Mark S. Weiner

Between India and France

In Affirmative action, Constitutional law, Cross-cultural encounters & comparisons, France, India, Race on October 1, 2012 at 10:52 pm

The U.S. Supreme Court has begun its new term (it does so the first Monday of each October), and it soon will hear oral arguments in the case of Fisher v. University of Texas. The Court’s decision in the case could be a turning-point in its jurisprudence of affirmative action, and perhaps a political turning-point for the nation. At issue is the legality of using race as a basis for preferring one candidate over another in college and university admissions.

A great deal has and will be written about the doctrinal questions at issue Fisher, particularly how the case differs from those the justices have considered in previous disputes about racial preferences. I’d like to offer a global, comparative view.

The issue in Fisher, in essence, is whether from a constitutional perspective the United States ought to resemble India or France. For years, the United States has pursued a middle course between the two nations with regard to race-based preferences. The current Court is now likely to hold that the United States ought to resemble France—which will be something of an irony given the Court’s conservative majority (conservatives in the United States not being known for their Francophilia).

India and France represent two poles in the global constitutional debate about race-based preferences. The constitutions of both nations advance the principle of equality as a basic value—they assert that like persons ought to be treated alike. But the countries understand the meaning of equality in fundamentally different ways.

The Indian constitution presents what might seem like a contradiction. Article 15 ensures that the state “shall not discriminate against any citizen on grounds only of religion, race, caste, sex, [or] place of birth” (emphasis added). Article 14 more generally guarantees that the state “shall not deny to any person equality before the law or the equal protection of the laws”—thus echoing Amendment 14 of the U.S. Constitution, which guarantees that “no person” shall be denied “the equal protection of the laws.” These provisions might seem to suggest that the Indian government can never lawfully distinguish between people on the basis of race or caste.

But thanks to the constitution’s founding father, B. R. Ambedkar, the Indian constitution positively requires such discrimination in favor of traditionally subordinate groups (see Articles 330-42). In legislative representation, civil service employment, and university admissions, a significant percentage of positions are set aside for what in American terms would be deemed racial minorities. If the United States followed Indian principles in the realm of higher education, fifteen percent of spaces in public universities would be reserved for Latino applicants (the number would be much higher in western states if the policy were implemented on a state-by-state basis). Thirteen percent of spaces would be reserved for African-American applicants. If Germany followed the same path, five percent of its university positions would be reserved for Turks or Germans of Turkish descent.

France takes the opposite course. The principle that race should never be used as a basis for distinguishing between citizens is so strong that the nation doesn’t even keep official race-based statistics for demographic purposes. Want to know what percentage of the French prison population is of Algerian descent? Don’t ask the state. The use of race to distinguish one citizen from another is regarded as such a derogation of human dignity that such statistics aren’t gathered.

This thoroughgoing color-blindness has deep roots in French constitutionalism. The Declaration of the Rights of Man (1793) guarantees that all citizens are equal before the law, “equally admissible to all public dignities, public positions and occupations, according to their capacity and without distinction other than that of their virtues and of their talents.” The Constitution of the Fifth Republic ensures that citizens are equal before the law “without distinction based on origin, race, or religion.”

Although France recently explored the possibility of adopting American-style, race-based affirmative action programs in its elite universities (and explored the possibility, too, of amending its constitution to allow such preferences), the idea was rejected. The French state knows no distinction between persons based on race.

The United States has long taken a middle course between India and France with regard to race and race-based preferences. The Court has allowed preferences in some contexts and under certain circumstances but disallowed them in others. Within the narrow conditions sketched by the Court in its 2003 decisions in Grutter v. Bollinger and Gratz v. Bollinger, preferences have been permitted in higher education admissions, but with limits. Although quotas like those used in India are forbidden, university admissions officers can take race into account as a factor in an overall “holistic” evaluation of each individual applicant’s file.

As applied to the higher education context, the American constitution thus has been neither Indian nor French. The Fisher case will go a long way toward determining whether America will continue to plot this middle course, or whether—as is likely—it will pursue a course consistent the policies of a nation many conservatives regard as anathema. In this, Fisher will no doubt offer one of the many ironies that come into view when one regards constitutional law from a comparative perspective.

  1. Great post !

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  2. Any thoughts with regard to post-admission affirmative action and why the US only seems to track some races and not others?

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    • It’s an interesting question, Adam. Race preferences are used in colleges and universities beyond the point of admissions in transparent and covert ways. They don’t really pose significantly different constitutional issues as affirmative action in admissions. But the fact that they are not part of the public discussion of affirmative action, and the fact that they are sometimes practiced in less-than-frank ways, indicates the profound ambivalence many people have about affirmative action more generally–hence, we are between India and France.

      That higher educational institutions track certain races rather than others is partly a question of which racial groups are perceived to be in special need of institutional assistance; but the fact that Asian Americans are negatively affected by affirmative action programs more than any other group is another indication of the complex way the issues plays out in the United States. On one view, “positive” race-discrimination raises the same political concern as invidious, negative discrimination: that certain racial groups can use the political process to benefit themselves as _groups_, to the detriment of (in this case other) minorities.

      There are of course other surprises in affirmative action beyond the race context, too. For instance, in college admissions young men benefit profoundly from sex-based affirmative action. Of course, there are very good reasons why the American constitution should have an easier time with sex- as opposed to race-based preferences; I just point it out to highlight some ironies and complexities of the contemporary use of group preferences.

      What’s your view? Should the US take a cue from India and interpret the Constitution as allowed the frank use of race-based preferences not only in admission but in employment, or should we understand our Constitution to embody the French view–essentially a per se rule against classifying individuals and distributing benefits and burdens on the basis of race?

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  3. Great article. What is interesting about France is that while the state refuses to acknowledge race in an official capacity (not maintaining records on different racial groups and minorities), the state has a very hard time embracing its diversity and the political and social institutions still reflect the elitist tradition in France. The political and legal institutions in France do not reflect the 21st century demographics of the country and the most of the political parties fail to do this as well with the exception of the far right and the far left groups that propose very different solutions to their race problem (i.e. the far right defines it’s race problem as an “immigration” problem).

    I think it is admirable that France’s principles are founded on a color blind approach but the state’s policies towards minorities (which it still deems as immigrants after decades of these groups living in France) are incredibly problematic.

    It’s worth noting that Sciences Po, the elite school that trains French politicians and bureaucrats introduced a program 10 years ago called ZEP. This program was similar in nature to affirmative action as Sciences Po would set a side a number of seats for students from the Parisian suburbs (where the disenfranchised minority groups live). The program was highly controversial and deemed incongruent with France’s educational policies. But from personal experience, the program really did bring students of color into the school which was traditionally attended by elite French students and connected international students.

    Oddly, I find that the US is having similar conversations about citizenship that have been taking place in France or other parts of Western Europe for the past few decades. Thanks for posting!

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    • Hi Samira, thanks for your reply. The ZEP program at Sciences Po is interesting because as I understand it it’s based on economic rather than explicitly racial criteria, yes? And as you suggest the grandes ecoles generally have resisted this type of program for fear of diminishing standards and status.

      For those reading this reply who don’t know about the institutions, here is a piece from the NYT published a few years back: http://www.nytimes.com/2005/12/18/international/europe/18france.html?pagewanted=all.

      And here is an article about Sciences Po: http://www.nytimes.com/2011/09/05/world/europe/05iht-educLede05.html?pagewanted=all.

      The French case is especially interesting because the grandes ecoles take up such a vastly disproportionate degree of government funding. I wish I could find the statistics, but I remember seeing them some years ago and gasping at the difference in the cost-per-student between the grandes ecoles and the universities which most French citizens attend–and, more fundamentally, the percentage of government higher-education resources that are directed toward the most elite institutions (don’t quote me on this, but it’s something like 30 percent of higher education funding in France goes to 5 percent of the students).

      Such a difference isn’t concerning in itself (after all, quality education is an expensive product; it costs more per student at Harvard than at Chico State), but tuition in France is (in American terms) negligible, making the grandes ecoles that train the French “republican” elite a vast redistributive program that transfers wealth upward.

      In any case, the French political and constitutional opposition to race-based and other forms of affirmative action (Sarkozy the American is a notable exception) makes the social consequences of color-blind admissions especially significant. As Anatole France once noted, the law in its majestic equality makes it a crime for both rich and poor to sleep under bridges at night and to steal bread. But in exchange, the grandes ecoles are truly grand, and they train an extraordinarily talented group of people to the highest standards–standards that are now eroding in great Indian universities in part as a consequence of the strict reservation system.

      In coming years these differences in affirmative action policy will be especially interesting to see played out as the higher education market becomes ever more globalized and universities compete for students on world stage. As a result, “consumer” demand will run up against the profound differences in constitutional approaches to race discrimination and affirmative action–and students will encounter the worlds of law in a way that affects them very personally.

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  4. Cheese-eating surrender monkeys, indeed! I’m forwarding this immediately to my neo-con friends.

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