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The moral and economic basis of affirmative action in the USA.

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J. Atsu Amegashie

  1. Blacks were enslaved for more than 400 years in the USA and discriminatory Jim Crow laws were in place for about a 100 years, from 1865 to 1964 (until the Civil Rights act of 1964). Thus, when slavery ended, discrimination continued in jobs, housing, education, etc continued.
  2. Slavery and Jim Crow laws dehumanized blacks and did not pay blacks for their sweat and toil of their labor. This was an egregious act of economic theft and a violation of their human rights for hundreds of years.
  3. Point #2 implies that any reasonable notion of justice must prescribe that the affected blacks should be compensated. Those blacks are dead. But it is a trite fact and standard practice that people inherit properties from their dead relatives. Therefore, descendants of slaves in the USA are eligible recipients of posthumous compensation for slaves. To the extent that they are morally entitled to compensation, their current economic status (rich or poor) may be irrelevant.
  4. I note that “… from 1945 to 2018, the German government paid approximately $86.8 billion in restitution and compensation to Holocaust victims (in World War II) and their heirs.” (https://www.state.gov/reports/just-act-report-to-congress/germany/). In 2010, Germany made its last payment for reparations from World War I.
  5. The preceding points are not in any way weakened by the argument that past discrimination (slavery and Jim Crow) does not justify current discrimination or a previous illegality does not justify current illegality. That may be the case if the discrimination or illegality was by individuals. In the case of slavery and Jim Crow, they were justified or endorsed, in some cases, by the State. For example, in 1896, the US Supreme Court ruled in Plessy vrs Ferguson that racial segregation laws (Jim Crow laws) in the USA did not violate the equal protection clause of the US constitution. It took 58 years for that ruling to be overturned in Brown vrs Board of Education (1954). The State must be accountable for its actions.
  6. The compensation for slavery and Jim Crow can be in the form of cash (reparations or what one may call monetary affirmative action) or can be in-kind (in-kind affirmative action). What remains is a practical problem. What should be the size of the compensation?

In the case of a cash compensation or monetary affirmative action, this question clearly boils down to “what should be the amount in dollars?”. Scholars like Sandy Darity have outlined a roadmap on how to implement reparations for descendants of slaves in the USA (see, for example, “From Here to Equality: Reparations for Black Americans in the 21st Century”, University of North Carolina Press, 2020).

In the case of in-kind affirmative action (like admissions to universities), questions about the size of the compensation boil down to “what should be the size of the quotas for descendants of slaves?”, “what should be the duration of affirmative action?” (i.e., when should AA end?), etc.

  1. The practical matters in #6 — including others like affirmative action is for only blacks who are fortunate enough to go to university — do not vitiate the fundamental principles enunciated in the preceding paragraphs. The challenge is to find a holistic and efficient way of compensating descendants of slaves in the USA. Failing that, arguments like affirmative action is reverse discrimination are disingenuous. Remedies for past injustice will inherently be discriminatory and such discrimination is justified.
  2. Chief Justice John Roberts, reading the majority opinion, said that, “The conclusion reached by the Brown Court (in Brown vrs Board of Education, 1954) was thus unmistakably clear: the right to a public education ‘must be made available to all on equal terms.” Parenthesis mine. But this does not change the fundamental point that descendants of slaves in the US are entitled to compensation. If the USA does not want in-kind affirmative action, then monetary affirmative action (reparations) is the other option. It cannot reject both remedies for the gross injustice of slavery and Jim Crow laws.