Determining Who’s Entitled to Slavery Reparations Could Leave States Vulnerable to Slew of Legal Challenges

Warnings come as states and cities progress with funding their programs.

AP/Jeff Chiu
A crowd listens to speakers at a reparations rally outside of City Hall at San Francisco, March 14, 2023. AP/Jeff Chiu

As cities and states charge ahead with reparations efforts, questions are swirling about whether the programs are constitutional and how eligibility would be determined, with one observer saying the government trying to prove whether Black people are actually Black highlights “the insanity” of the programs. 

California’s recent allocation of $12 million in its budget towards reparations could leave the Golden State vulnerable to a slew of legal challenges. 

“Funding for reparations programs may be there, but the constitutional authority is not,” a Pacific Legal Foundation attorney and Reparations Task Force Director, Andrew Quinio, tells the Sun, noting that both the American and Californian Constitutions “do not allow discrimination based on race or ancestry.” 

California, which entered the union as a free state and sent more soldiers per-capita to fight for the North than any other state, has been aiming to lead the way nationally on reparations, citing a legacy of slavery and discrimination in the state that has negatively affected Black Californians to this day. 

Yet the reparations have come under fire for burdening populations that had nothing to do with slavery in America. No one racial group makes up a majority of California’s population, and the state has more Latino residents (40 percent) than white residents (35 percent), as well as a significant Asian American and Pacific Islander population, the Public Policy Institute of California notes

“The state is paving the way to unlawfully advantage and disadvantage individuals based on race because of a sordid history that much of California’s current diverse population wasn’t part of,” Mr. Quinio says. 

The state’s reparations task force, established by the legislature in 2020, issued a long report of recommendations last year that the group said hopes will “serve as a blueprint for other states, and eventually, the federal government” to address the wrongs of slavery, adding that “this national shame can ultimately be comprehensively redressed only through national reparations.”

If fully implemented, the report’s proposals are estimated by the Pacific Research Institute to cost nearly $3 trillion

Lawmakers haven’t yet tried to pass all of those proposals, instead saying there will be a “multi-year effort to implement the legislative recommendations in the report.” So far, the California Legislative Black Caucus has prioritized a package of 14 bills that it introduced earlier this year — none of which include direct cash payments. “While many only associate direct cash payments with reparations the true meaning of the word, to repair, involves much more,” the chairwoman of the Black Caucus, Assemblywoman Lori Wilson, said of the legislative measures. 

Several of the bills have already advanced in the Senate and are being considered by the Assembly, including a bill to compensate Black residents for land that was taken by eminent domain. The Senate is meanwhile considering a bill, already passed by the Assembly, to require the state’s Department of Consumer Affairs to prioritize Black applicants, especially descendants of slaves, who are seeking occupational licenses. The reparations package also includes a ballot measure this November — that was approved by the legislature — to prohibit involuntary servitude for incarcerated people. 

Despite the $12 million set aside in California’s budget, reparations backers are already clamoring for more and promising that it’s only a start.

“Although we wanted more, I’m deeply appreciative of the $12 million in the state budget for reparations. Even in these tough fiscal times, this funding is a clear reflection of our priorities and values as a state,” a state senator, Steven Bradford, a member of California’s reparations task force, said in a statement. “This clearly states the reparations do matter and will be a priority in California going forward. This is just the beginning.” 

As the Golden State charges ahead, Evanston, a suburb of Chicago, is facing a lawsuit after it became the first city in the country to enact a taxpayer-funded reparations program.

The city has committed $20 million to a program that provides $25,000 in payments to Black persons who lived in Evanston while aged 18 and older between 1919 and 1969 and their descendants, the lawsuit against the city, filed by Judicial Watch, notes. The city’s website identifies Black and African American people as “persons having origins in any of the Black racial and ethnic groups of Africa.” The city of Evanston didn’t respond to a question from the Sun about how it verifies eligibility and prevents reparations fraud, but a representative of the city manager’s office said the city “will vehemently defend any lawsuit brought against our city’s reparations program.”

“Both federal civil rights law and the Constitution don’t allow Evanston to give away money based on race like they are, and our clients are eligible for the program, but for their race, so that requirement has got to be removed,” the president of Judicial Watch, Tom Fitton, tells the Sun.

When asked if he had additional information about the city’s eligibility requirements, Mr. Fitton referred the Sun to the lawsuit but said the city having to try to “determine whether someone’s actually Black when they say they’re Black” serves to highlight “the insanity of their program.”

“The excuses used that some sort of generalized or systemic or vague allegations of racism generally could be the basis for, you know, the woke racism that they’re promoting in this program isn’t going to hold legal water,” Mr. Fitton says. “The Constitution requires you treat people equally under the law, and they’re not doing it, based on race here.”

The lawsuit comes as Detroit, Boston, Chicago, Washington D.C, and the state of New York have established or are in the process of creating reparations commissions to study the lingering effects of slavery and make policy recommendations. 

“This is the first official reparations program. I think other localities and states are taking steps to proceed to reparations, but they haven’t gone there yet, and so we’re looking carefully there, at California, Chicago, Washington, D.C.,” Mr. Fitton says. “And hopefully lawsuits like this educate other politicians what they’re not allowed to do under law.” 

The New York Sun

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