| excerpted from: Kim Forde-Mazrui,
Taking Conservatives Seriously: a Moral Justification For Affirmative
Action And Reparations , 92 California Law Review 683-753 (May, 2004)
(225 Footnotes omitted)
The prima facie case for ascribing responsibility to American society
for past discrimination is, in brief, that society participated in
wrongful racial discrimination with present harmful effects, and that
society is obligated, as a matter of corrective justice, to remedy these
harms. Part I.A explains how society wrongfully caused current harmful
conditions, and Part I.B explains how corrective justice theory supports
an obligation on society's part to remedy such conditions. Part II then
addresses potential objections to the argument in this Part.
A. Society Wrongfully Caused Harm
1. The Nature of the Harm
Despite the enactment of national antidiscrimination laws in the
1960s, black Americans continue to experience social and economic
disadvantage in significant disproportion to their numbers. For example,
although whites outnumber blacks six to one, more blacks receive welfare
than whites, and blacks are twice as likely to be unemployed, a figure
that has remained constant throughout the forty years that such records
have been maintained. Black children are three times more likely than
white children to be born outside of marriage (accounting for
approximately 70% of all black births) to a mother who is twice as
likely to be a teenager. Black infants die at two and a half times the
rate of white infants, and those who live are placed in foster care at
three times the rate of white children. Black children are twice as
likely to develop serious health problems, including asthma, deafness,
retardation, and learning disabilities, as well as problems resulting
from drug or alcohol use during pregnancy. Black children are nearly
four times more likely than white children to grow up in poverty, and
among the urban poor, black children are three times more likely to live
in economically segregated low-income neighborhoods. Blacks live an
average of seven years fewer than whites, and of that life, blacks enjoy
eight fewer years of "reasonably good health." Blacks are
significantly more likely to suffer or die from serious diseases such as
asthma and, especially, AIDS.
The rates of black involvement with crime and the criminal justice
system, both as victims and as perpetrators, are striking. Blacks are
twice as likely as whites to be victims of assault and three times as
likely to be robbed; black men are seven times as likely to be murdered.
In most of these cases, moreover, the perpetrator is also black. Indeed,
although blacks represent only 12.6% of the total population, or one out
of eight Americans, they represent a majority of American male prisoners
and are incarcerated at eight times the rate of whites. In sum, as
Alexander Aleinikoff observes:
In almost every important category, blacks as a group are worse off
than whites. Compared to whites, blacks have higher rates of
unemployment, lower family incomes, lower life expectancy, higher rates
of infant mortality, higher rates of crime victimization, and higher
rates of teenage pregnancies and single-parent households. Blacks are
less likely to go to college, and those who matriculate are less likely
to graduate. Blacks are underrepresented in the professions, in the
academy, and in the national government.
2. The Causal Relationship to Historic Discrimination
What might account for such stark disparities along racial lines? The
magnitude and consistency of the disparities suggest that they are not
attributable to chance alone. Scholars have accordingly sought to
identify factors that plausibly contribute to black disadvantage. Some
have documented evidence of the continuing occurrence of racial
discrimination. Others dispute the significance of continuing
discrimination in explaining the racial gap, instead emphasizing the
tendency of economic deprivation to persist over time within families
and communities. Still other scholars, particularly from the right,
claim that the culture of racial minorities, particularly that of
blacks, discourages personal responsibility and self-reliance.
Even assuming that factors such as past economic deprivation,
culture, and individual choice account for some of the racial
disparities in America today, the question remains why people of a
particular race are significantly more likely to experience such
conditions or to exercise poor judgment. Most conservatives, moreover,
disclaim that race itself biologically affects success. Accordingly,
whatever factors immediately account for America's racial divide, a more
complete explanation of its existence requires a historical inquiry.
The most significant experience common to black Americans that has
plausibly contributed to their relative disadvantage is a history of
racial discrimination. Importantly, such discrimination was supported by
American society. For present purposes, society refers to the American
people as a nation--a collective people who supported the practice of
slavery, and, later, segregation and discrimination through its laws,
customs, and practices. Slavery and discrimination were practiced on a
pervasive, society-wide basis that left blacks vulnerable every day at
every turn. Racial subordination was literally the law of the land.
Although any brief account of America's racial history must be
inadequate, such a sketch may be useful to explain the present theory on
which societal responsibility is based. Discrimination against blacks in
America originated with slavery, although it did not end there. For two
and a half centuries, millions of black people were subjected to
slavery, an institution that intentionally extinguished the religious,
linguistic, and cultural heritage of its victims, routinely splintered
families, and mandated illiteracy and ignorance. Moreover, slavery
subjected blacks to an ideology of white supremacy, enforced by law and
violence, that denied their dignity and humanity. Hundreds of years and
countless generations of such treatment guaranteed that, by the time of
slavery's abolition, blacks would substantially lack the educational,
economic, political, and cultural resources possessed by whites.
American society was deeply implicated in the practice of slavery.
The responsibility of the states that practiced slavery is plain. The
entire nation, however, also supported slavery not only by tolerating
its existence, but by protecting and enforcing the institution through
several constitutional provisions. These include an unamendable
reservation of the right of states to import slaves until 1808 and the
Fugitive Slave Clause, a constitutional mandate that slaves who escaped
to free states were to remain slaves and be returned to their owners.
Congress and the President chose to enforce the Fugitive Slave Clause
with heavy civil and criminal penalties, and the Supreme Court
repeatedly accorded slavery constitutional protection. Congress also
legally protected slavery in the District of Columbia, known as
"the very seat and center of the slave trade," rejecting all
petitions to prohibit slavery. As each generation passed, American
society's continued support of slavery further implicated the nation in
its consequences.
Finally, though the nation, to its credit, formally abolished slavery
through the Civil War and the Reconstruction Amendments, it failed to
eliminate the legal vestiges of racial oppression or redress the
devastating consequences of slavery on those who had suffered under its
regime. Had America prohibited all discrimination and provided the
necessary resources and opportunities for the four million impoverished
and illiterate former slaves to uplift their condition, the effects of
slavery might well have dissipated by now. Instead, however, immediately
following the war, southern states established a system of laws or
"black codes" that accorded blacks scarcely more rights than
they enjoyed during slavery. Blacks were residentially segregated;
required to labor for whites who exercised control over them akin to
that of slaveholders; fined, imprisoned, or leased as convict labor for
a variety of minor crimes, including vagrancy, "insulting
gestures," and violating curfew; and were denied meaningful access
to fair judicial process and to the ballot. In short, as the Supreme
Court observed, freedom for the emancipated blacks was severely
restricted by "laws which imposed upon the colored race onerous
disabilities and burdens, and curtailed their rights in the pursuit of
life, liberty, and property to such an extent that their freedom was of
little value." Although the Fourteenth Amendment abolished the
black codes and blacks achieved admirable political gains in the South
during Reconstruction, the withdrawal of federal troops triggered a
determined movement by whites to disenfranchise blacks through violence,
intimidation, and a variety of voting "qualifications"
designed and administered to prevent blacks from voting. By the turn of
the twentieth century, black disenfranchisement was effectively
complete. The process of eliminating blacks from politics was
accompanied by the establishment of "Jim Crow" laws that
prohibited interracial marriage, segregated blacks in schools and
housing, excluded blacks from places of public accommodation, and denied
blacks access to a wide range of educational and economic opportunities.
Approximately 90% of blacks lived in the South throughout the
antebellum period and into the twentieth century. It should be
recognized, nonetheless, that blacks residing in the North also
experienced a substantial degree of racial discrimination. Although
northern states abolished slavery by the early nineteenth century, they
enacted a variety of racial codes, not unlike those in the South, that
severely restricted the rights of blacks in numerous contexts, including
education, employment, housing, voting, and intermarriage. Blacks in the
North also experienced intimidation and violence, especially those who
had recently emigrated from the South. Following the Civil War,
industrial employers and white workers in the North, as in the South,
often used violent means to prevent blacks from joining labor
organizations and trade unions, leaving black workers at the
"ragged edge of industry." Blacks in urban areas were
segregated into undesirable, congested residential neighborhoods. These
neighborhoods had inadequate housing, schools, municipal services, and
recreational facilities. Furthermore, they were plagued by social ills
common to urban slums, such as poor health, high mortality, family
breakdown, alcoholism and drug abuse, juvenile delinquency, and crime.
By the period following World War II, the black ghetto seemed to have
become a permanent feature of America's urban landscape.
The threat and actuality of violence against blacks throughout
American history warrants emphasis. Blacks, especially in the South,
were subject to police brutality without judicial process, and many
accused of capital crimes were executed after trials where prejudice
more than evidence determined the outcome.
Lynching and other forms of extra-judicial violence have also played
an integral role in the punishment of blacks ever since their arrival in
the New World. After the abolition of slavery, there was an increase in
incidents of lynching by whites who believed, erroneously, that the
judicial process would protect blacks accused of committing crimes. In
the last sixteen years of the nineteenth century, whites committed more
than 2,500 lynchings, the great majority of which involved black
victims. An additional 1,100 lynchings occurred between the turn of the
century and the outbreak of World War I. Although lynchings were more
common in the South, they also occurred in the North and, particularly,
in the Midwest.
After World War I, whites escalated lynching and mob violence against
blacks in an effort to check expectations of equal citizenship held by
returning black soldiers. In the first year following the war, more than
seventy blacks were lynched, including ten soldiers in uniform. This
rise in racist violence accompanied the growth of the Ku Klux Klan,
which members revived in the South in 1915. The Klan grew to include
over 100,000 members within a year of the end of World War I, with a
presence that included many New England and Midwestern states. The
Klan's substantial political influence, moreover, often required
political candidates to join or support the Klan in order to win public
office. In addition to lynching, race riots and mob violence erupted
periodically across the country in which most people injured or killed
were black. White hostility toward blacks in the North increased as
blacks migrated from the South. Indeed, gang violence and riots against
blacks were as vicious in the North as in the South. Overt violence
against blacks remained common until the 1960s. The ever-present threat
that any assertion of rights or interests would be met with brutal and
often fatal reprisals imposed powerful constraints upon the ability of
blacks to improve their condition. As Andrew Hacker observes:
Overarching it all was the terror, with white police and prosecutors
and judges possessing all but total power over black lives. Not to
mention the lynchings by white mobs, with victims even chosen at random,
to remind all blacks of what could happen to them if they did not remain
compliant and submissive.
Thus, for the hundred years following emancipation, America not only
failed to redress the effects of slavery, but it permitted and engaged
in the continuing subjugation of black people. The constant onslaught of
degrading, dehumanizing treatment from all quarters of society served to
deny blacks any meaningful opportunity to become educated, develop
lucrative skills, pursue entrepreneurial ventures, exercise political
power, or live free of state or state-tolerated violence and lynching.
Laws and customs in the North and South that effectively prohibited
blacks and whites from learning together, living together, and loving
each other further guaranteed the continued disadvantage of the black
race. By the time of the Kerner Commission report in 1969, the condition
of blacks was so inferior to that of whites as to justify the report's
characterization of America as "moving toward two societies, one
black, one white--separate and unequal."
Although, laudably, America enacted national antidiscrimination laws
in the 1960s, wide disparities between blacks and whites persist across
virtually every indicator of social and economic well-being. Indeed, as
the twentieth century came to a close, the condition of many poor blacks
had worsened in many respects. As John Hope Franklin and Alfred Moss
observe:
The last two decades of the twentieth century saw heightened economic
deprivation and social problems in poor black communities: chronic
unemployment, rampant violence, drug addiction, HIV infection and AIDS,
soaring homicide rates for young black males, high levels of
illegitimate births to young black females, and public school systems
overwhelmed by all these problems. Given the history of discrimination
against blacks in this country, the persistence of substantial
disparities between whites and blacks is not surprising. Such
disparities reflect, at least to some degree, effects of past
discrimination. That is, these conditions would not exist to the same
extent but for America's history of racial discrimination against black
Americans. Even the widening disparity between blacks and whites in
recent years with respect to certain social problems appears to be
linked to conditions existing during segregation. Consider, for example,
that between 1950 and 1993, the gap between black and white households
headed by single women increased from just under 12% to almost 40%. Read
in context, however, this increase does not appear to signify a greater
rate of family breakdown among blacks compared to whites. Throughout
this period, the ratio of black to white female-headed households has
remained constant at just over three to one. The rate of increase in
both groups has thus been the same since segregation. These data suggest
that the apparent widening between the races actually reflects
comparable reactions within both groups to common cultural trends. The
widening in absolute terms simply reflects the disparity that existed
during and as a likely product of segregation.
Similarly, consider the rate of out-of-marriage births of blacks
compared to whites, a statistic often cited as evidence that the
deterioration of familial and sexual norms is a phenomenon of black
culture. Undoubtedly, the explosive rate of such births among blacks,
approximating 70% of all black births, contrasts starkly with less than
20% of white births. Nonetheless, the ratio of black to white nonmarital
birth rates has not increased and in fact has declined since 1950 to
less than half what it was then. "Put another way," Hacker
observes, "even though the number of births to unwed black women
has ascended to an all-time high, white births outside of marriage have
been climbing at an even faster rate." Accordingly, the current
disparity in nonmarital birth rates between blacks and whites exists
only because a disparity already existed before the abolition of
segregation.
Although a causal connection between racial disparities and past
discrimination seems probable, if not obvious, this section has not
conclusively proven that such a connection exists. Historical causes of
such a unique and long-standing character are not susceptible to the
kinds of controlled testing and comparisons necessary to identify causal
relationships with scientific certainty. There are, however, reasons to
assume that a causal relationship exists. First, the causal claim at
issue is limited: stark disparities between blacks and whites are an
actual result of past discrimination in the sense that, had slavery and
discrimination not been legally protected or had they been abolished and
remedied substantially sooner, the disparities today would not be as
great. The point for present purposes is not that the causal
relationship necessarily establishes societal responsibility, but merely
that regardless of the more immediate causes that may be responsible for
black disadvantage (such as black culture and choice), past
discrimination also plays a historical causal role.
Indeed, it should be emphasized that most conservatives accept or are
willing to assume a causal connection between black disadvantage and
past discrimination, although their rhetoric sometimes suggests
otherwise. Close inspection of conservative writings reveals that the
essence of their claim that blacks, not society, are responsible for
their condition is normative, not empirical. Most recognize that
historical causes, including racial oppression, have contributed to the
development of self-destructive behavior among blacks. They argue,
however, that responsibility for such behavior should be limited to the
black people who directly engage in that behavior today. The next Part
addresses such arguments. Conservatives on the Supreme Court also
acknowledge the effects of past societal discrimination, but reason that
such effects are too "amorphous" to justify race-based
preferences. Part III responds to this argument.
The remainder of this Article therefore presumes that effects of past
discrimination exist and considers whether current society is morally
obligated to remedy them.
B. Society's Obligation to Remedy the Harm
Corrective justice theory supports ascribing responsibility to
society for the effects of past societal discrimination. For the
purposes of this Article, corrective justice does not mean a complicated
account of moral responsibility, but rather something quite basic: one
who causes harm to another by wrongful conduct is morally obligated to
compensate the victim or otherwise remedy the harm. To the extent that
American society's wrongful participation in racial discrimination
continues to have effects today, corrective justice suggests a moral
obligation on society's part to remedy such effects.
I rely on corrective justice as a basis for societal responsibility
for a number of reasons. In keeping with my effort to employ principles
acceptable to conservatives, it is notable that they rely upon
corrective justice in arguing that the victims of racial preferences are
entitled to redress. I too find corrective justice a persuasive theory
of moral responsibility. The obligation of one who harms another through
wrongful conduct to make amends to his victim seems to follow from the
most basic notions of justice. That justice requires rectification of
injustice, the righting of a wrong, is intuitive to most people. I also
agree with conservatives that corrective justice is plausibly implicated
by racial discrimination. The source of moral obligation under
corrective justice theory is unjust conduct that causes harm. To the
extent racial discrimination is morally objectionable, its harmful
consequences potentially serve as a basis of moral responsibility.
Constitutional and statutory law imposing liability for racial
discrimination are commonly--and legitimately--justified on grounds of
corrective justice. Finally, corrective justice theory has deep roots in
the moral and legal traditions of American society, such as criminal and
tort law, as well as in the cultural norms that govern social relations.
Indeed, the obligation to repair a wrong is a principle reflected in
every legal system in the world. The substantial consensus regarding the
legitimacy of corrective justice theory not only supports its use as a
basis of moral responsibility, but also provides a rich source of
experience regarding how to apply the theory to circumstances involving
collective wrongdoing and consequential harm.
Although corrective justice theory is basic in structure, a brief
elaboration may be useful before considering its implications for
societal discrimination. According to corrective justice theory, one who
causes a harm that disrupts a just distribution of rights, resources, or
opportunities has an obligation to redress the harm caused and thereby
restore the just distribution. Summarizing Aristotle, Robert Cooter
explains:
[E]ach type of society has its own principle of wealth distribution.
Thus, a democratic society favors an equal distribution; in contrast, an
aristocratic society favors the principle that the best should have
more. Once a society's conception of the just distribution is achieved,
a person who disrupts it does an injustice that must be corrected,
according to this theory, by paying compensation.
Applied to the context of societal discrimination, a racially just
society, that is, one committed to racial equality, is one in which
racial discrimination does not affect the distribution of people's
rights, resources, or opportunities. As argued in Part I.A, whatever the
immediate causes of the stark disparities between blacks and whites,
such disparities would probably not exist to the extent they do today
had blacks not been discriminated against en masse for so many
generations. If American society disrupted the racially just
distribution of black people's rights, resources, and opportunities by
discriminating on the basis of race, then as a matter of corrective
justice, society has a prima facie obligation to redress the harmful
effects of that discrimination.
The nature of society's obligation is not simply that society has
inherited a fixed debt owed by past society to past generations. Rather,
society has a continuing duty to present generations of people who
experience fresh injuries from conditions caused by past discrimination.
Nor is the obligation owed to all black people as a group or
"creditor race," but rather it is owed to those individual
black people whose lives are disadvantaged by past discrimination. Each
American child born today into a life worse off than it would be had
society not practiced slavery, segregation, and other discrimination, or
had society adequately remedied their effects, is a new individual
victim of societal discrimination. Society's persistent failures to
redress adequately conditions that predictably perpetuate, and often
worsen, the effects of such past racial injustices, are recurring wrongs
that create new remedial obligations. Until society fulfills its
responsibility to address this racial injustice, its moral obligation
shall remain unabated.
The basic structure of the foregoing argument parallels arguments by
white people, such as the plaintiffs who prevailed against the
University of Michigan, who claim they were harmed by racial preferences
and are therefore entitled to relief. To the extent their opportunities
have been impaired by the university's use of racial preferences in
favor of the benefited minorities, corrective justice theory supports
the argument that the State of Michigan is obligated to make them whole.
Similarly, regarding a societal obligation toward blacks harmed by past
discrimination, to the extent their opportunities have been impaired by
society's use of racial preferences in favor of whites, corrective
justice theory supports the argument that American society is obligated
to make them whole.
There are, of course, theories in addition to corrective justice that
support ameliorating conditions disproportionately suffered by black
Americans. Civil rights efforts to eliminate ongoing racial
discrimination against black people are justified simply because such
discrimination is immoral and harmful. American society has committed
itself expressly to this position. Restitutionary theory might also
justify enhancing the resources and opportunities of blacks, as a
disgorgement of America's "unjust enrichment" gained from the
exploitation of blacks. Alternatively, addressing the social and
economic disadvantages experienced by blacks may be warranted as a
matter of distributive justice, which arguably requires that any
individual or group be given certain minimum opportunities or means of
subsistence regardless of the cause of their disadvantage. Whether or
not conservatives believe America is obligated to its black citizens by
these other theories, corrective justice theory, which they endorse in
the affirmative action debate, suggests that America has a prima facie
responsibility to make amends for its historical protection of slavery
and racial caste.
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