Excerpted From: Roy L. Brooks, Black Boarding Academies as a Prudential Reparation: Finis Origine Pendet, 13 Columbia Journal of Race and Law 790 (May, 2023) (323 Footnotes) (Full Document)


RoyLBrooksHow should reparations for slavery and Jim Crow, commonly referred to as “Black Reparations,” be structured? This is a difficult question to answer, but one that must be faced not only by federal and state governments, the prime perpetrators of slavery and Jim Crow, but also by private entities asked to pay Black Reparations. Demands for public reparations typically attempt to transform the American social order, changing the relationship between race and power in our society. Transitional reparations-- reparations that seek “transitional racial justice” on full display in what is arguably the most important study of Black Reparations to date: the 500-page Interim Report issued by the California Task Force to Study and Develop Reparation Proposal for African Americans.

The Task Force consists of California politicians, community leaders, lawyers, and academicians. Aided by the considerable resources of lawyers in the California Department of Justice, the Task Force is charged by the state legislature with “synthesiz[ing] documentary evidence of the capture, procurement, and transportation of Africans for the purpose of enslavement; the domestic trade of trafficked African Americans; the treatment of enslaved people; the denial of humanity and the abuse of African Americans; and the discrimination and lingering negative effects that followed in the colonies that eventually became the United States, and the United States of today.” Assembly Bill 3121, the authorizing legislation written by college professor turned politician, Dr. Shirley Weber, also charged the Task Force with recommending reparations that are:

[A]ppropriate remedies of compensation, rehabilitation, and restitution for African-Americans, with a special consideration for African-Americans who are descendants of persons enslaved in the United States. The Task Force recommendations must address how they comport with international standards and how the State of California will apologize for its role in perpetuating gross human rights violations and crimes against humanity on enslaved Africans and their descendants. The Task Force must address the role of California laws and policies in continuing the negative lingering effects on African Americans as a group and how these injuries can be reversed. The recommendations must include how to calculate compensation, what form it will take, and who should be eligible.

Pursuant to this charge, the Task Force issued an Interim Report in 2022 so honest in its description of government-sanctioned or -mandated persecution of African Americans under slavery and Jim Crow that it came with a “Graphic Content Warning.” Following the “atonement model,” the Task Force recommends a state apology and various forms of reparations-- monetary and non-monetary compensatory and rehabilitative reparations to effectuate transitional racial justice. For example, non-monetary rehabilitative reparations (institutional or community-wide programs or services include establishing (1) a “state-subsidized mortgage system that guarantees low interest rates for qualified California Black mortgage applicants;” (2) “free healthcare programs,” and (3) the creation of The California African American Freedmen Affairs Agency, a cabinet-level secretary position tasked with, inter alia, implementing mandated reparations, processing eligibility claims, coordinating free legal services (“including criminal defense attorneys”), and providing business grants. Two noteworthy monetary rehabilitative reparative policies are the creation of “a fund to support the development and sustainment of Black-owned businesses” and raising the minimum wage.

Monetary compensatory reparations (money paid to victims individually with or without restrictions are quite extensive. They include the state of California: (1) paying restitution for the theft or destruction of Black-owned businesses and property in California and making “housing grants, zero-interest business and housing loans available to Black Californians;” (2) compensating “individuals forcibly removed from their homes due to state action, including but not limited to park construction, highway construction, and urban renewal;” (3) funding “free tuition to California colleges and universities;” (4) compensating “families who were denied familial inheritances by way of racist anti- miscegenation statutes, laws, or precedents, that denied Black heirs resources they would have received had they been white;” (5) providing “financial restitution and compensation to athletes or their heirs for injuries sustained in their work if those injuries can be linked to anti-Black discrimination policies;” compensating “individuals who have been deprived of rightful profits for their artistic, creative, athletic, and intellectual work;” and (7) compensating “individuals whose mental and physical health has been permanently damaged by anti-Black healthcare system policies and treatment.”

Two excellent scholars, William Darity Jr. and A. Kirsten Mullen, also appear to favor transitional racial justice. They propose a “portfolio of reparations” that includes a wide range of rehabilitative reparations and compensatory (both unrestricted and restricted for each documented Black descendant of the enslaved. Darity and Mullen calculate the cost of transitional racial justice based on the costs of justice denied to Black people since the end of the Civil War.

If I had my druthers, I would prefer to use Black Reparations as a means to effectuate transitional racial justice. But reality cannot be ignored. The inflationary cost of transitional racial justice is prohibitive. More broadly, transitional racial justice has never been achieved in a developed country. South Africa is one of the few countries that has attempted to use reparations as a means to social transformation. With the election of the legendary Black activist Nelson Mandela as president in 1994, the country successfully transitioned from Apartheid to democratic government, but economic power did not transition. Overwhelmingly, economic power remains to this day in the hands of White South Africans. In addition, racialized conditions in housing, employment, and education have not changed since the end of Apartheid in 1994:

During colonialism and structured apartheid from the late 1940s, Black South Africans were largely denied economic opportunities. More than a quarter century of democratic rule has seen the growth of a Black middle class and a Black business and political elite. Yet, most South Africans still suffer from a woeful education system that leaves them ill prepared for jobs, while townships, built for Blacks during apartheid, leave them far away from workplaces .... Laws ranging from affirmative action to mandating minimum Black-owned stakes in businesses have done little to narrow inequality.

Clearly, expectations regarding Black Reparations may have to be changed. Without abandoning the ultimate goal of social transformation, it may be necessary to view Black Reparations in a more limited way. It benefits no one (except opponents of Black Reparations) to position Black Reparations for failure by asking it to do something that is unprecedented in the annals of international human rights.

Taking a prudential approach, this Article argues that Black Boarding Academies (“BBAs”) should be the first Black Reparation. Given the country's limited moral and financial capital, BBAs may end up being the only truly significant reparation the federal government or state governments provide for slavery and Jim Crow. That is even more reason to pursue BBAs with great gusto right now.

This Article is organized as follows. Part II provides a general discussion of the forms of reparations, to which I add a new wrinkle (Section A), a brief review of the case for Black Reparations (Section B), and an argument for prioritizing Black Boarding Academies (Section C). Part III sketches the contours of Black Boarding Academies. It touches upon the academies' mission statement (Section A), structure (Section B), living arrangements (Section C), finances (Section D), and their constitutionality (Section E). My ambition is to place enough food for thought on the table to create a foundation for further reflection about BBAs and, more generally, the best way to structure Black Reparations--transitional reparations or prudential reparations?

[. . .]

Two newborn babies lie side-by-side--one Black American and the other White American. Without knowing anything more about them, we can be reasonably certain that it will be harder for the Black American baby to succeed in the United States. This child will find more racial hurdles on its life's track, and taller hurdles. This child will receive fewer cheers from the crowd and less support if it lags or stumbles. This child will be penalized or taken out of the race for any mistakes it makes rather than given another chance. Our society steers African Americans to the bottom from birth--especially if they are poor. Black Reparations ought to prioritize the most vulnerable living victims of slavery and Jim Crow.

Starting Black Reparations in such a limited fashion flies in the face of all those who, like myself, had hoped that Black Reparations could effectuate transformative racial justice in our country. But having taken a great deal of time to analyze and think through the matter, I now reluctantly conclude that Black Reparations cannot deliver that mythical Third Reconstruction. The American race problem is too big for Black Reparations alone to handle. It would decades of massive amounts of government spending and the sustained moral commitment of the American people to realize transformative racial justice in this country. The inflationary impact of trillions of dollars of government spending makes transformative reparations a prohibitive proposition. Hence, African Americans are unlikely to receive all the reparations that are rightfully due or urgently needed to redress the lingering effects of slavery and Jim Crow. The only option, if we are to have Black Reparations, is to prioritize as victims of other atrocities have had to do.

This Article attempts to make the case for prioritizing low-income Black children. It proposes an education reparation--Black Boarding Academies--that will enable these precious souls, especially those at risk of falling into the dreaded foster care system, to thrive rather than merely survive by giving them a safe and nurturing environment in which to develop leadership skills. Given the cost of building and operating BBAs and finite reparatory payments, it seems prudential to plan for post-reparations fundraising. There are, in fact, myriad public and private funding sources available. Finally, the standard of eligibility for admissions to BBAs--a familial connection to a member of a group persecuted by both slavery and Jim Crow--is dictated by the Supreme Court's impending decision to discontinue affirmative action in education. All Black Reparations must be attentive to this existential threat coming from the Supreme Court. However, even if the Supreme Court were to unexpectedly uphold affirmative action under federal law, the legal risk to Black Reparations will not go away. Nine states, including California and Florida, have already decided to ban race-conscious admissions in public school. The eligibility test posited in this Article should work at the state level as well.

Having for many years studied and written about worldwide responses to past atrocities--what scholars call “post-conflict justice”--I well appreciate the difficulty of resolving our country's own past atrocities. Numerous issues are raised. The importance of these issues is matched only by their complexity.

Warren Distinguished Professor of Law at the University of San Diego School of Law.