A letter from Amb. C. Boyden Gray sent to the City of Evanston, Illinois on behalf of the Project on Fair Representation was cited by the New York Times on Saturday. The article, “Reparations for Black Residents Are Becoming a Local Issue as Well as a National One” discusses a proposal for a Detroit reparations committee that will research housing and economic development programs solely for the city’s black residents.
Reparations programs that use race as a proxy for injury or hardship are patently unconstitutional and destructive, the letter argues, regardless of whether they are designed to “help” the intended beneficiaries. Quoting Justice Clarence Thomas, it adds: “there is a moral and constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.”
Regardless of motive, governmental allocations of benefits or burdens on the basis of skin color is incompatible with the Fourteenth Amendment unless they satisfy the judicial test of strict scrutiny. That is, the discriminatory policy must serve a compelling government interest and be narrowly tailored to achieve that purpose. Reparations based on racial identity will fail this test in all but the most limited of circumstances.
Evanston appears to have heeded Ambassador Gray’s warning, in part. While the initial proposal looked solely at race, the enacted version requires a showing that the person seeking reparations, or the direct ancestors thereof, have suffered racial discrimination at the hands of Evanston officials. But the rule remains race-specific and does not permit reparations to other victims of race discrimination.
Boyden Gray & Associates is a boutique litigation and public policy firm, continuing C. Boyden Gray’s decades of service as counselor to presidents, business leaders, legislators, and regulators on matters of constitutional law, regulatory policy, and international affairs.
The Project on Fair Representation is a not-for-profit legal defense fund program that is designed to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts.