2023-06-30 15:44:59
The Supreme Court of the United States has just put an end to the possibility of using ethnic criteria to promote the entry of certain students into university. This is a good opportunity to ask where we are, in France, with this problem of “positive discrimination” – meaning by this the allocation of a compensatory advantage to a person disadvantaged a priori by his condition.
Our tradition is hostile to this logic. Article 6 of the Declaration of Human Rights proclaims that “all citizens […] are equally admissible to all dignities, positions and public employment, according to their capacity and without any other distinction than those of their virtues and their talents”. As for the first article of the Constitution, it guarantees that France “ensures the equality before the law of all citizens, without distinction of origin, race or religion”.
We still had to not stop there. This has been done for a long time for people with disabilities, to whom no one disputes parking spaces or reserved jobs. Ditto for poverty: it has always been accepted that social criteria justify financial aid from the community (grants, allowances, etc.). With regard to women, it took two successive amendments to the Constitution to be able to discriminate against them “positively”. The first in 1999, to authorize the requirement of parity in elections; the second in 2008 to extend it to the professional and social sphere. As for the prohibition of any distinction based on “origin, race or religion”, it has led to the invention of clever workarounds to deal with the disfavor in which so-called visible minorities can be held. With the approval of the Constitutional Council, we have thus apprehended as such the disadvantaged territories – the difficult suburbs – to offer specific services to their inhabitants, mainly from immigrant backgrounds, without having to discriminate between them on their skin color. or their family history journeys. The famous special entrance examination to Sciences po imagined by Richard Descoings achieved a fine republican synthesis in this respect: it was accessible to (all) children from (only) priority education zones, to whom he put (only ) the foot in the stirrup. They would not have entered Sciences Po without a quota of places reserved on suitable personal evaluation parameters. But it was up to them, once they crossed the threshold, to prove themselves like the others, on equal terms. We refused to “racialize” anyone, but we undertook not to veil our faces about the existence of the objective disadvantage of someone who has neither the head nor the codes of the ordinary bourgeoisie.
Positive discrimination has only temporary virtue
Go further ? We gain by listening to Barack Obama, whose subtlety of analysis is great on these themes. From his speech in Philadelphia in 2008, he had warned against the dangers of resentment: of the resentment that can be felt, in the working class and the white middle class, by those excluded from a precedence or a place granted to others on racial grounds. Real question, especially in this moment of great tension.
Including for the cause of women. Many American feminists have long said that positive discrimination has only temporary virtue: that it is necessary to accustom men’s gaze to the presence of the “weaker sex” to responsibilities from which they were excluded, but that it should not be made to last too long because the risk is disastrous, for women, of seeing themselves denied in their legitimacy to occupy the positions they occupy, if not hated for having obtained them.
These questions should not go under the carpet. Yet this is what Parliament did in 2008 about women by not discussing anything. This is what we continue to do by not really reflecting, on one side or the other, on the intelligent way of apprehending the differentialist claims of the supporters of ethnic or sexual minorities. Here as elsewhere, we give free rein to epidermal reaction, to emotions, to ready-made beliefs, to automatic thought. Where is the devil that we try to forget.
* Denys de Béchillon is a constitutional expert and professor of law at the University of Pau
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