ABSTRACT
This chapter lays out two conceptions and explores how the law of many legal orders treats affirmative action as discrimination, which may or may not be justified. It explores this conceptual framework, and argues that it fundamentally misapprehends the essential features of discrimination. Affirmative action has been attacked on the grounds that it violates meritocratic norms, that it stigmatizes its beneficiaries, and that it causes social division. Categorizing an act or policy as discrimination does not necessarily make it legally or morally invalid (cf. Introduction). The chapter argues that the imperative to treat individuals as individuals is inadequate to explain what's morally wrong with the paradigmatic form of discrimination, i.e., the exclusion of African Americans through segregated public institutions. Discrimination fails to respect each individual's capacity for freedom, but as an historic matter, the actual forms of race and sex discrimination enacted other, more serious moral wrongs.
