Academic journal article Texas Law Review

Bottlenecks and Antidiscrimination Theory

Academic journal article Texas Law Review

Bottlenecks and Antidiscrimination Theory

Article excerpt

Bottlenecks and Antidiscrimination Theory BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY. By Joseph Fishkin. New York, New York: Oxford University Press, 2014. 288 pages. $35.00.

Introduction

In American antidiscrimination theory, two positions have competed for primacy.1 One, anticlassification, sees the proper goal of antidiscrimination law as being essentially individualistic.2 The problem with discrimination, in this view, is that it classifies individuals on the basis of an irrelevant or arbitrary characteristic-and that it, as a result, denies them opportunities for which they are otherwise individually qualified. The other position, antisubordination, sees the proper goal of antidiscrimination law as being more group oriented.3 The problem with discrimination, in this view, is that it helps constitute a social system in which particular groups are systematically subject to disadvantage and stigma. Anticlassification and antisubordination may provide equal support for some aspects of the antidiscrimination project: Brown v. Board of Education4 can bear both an anticlassification and an antisubordination reading.5 Loving v. Virginia6 expressly relied on both anticlassification and antisubordination arguments.7 But on other key issues-such as disparate impact and affirmative action-advocates of anticlassification theory have squared offagainst advocates of antisubordination theory.8

The stakes in the dispute between anticlassification and antisubordination thus have appeared to be quite high.9 Yet there is something that seems inadequate about both anticlassification and anti-subordination theories. Adherents to anticlassification theory have not given a good explanation for why an individualist should care about race or sex discrimination any more than discrimination based on eye color, for example. Any explanation of this difference seems necessarily to fall back on the historic wrong and continuing effects of discrimination against racial minorities and women-and the need to continue to disestablish that wrong and those effects. Anticlassification theory thus seems, at bottom, to be rooted in antisubordination-like principles.10 Antisubordination theory, by contrast, has uncomfortable overtones of group rights, which stand in tension with widespread notions of individualism and merit and which threaten to further underscore and entrench divisions based on race and sex.11 As Reva Siegel has shown, key Supreme Court Justices have responded to that threat by developing a third approach to antidiscrimination theory; an approach she labels antibalkanization.12 But antibalkanization may be best understood as a pragmatic set of ad hoc compromises between anticlassification and antisubordination, rather than a theory on which to build antidiscrimination law.

One of the many contributions of Joey Fishkin's impressive new book is to offer a possible way out of this morass. Professor Fishkin offers an "anti-bottleneck" theory of equal opportunity. Like anticlassification theory, Professor Fishkin's theory is fundamentally individualistic. The theory aims to attack or mitigate the effects of practices that keep individuals from pursuing the full range of opportunities to construct and live out their lives as they choose. Professor Fishkin argues that the fundamental value served by equal opportunity is not equality so much as a form of autonomy or choice.13 He contends that we care about equal opportunity because we care about ensuring that people can, to the extent possible, be the authors of their own life stories-that they can formulate, and have means to reach, their own goals for a life well lived.14 Rather than simply redistributing resources and opportunities to equalize people's chances of fairly competing for or obtaining a set of societally valued outcomes, Professor Fishkin argues that we should structure society so that individuals can effectively choose what sorts of lives and outcomes they value. …

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