Affirmative action as a form of reparations*

University of Memphis Law Review, The, Winter 2003 by Mosley, Albert

I. INTRODUCTION

Since the 1960s, the federal government has taken the lead in guaranteeing an end to racial and sexual discrimination. Executive orders,1 legislative statutes,2 and judicial rulings3 mandate that "affirmative action" be taken to end racial discrimination and the legacy of racism. Not only has discrimination on the basis of race, sex, religion, or ethnicity been legally prohibited, but corporations and institutions doing business with or receiving grants from the federal government are expected to show a good faith effort to address racial and sexual disparities in awarding employment, educational, and investment opportunities. Affirmative action is a set of policies that public and private institutions have evolved in response to the moral and legal pressure to end the practice of racial and sexual discrimination.

In a series of recent articles, a number of commentators have argued that these policies constitute a form of reparations for the injuries of slavery and segregation, and that no further restitution is needed. For example, Bernard Siegan argues that a resolution seeking an apology for slavery and Jim Crow laws would be superfluous.4 For Siegan, efforts to end racial discrimination embodied in Supreme Court decisions, federal and state legislation, school desegregation orders, and minority business set-asides show a determined effort by the polity to end the country's history of racial discrimination.5 Siegan notes: "Given this history of governmental activity, why engage in the divisive debate of apologizing for Jim Crow? Why enter this thicket when the American people have loudly and clearly expressed the deepest regret for past racial discrimination in their contemporary legislation and judicial decisions?"6

John McWhorter makes a similar case against reparations by labeling those who call for reparations for slavery and segregation "victimologists."7 McWhorter writes:

[T]hese victimologists consider it irrelevant that the 1960s witnessed a battery of "reparations" for blacks that continues in full force today-the expansion of welfare, affirmative action, the Community Reinvestment Act of 1977, and so on. Sure, these policies have had mixed legacies (at best), but the fact remains that the nation instituted them in full awareness of the effects of slavery, segregation, and residual racism upon a group with a tragic history.8

This article will attempt to show that welfare and affirmative action, as currently constituted, were not conceived as forms of reparation, and they do not currently function as such.

II. AFFIRMATIVE ACTION AND ITS ROLE AS COMPENSATION FOR PAST RACIAL DISCRIMINATION

Moderate conservatives pride themselves for supporting policies requiring public and private institutions to act affirmatively to make sure that members of under represented groups are made aware of available opportunities and are fairly judged. Typically they support a weak form of procedural affirmative action that condones special efforts to search out the best talent by making sure that blacks and women are not ignored or excluded for racist or sexist reasons. In their view, society as a whole benefits from the productivity of those who are most qualified, and society suffers a loss of possible benefits when the most qualified are denied opportunities because of their race or sex.

Many liberals support a stronger form of preferential affirmative action. For similar reasons, they argue that certain circumstances justify giving a preference to members of a race or sex that has been historically discriminated against in choosing candidates for educational and employment opportunities. William Bowen and Derek Bok, in The Shape of the River, do a masterful job of showing that the beneficiaries of preferential affirmative action provide more returns to their communities, on average, than majority candidates who were not admitted under affirmative action guidelines.9

In the case of educational institutions, not only did minority students who received preferential admission to selective institutions benefit from higher subsequent income and status upon graduation, but the educational institutions benefited as well.10 Preferential admission policies made it possible for educational institutions to identify individuals with great potential who they would otherwise reject, and it exposed all of their students to people from different backgrounds.11 Further, preferential admission policies help distribute services to meet the needs of different sub-sectors of society, recognizing that black professionals, such as lawyers, doctors, and educators, were more likely to exercise their skills by serving the black community than were white professionals.12

To Bowen and Bok, it is clear that:

American society needs the high-achieving black graduates who will provide leadership in every walk of life. This is the position of many top officials concerned with filling key positions in government, [and] of CEOs who affirm that they would continue their minority recruitment programs whether or not there were a legal requirement to do so . . . .13