The U.S. Supreme Court on Tuesday will hear the most important civil rights case in a quarter of a century. White students denied entry to the University of Michigan undergraduate and law schools have alleged they are victims of reverse racial discrimination because of the schools' affirmative action programs. The basic legal issue is this: Can race be used as a factor in admissions, in light of the history of racial discrimination, to promote a more diverse student body?
However, the Michigan cases also raise a broader moral and philosophical question: When and for how long should future generations pay for the sins of previous generations? How far do we extend collective responsibility for violations of human rights? When does the relationship between an evil done by an earlier generation and the responsibility of a later generation terminate?
Between 1619 and 1865, about 8 million Africans and their descendants were enslaved in the United States. The slaves have of course died, but grandchildren or other direct relatives survive.
A series of class-action lawsuits have been brought in federal courts on behalf of the nation's 35 million African Americans against 15 American companies that allegedly profited from unpaid slave labor or secured wrongful profits by trading in and enslaving people forcibly brought over from Africa.
The plaintiffs seek reparations for African Americans through an accounting of the profits derived from the slave trade and the use of unpaid slave labor; the disgorgement of illicit profits from the use of slave labor in railroad construction and in the cultivation of cotton, tobacco, rice and sugar; the restitution of benefits derived by the use of slave labor; and punitive damages for the gross violation of human rights. The plaintiffs estimate that from 1790 to 1860, the U.S. economy reaped the benefits of $40 million in unpaid labor, what they estimate to be $1.4 trillion in today's dollars.
The lawsuits refer as a precedent to the reparations paid to Holocaust victims. Both involved the use of coerced labor. American slaves had no assets to plunder, as did many Holocaust victims, but both suffered destruction of their families and the theft of their culture.
During the Clinton administration, I led a team that conducted intensive negotiations with Swiss, German, Austrian and French companies and their governments, as well as with a dozen East European nations to achieve belated justice for Jewish and non-Jewish victims of the Third Reich, facilitating the return of communal property in Eastern Europe; obtaining $8 billion in class-action settlements for slave and forced laborers; returning looted property; and paying insurance policies.
All the parties to the Holocaust cases made the difficult decision to cover only those slave and forced laborers who had survived, about 1.25 million out of up to 10 million, and not their heirs. This had also been the principle behind the congressional action in 1988 to pay reparations to Americans of Japanese ancestry who were confined to camps during World War II. Congress allowed only those who were still alive and had been directly harmed to recover.
Because slavery took place so long ago, the nexus of injury is too distant to hold later generations responsible for individual reparations. It is both impractical to try to match descendants with millions of deceased slave laborers, and it greatly complicates the ability to sustain public support. But though there may be a legal statute of limitations on individual reparations, there is nonetheless a permanent responsibility for each generation to understand the ways in which those sins occurred and to recognize their continuing legacy.
In the course of the Holocaust-related negotiations, we obtained public apologies from the presidents of Germany and Austria. And 21 countries have created historical commissions to examine their roles in World War II. Austria's commission recently reported the widespread public participation in the looting of Jewish assets.
My colleagues and I encouraged this effort because we believed that by honestly facing their past, nations would be wiser in dealing with future challenges. South Africa created a Truth and Reconciliation Commission to examine its apartheid past. The United States should do the same with regard to slavery, for which there has never been an official apology.
Congress has set a precedent with the Japanese American legislation, by providing for research and education to remember and better understand the internment. The federal government could promote curricula about American slavery and its continuing effects on black families. And there is no reason why those companies that participated in the slave trade could not establish minority scholarship funds as a moral gesture, apart from any legal obligation.
This brings us to affirmative action and the U.S. Supreme Court. Even though direct reparations are infeasible, American society can do more to remember and atone for slavery. Long after slavery was formally abolished, rank discrimination against African Americans continued through black codes, sharecropping practices and Jim Crow laws. Even today, schools in black neighborhoods are much less likely to have certified teachers, up-to-date books and computers. African Americans are less represented in schools of higher education. Income disparities, access to health insurance and life expectancy are all directly linked to race.
Affirmative action programs, rather than small reparation payments, could deal much more effectively with the lingering effects of slavery and discrimination. Together with social and health programs for all disadvantaged Americans and courses in our school systems, affirmative action is the best way for our generation to deal with the cloud that slavery and discrimination have cast over American history.