Via Workplace Prof, Yeshiva (Cardozo) University Law Professor Julie Suk has expanded on this point in a forthcoming article appearing volume 55 of the American Journal of Comparative Law. Here's the abstract:
In Fall 2005, race riots in France drew attention to differences between the French and American legal regimes for remedying racial inequality and discrimination. The riots reacted to the persistence of employment discrimination against people of North African origin. French antidiscrimination law has been unable to solve such problems because of its focus on criminal punishment of racist speech and its uncompromising commitment to race-blindness. These features embody the intersection of two historical forces: the influence of Vichy memories on French legal conceptions of racism and discrimination, and the strong republican resistance to social distinctions. Understanding this history comparatively brings certain features of U.S. antidiscrimination law into sharper focus: U.S. law imposes civil, rather than criminal liability, and is more tolerant of race-conscious affirmative action, more resistant to regulating racist speech, and more reluctant to extend antidiscrimination law to a wide range of protected characteristics. These distinctive features of U.S. law are explained by the law's reaction to the history of slavery and segregation. The different evolutions of antidiscrimination law reveal how particular forms of racism - anti-Semitism and genocide in France, and the slavery and segregation of African Americans in the United States - gave rise to two very different antidiscrimination regimes. The French contrast challenges the assumptions of American antidiscrimination law, leading to greater precision about the uniquely American commitment to race-blindness in equal protection doctrine. The stricter French model of race-blindness highlights the instability and ambivalence of American race-blindness. Comparative historical inquiry reveals that the goal of eradicating group subordination does more work in U.S. antidiscrimination law than the goal of achieving a truly race-blind society based on individual merit.
France has adopted hate-speech laws that would make many American liberals blanch--we are reasonably committed to legal protection for racist speech. And America's relatively color-conscious policies (like affirmative action) are considered by the French to be "dirty", racist, and immoral.
Can America's relatively(!) superior racial climate be explained by our greater tolerance for color-conscious policy making? It's true that other variables present themselves. It could be due to France's more closed economy. But as conservative icon Richard Posner notes, America has had its share of race riots in the 60s and 70s, in an economic climate still significantly more liberal than contemporary France. Race riots happen regardless of economic system, and the fact that they are race riots should make us immediately suspect the causes have something to do with racial policies.
What I mean to do in bringing up the French example is not to say that it is game, set, and match for a particular position. But it does allow us to realize that we're not debating this question in a void. We currently live in an America which has fitfully experimented with affirmative action and other color-conscious race remedies for about 30 years or so. We can compare that to a France which has steadfastly rejected those remedies. Where are minorities better off? Which is more just? Which is working more effectively?
Ultimately, the question presents itself: Are you in the American camp, or do you support the French model?