Introduction

In Grutter v. Bollinger, 1 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 consensus 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 effects (or "legacy") of past discrimination persist and the collective responsibility 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. Such effects, some contend, exert such an oppressive and debilitating force on black people that society cannot fairly blame those blacks who engage in unproductive, irresponsible, or criminal conduct. They would place culpability instead with the U.S. government for human rights violations and argue that all thirty-six million black Americans residing in the United States today are entitled to full reparations. To the other extreme are opponents of racial remediation who claim that discrimination can no longer be blamed for the plight of blacks. They attribute exclusive responsibility for the social and economic disadvantages disproportionately experienced by blacks to blacks themselves for eschewing opportunity in favor of crime and government dependence. Some also cite cultural explanations for black disadvantage, claiming that the culture of black communities fosters oppositional attitudes and deviant behavior. Other commentators find themselves at various points in between. Some believe that society does have some responsibility for the condition of blacks, but that such responsibility continues to dissipate over time and generations, especially as claims from other disadvantaged groups compete for government relief. Others, also acknowledging the significance of past discrimination, nonetheless believe that blaming society for the condition of blacks should be resisted because it treats blacks paternalistically, and because race-based remedies generate resentment, perpetuate racial discord, and unfairly discriminate against innocent whites. And some people are simply tired--tired of being reminded of a history that largely predated their birth or arrival to this country, tired of feeling accused of shameful acts they never personally committed or condoned, tired of dwelling on the past. Entrenching themselves deeper into their positions, each side invokes increasingly vehement condemnations of the other. And while some commentators scramble to proclaim that "the problem of the twenty-first century will be the problem of the color line," others will likely react--not again.

This Article addresses whether American society today bears any moral responsibility for the relatively inferior position of black Americans, to the extent such conditions result from the discrimination perpetrated against black Americans during the period of slavery, through segregation, and until (at the earliest) the adoption of national antidiscrimination laws in the 1960s. Although much has been written on the subject, particularly in the context of affirmative action and reparations, the literature tends to be dominated by extreme positions incapable of taking competing claims seriously.

Moreover, arguments advanced on both sides of this controversy often conflate concepts that should be kept distinct. For example, the proposition that past discrimination is causally related to present conditions is often assumed, erroneously, to imply that society as a whole is necessarily responsible for such conditions, or that black Americans bear no personal responsibility for their plight. Many arguments also assume responsibility to be exclusive, such that either society or blacks are responsible for racial inequities, but not both. A third point of confusion derives from the failure of many existing arguments to distinguish between the collective responsibility of America as a nation and the personal responsibility of its members for the perpetration of past discrimination. Finally, the question of whether society is responsible for certain conditions is often conflated with the question of how society should fulfill such responsibility.

This Article attempts to bridge the divide between advocates and opponents of affirmative action in two ways. First, the Article bridges the logical divide by expressly separating the concepts conflated by much of the existing literature. Second, the Article bridges the rhetorical divide by employing modes of reasoning frequently used by conservative opponents of affirmative action and reparations to argue that American society bears at least some moral responsibility for the effects of past societal discrimination. Indeed, the thesis of this Article is that principles central to arguments made against affirmative action support as much as negate a societal obligation to remedy effects of past racial injustice. Consider: Opponents of affirmative action often frame their position in moral terms. They argue that racial discrimination is immoral, that affirmative action by racial preferences involves racial discrimination and is therefore unjust, and that the Constitution and other laws ought to forbid governmental and private actors from engaging in such immoral practices. Opponents of affirmative action further contend that the victims of racial preferences should be made whole. Thus, for example, when a public university denies admission to a white applicant because of her race, that applicant has been injured by immoral state-sponsored conduct and should be accorded a remedy, such as monetary damages or injunctive relief by the offending state.

The moral argument against affirmative action is also persuasive to the Supreme Court, particularly to the more conservative Justices. These Justices reason that racial discrimination, even for benign purposes, is morally objectionable and that the Constitution forbids the government from engaging in such immoral practices absent a compelling justification. Remedying the effects of past societal discrimination against blacks, moreover, is not a sufficiently compelling justification for the use of racial preferences. These Justices further conclude that the victim of unconstitutional discrimination is entitled to a remedy from the responsible sovereign. Accordingly, when a public university denies admission to a white applicant to remedy effects of societal discrimination, the applicant has suffered immoral, and therefore unconstitutional, state action, and is entitled to relief from the state. The Court's doctrine constitutionally prohibits the state and federal governments from using racial preferences to remedy past societal discrimination, and requires that they provide a remedy to victims of such preferences.

The foregoing argument against affirmative action rests on two moral principles. The first principle is that racial discrimination is unjust. The second principle is corrective justice, which posits that one who harms another by wrongful conduct is morally obligated to make amends to the victim. Applied to state-sponsored racial preferences, these principles support the argument that the state is obligated to make amends to the victims of such preferences. These principles, however, also have implications for American society's responsibility for the effects of past societal discrimination against black Americans. To the extent society participated in wrongful discrimination, society is arguably obligated, as a matter of corrective justice, to make amends to the victims thereof. Thus if the socioeconomic disadvantages disproportionately experienced by blacks reflect the effects of societal discrimination, society is arguably obligated to remedy those conditions. A potential moral conflict thus arises between society's obligation to refrain from "reverse" racial discrimination and its obligation to remedy past discrimination. Affirmative action to remedy past discrimination may cause injustice to those disadvantaged by racial preferences. Yet to refrain from remedying past discrimination would leave those injustices uncorrected, a moral wrong in itself according to corrective justice theory. Thus, the moral case against affirmative action also supports a moral case in its favor.

Opponents of affirmative action would likely dispute the existence of any such moral conflict. Some might argue, for example, that no effects of past discrimination exist and, therefore, there is no harm to remedy. Others might argue that whatever effects of past discrimination persist, the responsibility for not overcoming such conditions lies with blacks for failing to take advantage of economic and educational opportunities. Still others could question whether it is fair to call on present members of society to bear the cost of remedying discrimination practiced by past generations. With no moral obligation on the part of society to remedy past discrimination, racial preferences designed to achieve this objective are unjustified and therefore unjust.

This Article explores the moral argument in favor of societal responsibility and the objections just discussed. The Article does not purport to establish empirically that effects of past discrimination exist, which very few scholars dispute in any event. Rather, it explores the normative relationship between these effects and societal responsibility. This Article is primarily concerned with whether society is responsible, not how such responsibility should be fulfilled. Thus, whether racial preferences or race-neutral policies would be the most effective means for remedying past discrimination is not the central concern. Rather, the concern is the anterior question of whether society bears any responsibility to redress, by whatever means, conditions that result from past discrimination.

To facilitate a constructive discourse, the arguments in this Article draw upon principles that are either accepted by opponents of affirmative action or are widely accepted by American society as relevant to questions of attributing collective responsibility for the harmful effects of wrongful conduct. Useful sources of such principles include well-settled doctrines of law, domestic and international, that incorporate principles of corrective justice. The point of relying on principles endorsed by conservatives is not that all conservatives will accept the implications of applying these principles to a moral defense of affirmative action. The moral argument raises complicated issues, and, moreover, some conservatives may oppose affirmative action for reasons other than its purported immorality, such as economic self-interest or a desire to minimize racial friction. The intent, rather, is to reveal the contradictory implications of claims about the wrongfulness of racial preferences and to persuade more moderate observers that, on balance, America's moral obligation to repair her wrongful history outweighs the moral costs of doing so.

Additionally, this Article's reliance on legal principles does not necessarily imply that our nation is legally obligated to remedy past societal discrimination. The objective, rather, is to defend the plausibility of a moral obligation that American society should assume voluntarily in order to complete its transition to a nation committed to racial equality. The legal doctrines that incorporate principles of corrective justice provide analytical approaches and illustrations--a heuristic through which to gain some clarity and insight into a most vexing problem. These concepts reflect the cumulative experience of American society's efforts to attribute responsibility for the injurious effects of culpable human action, and may thus suggest some useful lines of inquiry in assessing societal responsibility for the lingering effects of racial injustice.

The Article begins in Part I with the prima facie case for societal responsibility: that American society wrongfully discriminated against blacks and is morally responsible, as a matter of corrective justice, to remedy its lingering effects. Part II addresses objections to the prima facie case. Part II.A considers whether it is fair to identify current society as the relevant wrongdoer. In particular it looks at whether American society as a whole is responsible for discrimination practiced by some, and whether it is fair to hold current society responsible for discrimination practiced by past society.

Part II.B addresses whether blacks today are fairly characterized as victims of past discrimination, given the passage of time and the intervention of personal choices by blacks that may have contributed detrimentally to the condition of black people today.

Part III considers some difficulties facing the fulfillment of a societal responsibility for past discrimination. Part III.A considers the difficulty of identifying the scope of the injury to be remedied, that is, the extent to which the condition of blacks would be different today, absent past discrimination, and the problem of identifying the present victims of such discrimination. Finally, Part III.B briefly considers what implications the effects of past discrimination may have for the kinds of policies that would most effectively remedy such effects.