Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law

This book seeks to develop and analyze in detail a key paradox of affirmative action in higher education, employment, and government contracting. This paradox is that the two chief justifications for affirmative action compensation for past discrimination and achievement of diversity each raise difficult problems from the point of view of a coherent, neutral, and universalistic legal determination. In addition, a third possible justification, that of achieving a society that is truly colour blind or without consciousness of race, cannot be achieved by race based affirmative action policies. As a result of this paradox, it is necessary that the justification of affirmative action policies is not transparent. The process must conceal the way in which it is actually carried out, using means that perhaps violate our common ideas of law based on neutral and universalistic standards, as well as our common commitment to merit based selection processes