Reproduced with permission of the author
As the U.S. debate over affirmative action seems to grow ever more rancorous and divisive, it seems clear that America desperately needs an infusion of new ideas to address the fundamental problems that affirmative action programs were intended to remedy. Help may be available from a perhaps unexpected source: the legal systems of other countries. Many other multi-cultural democracies have also been struggling to reconcile a commitment to equality with the need to remedy the effects of past discrimination; America might well be able to learn from their experiments, the failures as well as the successes.
India, the world's largest democracy, has developed a legal system that is probably more similar to that of the United States than found in any other country, particularly in the field of constitutional law. But, on the issue of affirmative action, India has boldly explored "the path not taken" in the U.S., identifying more than 3,500 distinct social groups as needing preferential treatment and reserving up to 50% of all new central government jobs for members of these groups. Similar quotas exist for higher education including exclusive medical and engineering schools. This system has been fifty years in the making, going back to explicit provisions in India's constitutional guarantees of equality authorizing government to make "special provision" for "socially and educationally backward classes." In the first three decades selection of groups to receive preferential treatment was left largely to state governments, with the result that the Indian Supreme Court repeatedly struck down plans that seemed primarily to benefit politically powerful groups or that were based on traditional assumptions of caste-based prejudice without empirical research to show which groups were truly in greatest need. Then in 1980 a nationwide survey was conducted by a presidential commission that used a variety of empirical factors to define groups in need, including social discrimination, educational deprivation and economic status, producing the list of 3,500 "backward classes." Proposed implementation in 1990 was delayed by protests from high-caste Hindus, both in the streets and in the courts, but is now moving forward since the Indian Supreme Court issued a comprehensive decision in 1992 largely approving the commission's proposals.
Twenty years ago one man, Justice Lewis Powell, determined the course of American law on equality by rejecting two arguments for using quotas to increase medical school admissions from racial minority groups. In the Bakke case there were four votes to hold that such quotas were constitutional because (1) they were necessary to remedy the effects of past societal discrimination, and (2) the use of racial categories in that context was "benign," stigmatizing neither the beneficiaries of the program nor those ineligible for it. Looking at India's bold experiment might prompt reconsideration of the position that fell only one vote short in Bakke: that the effects of societal discrimination should be taken into account and that affirmative action can be designed in ways that avoid the harmful effects of racial categorization.
Among the many useful lessons that might be learned from looking at India's experience, in this essay we focus on the topic of how beneficiary groups to receive affirmative action should be selected and defined by generalizing the principles of the Indian approach and then putting them into the U.S. context with the benefit of current social science research. To illustrate this discussion we use as our "test case" the problem of admission to law school and conclude with a concrete proposal to research whether a system of group-based preferences for admission could be designed based entirely on neutral, empirical principles that were responsive to systemic effects of societal discrimination and yet did not perpetuate racial division and stigmatization.