Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law (CERI Series in International Relations a)

268 Pages·2007·1.09 MB·English

by  Daniel Sabbagh

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Equality and Transparency
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The CERI Series in International Relations and
Political Economy
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With Us or Against Us: Studies in Global Anti-Americanism
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Vietnam’s New Order: International Perspectives on the State and Reform in Vietnam
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Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law
by Daniel Sabbagh, translated by Cynthia Schoch and John Atherton.
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Equality and Transparency
A Strategic Perspective on Affirmative
Action in American Law
Daniel Sabbagh
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EQUALITYANDTRANSPARENCY
Copyright © Daniel Sabbagh, 2007.
All rights reserved. No part of this book may be used or reproducedin any
manner whatsoever without written permission except in the case ofbrief
quotations embodied in critical articles or reviews.
First published in 2007 by
PALGRAVE MACMILLAN™
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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-13: 978–1–4039–6382–6
ISBN-10: 1–4039–6382–7
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 1–4039–6382–7 (alk. paper)
1. Affirmative action programs—Law and legislation—United States.
2. Affirmative action programs—Social aspects—United States. I. Title.
KF4755.5.S2233 2003
342.7308(cid:2)7—dc22 2007002657
A catalogue record for this book is available from the British Library.
Design by Newgen Imaging Systems (P) Ltd., Chennai, India.
First edition: September 2007
10 9 8 7 6 5 4 3 2 1
Printed in the United States of America.
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For Kahina
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C O N T E N T S
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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A C K N O W L E D G M E N T S
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 poli-
tiques 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 sup-
port). In addition, I would like to thank the editors of the Political Science
Quarterlyfor allowing me to incorporate the bulk of my article, “Judicial
Uses of Subterfuge: Affirmative Action Reconsidered” (PSQ, 18 (3),
2003, pp. 411–436) 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,