Legal pitfalls in reparations

Legal pitfalls in reparations
Pete Buttigieg (Image: YouTube screen grab)

Progressive are big on reparations these days.

During last week’s debate, presidential hopeful Pete Buttigieg announced a plan to award reparations to people who enter the United States illegally if they are minors and were detained at the border by federal immigration officers. Specifically, Buttigieg said that the U.S. government should give compensation to children separated from their families at the southern border. He also said they should be given a special “fast-track to citizenship.”

(State and federal authorities commonly separate children from their parents when the parents are jailed or detained.)

Meanwhile, as I reported recently, the city of Evanston, Ill., voted to provide reparations to “African Americans,” who “have been disproportionately arrested for infractions involving marijuana possession.”

Buttigieg’s proposal, while deeply controversial, would not violate the Constitution if adopted by the federal government. It has broad leeway about how to treat aliens, even when its policies are foolish or encourage more illegal immigration.

Evanston’s recently approved plan, by contrast, is unconstitutional, because it racially discriminates. It wants to provide benefits for black people only, such as those who are “returning citizens” (also known as ex-offenders). A special “focus” will be on black people arrested for “marijuana.”

Evanston cites the fact that black people were disproportionately arrested for drugs, and experienced past discrimination such as slavery and redlining. But that is not a legally sufficient reason to give blacks race-based government handouts in the future.

A tax on marijuana will fund Evanston’s reparations program. The program’s benefits will be limited to blacks, even though that is racially discriminatory. The plan will go into effect after recreational marijuana becomes legal in Illinois on January 1.

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” as well as recent arrivals from Africa.

Black Enterprise reports that Evanston’s aldermen voted 8-to-1 to use the city’s 3% sales tax on marijuana to pay for a new reparations 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.”

The fund will be used for a variety of benefits restricted to black people. In addition to helping black people released from jail, 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.

Whites, Hispanics, Asians, and Native Americans will not be eligible for any of these things. The city’s finances are so bad that it recently raised taxes and cut police and fire positions to close a budget deficit caused by wasteful spending.

Proponents of Evanston’s reparations plan say it will “address the lingering effects of slavery.” But race-based reparations for slavery 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.

Slavery ended over 150 years ago. No ex-slaves are alive today to be compensated, and it was state governments in the South, not northern cities like Evanston, that were responsible for the existence of slavery. The Supreme Court says racial set-asides 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 in another state.

The fact that segregation and slavery may indirectly impact society even in northern cities like Evanston not a reason for it to have racial preferences, either. The Supreme Court says race-based programs are only supposed to remedy a government’s own discrimination, not societal discrimination. (See Richmond v. J.A. Croson Co. (1989)).

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.

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. Federal appeals courts have so ruled. (See, e.g., Brunet v. City of Columbus (1993); Hammon v. Barry (1987)).

Proponents of reparations point to blacks being arrested for drugs at “disproportionate” rates in Evanston compared to other groups. But racism is not proven by the mere fact that one race has a higher arrest rate or punishment 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 would not justify racial preferences in totally different areas such as job training or housing.

The federal appeals court that has jurisdiction over Evanston says race-based programs and affirmative action are permitted only as a way of remedying intentional discrimination by the government, not mere “disproportionality” or unintended racial disparities. (See, e.g., Builders Association v. County of Cook (2001); People Who Care v. Rockford Board of Education (1997)).

Also, widespread discrimination, not just a few individual instances of discrimination, has to be shown to justify giving race-based benefits. (See Middleton v. City of Flint (1996)).

So individual instances of racism in Evanston today can’t justify reparations for blacks as a group. The proper response to a black person being discriminated against is to remedy the harm to that black individual, 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 and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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