Who’s In and Who’s Out? Can India’s Answer Help Us Determine Who Qualifies for Affirmative Action?


Who should be the beneficiaries of racially targeted affirmative action? In its Croson decision, the Supreme Court answered part of the “Who Question” when it conditioned affirmative action eligibility on underrepresentation. What the Court did not tell us was underrepresentation of whom? The Court thus instructs us to select beneficiary groups by counting heads, but leaves open which heads get counted where and what categories to use.

By artificially separating what are necessarily related inquiries, the Court left a definitional lacuna that lower courts have struggled to fill. Such definitional issues matter because they often determine who benefits from affirmative action. Yet, the inconsistent approaches and conflicting outcomes in recent case law reveals the inadequacy of current doctrine to resolve such issues.

While commentators have largely ignored the Who Question in the US, recent comparative scholarship has drawn attention to empirical methodologies used in India. In contrast to the particularized discrimination targeted by Croson, India has explicitly adopted a societal approach to affirmative action that relies on empirical data to identify subordinated groups through sociological analysis. A recent amicus brief filed before the US Supreme Court suggested that the US adopt India’s model as the answer to our Who Question.

This Article critiques the amicus proposal, arguing that India’s approach does not provide a workable solution. Nor would it be desirable even if it could. Pressing the ambiguities of race would expose the normative incoherence of affirmative action in a way that would prove politically untenable. However, even if India’s model cannot help us answer the “Who Question,” it does have some more modest uses. It offers both a definitional tool to improve the categories we count with and a model for allocating decisional authority between courts and political actors.


Civil Rights and Discrimination | Comparative and Foreign Law | Constitutional Law | Government Contracts | Law and Society

Date of this Version

March 2006