Interview with Mary Frances Berry
QUESTION 3
JACKIE SHEARER:

Now, um, you had a, a, a nice analogy by way of explaining affirmative action, remedy for harm done, ah, coming out of--

MARY FRANCIS BERRY:

Yeah, I'll explain it.

JACKIE SHEARER:

--with car accidents.

MARY FRANCIS BERRY:

Right. In fact, affirmative action, when it came into use as a remedy, was seen by lawyers and by civil rights people as really sort of a conservative remedy that fit within what lawyers already understood you would do about remedies in general, not just in the civil rights context. For example, if you, ah, ran into somebody with your automobile and you smashed up their car because you had run a stop sign, you were liable. It meant that you had to pay for any kind of harm that you did. And if you happened to die before you paid, then your estate had to pay. And so, that was called an affirmative response to the harm you did. And so, what affirmative action in the civil rights context would do is to follow that pattern. And also, people, when I say that to them about how we thought about it, in those days, people say, "Well, what about the fact that us Whites will say, 'Well, my grand-daddy didn't have any slaves,' and 'I didn't do anything to you, so that may be OK, but what about me?'" Well, in the law, too, we have under principals of equity, in the non-civil rights context, clearly understood, that, ah, when the equity court has to choose between two people who are both claiming that, ah, they have a right to the result, that the court doesn't like to make that choice. It's a hard choice. It's almost a Solomon like choice. But, that equity will always come to the rescue of those who have been victimized over those who have benefited from harm. So you don't really have to do the harm, you just have to benefit from it, and then the victim will get relief.