Affirmative Action and the New Discrimination: A Reply to Duncan Kennedy

There is presently a great deal of scholarly debate concerning affirmative action within the legal academy. It is with some trepidation that I attempt to make a contribution to this debate. This is due to an awareness of my own uncertainty regarding the subject. Although I am firmly convinced that affirmative action should be legally permitted, I have no such strong conviction with regard to its moral features. At present, I find myself genuinely puzzled as to whether affirmative action is, in principle, morally obligatory, merely morally permissible, or morally forbidden. I have, however, long harbored a suspicion that there is something wrong with affirmative action as it is currently practiced in the hiring of law faculty. This suspicion has recently crystallized into a more definite form’ which accounts for my willingness to enter the lists on this subject.