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Contested Terrains of Compensation: Equality, Affirmative Action and Diversity in the United States

Taunya Lovell Banks

In the United States the concept of equality is unstable and relatively indeterminate. Nevertheless, the rhetoric and public discourse surrounding discussions of equality influence legal interpretations of what constitutes compensatory justice. Given the indeterminacy of law, it is unsurprising that there are competing visions of equality in the United States today. The controversy in the United States over what constitutes equality for blacks or African Americans  and other ‘racial minorities’  is one site of this debate. In fact, much of the current public discourse on affirmative action, for example, centres around the meaning of equality. Affirmative action is seen by proponents as a means to achieving a racially just society. Opponents argue, however, that affirmative action undermines equality between racialised groups because race can be used as a decision-making factor. This essay adopts the more cynical view advanced by some critical scholars, namely that affirmative action programs and anti-discrimination law in general are not designed to achieve a racially just society.

(1998) 15(2) Law in Context 110

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