| excerpted from: Kim Forde-Mazrui,
Taking Conservatives Seriously: a Moral Justification For Affirmative
Action And Reparations , 92 California Law Review 683-753, 683-694 (May,
2004) (225 Footnotes omitted)
Underlying the debate over affirmative action and reparations for
black Americans is a dispute about the extent to which American society
is responsible for present effects of past racial discrimination.
Although much has been written on the subject, the scholarship too often
sheds more heat than light, and tends to be dominated by extreme
positions incapable of taking opposing claims seriously. This Article
weighs in on this debate in a novel and constructive manner. The Article
defends a societal obligation to remedy past discrimination by
accepting, rather than dismissing, principles of conservatives who
oppose affirmative action and reparations. Taking conservatives
seriously reveals two moral principles that support a societal
obligation to remedy past discrimination. The first principle is that
racial discrimination is unjust. The second principle is corrective
justice: that one who wrongfully harms another is obligated to make
amends. Applied to affirmative action, these principles support
conservative claims that a state is obligated to make amends to white
victims of racial preferences. These principles, however, also support
America's responsibility for past societal discrimination against
blacks. To the extent society participated in wrongful discrimination,
society is obligated, as a matter of corrective justice, to make amends
to its black victims. A potential moral conflict thus exists between
society's obligation to refrain from "reverse" discrimination
and its obligation to remedy past discrimination. That is, the moral
case against affirmative action also supports a moral case in its favor.
The Article responds to the most serious objections to a societal
obligation to remedy past discrimination. These include that America as
a whole is not responsible for discrimination practiced by only some
states and private actors, that it is unfair to hold current society
responsible for discrimination by past society, and that blacks today
ought not be viewed as victims of past discrimination, given the passage
of time and the extent to which black people's choices have perpetuated
their own disadvantage. This Article concludes that these objections
fail to defeat America's responsibility for the consequences of her
discriminatory history. America as a nation was responsible for
protecting slavery and discrimination, a responsibility that belongs to
the nation as a nation and therefore continues over time despite
changeover in the American citizenry. American society is also
responsible for black people's choices that may perpetuate their
disadvantage because those choices reflect a foreseeable reaction to
conditions created by societal discrimination. The moral imperative to
remedy past discrimination, moreover, outweighs the risk of imprecision
in doing so. Ultimately, conservative opposition to remedial policies is
based on principles that counsel in favor of such policies as much as
and arguably more than they counsel against them.
Introduction
In Grutter v. Bollinger, 1 the U.S. Supreme Court declined to forbid
affirmative action, leaving the question of its legitimacy to the
American people to resolve. Despite the deep divisions within that
debate, broad consensus exists on at least two critical points: slavery
and discrimination against black Americans were wrong, and they should
never happen again. Intense disagreement prevails, however, about the
extent to which the effects (or "legacy") of past
discrimination persist and the collective responsibility of society, if
any, towards their amelioration. To one extreme are those who argue that
the effects of past discrimination are pervasive and manifest in social
and economic deprivation, institutionalized racism, and present
discrimination. Such effects, some contend, exert such an oppressive and
debilitating force on black people that society cannot fairly blame
those blacks who engage in unproductive, irresponsible, or criminal
conduct. They would place culpability instead with the U.S. government
for human rights violations and argue that all thirty-six million black
Americans residing in the United States today are entitled to full
reparations. To the other extreme are opponents of racial remediation
who claim that discrimination can no longer be blamed for the plight of
blacks. They attribute exclusive responsibility for the social and
economic disadvantages disproportionately experienced by blacks to
blacks themselves for eschewing opportunity in favor of crime and
government dependence. Some also cite cultural explanations for black
disadvantage, claiming that the culture of black communities fosters
oppositional attitudes and deviant behavior. Other commentators find
themselves at various points in between. Some believe that society does
have some responsibility for the condition of blacks, but that such
responsibility continues to dissipate over time and generations,
especially as claims from other disadvantaged groups compete for
government relief. Others, also acknowledging the significance of past
discrimination, nonetheless believe that blaming society for the
condition of blacks should be resisted because it treats blacks
paternalistically, and because race-based remedies generate resentment,
perpetuate racial discord, and unfairly discriminate against innocent
whites. And some people are simply tired--tired of being reminded of a
history that largely predated their birth or arrival to this country,
tired of feeling accused of shameful acts they never personally
committed or condoned, tired of dwelling on the past. Entrenching
themselves deeper into their positions, each side invokes increasingly
vehement condemnations of the other. And while some commentators
scramble to proclaim that "the problem of the twenty-first century
will be the problem of the color line," others will likely
react--not again.
This Article addresses whether American society today bears any moral
responsibility for the relatively inferior position of black Americans,
to the extent such conditions result from the discrimination perpetrated
against black Americans during the period of slavery, through
segregation, and until (at the earliest) the adoption of national
antidiscrimination laws in the 1960s. Although much has been written on
the subject, particularly in the context of affirmative action and
reparations, the literature tends to be dominated by extreme positions
incapable of taking competing claims seriously.
Moreover, arguments advanced on both sides of this controversy often
conflate concepts that should be kept distinct. For example, the
proposition that past discrimination is causally related to present
conditions is often assumed, erroneously, to imply that society as a
whole is necessarily responsible for such conditions, or that black
Americans bear no personal responsibility for their plight. Many
arguments also assume responsibility to be exclusive, such that either
society or blacks are responsible for racial inequities, but not both. A
third point of confusion derives from the failure of many existing
arguments to distinguish between the collective responsibility of
America as a nation and the personal responsibility of its members for
the perpetration of past discrimination. Finally, the question of
whether society is responsible for certain conditions is often conflated
with the question of how society should fulfill such responsibility.
This Article attempts to bridge the divide between advocates and
opponents of affirmative action in two ways. First, the Article bridges
the logical divide by expressly separating the concepts conflated by
much of the existing literature. Second, the Article bridges the
rhetorical divide by employing modes of reasoning frequently used by
conservative opponents of affirmative action and reparations to argue
that American society bears at least some moral responsibility for the
effects of past societal discrimination. Indeed, the thesis of this
Article is that principles central to arguments made against affirmative
action support as much as negate a societal obligation to remedy effects
of past racial injustice. Consider: Opponents of affirmative action
often frame their position in moral terms. They argue that racial
discrimination is immoral, that affirmative action by racial preferences
involves racial discrimination and is therefore unjust, and that the
Constitution and other laws ought to forbid governmental and private
actors from engaging in such immoral practices. Opponents of affirmative
action further contend that the victims of racial preferences should be
made whole. Thus, for example, when a public university denies admission
to a white applicant because of her race, that applicant has been
injured by immoral state-sponsored conduct and should be accorded a
remedy, such as monetary damages or injunctive relief by the offending
state.
The moral argument against affirmative action is also persuasive to
the Supreme Court, particularly to the more conservative Justices. These
Justices reason that racial discrimination, even for benign purposes, is
morally objectionable and that the Constitution forbids the government
from engaging in such immoral practices absent a compelling
justification. Remedying the effects of past societal discrimination
against blacks, moreover, is not a sufficiently compelling justification
for the use of racial preferences. These Justices further conclude that
the victim of unconstitutional discrimination is entitled to a remedy
from the responsible sovereign. Accordingly, when a public university
denies admission to a white applicant to remedy effects of societal
discrimination, the applicant has suffered immoral, and therefore
unconstitutional, state action, and is entitled to relief from the
state. The Court's doctrine constitutionally prohibits the state and
federal governments from using racial preferences to remedy past
societal discrimination, and requires that they provide a remedy to
victims of such preferences.
The foregoing argument against affirmative action rests on two moral
principles. The first principle is that racial discrimination is unjust.
The second principle is corrective justice, which posits that one who
harms another by wrongful conduct is morally obligated to make amends to
the victim. Applied to state-sponsored racial preferences, these
principles support the argument that the state is obligated to make
amends to the victims of such preferences. These principles, however,
also have implications for American society's responsibility for the
effects of past societal discrimination against black Americans. To the
extent society participated in wrongful discrimination, society is
arguably obligated, as a matter of corrective justice, to make amends to
the victims thereof. Thus if the socioeconomic disadvantages
disproportionately experienced by blacks reflect the effects of societal
discrimination, society is arguably obligated to remedy those
conditions. A potential moral conflict thus arises between society's
obligation to refrain from "reverse" racial discrimination and
its obligation to remedy past discrimination. Affirmative action to
remedy past discrimination may cause injustice to those disadvantaged by
racial preferences. Yet to refrain from remedying past discrimination
would leave those injustices uncorrected, a moral wrong in itself
according to corrective justice theory. Thus, the moral case against
affirmative action also supports a moral case in its favor.
Opponents of affirmative action would likely dispute the existence of
any such moral conflict. Some might argue, for example, that no effects
of past discrimination exist and, therefore, there is no harm to remedy.
Others might argue that whatever effects of past discrimination persist,
the responsibility for not overcoming such conditions lies with blacks
for failing to take advantage of economic and educational opportunities.
Still others could question whether it is fair to call on present
members of society to bear the cost of remedying discrimination
practiced by past generations. With no moral obligation on the part of
society to remedy past discrimination, racial preferences designed to
achieve this objective are unjustified and therefore unjust.
This Article explores the moral argument in favor of societal
responsibility and the objections just discussed. The Article does not
purport to establish empirically that effects of past discrimination
exist, which very few scholars dispute in any event. Rather, it explores
the normative relationship between these effects and societal
responsibility. This Article is primarily concerned with whether society
is responsible, not how such responsibility should be fulfilled. Thus,
whether racial preferences or race-neutral policies would be the most
effective means for remedying past discrimination is not the central
concern. Rather, the concern is the anterior question of whether society
bears any responsibility to redress, by whatever means, conditions that
result from past discrimination.
To facilitate a constructive discourse, the arguments in this Article
draw upon principles that are either accepted by opponents of
affirmative action or are widely accepted by American society as
relevant to questions of attributing collective responsibility for the
harmful effects of wrongful conduct. Useful sources of such principles
include well-settled doctrines of law, domestic and international, that
incorporate principles of corrective justice. The point of relying on
principles endorsed by conservatives is not that all conservatives will
accept the implications of applying these principles to a moral defense
of affirmative action. The moral argument raises complicated issues,
and, moreover, some conservatives may oppose affirmative action for
reasons other than its purported immorality, such as economic
self-interest or a desire to minimize racial friction. The intent,
rather, is to reveal the contradictory implications of claims about the
wrongfulness of racial preferences and to persuade more moderate
observers that, on balance, America's moral obligation to repair her
wrongful history outweighs the moral costs of doing so.
Additionally, this Article's reliance on legal principles does not
necessarily imply that our nation is legally obligated to remedy past
societal discrimination. The objective, rather, is to defend the
plausibility of a moral obligation that American society should assume
voluntarily in order to complete its transition to a nation committed to
racial equality. The legal doctrines that incorporate principles of
corrective justice provide analytical approaches and illustrations--a
heuristic through which to gain some clarity and insight into a most
vexing problem. These concepts reflect the cumulative experience of
American society's efforts to attribute responsibility for the injurious
effects of culpable human action, and may thus suggest some useful lines
of inquiry in assessing societal responsibility for the lingering
effects of racial injustice.
The Article begins in Part I with the prima facie case for societal
responsibility: that American society wrongfully discriminated against
blacks and is morally responsible, as a matter of corrective justice, to
remedy its lingering effects. Part II addresses objections to the prima
facie case. Part II.A considers whether it is fair to identify current
society as the relevant wrongdoer. In particular it looks at whether
American society as a whole is responsible for discrimination practiced
by some, and whether it is fair to hold current society responsible for
discrimination practiced by past society. Part II.B addresses whether
blacks today are fairly characterized as victims of past discrimination,
given the passage of time and the intervention of personal choices by
blacks that may have contributed detrimentally to the condition of black
people today. Part III considers some difficulties facing the
fulfillment of a societal responsibility for past discrimination. Part
III.A considers the difficulty of identifying the scope of the injury to
be remedied, that is, the extent to which the condition of blacks would
be different today, absent past discrimination, and the problem of
identifying the present victims of such discrimination. Finally, Part
III.B briefly considers what implications the effects of past
discrimination may have for the kinds of policies that would most
effectively remedy such effects.
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