Robert A. Sedler

excerpted from: Robert A. Sedler, Claims for Reparations for Racism Undermine the Struggle for Equality, 3 Journal of Law in Society 119 (Winter, 2002)(30 Footnotes)

My views on the question of reparations for racism are shaped by who I am and what I have done. I am a 66-year-old white law professor and for much of the 40 plus years since my graduation from law school I have been involved in issues of racial equality. I write and speak on the subject extensively and have litigated a considerable of number of racial discrimination cases. The cases have ranged from school segregation, to fair housing, to voting rights, to race-based adoption, to the racially differential census undercount. I am a strong proponent of race-based affirmative action and race-conscious admissions policies in colleges and universities. But with all of that, I have not suffered racial discrimination, as have people of color in the past and to some extent even today. My perspective on the question of reparations for racism, like my perspective on all issues of racial equality, is a white perspective.

But that perspective is a very important one. African-Americans make up about 13% of the national population. Therefore, unless reparations for racism is ordered by the courts, which will not happen as I will demonstrate, the claim for reparations will not be successful unless it has substantial white support. In my many years of involvement in issues of racial equality, I spent considerable time seeking support on those issues from my fellow whites. In earlier times, I tried to persuade whites to support civil rights laws and school desegregation. In more recent times, my focus is on obtaining support for affirmative action and race-conscious admissions policies. After many years of seeking such support, I think I now have a good understanding of what is necessary to persuade whites to "support equality for blacks." Claims for reparations for slavery and past racism will endanger white support for equality for blacks in the United States.

I think that there are two factors that help to bring about white support for equality. The first is white self-interest and the second is a sense of injustice. Of white self-interest, Professor Derrick Bell of New York University, a prominent African-American law professor, said many years ago that whites will not do anything for blacks unless whites themselves benefit. To a large extent I agree with this view. Civil rights laws benefit whites. The civil rights laws attempt to end other forms of discrimination that reach whites, such as discrimination on the basis of gender. They also eliminate the human and economic costs resulting from systemic racial discrimination, some of which are borne by whites. School desegregation, if properly carried out, can improve the quality of education for both minority and white students in the school system. It is now recognized that the benefits of affirmative action and race-conscious admission policies in colleges and universities extend beyond the minority persons that are the immediate beneficiaries.

Let me develop this latter point more fully. As Justice Powell's opinion in Regents of the University of California v. Bakke demonstrates, a racially diverse student body has educational advantages for all students, white as well as minority, by promoting "[t]he atmosphere of 'speculation, experiment and creation' - so widely essential to the quality of higher education." Most universities today want to have a racially diverse student body, and where they are prohibited by court decision or state law from using race-conscious admissions policies, they are likely to resort to "factors that correlate with race," such as residence, high school class standing, and economic disadvantage.

Corporate America has similarly concluded that it is to its advantage to use race-based affirmative action in employment. Ironically, the commitment of corporate America to affirmative action came about as the unintended consequence of the policies of the Reagan Administration, which purportedly was opposed to affirmative action. The corporations wanted to get out from under federal enforcement of affirmative action requirements by the Office of Federal Contract Compliance Programs ("OFCCP"). So, they made a bargain with the Reagan Administration for "self-policing." Under a policy of "self-policing", corporations are able to hire and promote minorities and women, but within a framework that enables them to maintain a great deal of autonomy. Once this policy was initiated, corporations found that affirmative action had many advantages. Herman Belz, a strong critic of affirmative action, noted that by the 1980's race and gender conscious affirmative action became "institutionalized ... as part of the corporate culture," and, "[t]he prevalent business attitude was toleration of affirmative action, provided that it was modified to permit greater employer autonomy and self regulation." The corporate world believed that it benefited from affirmative action in a number of ways: (1) increasing the number of minorities and women they employed helped the companies avoid successful discrimination lawsuits; (2) a formal reduction in a company's affirmative action policy would be likely to provoke grievances among employees who were beneficiaries of affirmative action, while continuing the policy would foster their loyalty; (3) corporate equal employment opportunity officers and executives believed that affirmative action expanded the pool of available talent and led to increased productivity; and (4) affirmative action improved a company's public image and customer relations.

Since the nation's universities and corporate America are white dominated and support affirmative action, this lends further credence to Bell's thesis that whites will do things that benefit blacks only when whites themselves benefit as well.

The second factor of white support for racial equality comes from what the legal philosopher Edmond Cahn has called the "sense of injustice." One of the many facets of the greatness of Martin Luther King was his ability to touch the "sense of injustice" of white America when confronting them the evils of racial discrimination and segregation. This "sense of injustice" was aroused by King's unforgettable "I Have a Dream" speech," and was the impetus behind the enactment of the Civil Rights Act of 1964 and, after King's tragic assassination, the Civil Rights Act of 1968. Today, "the sense of injustice" is touched by racial profiling. It is fundamentally unfair for the police to stop and question African-American people solely because of their race. The fundamental unfairness of this discriminatory practice is not mitigated by the claim that the crime rate among African-Americans is higher than the crime rate among whites. Even at this time of national tragedy, perpetrated by persons of middle-eastern origin, the "sense of injustice" is touched by racial profiling of people on this basis. Touching white Americans' "sense of injustice" is another way of securing white support for claims for racial equality. . .