71 Pages Posted: 17 Jun 2010
Date Written: 2004
Underlying the debate over affirmative action and reparations for 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 obligation 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 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 racial preferences. These principles, however, also support America's responsibility for past societal discrimination against blacks. To the extent society participated in wrongful discrimination, society is obligated, as a matter of corrective justice, to make amends to its black victims. A potential moral conflict thus exists between society's obligation to refrain from “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 obligation to remedy past discrimination. These include that America as a whole is not responsible for discrimination practiced by only some states and private actors, that it is unfair to hold current society responsible for 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 responsibility for the consequences of her discriminatory history. America as a nation was responsible for protecting slavery and discrimination, a responsibility that belongs to the nation as a nation and therefore continues over time despite changeover in the American citizenry. American society 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 remedial policies is based on principles that counsel in favor of such policies as much as and arguably more than they counsel against them.
Keywords: race reparations, affirmative action, past discrimination, racial discrimination, reparations
Suggested Citation: Suggested Citation
Forde-Mazrui, Kim, Taking Conservatives Seriously: A Moral Justification for Affirmative Action and Reparations (2004). California Law Review, Vol. 92, 2004. Available at SSRN: https://ssrn.com/abstract=1626023