Causation and Responsibility in Tort and Affirmative Action

Abstract

This Article examines "reverse" discrimination cases through the lens of tort law. In reviewing "reverse" discrimination cases, federal courts are asked to determine whether a state actor may accept responsibility for past discrimination by crafting an affirmative action plan. In reviewing these cases, the federal courts are applying a seemingly neutral causal standard that requires public bodies to prove that they caused the past discrimination they now seek to redress. However, application of this causal standard virtually pre-determines these cases in favor of the "reverse" discrimination plaintiff, and effectively precludes public bodies from attempting to right past wrongs. Tort law is light years ahead of affirmative action law in its approach to the nuances of causation. While tort and affirmative action may appear to be widely disparate areas of law, they present remarkably similar themes and philosophical questions. Tort law has developed creative yet rigorous methods of reviewing thorny questions of causation, which should be imported to affirmative action jurisprudence. This Article argues that application of tort theory to affirmative action provides a solid, well-established approach, consistent with Supreme Court doctrine, that would allow the courts to weigh "reverse" discrimination cases on the merits rather than reaching predestined conclusions.