Navigating the Thicket of Strict Scrutiny: The Winding Legal Path Toward Reparations and Recognition
The American Descendants of Slavery (ADOS) movement seeks redress for the grievous harms inflicted upon generations of enslaved Africans and their descendants. But the road toward recompense and recognition is strewn with legal obstacles. Few loom larger than the stringent standard of strict scrutiny applied by courts to governmental policies involving racial classifications. Satisfying this exacting judicial review poses challenges — yet prospects remain for overcoming them.
Strict scrutiny activates whenever laws or actions differentiate based on race or ethnicity. Such policies immediately face suspicion under the Equal Protection Clause. To pass constitutional muster, the government must first identify a compelling interest. Rectifying systemic discrimination can potentially qualify. But even then, the means employed must be narrowly tailored with minimal use of racial categories.
For ADOS, the implications are profound. Initiatives from reparations to formal ethnic recognition could trigger strict scrutiny. Each would compel making an arduous case before inherently skeptical courts. The evidentiary burdens are substantial, and precedents mixed. But recent breakthroughs suggest strict scrutiny need not be an insurmountable barrier.
Government arguments to justify ADOS-focused programs might include:
- Documenting the unique multigenerational harms of slavery, segregation, and systemic racism through statistical disparities.
- Showing how targeted reparations directly address these verified wrongs using the least invasive racial classifications.
- Explaining why race-neutral policies would fail to adequately uplift ADOS.
- Demonstrating how ethnic recognition could help collect data to reveal needs and measure progress.
- Making the case for a focused ADOS Bureau to efficiently coordinate initiatives.
- Underscoring how rectifying acute disparities serves compelling interests like social cohesion and economic prosperity.
- Arguing reparations are necessary to address harms like loss of wealth and educational opportunities.
- Arguing ethnic designation is necessary to ensure ADOS receive entitled benefits and track progress.
- Arguing an ADOS Bureau is necessary to comprehensively address unique challenges faced.
- Asserting these actions promote racial justice, fulfill unkept promises, and foster prosperity.
The movement for reparations is strewn with legal barriers. Few loom larger than the rigorous standard of strict scrutiny that racial classifications invoked in any reparations program would need to overcome. However, the recent Supreme Court case of Byron Allen v. Comcast may have opened up a narrow pathway forward.
The Allen case established valid civil rights claims based on demonstrated disparate racial impacts, without requiring proof of intentional discrimination. By focusing on statistical inequities, advocates could sidestep the need to document specific racist policies. The evidentiary requirements, while still steep, may have been lowered.
Arguing that disproportionate poverty, incarceration rates, health outcomes and educational access stem from systemic discrimination could help justify reparations. The Allen precedent enhances the prospects of marshaling such data to show an ADOS-focused program fulfills a compelling remedial interest.
The Byron Allen vs. Comcast case did not directly involve reparations for ADOS. However, it may have opened up a legal avenue that could potentially benefit the ADOS cause for federal reparations in the following way:
• The case established that the Civil Rights Act of 1866 provides protections against racial discrimination by private entities and does not require proof of intentional discrimination.
• Allen argued that Comcast’s refusal to carry his channels had a discriminatory effect on him as an African American business owner.
• The Supreme Court ruled that the Civil Rights Act of 1866 allows claims of racial discrimination based on disparate impact, without needing to prove racist intent.
• This precedent could make it easier for ADOS to file discrimination claims against private institutions based on disparate impacts, even without clear evidence of intentional racism.
• If ADOS can demonstrate systemic disparate impacts flowing from slavery and discrimination, it may bolster arguments that reparations are warranted as a remedy.
• Rather than having to prove specific racist policies, ADOS may be able to point to statistical disparities as justifying a remedy.
• The Allen case lowers the bar for asserting valid race-based claims under the Civil Rights Act of 1866. This creates a potential avenue for justifying reparations based on observed effects rather than proven racist intents.
Of course, constitutional hurdles would remain even if disparate impacts substantiate a compelling government interest. Any program would still require carefully tailored provisions relying only on the minimum necessary racial classifications. And political considerations surrounding reparations cannot be disregarded.
Nonetheless, the evidential latitude opened up by the Allen ruling cracks open strict scrutiny’s formidable barriers just enough to perhaps glimpse a plausible route. By shifting the focus toward effects rather than intents, it lights a faint but hopeful beacon through the fog enshrouding reparations. The destination remains distant, but is perhaps no longer fully obscured.
Here, the Supreme Court itself may have provided a glimmer of jurisprudential daylight. Law remains open to evolving interpretation, not ossified tradition. And where law falls short, conscience may yet stir citizens to action, as happened repeatedly through America’s fitful moral progress.
