"Solely on the Basis of Race"

Would reparations to black Americans, that is, public law and policy based exclusively on racial class, be a repudiation of Brown v. Board of Education which unanimously overturned public school laws that had been based “solely” on race?

The Supreme Court gave the same “solely” rationale for its unanimous decision in Loving v. Virginia (1967) overturning Virginia’s statute banning interracial marriage. Chief Justice Warren, writing for the Court, said that the statute had been enacted “solely on the basis of racial classifications” and was unconstitutional under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It was “directly subversive of the principle of equality at the heart of the Fourteenth Amendment.”

Moreover, despite its adoption of more complicated balancing tests, despite its qualified acceptance of “diversity” as a legitimate goal, and despite its occasional, limited use of aggregate racial outcomes, the Supreme Court still maintains the general principle that the Fourteenth Amendment’s Equal Protection and Due Process Clauses must be about—as the Amendment’s text clearly states—a “person,” not groups.

Indeed, reparations would violate a string of Supreme Court decisions, as well as the explicit wording of all federal civil rights laws. These laws, despite the Court’s acceptance of “disparate impact” as evidence of a violation, still fundamentally assert that discriminatory intent—proven or implied—is a necessary element of discrimination. As the Court affirmed in Parents v. Seattle School District No.1, these laws state that “the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.”

Reparations, Groups, and Individuals

Support for reparations is growing. A reparations bill, the Economic Justice Act, proposed by Senate Democrats provides for a $350 billion appropriation “to address systemic racism and historic underinvestment in communities of color.” The Democrats bill in the House, H.R. 40, would set up a commission to “study” reparations, including “compensation” and “restitution” for “living African Americans,” for slavery. In Asheville, North Carolina, the city council just passed a resolution, which has received national attention, setting up a commission for the purpose of “reparations for Black Asheville.” In July 2019, then-presidential and now vice-presidential candidate Kamala Harris proposed a new $100 billion federal homeownership program exclusively for black citizens to “deal with the racial wealth gap.”

But the Supreme Court has typically looked askance at laws that categorize people in exclusively racial terms. Not only did the landmark Brown and Loving cases strike down such laws, but even those cases that allowed for a degree of racial classification were careful to contain the approach to narrow circumstances.

In Griggs v. Duke Power Co. (1971), the Supreme Court in a unanimous decision authored by Chief Justice Burger, created the contemporary world of affirmative action (now, diversity) by ruling that Title VII (the employment provision of the Civil Rights Act of 1964) went beyond discriminatory intent to include employment practices that are “discriminatory in operation.” Nevertheless, noting that Title VII refers to discriminatory employment practices against an “individual,” Burger ended his opinion by stating that an employer could absolve himself of culpability for a civil rights violation if he could prove that the “operation” of the employment practice was “related to job performance” and “business necessity.” In other words, Griggs, despite its modification of the “intent” test, does not remotely approach any conception of race as a cognizable legal class.

Bakke established that racial or ethnic background could be only “one element,” a “plus factor,” in the selection process, which was still required to treat “each applicant as an individual.”

In Washington v. Davis (1976), the Court held that the recruiting requirements of the Washington D.C. police department, which included a written test, had neither a discriminatory purpose nor effect and did not violate either Title VII of the 1964 Civil Rights Act or the Equal Protection or Due Process Clauses. Justice White, writing for the 7-2 majority, concluded by offering what can be taken as an essential statement of the implications of reparations:

A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.

Today, Black Lives Matter and other advocates are obviously after the “whole range.”

The Affirmative Action Precedent

In the landmark “reverse discrimination” case of Regents of the University of California v. Bakke (1978), Justice Powell advanced Griggs’ “discriminatory in operation” standard—but only in higher education. Alan Bakke, a twice-rejected white applicant to the University of California’s medical school, filed suit under the Equal Protection Clause and Title VI of the Civil Rights Act forbidding racial discrimination in programs receiving federal funds. He challenged the medical school’s “special admissions program” that reserved 16 admissions each year for “qualified minority applicants.” By a vote of 8-1, the Court ordered the admission of Bakke. Justice Powell, speaking for five members of the Court, said that “the rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.” He cited Brown, Loving, and Washington v. Davis.

In agreement with four other concurring justice, however, Powell went beyond Griggs and created the “diversity” world in higher education that has been with us ever since, that is, “the attainment of a diverse student body . . . as a constitutionally permissible goal of higher education.” It was not open-ended, however: a university could not define a separate class of students by race. Racial or ethnic background was only “one element,” a “plus factor,” in the selection process, which was still required to treat “each applicant as an individual.” By contrast, the University of California Medical School, Powell said, “involves the use of racial classifications never before contemplated by this Court.”

The Medical School itself had stated that “countering the effects of societal discrimination,”—an explicit goal of todays’ reparations movement—had been one of its purposes. That, Powell said, “imposes disadvantages upon persons like respondent [Bakke], who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”

In two companion cases out of Michigan in 2003, the Court endorsed the special but qualified status of higher education. In Gratz v. Bollinger, the Court ruled 6-3 that the undergraduate admissions system at the University of Michigan that gave an automatic, calculated advantage to “underrepresented minorities” was unconstitutional and failed strict scrutiny under the Equal Protection Clause as well as Title VI of the Civil Rights Act. Writing for the 6-3 Court, Chief Justice Rehnquist cited Bakke and held that the policy was not based on “individualized consideration.”

On the same day, the Court by a 5-4 vote in Grutter v. Bollinger attempted to make a distinction and held that the University of Michigan’s Law School’s admissions policy of considering “racial and ethnic diversity” as a separate basis of admissions did not violate the Equal Protection Clause and Title VI of the Civil Rights Act. Justice O’Connor, writing for the Court, said “in the context of individualized consideration,” race, as previously stated in Bakke, could be used as “a plus factor” in the Law School’s “narrowly tailored use of race in admissions decisions.” Nonetheless, she went on to quote a previous case to the effect that “a core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race,” and added, in a passage that has been cited many times: “We expect that 25 years from now, the use of racial preference will no longer be necessary to further the interest approved today.” It is now 17 years later.

In two versions of the same case involving race in higher education, Fisher v. University of Texas, the Court was likewise ambivalent in its decisions. But in both cases, the Court still affirmed that the right to be considered in admissions of public universities was “individual.” In the first, the Court confined itself to faulting the lower courts for not using strict scrutiny as the relevant standard for judgment. In Fisher II (2016), Justice Kennedy, speaking for a 4-3 majority after the death of Justice Scalia and with Justice Kagan recusing herself, went beyond Grutter in endorsing racial preferences. But Kennedy still pointedly asserted that the University had no “quota.” The University had “concrete and precise goals,” Kennedy said, but those goals were expressed in “diversity” objectives, not percentages of admitted students based on race.

Persons—Not Groups

There could not be a more ringing endorsement of the fundamental principle that legally-culpable discrimination must be purposeful than the unanimous decision of the Supreme Court this year in Comcast v. National Association of African American-Owned Media. The Court construed the oldest of federal civil rights statutes, The Civil Rights Act of 1866. Claiming racial animus, the Entertainment Studios Networks (ESN) had sued Comcast, the cable television conglomerate, for declining to carry its channels. The Supreme Court remanded the case to the Ninth Circuit, saying that “the traditional rules of statutory interpretation” apply. Plaintiff ESN had to “initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.”

In its brief in the case, ESN had made the reparations-like argument that “today, badges of slavery remain” and “the wealth gap between African Americans and white people remains significant.” An amici brief was filed in support of ESN by certain Democratic members of the House and Senate, including Harris, former presidential candidate Cory Booker, and Karen Bass, Chair of the Congressional Black Caucus.

It could be argued that reparations might not be based on race but on past slavery. No advocate of reparations has made that argument, however, and it would require precise racial tracing, among other problems. Furthermore, by its own terms, reparations rhetoric does not look to slavery but to alleged continuing racism against black Americans.

General racial classifications have not been part of public law or finance since the last of the Jim Crow laws were eliminated in the 1960s. A long time before that, their legitimacy was abolished in 1868 by the Fourteenth Amendment which extended to states the principle that the Fifth Amendment had always affirmed for the federal government: America is about “persons,” not groups.