The Hate Exclusion: Moral Tax Equity for Damages Received on Account of Race, Sex, or Sexual Orientation Discrimination

Abstract

Scholars on both sides of the reparations literature divide commonly contemplate some form of federal monetary outlay. At the same time, given both the absence of such an outlay and the dire prognosis that such largesse is forthcoming, tax scholars rarely contribute to traditional reparations literature. With this Article, Professor Dexter introduces the federal income tax arena as fertile ground for the resolution of longstanding differences in the reparations debate and brings a novel and possibly controversial perspective to traditional tax expenditure analysis. In addition to highlighting the various political and administrative merits of a tax expenditure approach to reparations, he argues that allowing the exclusion of damages received on account of specific forms of discrimination – even if suffered at the hands of a private actor – would offer immediate and precisely-targeted reparational relief not only to those suffering the modern day impact of slavery and race discrimination under federal imprimatur but also to those impacted by the United States’ documented history of hostility with respect to women and sexual minorities. The narrow tailoring of relief combined with the moral force of the unclean hands theory of exclusion, he reasons, neutralizes arguments advanced in traditional reparations literature regarding excessive act, wrongdoer, and victim attenuation.