Choice in the Transition: School Desegregation and the Corrective Ideal

Abstract

This is an essay about the corrective aspiration of the law of racial discrimination—the commitment, expressed again and again in the case law, to eliminate the effects of past discrimination. This aspiration is most obviously reflected in remedies that courts order once specific violations of the Constitution or antidiscrimination statutes are shown. In broader form, it is also reflected in measures such as affirmative action that other institutions undertake to overcome more pervasive discrimination. Understanding what this corrective aspiration really means, and struggling with the transitional conflicts of moving from an unjust situation to a more just one, have been the distinctive civil rights challenges for this generation of lawyers and judges. In antidiscrimination law, the basic concept of the wrong to be corrected is defined by the "antidiscrimination principle" as the racially-based disadvantaging of blacks. The harms that are wrongful are those resulting from so-called "purposeful discrimination"—that is, racially prejudiced goals or attitudes—not discrimination defined in some other posssible way. While some have questioned whether it is appropriate to focus especially on harms caused by purposeful discrimination, and would focus instead on black "disadvantage" without linking it to purposeful discrimination, this notion of the harm to be eliminated corresponds, I think, to what most people believe are the distinctively terrible wrongs that blacks have suffered: not simply that they have wound up in an inferior position, but that they were deliberately subordinated and remain so today largely because of the effects of purposeful discrimination extending throughout American society over many years. The distinctive moral force of the corrective approach is that it builds upon the strong moral claim that purposeful discrimination is a wrong whose effects should be eradicated.