Top Banner

of 71

[Forde-Mazrui] - A Moral Justification for Affirmative Action and Reparations

Jun 03, 2018

ReportDownload

Documents

  • 8/12/2019 [Forde-Mazrui] - A Moral Justification for Affirmative Action and Reparations

    1/71

    Taking Conservatives Seriously: A Moral Justification for

    Affirmative Action and Reparations

    Kim Forde-Mazrui

    Table of Contents

    Introduction..................... .................. ................. .................. ................. ....... 4 I. Corrective Racial Justice: The Prima Facie Case for Societal

    Responsibility.............. ................. .................. ................. .................. .. 12 A. Society Wrongfully Caused Harm.................. ................... ........... 13

    1. The Nature of the Harm ......................................................... 13 2. The Causal Relationship to Historic Discrimination.............. 15

    B. Societys Obligation to Remedy the Harm ................. .................. 25 II. Objections to the Prima Facie Case: Problems of

    Intergenerational Responsibility.............................. .................. .......... 28 A. Identifying Current Society with Past Discrimination............ ...... 29

    1. The Wrongfulness of Slavery and Segregation................. ..... 29 2. The Collective Responsibility of Past Society ................... .... 33

    3. The Collective Responsibility of Current Society........ .......... 41 B. Proximate Causation: Breaking the Chain of SocietalResponsibility? ............................................................................. 45 1. The Significance of Intervening Choice.......... ................... .... 45

    Copyright 2004 California Law Review, Inc. California Law Review, Inc. (CLR) is a Californianonprofit corporation. CLR and the authors are solely responsible for the content of their publications.

    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 ofMichigan (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 LaurieBalfour, Rick Banks, Len Baynes, Anne Coughlin, Tino Cuellar, Dave Glazier, Joe Kennedy, MikeKlarman, 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 inworkshops at Arizona State University, Georgetown Law Center, Stanford University, SyracuseUniversity, 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 ScholarshipConferences in 2001. The University of Virginia Law Library staff provided superb referenceassistance. A special thanks to Tihisa Braziel, Sebastian Edwards, Madeleine Findley, Nicola Laing,Marcia Murchison, Terrica Redfield, and Daven Swinson for their diligent research assistance.

    TBD

  • 8/12/2019 [Forde-Mazrui] - A Moral Justification for Affirmative Action and Reparations

    2/71

    2 CALIFORNIA LAW REVIEW [Vol. 92:TBD

    2. The Significance of Time....................................................... 55 III. Mediating the Moral Conflict: How Can Society Fulfill Its

    Responsibility?.................................................................................... 61 A. The Difficulties of Identifying the Effects of Past

    Discrimination .............................................................................. 61 B. Designing Effective Remedies................. ................... .................. 65

    Conclusion ................................................................................................. 69

  • 8/12/2019 [Forde-Mazrui] - A Moral Justification for Affirmative Action and Reparations

    3/71

    2004] TAKING CONSERVATIVES SERIOUSLY 3

    Taking Conservatives Seriously: A Moral Justification for

    Affirmative Action and Reparations

    Kim Forde-Mazrui

    Underlying the debate over affirmative action and reparations forblack Americans is a dispute about the extent to which American society isresponsible for present effects of past racial discrimination. Althoughmuch has been written on the subject, the scholarship too often sheds moreheat than light, and tends to be dominated by extreme positions incapableof taking opposing claims seriously. This Article weighs in on this debatein 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 moral principles that support a

    societal obligation to remedy past discrimination. The first principle is thatracial discrimination is unjust. The second principle is corrective justice:that one who wrongfully harms another is obligated to make amends. Ap-

    plied to affirmative action, these principles support conservative claimsthat a state is obligated to make amends to white victims of racial prefer-ences. These principles, however, also support Americas responsibility for

    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 moralconflict thus exists between societys obligation to refrain from reversediscrimination 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 awhole is not responsible for discrimination practiced by only some statesand private actors, that it is unfair to hold current society responsible fordiscrimination by past society, and that blacks today ought not be viewedas victims of past discrimination, given the passage of time and the extentto which black peoples choices have perpetuated their own disadvantage.This Article concludes that these objections fail to defeat Americas re-

  • 8/12/2019 [Forde-Mazrui] - A Moral Justification for Affirmative Action and Reparations

    4/71

    4 CALIFORNIA LAW REVIEW [Vol. 92:TBD

    sponsibility for the consequences of her discriminatory history. America asa nation was responsible for protecting slavery and discrimination, a re-

    sponsibility that belongs to the nation as a nation and therefore continuesover time despite changeover in the American citizenry. American societyis also responsible for black peoples choices that may perpetuate theirdisadvantage because those choices reflect a foreseeable reaction to condi-tions created by societal discrimination. The moral imperative to remedy

    past discrimination, moreover, outweighs the risk of imprecision in doing so. Ultimately, conservative opposition to remedial policies is based on principles that counsel in favor of such policies as much as and arguablymore than they counsel against them.

    Introduction

    In Grutter v. Bollinger ,1

    the U.S. Supreme Court declined to forbidaffirmative 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 2 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. 3 To one extreme arethose who argue that the effects of past discrimination are pervasive andmanifest 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 necessarilycorrespond precisely to the positions of particular commentators. They are intended to illustrate broadcategories of arguments typically reflected in debates about societal responsibility for pastdiscrimination. The footnotes provide some references to specific commentators whose positions fallroughly within the broader approaches described in the text.

    4. See, e.g. , Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning withUnconscious Racism , 39 Stan. L. Rev . 317 (1987) (arguing that unconscious racism, as the enduringmark 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 conditionof 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 theeconomic effects of 300 years of oppression and discrimination mean that the past of the Negro existsin 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

Welcome message from author
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.