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Kevin Outterson
Kevin Outterson, Tragedy and Remedy: Reparations for Disparities in Black Health, 9 DePaul Journal of Health Care Law 735 (2005) (275 Footnotes Omitted)
The Tragedy of American health care is the stubborn persistence of disparities in Black health, 140 years after Emancipation, and more than four decades after the passage of Title VI. Formal legal equality has not translated into actual health equality. This Tragedy is deeper and older than mere legal forms; it has been supported by powerful social institutions, including some governments, charities, market participants, religions, ideologies, and cultures. Black health disparities interact with other vestiges of slavery such as disparities in wealth, education, employment and housing. They have permeated the American health experience. Efforts to eliminate Black health disparities will require something more transformative than Title VI. The history of oppression in America is laid bare by Black disparities in health.
The recent scientific literature on disparities in Black health tends to minimize the context in which these disparities arise. Medical research in particular is distracted by an etiological reductionism which overlooks the underlying history of slavery, racism and segregated health care. The dominant research model is ill-equipped to diagnose the social health effects of being Black. Standard practice controls for variables such as income and education, even though these variables themselves bear the legacies of American racism. These studies *736 underestimate actual Black health disparities and obscure the relevant social contexts.
One candidate for transforming the Black health experience is reparations for the historic crimes of slavery, segregation and discrimination. When reparational analysis is applied to Black health disparities, history and social context are brought front and center and the weakness of mere legal equality is made clear. Black reparations would require transformative change in society rather than just another programmatic band-aid. Reparational analysis also avoids the errors of etiological reductionism and racialized research by focusing upon the underlying causes of disparities in Black health, and connecting it with centuries of American history and law.
Black reparations are considered a fringe political movement and a weak legal argument. One important objection to Black reparations is remoteness of the injury - the crimes were long ago, all of the defendants and plaintiffs are dead, and the statutes of limitation have run. Lawsuits raising broad claims for Black reparations are invariably dismissed without reaching the merits. In July 2005, the African-American Slave Descendants Litigation was dismissed without reaching the merits. The Tulsa Race Riot reparations litigation met a similar fate the previous September.
The legal prospects for reparations may improve in the narrower context of Black health disparities. Disparities in Black health are rooted in a long history of oppression and state-supported health care discrimination. These practices continued deep into the 20th Century, and are not wholly absent today. Black health disparities are not remote but survive to the present day with remarkably deadly effect. Black children born in 2005 continue to suffer much shorter life expectancies than their white counterparts. Black health disparities provide a firmer foundation for reparations that are less susceptible to charges of remoteness.
This project may also breathe some reality into the critical race theory and reparations literature and respond to Richard Delgado's call for reparations scholarship which moves beyond mere discourse to *737 practical, structural changes in society. Health is not a peripheral social concept but is a key indicator of how society is structured and its resources allocated. If you want to know something about inequality in a society, look at its health outcomes. Eliminating American disparities in Black health is both a practical remedial goal and a revolutionary step in social justice.
I. DISPARITIES IN BLACK HEALTH
A. The Tragedy of American Health Care In 1999
Congress instructed the Institute of Medicine to prepare a report on racial disparities in health. The study committee performed a literature review of articles in the PUBMED and MEDLINE databases published in peer-reviewed journals from 1992 to 2002. To be selected, the articles must have addressed racial differences in health care while controlling for access and a range of other potential confounding variables. Over 100 studies were selected and summarized in Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare, and a larger group of 600 studies were identified in a companion article covering the last 30 years. Many of these studies have been cited in law review articles concerning racial discrimination in health care, Title VI enforcement, and related topics. *738 The first finding of Unequal Treatment is a wake up call to our color-blind society:
Racial and ethnic disparities in healthcare exist. These disparities are consistent and extensive across a range of medical conditions and healthcare services, are associated with worse health outcomes, and occur independently of insurance status, income, and education, among other factors that influence access to healthcare. These disparities are unacceptable. None of this should be surprising. For as long as records have been kept, studies have reported racial differences in health care access and health status in the United States. In 1985, the Report of the *739 Secretary's Task Force on Black and Minority Health clearly noted the problem twenty years ago:
[C]ontinuing disparity in the burden of death and illness [is] experienced by Blacks and other minority Americans as compared with our nation's population as a whole. That disparity has existed ever since accurate federal record keeping began - more than a generation ago. And although our health charts do itemize steady gains in the health of minority Americans, the stubborn disparity remained - an affront to both our ideals and to the ongoing genius of American medicine. . . [this report] can - it should - mark the beginning of the end of the health disparity that has, for so long, cast a shadow on the otherwise splendid American track record of improving health. The Kerner Commission in 1968, and the United States Commission on Civil Rights in 1963 found racial discrimination and segregation in health care:
[T]he evidence clearly shows that Negroes do not share equally with white citizens in the use of such [health care] facilities. As patients and medical professionals, they are discriminated against in their access to publicly supported health facilities. Commission investigation also shows that the federal government, by statute and administration, *740 supports racial discrimination in the provision of health facilities. The 1948 report to President Truman from the National Health Assembly detailed discriminatory barriers to Black health, as did Gunnar Myrdal's An American Dilemma in 1944. The Assistant Surgeon General in 1915 identified the root causes of racial disparities in mortality as socio-economic and remediable. In 1903, W.E.B. Du Bois wrote The Souls of Black Folk, illustrating the many struggles of life within the Veil of American racism, followed in 1906 by The Health and Physique of the Negro American. In 1869, the Freedmen's Bureau pleaded the great health needs of the newly freed Black population.
Disparities in Black health have been studied to death, while the patients continue to die. Still more studies and reports are in the pipeline. The Tragedy of American health care is that while disparities in Black health are not new, they remain newsworthy, persisting for centuries right up to the present day.
B. Black Health In America
Andrew Hacker and Cheryl Harris suggested that one way to test the persistence and magnitude of racism is to ask white students how much *741 money it would take for them to choose to become Black. I ask a similar question of my students in Health Law. When white students understand the health dimensions of that choice, they generally refuse at any price. Few students will name a price for their untimely death.
Black mortality rates are significantly higher than white rates in seven of the ten leading causes of death, resulting in more than 73,000 excess Black deaths per year. If being Black was a separate cause of death, it would rank sixth in the United States, ahead of diabetes, influenza and pneumonia, Alzheimer's, nephritis, suicide, septicemia, chronic liver disease, homicide, and HIV. Black infant mortality in the United States is more than triple the European rate, and significantly higher than infant mortality in countries like Bulgaria, Costa Rica, Estonia, Greece, South Korea, Lithuania, and Oman, among many others. Black men's life expectancy at birth (LEAB) is currently 5.7 years less than white men's; the female disparity is 4.3 *742 years. If a white male student were to agree to become Black, almost six years of life would be forfeited. Table 1 demonstrates the historical record of this disparity from 1900 to the present:
Table 1. Life Expectancies at Birth
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
Even as general population health improves, most Black health disparities remain, especially for men. While gaps in health care access narrowed in the period 1968- 1978, during the expansion of Medicare *743 and Medicaid, the gaps in life expectancy at birth (LEAB) have not narrowed appreciably over the last century. Table 2 demonstrates that for as long as reliable records have been kept, whites have achieved any given life expectancy approximately one generation before Blacks, a gap which remains relatively unchanged from the 1930s:
Table 2. Black Disparity in Life Expectancy at Birth (LEAB) (Omitted)
*744 For Black men, the disparity in LEAB is even greater. As Table 1 illustrates, much of the gains in Black health have been among women. At current rates of change, these disparities may persist for many generations, even as absolute health improves for most groups.
Nor is the situation likely to improve in the near term. For American children born in 2100, the US Census Bureau projects female LEAB to exceed 91 years for women and 87 years for men. The US Census Bureau blatantly assumes that Black LEAB will improve by 2100, converging almost entirely with white LEAB. This assumption is made without any externally validating data. But even under this wildly optimistic and ahistorical assumption, Black health disparities will outlast every law professor teaching today.
The analysis and conclusions in this first section are relatively uncontroversial, acknowledged by both the Left and the Right. This Article now leaves the safe waters of consensus for controversies over causation, history and remedies. The next section describes the search for a biomedical “cause” of Black disparities in health. The dominant approach is critiqued as etiological reductionism.
*745 II. ETIOLOGICAL REDUCTIONISM: SEARCHING FOR MICRO CAUSES IN A MACRO WORLD
Scientific research attempts to identify causes rather than just associations. Biomedical scientists search for the precise causal or etiological pathways of disease and health status. This model has worked well in many infectious diseases categories such as influenza, malaria and AIDS, as well as chronic diseases such as cancer and diabetes. But etiological reductionism can be misleading when applied to race and health.
Researchers generally consider socio-economic status (SES) factors, such as income and education, as confounding variables, to be adjusted for and controlled in any experiment to determine if any residual impact of race remains. But in the United States, Blacks suffer disparities in most SES variables such as income, wealth, education, insurance, occupation, and housing. If race (or racism) is prior or antecedent, then all of these SES variables are co-morbidities or simultaneous symptoms rather than confounding variable. Black disparities of all types may point to a deeper social problem. The cause may be macro rather than micro, obscured by reductionist methodology.
For example, assume a study is undertaken to determine the cause of large health differences between Group X and the general population. Group X is a minority racial group, and suffers much higher morbidity and mortality rates. Members of Group X are overwhelmingly poor, lack health insurance, are disproportionately unemployed, live in unsanitary housing, are poorly educated and otherwise occupy the lowest quintile of any socioeconomic indicator, all resulting from persistent racial discrimination. Adjusting for all of these variables may well show that Group X suffers no racial health disparities, but the overall conclusion would be false. Aggressive adjustment for confounding variables may obscure the relationship between health and race, “treat[ing] race-associated differences as nuisance confounders rather than as important clues to be mined.”
*746 The Institute of Medicine study committee recognized this methodological issue, even as they followed their Congressionally-mandated definition of disparity:
To a great extent, attempts to separate the relative contribution of these factors risks presenting an incomplete picture of the complex interrelationship between racial and ethnic minority status, socioeconomic differences, and discrimination in the United States. For example . . . racial and ethnic housing segregation is a by-product of both historic and contemporary racism and discrimination, as well as socioeconomic differences (itself the legacy of poorer opportunities for many minority groups). The committee therefore stresses that attempts to “parcel out” access-related factors from the quality of healthcare for minorities remains an artificial exercise, and that policy solutions must consider the historic and contemporary forces that contribute to access to and quality of healthcare. Almost all of the rigorous studies examined in Unequal Treatment demonstrated reduced disparities after controlling for SES variables, although most still found remaining racial disparities. The annual National Healthcare Disparities Report issued by the Agency for Healthcare Research and Quality generally reports racial disparities in health measures without adjustment for SES, although it does occasionally present multivariate analyses which adjust for age, gender, *747 household income, education, insurance and residence location. The 2004 National Healthcare Disparities Report recognized that race, health and SES indicators are highly correlated in American society, but nevertheless adjusted for SES in a few categories. Adjusting for SES may underreport the true scope of the Tragedy of Black health in America.
The alternative to etiological reductionism is to treat Black disparities in health and SES as co-morbidities rather than confounding variables. Black disparities of all types point to deeper problems in our society. This approach is similar to that taken by Dr. Paul Farmer. He does not shrink from the “biosocial realities” of health disparities, but includes all available data, “linking molecular epidemiology to history, ethnography, and political economy.” To Farmer, “inequality itself [has] become a pathogenic force.”
This Article now leaves questions of etiology behind, with the suspicion that Black disparities in both health and SES may share a common cause, grounded in American history. The next section examines the history of racism in American health care, paying particular attention to the role of governments as state actors in endorsing or permitting disparities in Black health care, and the continuity of Black health disparities from slavery to the present day. These themes become important when we turn to Black reparations. Readers intimately familiar with the history of Black health in America may wish to skim forward to Section IV.
III. TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA
The history of Black health in America is cruel and shocking. From the inception of the Atlantic slave system until quite recently, medicine treated Blacks in a grossly inferior manner. Rare were the medical *748 voices asserting the innate equality of Blacks. Disparities in Black health arose in the context of slavery and were reinforced by state action in segregation and discrimination. Roma Stewart notes the connection:
Some disparities are the vestiges of historical patterns of racial segregation. In Louisiana, for example, separate hospitals were built for blacks. Race, not ability to pay, determined which hospital was accessible to which patient. Until 1964 the Federal Government made grants and loans to segregated hospitals under the Hill-Burton Act. Further, until the mid-1960s, black physicians were not given staff privileges at some nonpublic hospitals. The vestiges of this system when combined with subtle discriminatory practices of today perpetuate health care access problems for black Americans. The following section focuses on the acts of the federal, state and local governments and nonprofit organizations (such as the American Medical Association) to create and perpetuate Black health disparities.
A. The Slave Health System
Good farmers take care of their livestock, providing care and enlisting the assistance of a veterinarian as the situation warrants. Human *749 chattel property was no different. Managing slave health was a major economic issue for the slave owner.
Todd Savitt studied the slave health care system in antebellum Virginia, finding several layers of care. Sanitary and public health measures were somewhat effective, often supported as necessary for white health due to physical proximity. This concept was later known as “germs have no color line.”
In addition to public health and sanitation, the master or overseer provided care in routine cases. Domestic medicine could be effective in some cases. For serious cases of illness or injury, the slave owner hired physicians, either on an annual contract or on a fee for service basis. In the mid-nineteenth century, the services of a physician did not necessarily improve health. Prior to the discovery of *750 the germ theory and anesthetics, modern (allopathic) medicine could be dangerous and was not very effective. Effective antebellum therapies included smallpox vaccination, hernia repair, and quinine. Many other therapies, such as heroic bleeding and purging, were useless or dangerous.
Black communities accepted traditional African medicine surreptitiously, parallel to the master's medicine. Black suspicion of white medicine began in slavery, but was reinforced by the exclusion of Blacks from the medical establishment and the use of Blacks in medical training and experiments in the nineteenth and twentieth centuries. Understanding this history might inform the current literature on patient compliance; it might explain some of the difficulties experienced today between white providers and Black patients. Todd Savitt noted the pattern of reticence to submit to the master's medicine:
Beyond the master's and overseer's eyes, back in the slaves' cabins, some Virginia blacks took medical matters into their own hands. When under the surveillance of whites, slaves usually (but not always) accepted their treatments. Some even administered them in the *751 name of the master. But others developed or retained from an ancient African heritage their own brand of care, complete with special remedies, medical practitioners, and rituals. The result was a dual system of health care, the two parts of which constantly conflicted with each other.
The slave health system was paternalistic and primarily served the interests of the master; however, it provided some limited health care and retirement benefits to slaves. By comparison, free Blacks arranged and paid for their own health care. Free Blacks suffered appalling health with a mortality rate approximately double the white rate. Freedom did not mean equal health, so long as the other social conditions of life were unequally distributed. At Emancipation, all would be swept away and free Blacks would be abandoned to the marketplace to purchase or contract for whatever health care they could afford from whoever would be allowed to serve them.
B. From the Civil War to the New Deal, 1861- 1933
Crises in public health often accompany war; the Civil War was no exception. Despite the end of legal slavery, Blacks suffered terribly from malnutrition, poverty and lack of access to land, capital, employment, education and health care. In terms of health care, southern Blacks may have been worse off after the Civil War: they lost the paternalistic slave health care system and very little was available to replace it. A slave owner suffered financially if a slave died or *752 missed work due to illness or injury. Antebellum landlords with Black contract laborers did not have similar financial incentives. White physicians, formerly paid by slave owners, were not eager to serve Blacks who were unable to pay for health care after the war. At the dawn of the era that modern medicine was becoming more effective, Blacks were shut out from many of its benefits, with disastrous effects. By 1900, the average Black life expectancy at birth was 30 to 35 years, 15 years less than the white LEAB.
When freedmen signed labor contracts with plantation owners after the Civil War, the contracts generally excluded any medical care coverage or required the freedmen to pay for it. Alternative sources of health care were meager. The federal government and Northern philanthropists provided some charity care and limited public health programs; Blacks paid for other health care with their own resources.
1. Charitable Care and Public Health
Private charities were significantly involved in health care in the decades surrounding the Civil War, particularly for children and *753 sanitary public health programs. As the Civil War progressed, slaves who reached Union lines required some protection. Rather than permit uncontrolled Black refugee migration to the North, and to avoid hindering military operations, the Army settled them into camps in Union-controlled southern states. In these camps and other Union-controlled areas, charities such as the American Missionary Association and the various Sanitary Commissions provided education and assistance, including public health care programs.
In the midst of the Civil War, the War Department and the Treasury Department organized relief and contract labor programs for “contraband” Blacks escaping slavery. The goal of these efforts was to put Blacks back to work for the Union. At the end of the war, federal assistance to former slaves was transferred to the Freedmen's Bureau, established by Congress on March 3, 1865. The efforts of the Medical Department of the Freedmen's Bureau, while heroic in aspiration, were chaotically organized and ineffective in meeting the crushing needs. Hospitals and other institutions were established across the South. Five Black hospitals were established in Georgia *754 by the Freedmen's Bureau, but the lack of supplies, personnel and adequate facilities crippled efforts. When beds were available at all, they were occupied by two or three patients simultaneously. The head of the Freedmen's Bureau wrote in 1869 that only 1 out of 200 freedmen received assistance, generally the very poorest. The health work of the Freedmen's Bureau only lasted for three years; afterwards impoverished former slaves could look only to local governments or charities for access to health care. The institutional legacy of the Freedmen's Bureau was the Freedmen's Hospital and Asylum in Washington, D.C., which today is the Howard University Hospital, one of the few remaining historically Black hospitals.
After Reconstruction, charities and public health agencies demonstrated little interest in Black health, with a few exceptions. Many public health efforts for Blacks were stained with racism and social Darwinism: Blacks were described as a race in decline; Black extinction would solve the American race problem. Black health was important primarily to avoid the spread of communicable diseases to whites, as if Blacks were merely an epidemiological vector like rats or *755 mosquitoes. At the 1914 General Session of the American Public Health Association, the Health Officer from Savannah, Georgia warned:
There are 5,000 or more negroes in this city who are parasites and their removal would lower the death-rate and reduce crime; therefore, it is recommended that some remedy be applied by enacting building laws preventing the congestion of negroes and the elimination of the depredating class. The dominant white ideology was disdainful of making important long term investments in Black health. One example was the publication in 1896 of Frederick L. Hoffman's Race Traits and Tendencies of the American Negro, which argued that Blacks were physically and mentally inferior and would not survive long in North America. Hoffman was not a fringe author, but a statistician for Prudential Insurance Company; the volume was published by the American Economic Association. This hugely popular book reflected and encouraged an apathetic approach to meeting the health needs of *756 Blacks, a view that largely held sway for a century after Emancipation. Tuberculosis is a prominent example of the neglect of Black public health, particularly in the South. Estimates in the 1920s suggested that effective control of tuberculosis using available methods would have extended the average Black life span by five years. Southern public health agencies failed to serve the pressing needs of Black citizens:
[T]he final group with responsibility for the welfare of black Southerners - the region's state and local public health directors - did little to challenge patterns of segregation or to address black needs. As constituted guardians of the health of the whole citizenry, these public servants bore greatest responsibility for the health of the black population. Yet the fact remains that until the infusion of federal money and larger purpose into Southern public health operations in the New Deal era, they failed *757 their black patrons by a wider margin than any other group.
2. Market-Based Health Care
In the decades surrounding the Civil War, health care was a relatively free market, mostly unencumbered by regulation. Blacks with financial resources purchased health care services in the marketplace. Other Blacks aspired to provide those services as doctors or other health professionals. Both of these options were frustrated by racism. Racism forced Blacks to resort to a segregated medical system to serve their health needs.
After the Civil War, hospitals became increasingly important sites for medical care, but hospital discrimination relegated Black patients to segregated wards or excluded them altogether. Many hospitals were not available to Blacks in the first half of the twentieth century. In addition to the hospitals practicing racial segregation, almost a quarter of hospitals in 1922 practiced complete exclusion of Blacks. According to a 1928 survey, “each white citizen of the United States has fourteen times as good a chance at proper hospital care as has the Negro.” In 1930, the number of hospital beds per person available to Blacks was one-fourteenth the white rate. A 1956 *758 survey found only 5.8% of southern hospitals to be integrated. When segregated hospitals were available to Blacks, they were often used for training white physicians, residents and interns. The Veteran's Administration built a Black hospital in Tuskegee rather than accept integration of World War I veterans. Post-acute and sub-acute institutions also excluded Blacks.
These forms of segregation were supported by Supreme Court opinions eviscerating the Fourteenth Amendment's Equal Protection Clause. Beginning in the 1870's, the Supreme Court embraced a color-blind jurisprudence in numerous cases gutting civil rights, including Virginia v. Rives, Gibson v. Mississippi, The Civil Rights Cases, Plessy v. Ferguson, Hodges v. United States, and Corrigan v. *759 Buckley. As I concluded in an amicus brief for the University of Michigan affirmative action cases:
These cases are the oration of Brutus, praising the one he has slain; they were the federal pillars of white supremacy for nearly a century, shamelessly professing ‘color blind’ equality while turning a blind eye to the harsh reality of life as an African American during Jim Crow. The Black response to health care segregation was to construct a parallel Black system, which at its peak in the 1920s and 1930s numbered perhaps 200 Black hospitals. These hospitals did not embrace segregation, but were a defensive response to American racism. Black medical institutions and professionals were largely insulated from white interference, permitting advocacy for Black issues without fear of economic reprisal. In theory, a separate but equal system of health care would not be dangerous for Blacks. Truly equal systems would not suffer disparities. But white supremacy, particularly after Reconstruction, denied equality and corralled Blacks into an inferior health care system for generations.
*760 Racism also led to the creation of segregated Black medical professions. Paul Starr chronicled the rise of medicine as a profession from the 1850s, and the growing power of the American Medical Association, but Black physicians were largely excluded from the AMA and its constituent societies. Black physicians were generally denied admitting privileges to hospitals, even to segregated wards. Denial of admitting privileges hurt Black physicians financially; some Black physicians (such as surgeons) needed a hospital in order to practice at all. The mechanism of exclusion was a requirement that the physician hold membership in the all-white local AMA medical society. This permitted both the AMA and hospitals to maintain the facade of equal opportunity for decades while the local medical society enforced discrimination.
Overt discrimination against Black physicians in the South persisted well into the 1960's, with the AMA issuing non-binding proclamations of non-discrimination, but refusing to challenge discriminatory practices by its local and state constituent medical societies. In June, 1963, the Medical Committee for Civil Rights *761 issued “An Appeal to the AMA” which challenged the AMA to: (1) speak out against segregation and discrimination; (2) terminate any state or local medical societies which continued to practice racial exclusion; (3) oppose Hill-Burton “separate but equal” funding; and (4) oppose the re-credentialing of any non-integrated hospital. The AMA failed to act decisively until the passage of the Civil Rights Act of 1964 and Medicare in 1965. For example, the first Black member of the Chattanooga and Hamilton County Medical Society was Dr. Hiram B. Moore in 1964. Admission to the Society was required before gaining hospital admission privileges at Chattanooga's two hospitals, publicly-owned Erlanger and the private Memorial Hospital. Similar conditions prevailed in Chicago in 1963. The residual effects of this legacy still remain: a recent study found that Black doctors still report greater difficulty obtaining hospital admissions than white physicians, even after controlling for a wide range of practice and environmental characteristics.
Blacks also developed a separate medical education system. Under AMA pressure, access to the medical profession increasingly required a college degree followed by medical school; both avenues were less available to Blacks. The nursing profession faced similar barriers. Of the 1800 accredited nursing schools in the mid-1920's, only 58 admitted Black students. Black colleges were the natural response, including the two leading Black medical schools, Howard in Washington and Meharry in Nashville. Prior to the 1960's, the vast *762 majority of Black physicians were trained in Black medical schools, but Blacks were barely 1% of all medical students in training. The first southern medical school to admit Blacks was the University of Arkansas in 1948. It was not until 1966-67 that the last southern medical schools admitted a Black medical student. In 1950, Blacks were 10 percent of the population, but only 2.2 percent of all physicians, and only 133 Blacks graduated from medical school, mostly from Meharry and Howard. Over the last decade, the number of Black graduates from medical school has declined despite the fact that Blacks are underrepresented as physicians and medical school faculty members. Since the end of legal segregation, the Black physician deficit has been reduced somewhat (in 2004, only 6.4% of graduating medical students were Black); however, at these rates it may take a long time to reach equality.
By the dawn of the twentieth century the pattern was firmly set: official neglect of Black health needs, unmitigated by the former property interest; discrimination against Black health institutions and providers in a separate and unequal system; government deferral to racist professional organizations; and ‘color-blind’ interpretations of the Equal Protection Clause to deny a Constitutional remedy.
C. The New Deal Generation, 1933-1964
The Depression visited economic havoc on Black communities. Employment discrimination meant that Blacks were the last to be hired and the first to be fired, and trade unions generally excluded Blacks to protect white privilege. To some extent, the New Deal responded to *763 these needs, a remarkable achievement given the tenuous position held by Blacks in American society at the time.
1. A New Deal For Blacks
FDR and several of his close advisors cautiously advanced some programs for Blacks. Actions included appointments of Blacks to federal offices, and employment in the Works Progress Administration and other federal programs. In an early model for Title VI, President Franklin Delano Roosevelt signed Executive Order 8802 mandating non-discrimination in some government contracts. The impetus was Philip A. Randolph's threatened march on Washington in 1941. In health care, Public Health Service grants to states improved Black health and the Public Works Administration embarked on a program of hospital construction which made an additional 8,000 beds available to Blacks. Social Security was passed without explicit racial tests for participation or benefits, although the exclusion of agricultural and household workers disproportionately affected Blacks. In contrast to unbridled white supremacy, the New Deal provided some benefits to Blacks on a basis of near equality, providing the first significant federal assistance since the Freedmen's Bureau. Black advances were modest overall. Most of the relief programs accommodated the southern planting and harvesting schedule, suspending operations in order to encourage adequate field labor. Robust civil rights laws were not passed and *764 many examples of segregation remained in long-term federal projects and organized labor.
In Gunnar Myrdal's landmark 1944 study, segregation and discrimination still characterized American health care. Facilities for Blacks, North and South, remained “qualitatively inferior;” and rural hospital facilities were “totally inadequate almost everywhere in the South, especially for Negroes.” Civilian health needs were largely on the sideline during the Second World War, but in the immediate post war years various health care proposals were floated in Congress. In January 1948, President Truman requested a report on the nation's health status. The result was the National Health Assembly, which produced an official report entitled America's Health: A Report to the Nation. The report identified disparities in Black health and called for dramatic government action. This view did not carry the day; the National Health Assembly did not recommend an end to health care segregation or embrace a national health system. The American Medical Association and the American Hospital Association had previously endorsed a more limited, decentralized proposal fashioned by Senators Lister Hill (D-AL) and Harold Burton (R-OH). The Hill-Burton program provided federal money for state-supervised hospital and medical facility construction, including racially segregated facilities. *765 By providing the funds without guarantees of nondiscrimination, the Hill-Burton program entrenched segregation in a new generation of facilities.
2. The Hill-Burton Program: American Apartheid in Health Care
The federal government supported a segregated health care system through hospital construction grants under the 1946 Hill-Burton Act, eventually providing more than $13 billion in federal funds. Between 1949 and 1962, about 30% of all hospital construction projects were assisted under Hill-Burton. Two provisions of the Hill-Burton program are of interest here: (a) the “community service” and “uncompensated care” requirements; and (b) the Hill-Burton provision embracing segregation in health care.
a. The Failure To Enforce The Community Service and Uncompensated Care Requirements The Hill-Burton program required recipients such as hospitals to provide community services and uncompensated care in exchange for federal funds. From the beginning of the Hill-Burton program until 1980, the Department of Health, Education and Welfare did little to actively enforce these requirements. Private attempts began in the 1970s as legal service lawyers set up specialized programs in health law advocacy. In Cook v. Ochsner Foundation Hospital, a private *766 right of action was inferred for intended beneficiaries of the uncompensated care and community service regulations. The Hill-Burton program was discontinued shortly thereafter. Had the federal government enforced Hill-Burton as written, Black access to health care would have improved. The first government survey of the social and racial composition of recipients of uncompensated care at Hill-Burton hospitals occurred in 1995, by which time they were unable to identify racial disparities in a program that had been discontinued for more than twenty years.
The most significant government attempt to enforce a community benefit standard came from the Internal Revenue Service, which sporadically enforced charitable standards for tax-exempt hospitals. Federal tax exemption was an indirect federal subsidy to hospitals and generally led to state and local tax exemptions as well.
The Internal Revenue Service proceeded under Section 501(c)(3) of the Internal Revenue Code, as interpreted by Revenue Ruling 56-185. The language of the Revenue Ruling is expansive and could have significantly helped the state of Black health: the hospital “must not . . . refuse to accept patients in need of hospital care who cannot pay for such service” and “must not restrict the use of its facilities to a particular group of physicians and surgeons.” The 1956 Revenue Ruling also permitted some discretionary authority to “impose limitations on the extent to which [the hospital facilities] may be made available to all reputable and competent physicians in the area. In 1958, the Tax Court denied tax exemption to a physician clinic which provided charity care equal to only 2% to 5% of its revenues. In 1969, a further Revenue Ruling removed the charitable care requirement and restated the community benefit standard to include operating an emergency room open to all without regard to ability to pay.
Language in both the 1956 and 1969 Revenue Rulings could support denying exemption to a hospital which racially discriminated against qualified doctors or against patients. The IRS did not make *767 serious attempts to enforce these provisions prior to the early 1980's, when tax-exempt status was finally denied to the racially discriminatory Bob Jones University. The IRS had the sole power to enforce these provisions; the Supreme Court dismissed a private suit to enforce Revenue Ruling 56-185 for lack of standing.
The IRS could have vigorously enforced the charitable care and community benefit standard in the decades prior to the Bob Jones case. Their success in attacking racial discrimination in Bob Jones demonstrates what was possible, operating under a statute which was practically unchanged from 1939. What was lacking was the will to enforce, not the text of a statute.
b. Black Exclusion and Segregation under Hill-Burton
The federal government fully embraced segregated health care in Hill-Burton. Under the program, federal and state governments assisted in the planning and construction of thousands of hospitals and other health facilities across the United States, most of which continued their existing patterns of discrimination and segregation untroubled by the receipt of federal funds. The Hill-Burton Act delegated to the states *768 the responsibility for developing plans for assessing the health facility needs of their populations. This process allowed the local white political structure to control the process.
Segregation and the Hill-Burton program were fellow travelers from the beginning. Senator Lister Hill (D-AL) was a segregationist, and he carefully designed the statute to permit “separate but equal” facilities. A provision requiring “non-discrimination” was interpreted to permit segregation. Senator Burton (R-OH) lent his support and name to the program, but left the Senate for the U.S. Supreme Court before Hill-Burton was enacted. At the Supreme Court he joined in the unanimous 1954 opinion in Brown v. Board of Education striking down segregation in education, although Burton considered allowing segregated schools to continue so long as they were “equal to those provided white pupils.” Senator Hill later signed the Southern Manifesto pledging to “use all lawful means” to oppose and reverse Brown. As a former Chairman, his portrait still hangs in the anteroom adjacent to the Hearing Room of the Senate Health, Education, Labor and Pensions Committee.
Debates occurred within the Black community and in white liberal groups on whether to apply for Hill-Burton assistance for segregated facilities. In some cities, civil rights leaders opposed it as *769 accommodation of segregation, joined by older Black doctors with a vested interest in the existing system. In others, the facilities were welcomed as vitally needed improvements. The National Medical Association opposed Hill-Burton “separate but equal” hospital construction, but in 1940, W.E.B. DuBois was not willing to sacrifice Black health while fighting for equality:
[W]hat Negroes need is hospital treatment now; and what Negro physicians need is hospital practice; and to meet their present need, poor hospitals are better than none; segregated hospitals are better than those where the Negro patients are neglected or relegated to the cellar. . ..I am certain that for many generations American Negroes in the United States have got to accept separate medical institutions. They may dislike it; they may and ought to protest against it; nevertheless it will remain for a long time their only path to health, to education, to economic survival. DuBois may have been correct to concede that segregated health facilities were better than nothing, no matter how inferior the facilities *770 compared to white hospitals. He did not agree, however, that these arrangements were just. The integrationist view increasingly prevailed in the Black community, particularly after World War II as the deficiencies of the “Black medical ghetto” were increasingly evident.
The Hill-Burton program actually permitted two types of segregation. The “separate but equal” category could practice complete racial exclusion so long as each race had access to some facility. Hill-Burton funds were used to build 104 facilities which practiced complete racial exclusion. The second category was more than 7000 “non-discriminatory” facilities which - despite the name were permitted to segregate by ward, room or floor. Hospitals in America both reflected and legitimized segregation. The General Counsel of the Department of Health, Education and Welfare issued guidelines for these “non-discriminatory” hospitals, which permitted segregation of patients by race, creed or color and denial of staff privileges to physicians on the basis of race, creed or color so long as everyone had *771 access to the particular facilities built with Hill-Burton funds. These rules remained in force until November 1, 1963 when they were suspended following the Simkins v. Moses H. Cone Memorial Hospital case discussed below.
Segregation and lack of access impacted Black health status. Even after controlling for poverty (an example of etiological reductionism), Blacks' health disparities were significant. In 1963, Black life expectancy was still seven to eight years shorter than whites. Forty years later, the gap is distressingly similar.
c. The End of De Jure Discrimination under Hill-Burton
In the early 1960's Representative Adam Clayton Powell (D-NY) and Senator Jacob Javits (D-NY) attempted to block federal funds to projects which discriminated on the basis of race. The next year the United States Civil Rights Commission recommended to President Kennedy that Hill-Burton funds no longer be available to segregated facilities.
When the legal denouncement finally came, it was swift. It began with the 1963 Fourth Circuit decision, Simkins v. Moses H. Cone Memorial Hospital, reversing the District Court and finding that the Fifth and Fourteenth Amendment prohibited a private hospital from refusing to admit Black patients or to grant staff privileges to Black physicians and dentists. The key finding was that receipt of federal Hill-Burton funds provided the necessary state action to impose the Constitutional requirement. On November 1, 1963, the United States Public Health Service suspended the approval of new separate but equal Hill-Burton funding applications. The United States Supreme Court denied review of Simpkins on March 2, 1964. On May 18, 1964, the Public Health Service issued new regulations which prohibited *772 discrimination throughout any facility which had received Hill-Burton funds and required an open medical staff. Under the political cover of this case, Congress extended the Hill-Burton program for five more years in August 1964, but with the “separate but equal” clause removed and the community services requirement strengthened.
The exorcism of racism from the Hill-Burton program quickly passed from the public forum. An otherwise comprehensive review of the Hill-Burton program in 1974 failed to even discuss this history of racial discrimination.
Simkins is rightly celebrated for these achievements, but in the context of health care reparations it established another key legal principle: state action. Under the Hill-Burton program, state and federal governments actively supported racial discrimination, sufficient for a Fourteenth Amendment nexus. This state action provides a clear defendant for a Black reparations claim.
D. The Great Society: Title VI, Medicare, and Medicaid, 1964-1966
In segregated communities with multiple health care providers, voluntary desegregation disadvantaged the first mover: in a two-hospital town, the hospital which desegregated first would suffer white flight and economic loss. For example, Wake Memorial Hospital in Raleigh, North Carolina was built with Hill-Burton funds in 1961. It was not a “separate but equal” hospital, and yet it featured segregated wards for Black patients. White hostility was so great to even a segregated hospital that Wake Memorial experienced grave financial difficulties as white patients fled to Raleigh's all-white hospitals. The white boycott of Wake Memorial demonstrated a preference for all-white hospitals over hospitals such as Wake with segregated wards.
If one accepts that only the fear of being a first mover was hindering desegregation of southern hospitals, then simultaneous *773 regulatory action might be effective. President Johnson employed this approach. From 1964 to 1966, virtually all forms of legal segregation ended in U.S. hospitals: the Jim Crow signs came down and patients were randomly assigned to hospital rooms. The carrot was the offer of federal money in Medicare and Medicaid, passed in 1965 and effective in 1966. The stick was Title VI of the Civil Rights Act of 1964, prohibiting discrimination in federal health programs. One consequence was the economic destruction of Black hospitals.
Unlike Title VII, which operates under the Commerce Clause and the Fourteenth Amendment, Title VI is authorized under the Spending Power. Title VI is a condition accepted by vendors participating in federal programs such as Medicare and Medicaid. The Supreme Court has not articulated many Constitutional limitations upon the exercise of the Spending Power, making Title VI potentially a more powerful and unconstrained force for non-discrimination than Title VII.
*774 In connecting Title VI with Medicare, President Johnson risked a boycott of the fledgling health care program. The National Medical Association supported the linkage of Medicare and Title VI and rallied some Black support behind Medicare. President Johnson addressed the Black health problem at a speech at Howard University on June 5, 1965. The lure of federal funds, together with Johnson's political skills, ultimately convinced physicians and hospitals to participate in Medicare and Medicaid, although physicians were exempted from the proscriptions of Title VI.
Enforcement of Title VI got off to a good start when the Department of Health, Education and Welfare asked hospitals to certify under Medicare that they did not practice segregation or discrimination. The Title VI regulations at first blush appear well suited to end discrimination in federal health care benefits or services. Prohibited practices include outright denials, segregation, and discrimination, including providing a benefit “which is different, or is provided in a different manner, from that provided to others. . .” The regulations cover both intentional discrimination as well as disparate impact. Over 3,000 hospitals agreed to change their practices to *775 comply with the law. Formal racial exclusion in medical schools also ended with Title VI.
In heavily segregated communities, desegregation of the hospitals translated into immediate health gains for Blacks. A recent study documented a large reduction in Black infant mortality in Mississippi from 1965 to 1971. The reduction in Black infant mortality was especially strong in rural Mississippi, and this six-year period accounted for the largest relative gains for Black infant mortality since 1945. The authors conclude that desegregation of hospitals in Mississippi played a causal role in this significant reduction in Black infant mortality. Desegregation of the hospitals saved lives.
These great victories deserve to be celebrated; they also demonstrate the power that could have been utilized decades earlier to tie receipt of federal WPA and Hill-Burton funds to desegregation, along the lines of President Roosevelt's Executive Order. Rather than absolving the government from responsibility for health care segregation, the events of 1964-1966 demonstrate the opportunity cost of decades of willful neglect. Premature celebration also ignores the aspects of Medicare and Medicaid which continue to disadvantage Blacks, such as differential access based upon reimbursement methodologies.
A stranger to the jurisprudence of Title VI might be forgiven in assuming it to be a formidable weapon against disparities in Black health; the actual state of affairs stands as a grim reminder of the limits of legal formalism in the absence of underlying social change. Federal enforcement of Title VI has been roundly criticized as ineffective. In 1980, the United States Commission on Civil Rights reported that:
*776 [The Federal government] brought enforcement proceedings only rarely under Title VI, especially since 1970 . . .. The record of achievement in elimination of discrimination is bleak . . . no recipient of Federal health funds has had its funds terminated since 1973. An optimist might find the lack of enforcement actions encouraging, assuming that segregation and discrimination had been eliminated in 1966 and no violations were left to enforce. Alternatively, the difficulties faced by the Office of Civil Rights in enforcing Title VI are to be expected: with the elimination of de jure segregation, the low-hanging fruit had been picked. Remaining discriminatory practices are much more difficult to root out, either structurally (as in the case of Medicaid's low reimbursement) or floundering upon the difficulty of proving discriminatory intent and the identification of the causative “facially neutral policy.” One lesson from Title VI is that new legal norms do not quickly translate into social change: “[T]he more visible symbols of Jim Crow disappeared quickly, but the underlying structural patterns were more resistant to change.” The persistence of disparities in Black health in 2005, nearly four decades after the abolition of formal health care segregation, is a testament to deeply engrained patterns and speaks of the need for a remedy other than mere legal neutrality.
*777 Gregg Bloche suggests that Americans are no longer tolerant of direct discrimination, but are less concerned once racism is mediated through the marketplace or provider discretion. The same polarity may be found in Title VI and Title VII litigation (direct discrimination versus disparate impact) and affirmative action (particularized showing of discrimination versus statistical under-representation of minorities). Attacking the intentional, de jure forms of racial discrimination permits the country to profess color-blind formalism, without descending into the marketplace to eradicate discrimination root and branch.
This section has outlined the main avenues of responsibility for segregation in health care. In a few situations, governments and medical institutions acted responsibly, demonstrating what could be done to improve Black health. For the most part, governments and medical institutions either passively permitted segregation or actively supported and financed segregated health care. Before plunging into Black reparations, a brief review of what has been established thus far:
1. Overwhelming evidence exists of disparities in Black health which have not changed appreciably in generations. (Section I - Disparities in Black Health)
2. Current studies may actually underreport the magnitude of Black health disparities due to over-adjustment for confounding variables. (Section II - Etiological Reductionism)
3. Disparities in Black health were not created in a vacuum. The history of health care in the United States demonstrates that Blacks have been relegated to a vastly inferior health care system for almost all of their time in America. State and federal governments and institutions, such as hospitals and the medical profession, actively supported this two-tiered health system from the founding of the Republic until at least 1966. Since the end of de jure discrimination, actual disparities in Black health have remained relatively unchanged. (Section III - Tragedy in History)
*778 IV. BLACK REPARATIONS
The Black reparations movement proclaims that a debt is owed for the crimes of slavery and Jim Crow segregation. Some reparations advocates have focused upon the strategy of litigation, working within the system, whilst others, including the adherents of Critical Race *779 Theory (CRT), have looked more to the transformative power of reparations to remake society.
This Article bridges this divide, proposing a strategy which includes litigation while responding to Richard Delgado's call for critical scholarship which leads to real structural reforms. Any attempt to remedy health disparities cannot be limited to mere legal fictions of equality; Title VI has been ineffective in reducing disparities in Black health. Token efforts will always be confronted with the troublesome facts of 73,000 excess Black deaths per year and the continuing gap in Black life expectancies. One example of a token effort which does not affect the underlying social structures is Virginia's recently-announced plan to offer reparations for racial exclusion in education in the years following Brown v. Board of Education by offering college scholarships to the individuals (now in their 50s and 60s) who were denied access to education more than four decades ago. While apologies and scholarships are certainly appropriate, the scholarships are not nearly as useful near the end of life as they would have been at age 20. Perhaps the scholarships should be offered to the grandchildren. Better yet, everyone should receive an excellent education. Rough justice is preferable to injustice.
*780 Correcting disparities in Black health is a worthy goal because success will require massive structural changes in society. As a litigation strategy, focusing on disparities in Black health seems a much more likely strategy than the current crop of unsuccessful reparations lawsuits.
A. Legal Barriers to Litigating Black Reparations
The practical barriers to a successful Black reparations lawsuit are well known to any first year law student taking Civil Procedure. All of the broadly-focused suits have foundered on Rule 12 motions to dismiss, citing lack of standing, expiration of the statute of limitations, failure to state a claim upon which relief can be granted, sovereign immunity, and proximate causation. The Farmer-Paellman “corporate reparations” suits, consolidated in the Federal District Court in the Northern District of Illinois, were dismissed on July 6, 2005 on that basis. The Tulsa Race Riot reparations lawsuit was dismissed due to the statute of limitations. The 10th Circuit Court of Appeals conceded that the statute of limitations might have been equitably tolled for some period after the 1921 riot, but the tolling ceased no later than the publication of a 1982 book describing some of the aspects of the riot, not to mention the publication of Professor Brophy's excellent book Reconstructing the Dreamland: The Tulsa Riot of 1921, Race, Reparations, and Reconciliation (2002). In this case, the writing of history tends to block litigation remedies.
*781 Richard Delgado suggests the possibility that litigation may be a dead end strategy for Black reparations. Continued losses on Rule 12 motions is an unlikely path to success. Disparities in Black health may provide a better foundation for successful litigation, resolving major issues in standing, statutes of limitations, and sovereign immunity.
1. Standing
Legal slavery in the United States ended with the ratification of the 13th Amendment to the Constitution on December 6, 1865, 140 years ago. “Surely all applicable statutes of limitation have run,” opponents of reparations say, and federal judges tend to agree. Related objections include appeals to “not get mired down in old history” or statements that all slaves and slave owners are long dead. The remoteness of the injury gives rise to challenges based on both standing and the statute of limitations.
Reparations plaintiffs have not succeeded with claims of “derivative” standing by descendants of slaves. A more promising line of approach is to focus on more recent acts of racial oppression, the “Jim Crow” strategy. Challenging disparities in Black health is one example, with millions of living citizens who suffer well-documented health disparities, beginning in slavery and extending to the present day. Standing should not be a barrier when the class is Black Americans currently suffering from health disparities, or alternatively, *782 living Americans who received care during the period of legal segregation in health care. Indeed, the August 2005 study by David Barton Smith finds that de facto racial segregation in health care is still quite common in nursing homes, hospitals and outpatient care. Black children who are born in 2005 are expected to suffer a life expectancy many years shorter than their white counterparts. Millions of Black American citizens are living members of the potential plaintiff class.
Focusing on disparities in Black health also sidesteps difficult issues on tracing descent from slaves. If slavery and its aftermath can be shown to have damaged the health of living Blacks, of any ancestry, then a plaintiff class is more clearly identified. Several million persons living in the United States today have been directly harmed by substandard health. Much of this resulted from official strategies of neglect or indifference, as described in detail in Section III.TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA above.
If Blacks had seamlessly merged into America's immigrant “melting pot,” then Black reparations might not have relevance today. The issue might have been primarily class, not race. But slaves were not immigrants; they arrived in chains. For the vast majority, the Statute of Liberty did not greet them upon arrival; their fate was the auction blocks of Charleston, New Orleans, or even the Nation's capitol. For disparities in Black health, the proposed plaintiff class is not selected by race or descent from slaves. The plaintiff class was selected by the governments, institutions, health care organizations, and society at large which marginalized the health needs of Blacks. The plaintiff class would include a recent immigrant from Angola who was relegated to a second-class Black health care system, as well as the descendants of Virginia slaves.
Jim Crow strategies also improve the process of identifying defendants. Opponents of reparations may say “I never owned a *783 slave,” “My family never owned slaves,” or “All slave owners are now dead.” The issue is most acute if Black reparations are to be assessed against individuals, based on descent. If the injury occurred much more recently, living defendants will be easier to find. Moreover, if a defendant is a legal entity (such as a government or corporation) with continuity to the injury period, then this objection loses force. Many of the potential defendants for a health disparities reparations case are governments and corporations (charitable or for profit) which can be shown to have participated in the creation and continuation of the Black health disparities as described in Section III.TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA above.
While it may seem unfair to expect current shareholders or taxpayers to pay for the “sins of their fathers”, the legal principle is well established that corporate liability follows the entity, without regard to the changing composition of the pool of shareholders. Likewise, government entities in continuous existence retain liability without regard to changes in the makeup of its citizens and taxpayers.
Other Jim Crow strategies are possible. Alfreda Robinson has examined the convict labor system, particularly in Alabama. While legal slavery ended in 1865, oppressive labor systems such as peonage and convict leasing sprung up to replace slavery with little improvement in the basic living conditions of southern Blacks. Other examples include the (unsuccessful) recent suit against the 1921 Tulsa Race Riot and the successful suit against the federal government for discriminatory lending practices against Black farmers.
In the rush to pursue Jim Crow strategies, let us remember Richard Delgado's call for structural change. One has to ask whether the Black farmers' suit has achieved much lasting change in social structures. Even if it had been successful, the Tulsa suit was not *784 a model for widespread replication. The remedy for disparities in Black health is not a sum of money; the remedy is equality of health outcomes. Achieving that equality will require remarkable changes in American society.
2. Statutes of Limitation
Slavery's remoteness in time also prompts the defense of the statute of limitations. Several legal scholars had suggested theories of equitable tolling of the statutes of limitation, but none were persuasive for Judge Norgle in his July 2005 ruling against Black reparations. The Jim Crow strategy partially responds to this issue by bringing the injury into the present (or at least into the recent past). But Jim Crow suits which rely on events from decades ago, such as the 1921 Tulsa Race Riot, are still quite remote, and are being dismissed on statute of limitations grounds.
Professor Brophy has noted that justifications for statutes of limitation are ‘under-theorized’ in the reparations context. The strength of the policy justifications upholding the statute of limitations depends to some degree on the type of defendant. Compelling cases for the statute of limitations can be made when the defendant is a human individual, or when the passage of time has rendered a defense impossible. It is less clear that governments which supported the system through state action should be so protected, or that justice requires the statute of limitation to apply when the defense is not able to demonstrate prejudice. For these reasons, this present study - and my prior examination of slave taxes - focuses upon government responsibility. When the defendant is a government, the defense of the statute of limitations converges with sovereign immunity, a concept which is discussed briefly below. When the defendant is a corporate entity, the seeds of the statute of limitations may find more fertile soil. Yet these ideas did not prove persuasive to the 10th Circuit Court of Appeals when it dismissed the Tulsa Race Riot reparations suit on *785 statute of limitations grounds. All of this again highlights the value of a claim with clear injury in 2005.
3. Sovereign Immunity
In every successful reparations program of the last generation, the issue of sovereign immunity was effectively waived by an enabling statute. When governments pay reparations it is essentially a political act. For example, in the Civil Liberties Act of 1988, President Reagan authorized an apology to Japanese-Americans for internment in World War II, while President George H. W. Bush signed the bill which appropriated the $1.1 billion dollars necessary to make the $20,000 reparation payment to internees and some descendants. In each of the Holocaust-era reparation commissions, governments participated without resort to the doctrine of sovereign immunity. Black reparations may ultimately be forced to rely on the same process when the defendant is a government. But sovereign immunity does not shield many of the private parties complicit with racial discrimination in health care, including the entities described in Section III.TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA, supra.
B. The Reparations Heuristic
Section II.ETIOLOGICAL REDUCTIONISM: SEARCHING FOR MICRO CAUSES IN A MACRO WORLD of this Article critiqued etiological reductionism which seeks to adjust health disparities studies for all SES variables. In exchange, this Article offers reparational analysis as a heuristic device for health disparities research. Reparational analysis modifies some of the methodologies and assumptions in the epidemiological literature on disparities in Black health. In research design, reparational analysis questions all adjustments for confounding variables which are themselves associated with a history of racial injustice. For Blacks, income, wealth, education, housing, and employment have all suffered under parallel histories of oppression. No matter how the strands are *786 twisted and knotted, racism was a major cause of disparities in each of these variables. Reparational analysis reverses the decision to adjust for many SES variables, and will result in finding larger Black health disparities than are now reported.
As a policy making tool, reparational analysis is also more holistic, reminding us that many factors influence health other than health care. The causes of ill health include major structural and societal components, including residential segregation, wealth and income disparities, inadequate investment in public health, and employment disparities. If these factors are just intermediate causes of disparities in Black health, then the remedies must run broadly and deeply. Some of the most interesting work on health disparities takes this approach, connecting the health care system to other social factors such as racial segregation, education, employment and public health. This research is also helpful in identifying the appropriate remedies. Opponents of reparations deride the notion of giving large sums of cash to Blacks, including people of mixed race or recent immigrants. Remedial programs in health will address Black disparities without cutting checks on the basis of skin color. One *787 possible remedy would be specific performance, making the changes necessary to equalize Black health. Even if the damages were limited to the cost of first-class health care for the balance of their lives, the monetary value of this award would run to hundreds of billions of dollars, similar in magnitude to much broader Black reparation claims. Eliminating Black health disparities is a much more significant claim (in dollars) than other Jim Crow strategies, particularly single-event suits like the 1921 Tulsa Race Riot. To truly address Black health disparities would require changes to many of the confounding variables described in Section III.TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA, supra, such as unequal distributions of income, residential segregation, education and employment. Repairing Black health fully would require fundamental changes in American society.
Even if one limits the remedy to the health care system, much would have to be done. Professor Sidney Watson identified four prongs to any program to remedy racial disparities in health: health care financing (financial access); attracting sufficient providers to the inner cities (geographic access); combating discrimination (enforce Title VI); and developing a health care system which is responsive to the needs of the population (cultural competency). More recently, *788 she has called for using quality improvement tools to reduce racial and ethnic disparities in health. Major structural changes will be required. Eliminating the second-class nature of Medicaid will require reimbursement of providers on the same basis as Medicare, and tying Medicare and Medicaid participation together. Massive changes in the system of educating providers would be required. Public health investments would be strongly supported, and not merely as a defense against terrorism. These and other remedies will not only improve Black health, but will have positive spillover effects to other minority groups and society as a whole.
In the law, the reparations heuristic moves us beyond the atomistic search for intentional individual discrimination. The focus shifts to disparate impact and institutional discrimination. The absence of de jure discrimination has done little to reduce disparities in Black health. Waiting many generations for the situation to correct itself is not a morally tenable option. Focusing on institutional discrimination may involve the law more meaningfully in the process of improving Black health: Medicaid cannot continue to offer second-class care with limited provider participation. Data must be collected to illuminate the scope of the problem and to guide remedial and enforcement efforts. Title VI cannot continue to be a dead letter.
Reparational analysis also avoids the tyranny of presentism. The Black reparations movement connects modern disparities in Black health with the historical record. As Williams and Rucker stated:
[W]e can only regard these [racial health disparity] findings as surprising if we take an ahistorical and decontextualized view of the data. . .Throughout the history of the United States, non-dominant racial groups have, either by law or custom, received inferior treatment in major societal institutions. Medical care is no exception. [FN268] *789 This historical approach has many practical implications. For example given the history of political under-representation and agency indifference, relying on government agencies in a Chevron [FN269] mode is ill advised. As Alexander v. Sandoval [FN270] and its expected progeny further restrict private rights of action under Title VI, the situation becomes dire. Reparational analysis suggests the need for a private right of action, placing the case in front of a life-tenured federal judge, rather than relying on majoritarian democratic politics as mediated through interest group politics. The historical approach also avoids the tendency to blame the victim, as some observers lay the blame for some health disparities upon cultural preferences. These cultural preferences - such as a distrust of the formal medical system - must be understood in the context of the history of medical abuse and neglect described in Section III.TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA above. Finally, the historical record also suggests that the remedy will not be cheap and easy. The injury spans many generations, and inflicted a remarkable crime against humanity. The remedy is likely to be equally powerful.
Finally, the reparations heuristic may also facilitate the resolution of otherwise intractable issues, such as racial differences in the allocation of kidneys for transplant. The authors of an important article on this topic in the Vanderbilt Law Review appealed to something akin to the concept of reparations, although not by that name:
[R]esponding to this disparate racial access can be justified as an attempt to eliminate the effects of past discrimination. Kidney failure is associated with a number of other factors that may be exacerbated in black communities because of past discrimination - including poverty, stress, alcohol use, and poor medical care. To the extent that past discrimination has left blacks disproportionately poor and that poverty induces higher rates of kidney failure, these lingering effects of discrimination also supports society's corrective concern. At a minimum, we believe it is incumbent on society not to ignore the equitable claims of *790 blacks in favor of other possibly less pressing equitable claims. . . Other examples include affirmative action in education, which could be supported on reparational grounds independent of Justice O'Connor's diversity rationale.
Two potential problems with the heuristic must be mentioned. The first is very practical. Programs to eliminate health care disparities have some recent momentum in Congress, with support from both sides of the aisle. The Senate Majority Leader, Bill Frist (R-TN), is the sponsor and leading proponent of some of these programs to reduce racial disparities in health, but is probably not an ardent supporter of Black reparations. Why undermine Republican support for the program by linking it with Black reparations?
The second question is also political. The heuristic supports a special warrant for groups that have been uniquely oppressed. If one accepts the general analysis that Blacks have been subjected to crimes against humanity, where does that leave other groups with racial disparities in health, but a different history?
To the first question I would say that many reform programs move forward with multiple philosophical foundations, even contradictory foundations. The anti-slavery movement in the 19th Century united religious abolitionists and hard-nosed businessmen, cynical politicians and idealists. It ultimately did not matter that they supported anti-slavery for different reasons. As for the second question, the Black reparations movement does not oppose the *791 elimination of all racial disparities in health. It merely stakes uniquely powerful claims for Black equality. Successfully equalizing Black health in America would require such major social changes that the spillover effect for all other groups would be significant. This rising tide would lift all boats.
CONCLUSION
Many of the facts and relationships described in this Article have been well known for many decades. In the introduction to a 1958 study of Black health care, Professor Everett C. Hughes wrote:
One of our most serious questions of social policy is, then, this: Shall we merely try hard to act as if race had never existed? Or shall we undertake to remove by special action the handicaps left over from our long history of racial discrimination? Disparities in Black health are an American Tragedy, taking far more lives annually than AIDS and automobile accidents combined. These Black health disparities were created in a history of slavery, segregation and white supremacy. Halting steps have been made towards amelioration, but current programs will require generations to close the gap; meanwhile, millions of Blacks suffer and 73,000 die prematurely each year. Treating Black health disparities as a reparations claim may force the law to confront the substantive claims, rather than an easy dismissal on procedural grounds. Applying the reparations heuristic to health disparities may challenge American society to move beyond token responses. The goal must be to eliminate disparities in Black health. These efforts would partially redress one of the great crimes against humanity, moving from tragedy to remedy.
Associate Professor, West Virginia College of Law. LL.M. University of Cambridge; J.D. Northwestern University.
