Canada Seminar

"No One Is Like Them": The Limits of Substantive Equality

Stobo Sniderman, SJD Candidate, Harvard Law School

Moderator: Amit Singh, SJD Candidate, Harvard Law School

Stobo Sniderman is a doctoral candidate at Harvard Law School and co-author of the bestselling book Valley of the Birdtail: An Indian Reserve, a White Town, and the Road to Reconciliation (HarperCollins, 2022). He has argued before the Supreme Court of Canada, served as human rights policy advisor to the Minister of Foreign Affairs, and worked for a judge of South Africa's Constitutional Court.

Amit Singh is a doctoral candidate at Harvard Law School. Amit writes about private law, constitutional law, and legal philosophy. Before coming to Harvard, Amit studied law and philosophy at Yale and the University of Toronto.

This paper contemplates claims for substantive equality by claimants characterized by substantial divergence in their underlying goals. I seek to identify the limits of substantive equality in theory, as well as to illustrate these limits in a vexing class of cases about public services on Indian reserves. I advance the following theoretical claim about an internal limit to substantive equality in cases of disparate impact: to the extent substantive equality counsels unalike treatment on the basis of difference, the unalike treatment is bounded by the pursuit of common goals. On this view, there is only so much differential treatment equality can justify. Drawing on Isaiah Berlin’s conception of value pluralism, I argue that equality ends where incommensurability begins. In practice, this is to ask the following kind of question: What does it mean to claim a substantively equal education when Indigenous claimants have radically different conceptions of what makes a good education? I suggest that in some such cases the idea of substantial equality approaches the limits of the analytical and remedial work it can do, even while conceding that my invocation of incommensurability is a stylized asymptote which even my harder cases strain to meet. 

Two significant implications follow. First, courts should adopt a posture of remedial deference to equality claimants who are sufficiently divergent in their underlying goals. This runs counter to the more habitual judicial habit of deference to government defendants in the design of appropriate remedies following findings of discrimination. Second, just as legal claims for substantive equality have limits, framing the problem of unequal services on reserves in terms of racial discrimination similarly has limits. An American Supreme Court case from 1972, Morton v. Mancari, suggests an alternative approach, wherein Indigenous Peoples are treated as a “political” group worthy of self-determination, rather than a racial group entitled to mere equality. Mancari arises in a fundamentally different backdrop of U.S. constitutional law, but this makes explicit that which is only subtly implied in Canadian law. Something is lost when deficient treatment of Indigenous people on reserve is framed as racial discrimination, and something is gained when it is framed in ‘political’ terms, to borrow the use in Mancari. One claim foregrounds equality, the other self-determination. To cast the harm in a broader, ‘political’ way is to escape the confines of equality and to more frankly confront the nature of the distinct groups making claims, as well as the nature of the remedies that are required.