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Vernellia R. Randall
Professor of Law
The University of Dayton






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,  743-751 (May, 2004) (225 Footnotes omitted)


This Article has primarily considered the existence of societal responsibility for the effects of past discrimination. The plausibility of a societal obligation to remedy such effects undermines the proposition that if racial discrimination is wrong, then society is obligated, without exception, to refrain from enacting remedial race-conscious policies. The competing moral obligation of society toward the millions of individual black Americans who suffer from the effects of past discrimination suggests a difficult dilemma. To resolve the dilemma, society must balance these competing claims, taking into account their comparative moral weight, and must consider the extent to which honoring one obligation dishonors the other.

Although a detailed remedial proposal is beyond the scope of this Article, this Part raises some of the salient issues that may arise in the design of remedies and suggests some potential lines of analysis for resolving them. Part III.A considers the difficulty of identifying the effects of past discrimination with the particularity necessary to address them. Any uncertainty in identifying the victims of past discrimination and the scope of their injury complicates the process of tailoring remedies to address actual harm and heightens the risk that the burdens of any such policies will outweigh the benefits. Part III.B considers what corrective approaches would be most effective in remedying the effects of societal discrimination, specifically, how to reverse the intergenerational effects of past discrimination and how long such a process might take. These questions are monumental, and this Article does not provide definitive answers. The goal, rather, is to chart a course of inquiry, the completion of which will require the expertise of social scientists and the political will of Americans and their leaders.

A. The Difficulties of Identifying the Effects of Past Discrimination

Identifying the effects of past societal discrimination involves two serious difficulties. First, assuming that effects of past discrimination persist, their magnitude is unclear. The prima facie case outlined previously relies substantially on the existence of racial disparities between blacks and whites to infer that past discrimination continues to have an impact. It assumes that, absent discrimination, people of different races would occupy social and economic strata in at least rough proportion to their percentage in the population. Such an assumption may be unrealistic. Some variation among racial groups may exist without a racially discriminatory cause. There are, moreover, racial groups that have experienced a substantial degree of discrimination without falling or remaining below whites in economic success. As it is highly speculative what the status of black people across a variety of contexts would be today absent past discrimination, it is highly speculative what the magnitude of society's responsibility may be.

Second, the individual victims of past societal discrimination are not readily identifiable. Since some black people would be relatively disadvantaged even without past discrimination, just as some white people are, some disadvantaged blacks may not be any worse off than they would be absent past discrimination and are therefore not harmed by such discrimination. In addition, some privileged blacks may have overcome past discrimination while others, though relatively well off presently, would be wealthier had past discrimination not been practiced. If, as a matter of corrective justice, a harm-causing agent's responsibility extends only to those it has harmed, it is arguably impossible to satisfy societal responsibility without knowing the identity of the victims of discrimination.

Concededly, the degree to which present conditions are attributable to past discrimination is unclear. Some imprecision, though, is inevitable in any efforts to achieve corrective justice. For example, in cases arising from mass torts, the processes for determining the existence and extent of liability, including admissibility and reliability of evidence, burdens of proof, and measures and allocations of damages, involve estimations with risks of error that are inevitable in any viable system of corrective justice. Likewise, in enacting broad-scale policies, legislatures must often rely on uncertain factual findings and consequences. We need to decide collectively how much imprecision to tolerate in remedying past discrimination, recognizing that millions of injustices will likely go unremedied if nothing is done.

It is noteworthy that conservatives are willing to tolerate a significant degree of imprecision when racial discrimination is used for law enforcement. The practice of "racial profiling," which conservatives tend to support more than liberals, involves racial discrimination in the selection of suspects. Although the vast majority of suspects are innocent, conservatives justify the practice as necessary in the war on drugs and, more recently, in the war on terrorism. One conservative commentator, for example, in justifying the profiling of airplane passengers, acknowledged that "[t]he odds that any Middle Eastern passenger is a terrorist are, of course, tiny." Profiling supporters view the burden to innocent minorities mistakenly suspected of criminality as regrettable, but necessary, a kind of "racial tax," as Professor Randall Kennedy terms it, paid in the interest of crime control. Similarly, conservatives should view the imprecision of remedial programs as a regrettable but necessary cost of remedying historic discrimination. The more conservatives emphasize the injustice of racial discrimination, the more compelling they should view America's interest in remedying its harmful consequences. As such, they should tolerate substantial imprecision in pursuit of such a pressing objective.

The problem that victims of past societal discrimination are largely unidentifiable is real and likely to worsen with time. The largely anonymous nature of societal discrimination and its longevity over generations make identification of its victims difficult. However, some points in favor of pursuing remedial policies exist. First, it seems unfair to relieve society of responsibility because society has neglected to remedy its wrongs for so long that its victims are difficult to identify precisely or to make whole. Similar concerns in the adjudication process underlie the doctrine of spoliation, which denies to a wrongdoer the benefit of lost evidence attributable to the wrongdoer's fault.

Second, we know the victims likely exist and are concentrated among blacks, and that they probably number in the millions. This should give us pause before absolving society of fulfilling its responsibility for wrongfully caused harm simply because rectifying it may be costly or may benefit some nonvictims. Any risk of benefiting nonvictims should be weighed against the harm attributable to the failure to compensate actual victims.

Balancing the costs of not remedying past societal discrimination with the costs of remedying through "reverse" discrimination should consider the wrongfulness and magnitude of the respective discriminations. Societal discrimination against blacks was arguably worse than remedial discrimination against whites both in purpose and effects. Societal discrimination against blacks was intended to subjugate them based on the belief that they were inferior people unfit for and undeserving of equal rights. Discrimination against whites to remedy societal discrimination, in contrast, is intended to undo past discriminatory wrongs against blacks. The victims of affirmative action are not presumed to be unfit or inferior but are treated as regrettable means to a legitimate remedial end. Whatever wrongfulness inheres in such treatment, it is not motivated by a comparably repugnant ideology.

The effects of societal discrimination are also more injurious than those of affirmative action upon their respective victims. Societal discrimination against blacks was extremely broad, denying blacks access to whole fields of endeavor. Blacks experienced discrimination on a frequent, comprehensive basis from an early age, which fundamentally impaired their life opportunities and, in turn, those of their children. Victims of affirmative action, in contrast, generally experience isolated burdens unlikely to impair significantly the economic quality of their lives or those of their children. A white applicant denied admission by a school of higher education, for example, will generally have opportunities for a comparable education elsewhere, although not at the institution of first choice. The vast majority of such applicants will achieve careers as lucrative as they would have absent the discrimination, and it is unlikely that their children will be raised with familial resources substantially inferior to those they would have enjoyed absent affirmative action.

Although some opponents of affirmative action might dispute any moral difference between societal discrimination and discrimination for benign purposes, the Supreme Court, as a whole, does not. In explaining the application of strict scrutiny to apparently benign uses of race, the Court said it was ensuring against the risk that the discrimination was actually motivated by illegitimate prejudice or stereotype. Racial discrimination motivated by illegitimate purposes is unconstitutional whereas discrimination for compelling purposes is not. Although the Court has invalidated preferential discrimination designed to remedy societal discrimination, it has not viewed such discrimination as equivalent to discrimination based on prejudice but rather as too "amorphous" to rule out the risk that a policy ostensibly designed to remedy societal discrimination was in fact motivated by illegitimate stereotype or prejudice. With respect to the character of past societal discrimination against blacks, in contrast, there is not merely a risk of racial prejudice, it is a certainty. Accordingly, if past societal discrimination against blacks is a greater moral wrong than current discrimination against whites to remedy its effects, then the failure to remedy societal discrimination is a greater moral wrong than the discrimination involved in remedying societal discrimination.

Underlying the foregoing discussion is a point worth explicit emphasis-- inaction is not morally neutral. The failure to fulfill a duty to remedy injustice is as morally problematic as originating the injustice. Corrective justice theory requires the rectification of harm by the wrongdoer that caused it. Correcting the injustice is a moral imperative, the failure of which is a moral wrong. The implications for societal discrimination are that the failure to remedy its effects or make its victims whole is as morally problematic as overremedying the same, that is, overcompensating its victims or compensating nonvictims. If refraining from affirmative action or other remedial measures would leave greater injustice unremedied, then societal inaction is a greater moral wrong than affirmative action.

B. Designing Effective Remedies

Assuming that American society is responsible for remedying the intergenerational effects of her discriminatory history, the question remaining is how to fulfill such responsibility effectively. The significance of this challenge should not be underestimated, nor is it within the scope of this Article to examine specific proposals. That important task will require the collective effort of political leaders, social scientists, public interest organizations, and other interested persons and groups.

Nonetheless, corrective racial justice has some implications for the design of remedial policies. As corrective justice is concerned with correcting the harmful effects of wrongdoing, the ideal remedy would place the victims of wrongdoing in the same position they would have been in had the wrongdoing never occurred. The link between slavery and the presence of blacks in America complicates this inquiry. Had slavery not been practiced, the number of black Americans would likely be significantly lower. Even if, through immigration, a large number of blacks came to live in America, those persons would be different from many of the specific black people alive today, who came into being because their ancestors met as a result of slavery. What remedy would compensate one who would not exist absent the conduct to be remedied? Putting black Americans in the exact position they would be in absent past discrimination is thus impossible.

A remedy is, however, still appropriate. The harm to blacks alive today resulting from past discrimination is not limited to the enslavement of their ancestors. Society's wrongdoing is as recent as the present and immediately preceding generations. Had society accorded true legal equality and provided adequate opportunities to the freed slaves or to generations since, blacks alive today and born tomorrow would be raised under better conditions. Each black child, born into a family and community with educational, economic, and cultural resources inferior to what they would be, had the child's parents', grandparents', and great-grandparents' generations been accorded equal rights and adequate remedial support, suffers a new wrong that society can remedy by providing opportunities to the present generation.

As to the precise nature of remedial policies, corrective justice suggests policies tailored to the nature of the harm suffered by the victims of past discrimination. As discussed above, the harm includes a lack of educational achievement, economic resources, and cultural and psychological well-being. This suggests that remedial programs should be designed to provide educational and economic opportunities, and to strengthen familial and community institutions that foster self-respect and personal responsibility. The harm warrants sensibly designed antipoverty, school improvement, job training, health care, and crime prevention efforts supported by sufficient resources. Holding individual black people responsible for criminal conduct is also required to reinforce personal responsibility, although the socioeconomic conditions that foster such behavior must also be addressed.

Society can also take steps to minimize the problem of victim identification discussed in Part II.A. By investigating family histories, one could identify many of the victims of past discrimination with some confidence. For example, poor black Americans whose families have lived in the United States for several generations are likely to have experienced intergenerational effects of societal discrimination. Additionally, collateral harm could be minimized by designing remedial programs to serve legitimate purposes in addition to that of remedying racial discrimination. In that way, to the extent undeserving beneficiaries, that is, nonvictims of discrimination, were benefited by remedial policies, their benefit would be justified for alternative reasons. For example, programs to improve public schools could be justified in part to fulfill society's responsibility to remedy past discrimination and in part to serve legitimate interests in educating poor children, or all children. The presence of an additional, legitimate goal should reduce concerns over unidentified victims. Requiring society as a whole, rather than a private litigant, to take remedial action is particularly appropriate where the most effective remedy is necessarily broad. We as a society may collectively decide to fulfill a remedial obligation in ways that also involve expenditures for other purposes, whereas it may be unfair to impose adjudicatively on a private defendant costs for purposes other than fulfilling the scope of his liability. This is not to condone looseness in designing remedial programs. We should target the effects of societal discrimination as precisely as possible. The point is that to the extent uncertainties in identifying the effects of past discrimination make some imprecision inevitable, we can ameliorate the costs of imprecision by designing remedial programs to serve additional legitimate interests.

We should not, however, underestimate the magnitude of the effort needed. The successful remediation of past discrimination would require that black children on average grow up from birth with advantages roughly equivalent to those of white children. What would it take for families who currently have little educational training or economic resources and who more broadly lack the psychological and cultural capital necessary to succeed in this economy to reach a level comparable to average middle class (mostly white) families? A massive infusion of resources into poor black communities would certainly improve the opportunities for the present generation of black children living there. But it is difficult to see how one generation of effort would suffice. The benefits of enhanced economic and educational opportunities for children whose families otherwise lack the personal experience to take full advantage of them seem unlikely to equal the benefits to children born into families with not only comparable resources but also the internalized norms and values that enable parents, on a daily basis, to nurture their children's characters accordingly. It will take several generations at least before the collective expenditure of resources from without can enable impoverished black families to transform themselves from within to the point that their children escape the damage of discrimination inflicted on prior generations. Moreover, the resources we devote to such efforts must be sufficient to overcome the tendency of poverty and of a societal culture embodying messages of racial inferiority to retard self-development and community building. We must be patient, mindful of how long our American forefathers maintained the subordination of black people. Centuries of slavery and legal oppression will take time and generations to undo. Exactly how long will depend on the sincerity of our efforts.

We should also be wary of diversity-based programs as a substitute for programs designed to remedy past discrimination. Because the Supreme Court endorses diversity, but not remedying societal discrimination, as a justification for racial preferences, some proponents of remedying past discrimination may be satisfied with the pursuit of diversity as an indirect means for pursuing the remedial goal. Such satisfaction, however, may be misplaced. The pursuit of diversity is not only less effective at remedying past discrimination than pursuing the latter goal directly, it may ultimately doom the remedying of past discrimination by creating the illusion that past discrimination has been remedied when it has not. To the extent diversity-based programs benefit nonblack ethnic groups, such programs may, reassuringly, reduce the economic gap between whites and minorities generally, but do so without actually benefiting the victims of past discrimination who are likely to be black. Even if the status of blacks were monitored specifically, diversity-based programs may create a false impression that past discrimination is being addressed by benefiting blacks who are not victims of past societal discrimination, such as recent black immigrants. Such programs may thus close the black-white gap with the wrong blacks, that is, with blacks who were not harmed by past societal discrimination. The apparent elimination of racial disparities could thus deceive us into believing we have repaired the past when we have only obscured it. Care in tailoring remedial programs to reach the victims of past discrimination thus serves not only fairness, but effectiveness.

Finally, several advocates have called for a societal remedy in the form of cash payments to the descendants of slaves and victims of legalized discrimination. If the objective of remedying societal discrimination should be to eliminate the conditions of disadvantage, broadly defined, that disproportionately impact black Americans and that tend to perpetuate themselves intergenerationally, then monetary reparations, at least in a single payment, are unlikely to be a sufficient solution. First, aside from the difficulty of determining the amount and recipients of payments, the amount of funds necessary to undo the nationwide effects of past discrimination would likely be too great for our country to afford at one time. Second, and perhaps more importantly, monetary compensation seems unlikely to redress the nature of societal discrimination's damage. The cultural, spiritual, and aspirational damage caused by societal discrimination is unlikely to be cured by a lump sum payment to particular individuals. A payment of money is unlikely to substitute adequately for the family and community nurturing that black children need to thrive as they would had our nation accorded equality to prior generations. Furthermore, the impairing impact of societal discrimination on the norms and aspirations of many poor black people suggests that a cash payment by itself may be squandered in ways that fail to transform how their children are raised. This is not to deny that some reparations may be appropriate, but to disclaim such a remedy as sufficient by itself. What is needed for black children and families are long-term opportunities for self-development, opportunities to play, to learn, and to work in a cultural environment that nurtures self-esteem. Society's responsibility is not so much to give black people fish, but to teach them how to fish and to provide meaningful access to America's main stream.



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?
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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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A Moral Justification For Affirmative Action and Reparations ] African American Middle Class and the Cost of Discrimination ] Black America and Reparations ] Developing Legal Strategies to Advance Reparations ] Does a Prima Facie Case For Reparations Exist? ] Dominant Perspectives on Reparations ] Governmental Reparations for Slavery ] JP Morgan Chase Manhattan Bank and Slavery ] Political Autonomy as a Form of Reparations ] The Role of the Federal Government in Slavery and Jim Crow ] Slavery and Tort Law ] Reparations and the Failure of the Constitutional Amendments ] Reparations as Redistribution ] Slavery Segregation and Reparation ] Slavery Segregation and Reparations ] The Mass Tort Analogy and African American Reparations ] The Case Against Black Reparations ] Unjust Enrichment and Reparations for Slavery ] The Cultural War over Reparations for Slavery ] The Case for Black Reparations Redux ] The Case for Black Reparations ] The Origins of the Tulsa Riot and its Damage ] The Race-Skewed Notion of Victimhood ] Transforming Public Perceptions of Reparations ] Uncivil Wars and Reparation ] WCAR-New Avenues for Slavery Reparations ] White America and Reparations ] Slavery, Reproductive Abuse, and Reparations ] Statutes of Limitations and Reparations ] Takings Clause Solution to Reparations ]
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