INTRODUCTION

This chapter sets out to defend race-conscious affirmative action as a requirement of the three-dimensional model of equal opportunities as a regulative ideal. As in the previous chapter on race and social policy, my discussion is nested in an American context. I shall follow Paul Brest and Miranda Oshige and understand affirmative action to mean the following: “An affirmative action program seeks to remedy the significant underrepresentation of members of certain racial, ethnic, or other groups through measures that take group membership or identity into account.” For our purposes, in competitions for scarce goods such as jobs or university places, affirmative action programmes are significant because they allow the race or ethnicity of certain targeted groups to count as a plus factor for individual applicants in the allocation of those goods. This emphasis on race as a plus factor in competitions should be carefully differentiated from the proposal that a certain proportion, or quota, of jobs or university places should be set aside for racial minorities. Although quotas are often associated with affirmative action programmes, race-conscious affirmative action programmes in the United States and indeed elsewhere are predominantly of the plus-factor type. And it is this type I intend to explain and defend here.

Although plus-factor affirmative action has been public policy in the United States for more than thirty years, it remains very controversial and has served as a lightning rod for the complex relationship between law, equality of opportunity, and the construction of race.