Is Conditional Funding a Less Drastic Means?

Moshe Cohen-Eliya 1 , 1
  • 1 Ramat Gan Law School Senior Lecturer, Ramat Gan Law School.

In an age in which the regulatory state frequently deals with spending, licensing, and employment, the use of allocating powers is perceived as an appealing means by which to prevent discriminatory practices against individuals within illiberal communities. In addition to its easy availability, conditional funding is regarded as both an effective and—in comparison with legal prohibitions—less drastic tool for the prevention of discrimination. Such conditions are thought to be efficient because they increase the relative cost of the discriminatory practice and in doing so create an economical incentive to avoid discrimination. Moreover, these conditions are thought to be less-coercive (in comparison with criminal law), because they still allow those subject to them to choose between the more expensive option of discrimination and the cheaper option of non-discrimination. In other words, these conditions are perceived as "Less Drastic Means." In this Article, I will argue that such a perception is false. When applied to the poor such conditionality is not less coercive than prohibitions in criminal law. It is more than reasonable to assume that attempts to rectify this flaw by exempting poor people from conditional funding will render such funding ineffective in preventing discrimination. In the final analysis—when one takes into account both the problem of the commodification of values and the inequality between rich and poor—the use of conditional finding as a means of promoting liberal values will, in most cases, be unjust. If we believe that the antidiscrimination principle has a lexical priority over a parent’s right to educate their children in accordance to their culture, we should choose the path of prohibition and abandon that of conditional funding.

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