Defending Two Concepts of Discrimination: A Reply to Simons
UVA Law Faculty Affiliations
In the pages of this Law Review, Professor Kenneth Simons kindly pays me the compliment of serious and sustained engagement with, and critique of, my article Two Concepts of Discrimination (hereinafter “Two Concepts”). In what follows, I return the compliment. While I think that Simons offers some important challenges, I argue that the heart of his critique rests on a confusion. In Two Concepts, I argue that there are two distinct ways of understanding the wrong of discrimination that animate equal protection doctrine. On one conception, discrimination is a comparative wrong and on the other, discrimination is a noncomparative (or what I term “independent”) wrong. Professor Simons’s main objection is that he thinks discrimination is always a comparative wrong and thus that my attempt to characterize aspects of the doctrine as resting on the noncomparative conception of discrimination is incoherent. In his view, there are not two concepts of discrimination, only one.