IAST associate Wanda Mastor is a professor of law at University of Toulouse Capitole, and an expert in constitutional affairs. She argues that the African-American experience demonstrates that inequalities in law are sometimes required to compensate for inequalities in practice.

The election of Barack Obama should not allow us to forget that it is still easier to be born white than black on American soil. Following the civil disobedience efforts of the 1950s and 1960s, federal laws gradually aligned with anti-segregation movements. But due to America’s deeply entrenched culture of racial opposition, reality did not align with the law. What in France is incorrectly called positive discrimination in favor of blacks should never be compared to similar policies favoring other formerly neglected groups. It’s not that such policies are less dignified or less urgent. But given the extraordinary suffering and subjugation of African-Americans, the policies required to force their integration are equally unique.

Ideas about affirmative action owe a great debt to the father of black civil disobedience. Firmly, but without hate, Martin Luther King had these words for his white compatriots: “Blacks crave justice, not just love. It’s not enough to say, ‘We love blacks, we have lots of black friends.’ You have to demand justice. Love that does not pay its debt of justice does not deserve its name. It is only a sentimental affection, like that of a pet.” All the elements of affirmative action policy, which King describes as “preferential and compensatory”, are found in his work: “It is not enough to radically transform one’s attitude towards blacks, under the pressure of events; the country must also consider compensation for the handicaps that blacks have suffered in the past [...], to restore equilibrium and allow them to enter into competition on a fair and equitable basis.” King’s proposal of an equivalent for blacks of the 1944 GI Bill of Rights (a preferential policy for veterans) makes an excellent case for positive discrimination and its legitimacy.

Extract of the IAST Connect #14, Spring 2019

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