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Vernellia R. Randall
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Kim Forde-Mazrui

 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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Corrective Racial Justice: The Prima Facie Case for Societal Responsibility
Objections to the Prima Facie Case: Problems of Intergenerational Responsibility
Mediating the Moral Conflict: How Can Society Fulfill Its Responsibility?
Conclusion

 

 
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