| Excerpted from: Bridging the Color Line:
the Power of African-American Reparations to Redirect America's
Future, 115 Harvard Law Review 1689, 1696- (April, 2002) (112 Footnotes
Omitted)
Although innovative and creative legal maneuvers can perhaps overcome
the daunting legal obstacles to reparations, the public is less amenable
to such tactics. Advocates of African-American reparations face the same
basic challenge as any group seeking reparations: seeking redress from a
majority group that is reluctant to relinquish any of its institutional,
social, or economic power. But those who claim African-American
reparations must overcome the additional hurdle of the commonly held
public belief that society is already paying a debt, through welfare and
race-preference programs, that it should not be obliged to pay in the
first place. This sentiment likely leads to the initial hostility toward
reparations. Situated on the other side of the color line, blacks would
likely reject this individual rights based assertion on two grounds.
First, while the status of blacks today is in part the result of
individual choices, they face structural constraints due to the
lingering effects of slavery and Jim Crow. Second, blacks as a group
continue to suffer, even if they are not the original victims of slavery
or Jim Crow. Reparations advocates must build a logical and convincing
bridge across the color line, one that overcomes certain notions of
reparations as retribution; otherwise, even an unsuccessful legal claim
could severely aggravate racial tensions.
Bridging the gap is only possible through the reshaping of public
opinion. The components of such a bridge should identify the following:
the injustice, the victims and the perpetrators, and the causal
connection between the harm experienced by current members of the
victimized group and the past injustice. There is little public debate
over the first component; repair will begin when blacks and nonblacks
are convinced of the remaining two, which this Note addresses separately
below.
A. Identifying Victims and Perpetrators
1. Victims.--During their respective periods, slavery and Jim Crow
directly affected anyone with known African ancestry, but immigration
has made it difficult to identify their descendants. This forces
reparations advocates to confront the controversial problem of defining
the parameters of who is "black."
What kind of proof would be required? DNA evidence demonstrating
African heritage? Genealogical evidence indicating slave ancestry? A
resurgence of the "one drop rule" ? Such methods, especially
the "one drop rule," are demeaning and ultimately
unnecessary-- current educational affirmative action programs have been
successful without requiring recipients to "prove" their race.
Although the identification problem would be of great concern if
monetary reparations were awarded directly to individuals, reparations
as proposed in this Note would augment programs that already have a
feasible distribution system, such as race-preference programs and
subsidies to black-owned businesses, and would invest in
institution-building in black communities and in grassroots
organizations that would ultimately help both black and nonblack members
of the community.
The notion of compensating members of a historically victimized
group, even nonvictim members of that group, is not unprecedented.
Reliance on loose connections between victim and beneficiary have found
both constitutional and statutory acceptance. Current Supreme Court
affirmative action doctrine upholds race-based programs designed
specifically to address past discriminatory acts and to provide a
benefit that does not necessarily flow to the harmed individual, but
rather to members of the victim's racial group. In Adarand Constructors,
Inc. v. Pena, the Supreme Court admitted the necessity of race-conscious
solutions:
Unhappy persistence of both the practice and the lingering effects of
racial discrimination against minority groups in this country is an
unfortunate reality, and the government is not disqualified from acting
in response to it. . . . When race-based action is necessary to further
a compelling interest, such action is within constitutional constraints
if it satisfies the "narrow tailoring" test this Court has set
out in previous cases. In employment discrimination law, through Title
VII of the 1964 Civil Rights Act, courts are empowered to create
"preferential, race-conscious remedies that benefit
non-victims," with the intended purpose "'not to make
identified victims whole,' but to dismantle the lingering effects of
prior discrimination and to prevent discrimination in the future."
If loose connections between victim and beneficiary are deemed necessary
to uproot the "lingering effects of prior discrimination" in
the context of race-preference programs, then they should be applicable
in the reparations context.
Even outside the arena of legislative racial justice, when the remedy
is intended to address a pervasive injury to society, such as after an
antitrust violation, the recipients of the benefit need not be directly
harmed if providing benefits to them will result in a greater benefit to
society. For example, the benefits of the proposed settlement in the
Microsoft antitrust litigation did not flow to software purchasers but
to the community through the mandatory donation of more than one billion
dollars in cash, software, and computer equipment, as well as the
establishment of an "eLearning Foundation" that would
distribute the resources to impoverished schools. Thus, in remedies
targeted toward the lingering effects of discrimination or in attempts
to heal a diffused injury to the polity, the individual rights paradigm
is often set aside to provide group-based benefits to achieve the
broader goal of repair.
2. Perpetrators.--Under the individual rights paradigm, it is equally
important to identify the "perpetrators." This country is
largely a country of immigrants, many of whom arrived after the end of
slavery and Jim Crow and were themselves persecuted upon their arrival.
It is difficult to justify their contribution to African-American
reparations. It is thus necessary for reparations supporters to distance
themselves from the individual rights paradigm and, rather than blame
individuals, to look to the country to restore itself. Under this
formulation, no individual is held personally responsible for the
oppression of, or discrimination against, an entire race-- an accusation
that frustrates most nonblack Americans who do not see themselves in
such a position of power relative to blacks. Instead, reparationists
must argue that slavery and Jim Crow taint all private ordering within
public institutions. The traditional individualistic focus makes
African-American reparations easy to dismiss because slavery was too
pervasive--it permeated an entire society and its institutions; it
enslaved an entire race of people--to attribute to identifiable
wrongdoers.
Ultimately, the choice to live in America is a choice to accept the
history, responsibilities, and debts from which our country's prosperity
and freedoms flow. Reparations are not intended to hold individual
Americans living today morally responsible for the acts of their
forefathers, but rather to insist that the country apologize for its
wrongful acts and take the necessary steps to bridge the racial divide
and to alleviate the economic and social disparities that resulted from
those acts.
B. Causation and Harm
The causal link between the status of blacks today and the offenses
of slavery and Jim Crow must also be identified to garner public support
for reparations. Discriminatory practices that forced blacks to miss
housing, educational, and employment opportunities not only hindered
their social mobility and ability to accumulate wealth, but also left
residual psychological scars.
The economic subordination of blacks under Jim Crow denied them
opportunities to accumulate wealth, in particular opportunities to
purchase property. Government-sanctioned discriminatory practices in the
housing and lending markets, such as restrictive covenants, which were
not outlawed until 1948, excluded blacks from many sectors of the
property market. Even after the removal of such legal barriers to
property ownership, owning property did not become a viable option for
most blacks until the late 1960s because of limited financial resources,
a situation exacerbated by discriminatory practices in the delivery of
credit, assignment of interest rates, property value assessment, and
legal segregation. When housing prices tripled during the 1970s,
affording many whites a 300% increase in the value of their property,
blacks again found themselves either unable to enter the housing market
or unable to afford property in desirable neighborhoods.
Limited capital-formation ability, which began under slavery and Jim
Crow, continues to plague many African-Americans. Home ownership is
considered one of the most important means of accumulating wealth, and
this wealth is necessary to start new businesses, purchase stock, invest
in real estate, and transfer "cultural capital," such as
education, to children. Asymmetries in wealth are self-reinforcing:
substantial wealth produces income, which can then be reinvested in
assets or saved and eventually passed on to one's children. Thus wealth
previously accumulated through racially biased institutions would create
compounded effects that would remain evident and relevant today.
However, intergenerational transfer does not completely explain why
the wealth gap continues to increase even as the black-white income gap
decreases. Melvin Oliver and Thomas Shapiro offer three explanations of
how the opportunity structure has sustained the wealth asymmetry. First,
the strong incentives to home ownership that the government has created
through the tax system typically bypass the poor and thus benefit a very
small percentage of blacks. Second, Oliver and Shapiro propose the
concept of the "economic detour" as an explanation for the low
levels of black entrepreneurship and business ownership. Legal
discrimination hinders the ability of blacks to participate freely in
the market and to explore larger and more lucrative markets; this
analysis also applies to blacks' ability to invest in valuable housing
outside of their communities. They further propose the
"sedimentation of racial inequality," which asserts that the
legacy of poor wages, inferior schooling, and segregation continues to
disadvantage blacks. Equally important is the recognition that the
system that has denied advantages to blacks has systematically granted
them to whites, creating a close link between white wealth accumulation
and black poverty.
These observed effects are most evident in a comparison of the white
middle class and the black middle class. Membership in the middle class
for both groups is dependent on both income and wealth, yet while whites
tend to achieve middle class status based on wealth, blacks tend to rely
on income. Consequently, many describe the black middle class as
"fragile." This fragility is due in part to blacks' reliance
on the labor market to maintain their middle class status. Thus,
unemployment and other market downturns could potentially force them out
of the middle class quickly. Additionally, income, unlike wealth, cannot
be passed on to one's children through will or gift, and thus children
of the black middle class are less likely to remain in that class.
Evidence of the systemic barriers confronting the black middle
class--the group often lauded as a success story and as evidence that it
is individual choice, not institutional bias, that has locked many
blacks into an inner city existence--is an indication that poverty is
not simply the result of cultural flaws. A closer look at the wealth of
blacks indicates that even with the narrowing of the wage gap between
whites and blacks, the cumulative effects of racial subordination
linger. |
