Bottlenecks and Antidiscrimination Theory

Authors

Samuel R. Bagenstos, University of Michigan Law SchoolFollow

Document Type

Review

Publication Date

2014

Abstract

In American antidiscrimination theory, two positions have competed for primacy. One, anticlassification, sees the proper goal of antidiscrimination law as being essentially individualistic. 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. 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 Education can bear both an anticlassification and an antisubordination reading. Loving v. Virginia expressly relied on both anticlassification and antisubordination arguments. But on other key issues—such as disparate impact and affirmative action—advocates of anticlassification theory have squared off against advocates of antisubordination theory.

Recommended Citation

"Bottlenecks and Antidiscrimination Theory." Review of Bottlenecks: A New Theory of Equal Opportunity, by J. Fishkin. Tex. L. Rev. 93, no. 2 (2014): 415-35.