Substantive Equality and Equal Opportunity: A Jurisprudential Appraisal

Abstract

The belief in equality of opportunity ranks among the most deeply entrenched tenets of American political ideology.1 Equality of opportunity has been recognized in numerous Supreme Court protection decisions2 and is mandated by significant legislation.3 Upon examination, however, the concept of equality of opportunity proves to be elusive and paradoxical. In his recent and thoughtful article, Peter Westen proposed to resolve the mystery of opportunity by breaking it down into its constituent elements.4 According to Professor Westen, the mystery vanishes once we understand that the concept of opportunity denotes a formal relationship rather than a particular state of affairs,5 and that equal in the context of opportunity is purely derivative.6 Professor Westen defines an opportunity as an agent's chance to attain a goal in the absence of a specified obstacle or set of obstacles.7 Equal opportunity, then, means no more than a class of agents having the chance to attain the same goal in the absence of the same specified obstacle or set of obstacles.8