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.