a workable answer to the "Who Question," and it suggests more modest definitional uses of Indian methods. Finally, the Article explores whether the "Who Question" should be decided by courts or political bodies, and proposes a hybrid solution.

Keywords: Affirmative Action, Equality, Race, Beneficiary Selection, Eligibility, Classification, Racial Categories, Equal Protection, India, Preferences, Ethnicity, National Origin, Prejudice, Disadvantage, Subordination, Disparity Testing, Underrepresentation, Empirical Analysis, Croson, Discrimination

JEL Classification: J70, K10

Suggested Citation

Pager, Sean A., Who's in and Who's Out? Confronting the 'Who Question' in Affirmative Action: Can We Learn from India's Answer? (March 12, 2006). Indiana Legal Studies Research Paper No. 50, Available at SSRN: https://ssrn.com/abstract=890317 or http://dx.doi.org/10.2139/ssrn.890317

Sean A. Pager (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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