Joshua M. Silverstein*
The use of race-based affirmative action (RBAA) in higher education admissions remains a controversial political and legal issue. In fact, the United States Supreme Court recently agreed to hear yet another case in which the plaintiff contends that RBAA at public universities is unconstitutional. Accordingly, now is an opportune time to revisit the ethical status of RBAA.
There are several arguments in favor of RBAA that are sufficiently persuasive to morally justify the practice. But one of these defenses is more compelling than the others. That argument can be summarized as follows: The position of privilege that whites currently possess in America vis-à-vis blacks is due, in part, to this country’s 300 years of slavery and Jim Crow. Slavery and Jim Crow were morally wrong under any plausible theory of justice. Therefore, American whites have their privileged position vis-à-vis American blacks partly because of past moral wrongs perpetrated by whites against blacks. Moral wrongs should be corrected unless there are compelling countervailing factors. No such factors exist here. Accordingly, white Americans have a moral duty to provide reparations for slavery and Jim Crow. And RBAA is a reasonable form of reparation. Let me explain this argument more fully.
Starting with my empirical claim, while it is frequently impossible to identify the impacts of slavery and Jim Crow on specific persons, there is no doubt that American whites as a whole have their position of privilege vis-à-vis American blacks partly because of the 300 years of institutionalized racial oppression that took place from roughly 1650 to 1964. During that period, whites expropriated billions (and perhaps trillions) of dollars in wealth from blacks, principally by not compensating blacks for their forced labor. In addition, white citizens held more rights under America’s racially discriminatory laws. As a result of the direct takings and legal discrimination, whites were able to amass staggering quantities of property relative to blacks and greater privilege in comparison to blacks in almost every area of life, including business, government, and education. And white Americans have passed all of this property and privilege on to their heirs, giving newer generations of whites significant advantages over more recent generations of black Americans.
To be sure, much of the success of whites in this country is the result of other factors. Entrepreneurial spirit, work ethic, and democratic constitutionalism, among other causes, all played a role. But the wealth and privilege American whites have obtained were derived in part by taking labor and property from American blacks and by putting in place legal rules that gave whites critical advantages over blacks. Even white Americans like me, whose families came to this country years after the end of the Civil War, can easily trace some of their wealth and privilege to the legacies of slavery and Jim Crow.
Before discussing my moral claim, three qualifying notes are in order. First, the fact that racial prejudice has dropped greatly in this country and that most whites are not racist is irrelevant to my argument. Second, the fact that American laws are substantially color blind today is irrelevant. Third, the fact that we elected a black President is irrelevant. These points are irrelevant because they do nothing to alter the economic and sociological fact that white Americans have advantages over black Americans today, in terms of both wealth and social position, partly because of slavery and Jim Crow.
Turning to my moral claim, it is now universally recognized that slavery and Jim Crow were unjust. American whites thus obtained their advantages over American blacks in part because of morally wrongful conduct. And therefore whites as a group have a moral obligation to provide reparations to blacks as a group. Why? Because of the principles of corrective justice.
According to the tenets of corrective justice, moral wrongs should be corrected. Persons injured should be compensated by those who hurt them. Stolen property should be returned. Parties that are unjustly enriched should give back the benefits they received, even if they obtained the benefits innocently. Much of American law—including the law governing contracts, property, personal injury, and crimes—is built around the concept of corrective justice. Note that I am not saying that blacks have a legal right to sue whites for damages under current law. Statutes of limitations and various other concerns nullify any such legal claim in my view (though not all legal scholars agree). Rather, I am contending that the fundamental principle of corrective justice—that wrongs should be righted—logically entails that American whites owe reparations to American blacks for slavery and Jim Crow as a matter of ethics. Corrective justice is profoundly embedded in this nation’s moral and legal culture. Thus, if we are going to live by one of our most cherished ideals, reparations are imperative.
Reparations can take many shapes. Options include direct payments to blacks, the allocation of additional government spending to black communities, tax-funded scholarships, race-targeted political redistricting, and RBAA. To illustrate, by some estimates, black Americans are owed roughly 1.5 trillion dollars for slavery and Jim Crow. I believe it would be appropriate for the government to tax the rest of us, and especially white Americans like me, to pay that debt over ten or twenty years. Unfortunately, such an approach is not politically feasible. Indeed, most types of reparations are not realistic for either political or legal reasons. RBAA is one of the few viable options that can assist significant numbers of American blacks. It does so by providing blacks with greater access to colleges, graduate schools, and jobs. This aids black Americans in the recovery of the property and status that was stolen via slavery and Jim Crow.
There are several counterarguments one can reasonably assert against my claim that corrective justice mandates reparations in the form of RBAA. I address the most important counterarguments here.
First, some opponents of RBAA assert that it does more harm than good for racial minorities. This argument takes a number of forms, but in any form the contention fails because it constitutes unjustified paternalism. American blacks overwhelmingly support racial preferences. Freedom of choice necessitates that we defer to their judgment that the benefits of RBAA are more valuable to them than the costs.
The second counterargument is that because RBAA draws distinctions based on race, it constitutes a form of racial discrimination; and the morally repugnant nature of such discrimination outweighs the demands of corrective justice. The problem here is that slavery and Jim Crow are two of the greatest wrongs in American history. Providing reparations for these injustices is essential. Therefore, implementing a race-conscious policy such as RBAA is a small price to pay to correct for the damage that was done in the past and continues to infect the present.
The third counterargument is that corrective justice leads us down the slippery slope. If blacks are entitled to reparations, why isn’t every other group that has been mistreated in the United States deserving of the same? The answer is that the harms done to black Americans are an order of magnitude greater than the harms done to every other group in this country’s history, except for Native Americans. In other words, the wrongs perpetrated against black and Native Americans are special cases. Accordingly, the slippery slope is not a concern.
The fourth counterargument is that RBAA is an imperfect remedy to correct for slavery and Jim Crow because it sometimes helps and hurts the wrong people. As I indicated in the discussion of my empirical claim above, it is often impossible to determine precisely which white and black Americans alive today have benefited from or been harmed by slavery and Jim Crow. We therefore cannot perfectly apportion the moral responsibility and entitlement of whites and blacks in any scheme of remedial compensation. This means that RBAA injures some whites and members of other races who, all factors considered, probably do not owe reparations. And it aids a number of black Americans who, all factors considered, probably are not entitled to reparations, such as some of the blacks who came to this country after the achievements of the civil rights movement in the 1960s.
This fourth challenge is the most persuasive critique of my position, but it still fails. Remember, I am not arguing that American blacks have a legal right to sue for RBAA, or any other reparations. Rather, I maintain that corrective justice morally legitimizes the use of racial preferences by universities and other institutions. When we adopt laws and policies in this country, whatever the underlying goal, we tolerate some degree of over- and under-inclusiveness. That explains why we regularly enact over- and under-inclusive rules in fields such as taxation, welfare, social security, bankruptcy, contracts, crime, and personal injury. Statutes and policies implementing reparative measures should not be held to a higher standard than rules in those other realms. Accordingly, the fact that RBAA is somewhat over-inclusive from a corrective justice perspective is not fatal to its moral legitimacy. Like most of our laws and policies, RBAA is a shotgun, not a rifle. And RBAA, as currently practiced, is easily precise enough to warrant its continued usage as a remedy for the harms caused by slavery and Jim Crow.
The fifth counterargument is that the use of RBAA by colleges and graduate schools cannot be vindicated on grounds of corrective justice since racial preferences help the blacks least in need of reparations. RBAA primarily assists middle-class blacks rather than working- and lower-class blacks because members of the latter two groups are much less likely to attend a university. But this counterargument is based on a false assumption about the purpose of RBAA. RBAA it is not intended to serve, by itself, as a comprehensive program of reparations. And it is not designed to help all blacks. Instead, RBAA is meant to assist only those racial minorities who qualify for admission to college. Thus, the fact that racial preferences primarily aid the most well-off blacks proves just one thing: some additional type of reparations is needed to assist those black Americans who will not participate in higher education.
The sixth and final counterargument is that RBAA would be practiced differently if a desire to provide reparations was the principal reason why institutions have adopted race-conscious admissions and hiring. For example, colleges frequently do not work to ascertain the degree to which a black applicant has been personally injured by slavery and Jim Crow when assessing his or her candidacy for acceptance. Likewise, RBAA is used to aid other racial minorities who were impacted by slavery and Jim Crow in small ways or not at all. Accordingly, the need for reparations cannot morally validate existing RBAA programs.
However, there are two powerful explanations for the present contours of RBAA. First, as I said at the start of this article, reparations theory is not the only ethical ground for race-targeted policies. There are multiple others, including the following: (1) unconscious bias against racial minorities still exists in both admissions and hiring; (2) lingering institutional racism continues to infect various other parts of our nation; and (3) racial diversity in higher education and employment is exceptionally valuable. Each of these supports the use of RBAA. And universities and businesses frequently take some or all of these justifications into account when crafting their programs that utilize racial preferences. Second, the Supreme Court has limited the grounds that public institutions may legally rely upon in adopting race-conscious procedures. In fact, the Court has expressly ruled that government entities, such as state colleges, are forbidden from employing racial preferences to remedy generalized historical wrongs like slavery and Jim Crow. And many non-public institutions, including a considerable number of private schools and businesses, have shaped their affirmative action policies to mirror those in use by government bodies. Summing up, RBAA has its existing form because reparations is just one of many purposes served by racial preferences and because public schools and government agencies may not employ reparations theory when designing and implementing race-focused practices. This explains why RBAA does not operate as it would if correcting for the harms of slavery and Jim Crow were the predominate motivation underlying racial preferences, draining the force from the sixth counterargument.
Proponents of this final critique might respond that every basis for race-conscious programs other than reparations is morally invalid. And thus existing protocols violate the rights of white Americans and others. But even if this were true, it would merely require that we revise RBAA to fit the reparations justification, not end racial preferences entirely.
Three final, miscellaneous points. First, how long must we continue RBAA to satisfy the demands of corrective justice? My quick answer is that America operated for 300 years under slavery and Jim Crow. America thus needs 300 years of RBAA and other remedial policies. But this answer is too glib. Therefore, we should consider other standards. For example, once whites and blacks have substantially equal socioeconomic profiles, I believe the wrongs of the past will have been sufficiently righted. But applying a guideline like this is difficult. We thus should start with the presumption that 300 years of slavery and Jim Crow warrant 300 years of reparations generally and affirmative action specifically. Those who want to end RBAA earlier bear the burden of showing that the harms of slavery and Jim Crow have been appropriately corrected, such as by proving that America has a reached a state of substantial equality between whites and blacks.
Second, the Supreme Court has ruled that, under the Constitution, public universities may use RBAA only to promote diversity in higher education. But the Constitution places no limits on private schools and private employers. And in the public sector, reparations theory helps to explain why it is critical that we defend the constitutional right of colleges to continue using RBAA in the pursuit of educational diversity.
Third, other kinds of affirmative action are also morally necessary. For example, while I am a staunch supporter of capitalism, the inherent inequalities of our economic system justify class-based affirmative action, which provides the economically disadvantaged with a preference in university admissions and the job market. But, of course, one can consistently support multiple types of affirmative action, and on various ethical grounds. Therefore, I remain firmly committed to RBAA in light of the principles of corrective justice.
* Professor of Law, University of Arkansas at Little Rock, William H. Bowen School of Law. I would like to thank Adjoa Aiyetoro, Elizabeth Anderson, Kyla Farler, Ken Gallant, Lauren Guinn, Nick Kahn-Fogel, Matt Silverstein, Phyllis Silverstein, and Rob Steinbuch for helpful comments on earlier drafts.