Pot sales to fund reparations in Illinois city

Pot sales to fund reparations in Illinois city
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Marijuana sales will fund a reparations program for black people in Evanston, a city just north of Chicago. The program’s benefits will be limited to blacks, even though that is racially discriminatory and unconstitutional.

The program aims to compensate black people for the “unquantifiable loss” they have suffered due to historical injustice. But its benefits will be available even to “the children of black immigrants who were never enslaved,” and recent arrivals from Africa.

Black Enterprise reports:

In the midst of recreational marijuana becoming legal in Illinois, on Jan. 1, lawmakers in the city of Evanston plan to use the revenues collected from sales to help fund a reparations program. The money will go toward job training and other benefits for Evanston’s black population…“We can implement funding to directly invest in black Evanston,” said Ald. Robin Rue Simmons, who proposed the reparations bill.

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Aldermen approved the use of money from its cannabis retailers tax with an 8-1 vote. All revenue collected next year from the city’s 3% sales tax on cannabis will be placed in the new fund. City staff estimated that the town will collect at least $500,000 a year from the new tax, which can start to be applied to the fund in July 2020, according to interim City Manager Erika Storlie.

The City’s Equity and Empowerment Commission has recommended using the fund for race-based property tax relief, down payment assistance, housing repairs and rehabilitation, low-interest business loans, and more.

Evanston, with a population of 75,000, is 17 percent African-American. Reparations will place added stress on city finances. As Wikipedia notes,

For fiscal year 2019, the city will cut police and fire positions and raise taxes in order to make up for a $7.4 million budget deficit. An Illinois Policy Institute report said that among Chicago area municipalities studied, Evanston ranked among the highest in wasteful spending.

As the New York Post notes, proponents say the program will “address the lingering effects of slavery.” This “idea of paying reparations to the descendants of slaves has been a hot topic among Democrats running for president in recent months. But an October poll found only 29 percent of Americans in favor of the concept.”

Race-based reparations violate the Constitution as currently interpreted by the Supreme Court. It interprets the Fourteenth Amendment as usually forbidding racial handouts, even for historically disadvantaged groups.

Those who support reparations commonly do so based on the fact that African-Americans were once enslaved, but slavery ended over 150 years ago. No ex-slaves are even alive today to be compensated, and it was state governments in the South, not Evanston, that were responsible for the existence of slavery.

Moreover, while slaves were made worse off by being abducted in Africa and sent to America in bondage, their descendants are better off today thanks to being in America. Blacks in America live longer, and have higher incomes, better food, clothing, and housing, and more civil liberties, than blacks in Africa. After traveling through Africa and seeing the poverty, violence, and dictatorships that prevailed there, a black Washington Post reporter said “thank God” his family had been taken to America.

Evanston, a northern city, cannot use racial preferences to offset the legacy of slavery, because slavery almost exclusively existed in the south. Discrimination in one state doesn’t justify racial preferences in another. (See Western States Paving Co. v. Washington State Department of Transportation, 407 F.3d 983 (9th Cir. 2005)).

The Supreme Court has said that racial set-asides and other entitlements are only permissible to remedy the present effects of a government’s own widespread discrimination in the relatively recent past. That means discrimination by the unit of government that provides the special treatment—not by a different government.

The fact that segregation and slavery may affect society even in northern cities like Evanston not a reason for it to have racial preferences, either. The Supreme Court has said that race-based programs are allowed only to remedy the government’s own discrimination, not societal discrimination. (See Richmond v. J.A. Croson Co., 488 U.S. 469, 497 (1995)).

Advocates of reparations cite alleged “predatory lending” in Evanston prior to the 2008 recession, and “redlining” by banks and others back in the 20th Century. But that is societal discrimination, not governmental discrimination that justifies a government race-based remedy.

And any redlining occurred many years ago. Even when when the government is remedying the present effects of its own past discrimination, rather than societal discrimination, discrimination that happened more than twenty years ago is too far in the past to justify giving minorities special treatment today. Courts have so ruled. (See, e.g., Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993) (court ruled that gender discrimination that occurred 17 years earlier did not justify affirmative action); Hammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987) (court ruled that race discrimination 14 years earlier did not justify affirmative action program)).

Even if Evanston were in the south, it could not use racial preferences to “remedy” slavery, which ended over 150 years ago, or segregation, which ended decades ago. These evils are simply too far in the past.

The fact that blacks are “overrepresented” in the criminal justice system, and “underrepresented” in various occupations, is not proof of discrimination that justifies a race-based remedy. That is because racial imbalance is not the same thing as discrimination. (See Police Association of New Orleans v. City of New Orleans, 100 F.3d 1159, 1169 (5th Cir. 1996)).

Racial imbalance in housing patterns or school enrollment does not constitute segregation or discrimination. (See Freeman v. Pitts, 503 U.S. 467, 494 (1992)).

A proponent of Evanston’s program cited allegedly unfair policing, pointing to blacks being “disproportionately” represented among those who are arrested. But racism is not proven by the fact that one race has a higher arrest rate, conviction rate, or school discipline rate than other races. (See United States v. Armstrong, 517 U.S. 456 (1996); People Who Care v.  Rockford Board of Education, 111 F.3d 528, 538 (7th Cir.1997); Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 305, 332 (4th Cir. 2001)).

Moreover, racism in the criminal justice system does not justify racial preferences in totally different areas such as job training or housing.

The federal appeals court in Chicago has emphasized that race-based programs and affirmative action are permitted only as a way of remedying intentional discrimination, not racial disparities amounting only to “disparate impact.” (See, e.g., Builders Association v. County of Cook, 256 F.3d 642, 644 (7th Cir. 2001); People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997)).

Another appeals court reached the same conclusion, in a decision upheld by the Supreme Court. (Michigan Road Builders v. Milliken, 834 F.2d 583, 593 (6th Cir. 1987), aff’d, 489 U.S. 1061 (1989)).

Also, widespread discrimination, not just a few individual instances of discrimination, has to be shown to justify using race, according to judges. (See, e.g., Middleton v. City of Flint, 92 F.3d 396, 405 (6th Cir. 1996)).

So individual instances of racism in Evanston today can’t justify racial preferences, much less race-based reparations. The proper response to individual instances of racism is to compensate the individual victim, not create benefits for their entire racial group.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.”

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