Racial Justice in the 21st Century: New Remedies for Persistent Problems

Many groups of people have suffered invidious discrimination in America, and some still do. In addition to people of African descent, women, gays, Latinos, Jews, Muslims, Catholics and many other religious groups, atheists, the Irish (“No Irish need apply!”), Germans and Italians (especially during wartime), Asians and, to one extent or another, virtually every ethnic immigrant group, as well as the disabled have all suffered grievously and unjustly from invidious discrimination-in employment, housing, education and public accommodations. Such discrimination has limited those opportunities that are supposed to be part of the American ethos, and has fostered inequalities that are dissonant to the American dream and to the reason that many immigrants came to this country in the first instance.

But of all these groups, only those of African descent were captured in their homelands, brought here against their will, sold into slavery, fundamentally dehumanized and had their family structure brutally broken. And only African-Americans, following slavery, were subjected to Jim Crow laws for an additional century, enforced by state-sanctioned terrorism. This unique and legalized subjugation, based on skin color and national origin, stifled opportunity, suffocated ambition, especially in the young, and imposed inequalities far more severe and far more durable, than any suffered by any other discriminated-against group. It does not diminish the injustice or the damage done to other groups to suggest that what this country, by state action and inaction at every level, did to people of African descent was fundamentally different in kind and that this difference accounts for the special difficulties we have experienced in recent years in finding remedies that are just, lasting and effective.

The end of slavery and the promises of Reconstruction foundered quickly as the jungle of racial injustice took back the road of equal rights and opportunities. The politics and the dominant culture of white supremacy swiftly reasserted themselves, Jim Crow laws were established throughout the South and for another century African-Americans remained subjugated and dehumanized based on the color of their skin to a degree unmatched by any other form of American discrimination. By the time the modern civil rights movement arose during the mid-20th century, an unprecedented subjugation, blessed by law, had flourished for nearly three hundred years. It was precisely this legalized subjugation that was the major target of the modern civil rights movement. And it succeeded to a remarkable degree, and at a surprising pace. Brown v. Board of Education was decided in 1954; Rosa Parks sat down in a Montgomery bus in 1955; the March on Washington for Jobs and Freedom took place in 1963; and in an exhilarating five year period, three federal laws were passed-the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968-that taken together established a legal framework for racial justice. Over intense, often violent, opposition, with much courage and with more than a little bloodshed, the civil rights movement had succeeded, by 1968, in dismantling the legal infrastructure of Jim Crow and replacing it with a legal infrastructure designed to ensure legal equality and remedy both individual and systemic instances of discrimination. And despite the enormous difficulties inherent in the enforcement efforts that followed the passage of these laws, and the much-too-slow pace of enforcement, it is fair to say that the regime of legalized discrimination based on skin color no longer exists and that formal, legal equality does.

However, the establishment of formal, legal equality has not led to the elimination of unjust differences based on skin color: major disproportions persist in education, housing, imprisonment, family structure, unemployment, wealth and opportunities for advancement. To some commentators, notably those who, like Charles Murray, never were prominently involved in the effort to dismantle Jim Crow or establish formal equality, the persistence of these disproportions is evidence of innate inferiorities linked to skin color. To others, notably those who were in the forefront of the civil rights movement, the persistence of these disproportions is evidence that the institutionalized injuries imposed by centuries of slavery and legalized skin-color subjugation were far more severe and durable than imagined, and that the remedies for such injuries lie somewhere beyond the establishment of formal, legal equality.

Melvin Oliver’s work on the huge and persistent differentials in wealth and assets, as distinct from the narrowing differentials in income, provide a profound example of the way in which past injuries have functioned as a kind of seniority system for inequality.

Seniority systems in employment, in the absence of prior skin-color discrimination, would seem to be a fair way of distributing scarce jobs and promotions. But layered on top of centuries of skin-color discrimination and exclusion, seniority systems have the effect, if not the intention, of replicating and reifying inequality, of rewarding the unjust beneficiaries and punishing the victims of prior discriminations and exclusions, thereby deepening and aggravating the initial injury. This is true even if the seniority system is currently and prospectively implemented in a race-neutral way; indeed, race-neutral mechanisms layered onto systems created by prior exclusions and discrimination almost always and inevitably have the function and effect of perpetuating and worsening the original exclusion. This fact is the basis for the moral and legal foundation for affirmative action.

But while such affirmative action remedies, if implemented, may cure structurally discriminatory employment systems, the deeper inequalities in wealth and assets — and the ways in which those deeper inequalities limit equal opportunities across a broad spectrum of essential items such as housing, jobs, education and capital formation — do not yield and probably cannot yield to such legal remedies. In effect, such deeper inequalities are able to maintain themselves without any current violation of law and in the absence of any current discrimination. For although those structural inequalities based on skin color were created and maintained by governmental actions, they do not require any governmental action now or prospectively in order to maintain unjust skin-color differentials into the indefinite future. Nor is it necessary for anti-discrimination laws to be violated in order for such differentials to endure. In effect, a regime of formal equality, layered on top of these structural inequalities, functions as a seniority system for injustice, placing a veneer of fairness over a fundamentally unfair structure. Indeed, it is for this reason that the remedies of formal equality, developed during the era when establishing formal equality was critical, are no longer sufficient to establish remedies for racial injustice and in some instances may even be regressive.

It is as if the soft and mobile substance of social opportunities had been constrained and deformed for centuries by the hard shell of legalized skin-color subjugation. The heroic and revolutionary achievement of the civil rights movement of the mid-20th century was to break apart and remove that hard outer shell. But when it did, to the deep disappointment of advocates for racial justice, we discovered that the inside had assumed the form of the shell: too many decades of constraint had robbed it of its elasticity; the deformation had become ossified. Moreover, the obligation to do more must be upon the society as a whole and the government in particular because it was society and the government, at every level through action and inaction that created and maintained the injuries and the consequences that we now face and endure. The obligation to remedy derives from the source of the injury. This is the moral and philosophical basis for both affirmative action and the recent movement for reparations; it is not necessary to endorse any particular affirmative action proposal or any particular reparations proposal in order to recognize the moral and philosophical societal obligation to repair the institutionalized damage done.

New paradigms will have to be developed, new ways of thinking about and analyzing the problem, new ways of conceiving the problem will have to be invented before remedies can be found for the racial injustice lying ossified beneath the hard, outer shell. The fact is that the search for such remedies represents an entirely different stage of the quest for racial justice. As it turns out, the legal paradigms and remedies that were developed for the successful assault on the hard outer shell of legalized skin-color subjugation, and which were responsible for the establishment of formal equality-an immense and revolutionary accomplishment-are insufficient for the next stage of the struggle: the assault on the ossified social and economic inequalities created by centuries of legalized subjugation. And it is also possible that the people-heroes all-who led the initial assault on the outer shell, many of whom were lawyers, are too confined by their training and by their past success to be the ones likely to develop new paradigms and new weapons; certainly, they are unlikely to be the exclusive ones or even the dominant ones, as they were during the first stage. It is for this reason that the Glasser Fellows should be chosen from a broad spectrum of backgrounds: e.g., journalists, economists, sociologists, political scientists as well as lawyers. And because experience sometimes serves as a barrier to new thinking and because young people unburdened by old paradigms often look at an old problem with fresh eyes (it is interesting to note in this regard that virtually every major historical breakthrough in mathematics and theoretical physics has been made by people younger than 30, and that over a long and rich scholarly life Einstein never again reached the level of new thinking that he did as a young man when he developed the Special and General Theory of Relativity; that example is typical, not aberrational), it might well be advisable to choose some of the Fellows from among the young, as well as from the accomplished, providing those special few can be identified.

At the same time, it would be a mistake to assume that because formal equality exists, current skin-color and ethnic discrimination does not. To the contrary, traditional discrimination-against Latinos, Asian Americans, Arab-Americans and others, as well as African-Americans– continues to escape the enforcement of civil rights laws. More significantly, new forms of government-driven skin-color subjugation have developed, of which drug prohibition and the explosion of incarceration provide one outstanding and consequential example. The racially targeted enforcement of drug prohibition and the racially skewed and exponential growth of the prison population now function as a successor state-action system to Jim Crow injustice. This is evident from arrest patterns, search and seizure patterns, conviction rates, sentencing disparities, racial profiling on highways and customs checkpoints and felony disenfranchisement. In effect, the racially skewed prosecution of the drug war represents a partial resurrection of the hard outer shell of legalized discrimination, and must be attacked as such. The targeting of Arab-Americans during post- 9/11 civil liberties violations provides another example. Thus, the focus of the Fellows program cannot be exclusively devoted to the second-stage problem described above, but must also be focused on new forms of old injustices, some of them arising in ways that traditional civil rights advocates have not always been swift to recognize.