Taking Conservatives Seriously: a Moral Justification for Affirmative Action and Reparations
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Taking Conservatives Seriously: A Moral Justification for Affirmative Action and Reparations Kim Forde-Mazruit TABLE OF CONTENTS Introduction .............................................................................................. 686 I. Corrective Racial Justice: The Prima Facie Case for Societal R esponsibility .................................................................................... 694 A. Society Wrongfully Caused Harm .............................................. 695 1. The Nature of the Harm ....................................................... 695 2. The Causal Relationship to Historic Discrimination ............ 697 B. Society's Obligation to Remedy the Harm ................................. 707 II. Objections to the Prima Facie Case: Problems of Intergenerational Responsibility ........................................................ 710 A. Identifying Current Society with Past Discrimination ................ 711 1. The Wrongfulness of Slavery and Segregation .................... 711 2. The Collective Responsibility of Past Society ..................... 715 3. The Collective Responsibility of Current Society ................ 723 B. Proximate Causation: "Breaking" the Chain of Societal R esponsibility ? ......................................... .................................. 727 1. The Significance of Intervening Choice ............................... 727 Copyright © 2004 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. f Professor of Law and Barron F. Black Research Professor, University of Virginia; Director, University of Virginia Center for the Study of Race and Law; Visiting Professor of Law, University of Michigan (2003-04). I am grateful to many people for helpful comments and discussions about this project. I am especially grateful for the extensive comments I received on earlier drafts from Laurie Balfour, Rick Banks, Len Baynes, Anne Coughlin, Tino Cuellar, Dave Glazier, Joe Kennedy, Mike Klarman, Daryl Levinson, Clarisa Long, Dan Ortiz, Reggie Robinson, Jim Ryan, Rebecca Scott, Bob Scott, Bill Stuntz, and Bruce Thomas. I also received helpful feedback from the participants in workshops at Arizona State University, Georgetown Law Center, Stanford University, Syracuse University, the University of Michigan, the University of Pennsylvania, and the University of Virginia, as well as participants in the Mid-Atlantic and Northeast People of Color Legal Scholarship Conferences in 2001. The University of Virginia Law Library staff provided superb reference assistance. A special thanks to Tihisa Braziel, Sebastian Edwards, Madeleine Findley, Nicola Laing, Marcia Murchison, Terrica Redfield, and Davend Swinson for their diligent research assistance. 684 CALIFORNIA LA WRE VIEW [Vol. 92:683 2. The Significance of Time ..................................................... 737 III. Mediating the Moral Conflict: How Can Society Fulfill Its Responsibility? ............................................. .. .. .. .. .. .. 743 A. The Difficulties of Identifying the Effects of Past Discrim ination ............................................................................ 743 B. Designing Effective Remedies .................................................... 747 Conclusion ............................................................................................... 751 2004] TAKING CONSERVATIVES SERIOUSLY Taking Conservatives Seriously: A Moral Justification for Affirmative Action and Reparations Kim Forde-Mazrui Underlying the debate over affirmative action and reparationsfor 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 obliga- tion to remedy past discrimination by accepting, rather than dismissing, principles of conservatives who oppose affirmative action and reparations. Taking conservatives seriously reveals two moralprinciples 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 racialprefer- ences. These principles, however, also support America's responsibilityfor past societal discrimination against blacks. To the extent society partici- pated in wrongful discrimination, society is obligated, as a matter of cor- rective justice, to make amends to its black victims. A potential moral conflict thus exists between society's obligation to refrainfrom "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 obli- gation to remedy past discrimination. These include that America as a whole is not responsiblefor discriminationpracticed by only some states and private actors, that it is unfair to hold current society responsiblefor 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 CALIFORNIA LA W REVIEW [Vol. 92:683 responsibilityfor the consequences of her discriminatoryhistory. America as a nation was responsiblefor protecting slavery and discrimination, a responsibility that belongs to the nation as a nation and therefore contin- ues over time despite changeover in the American citizenry. American so- ciety 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 remedialpolicies is based on principles that counsel in favor of such policies as much as and argua- bly more than they counsel againstthem. INTRODUCTION In Grutter v. Bollinger,' 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 con- sensus 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 ef- fects (or "legacy") of past discrimination persist and the collective respon- sibility 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.4 Such effects, some contend, exert such an 1. 123 S. Ct. 2325 (2003). 2. For purposes of this Article, the term "discrimination" refers to the practice of intentionally treating people differently because of their race. 3. The competing positions described in this paragraph do not exhaust all arguments that have been advanced, which are as numerous as the literature on race is voluminous. Nor do they necessarily correspond precisely to the positions of particular commentators. They are intended to illustrate broad categories of arguments typically reflected in debates about societal responsibility for past discrimination. The footnotes provide some references to specific commentators whose positions fall roughly within the broader approaches described in the text. 4. See, e.g., Charles R. Lawrence Ill, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987) (arguing that unconscious racism, as the enduring mark of slavery, permeates American society); Jamie B. Raskin, Affirmative Action and Racial Reaction, 38 How. L.J. 521, 555 (1995) (defending affirmative action on the ground that the condition of black Americans is substantially impacted by the effects of employment and housing discrimination, segregation, disenfranchisement, violence, and slavery); Vincene Verdun, If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597, 664 (1993) (arguing that the economic effects of 300 years of oppression and discrimination mean that "the past of the Negro exists in the present" (quoting Whitney M. Young, Jr., Should There Be "Compensation" for Negroes?: "Domestic Marshall Plan," N.Y. TIMES MAG., Oct. 6, 1963, at 43)); Tuneen E. Chisolm, Comment, Sweep Around Your Own Front Door: Examining the Argument for Legislative African American Reparations, 147 U. PA. L. REV. 677, 687 (1999) (arguing that wealth inequality between whites and blacks has been structured over many generations through the systematic barriers of slavery, "Jim Crow" laws, de jure discrimination, and institutionalized racism (citing MELVIN L. OLIVER & 2004] TAKING CONSERVATIVES