FORMAL AND SUBSTANTIVE EQUALITY IN THE U.S. AND UK: A COMPARATIVE LEGAL STUDY - Aavani Baiju

Abstract

In the June 2023 decision of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the US Supreme Court ended race-conscious affirmative action in college admissions, making “colorblind” interpretation of the Equal Protection Clause the dominant view. This paper argues that this landmark ruling is an issue beyond domestic law, but is a very telling microcosm of a basic global legal struggle over what equality means. A comparative legal study of US law and the UK’s “positive action” shows substantial differences in legal philosophy. While the US legal system is dedicated to a formal equality model, which does not allow for the use of race as a factor in admissions, the UK, which is influenced by international law, has put in place a “substantive equality” framework which includes the legal practice of “positive action” a set of proportional voluntary measures to redress disadvantage and underrepresentation. The difference is mainly due to different legal and philosophical roots, which inform ideas of equality.

Keywords: Affirmative Action, Positive Action, SFFA v. Harvard, Equality Act 2010, Equal Protection, Formal Equality, Substantive Equality, Comparative Law

INTRODUCTION

This paper is a comprehensive comparative analysis of the legal and policy frameworks that govern race-conscious measures in the United States and the United Kingdom. The recent Supreme Court Ruling in Students for Fair Admission, Inc. V. President and Fellows of Harvard College (SFFA) marks a crucial movement, fundamentally altering decades of precedent and signalling a significant jurisprudential shift. The debate over how to address the historical and ongoing racial disparities in education, employment, and society as a whole has increased. While both nations struggle with these challenges, they have developed different legal and policy mechanisms[1].

By examining their Historical course, core legal doctrines, and underlying philosophical principles, this paper will show a profound divergence between the US and the UK approaches. The US is rooted in a “Colorblind” Formal Equality, while the UK works under a practical, evidence-based substantive equality[2]. This issue is of great import to institutions and corporation’s world over as the legal and practical risks related to DEI initiatives are now very much a function of which jurisdiction you are in.

Despite what is often a-like structure between the U.S. and the UK in terms of legal tools used to address issues of equality, a large philosophical and legal divide exists. This tension is fuelled by an underlying conflict between a “colorblind” strategy that requires race-neutrality in governmental action and a “race-conscious” strategy that aims to address systemic disadvantages[3]. In the United States, the successful undermining of race-conscious college admissions by the SFFA ruling has been translated into a new wave of corporate DEI program litigation.

This has left the law for employers and higher education institutions marked by increased judicial scrutiny and legal uncertainty[4]. On the other hand, within the United Kingdom, institutions have to navigate a sophisticated legal regime that allows for “positive action” to combat disadvantage without falling into the trap of unlawful “positive discrimination”[5][6]. The issue, then, is not so much a legal one but a fundamental philosophical one, and an understanding of this underlying rift is essential to understanding the policy and legal results in both nations.

[1]Roman, E. (no date) SFFA v. Harvard College: Closing the doors of equality in Education, Seattle University School of Law Digital Commons. Available at: https://digitalcommons.law.seattleu.edu/sulr/vol47/iss4/8/