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Why Reparations in California May Be More Fizzle than Sizzle Thanks to the Supreme Court

California’s state and local officials are drafting proposals for reparations, with a task force proposing recommendations to the California Legislature by July 1. The San Francisco Board of Supervisors supports direct one-time payments of $5 million, a guaranteed income of $97,000 per year for 250 years, and the opportunity to buy homes within the city limits for $1. However, legal experts suggest that such reparations plans, even if formally adopted, may never actually go into effect due to the conservative supermajority on the U.S. Supreme Court.

In this opinion piece, I argue that reparations are doomed to fail. The legal issue most likely to be at play in a case against reparations is the Equal Protection Clause of the 14th Amendment, which generally prohibits public institutions from offering preferential treatment to one category of people over another. Any policies that sort people by racial categories are typically seen as a violation of the Equal Protection Clause, unless governments can provide a strong justification for them.

The legal standard applied in such cases is known as “strict scrutiny,” and to meet that standard, governments must show that the policies they’re trying to implement serve a “compelling governmental interest.” Even affirmative action policies at public universities, which have been repeatedly determined to serve a compelling government interest by the courts, are likely to be declared unconstitutional by the current Supreme Court in June.

If affirmative action is deemed unconstitutional, are reparations doomed to suffer the same fate? To avoid creating racial classifications in their reparations packages, officials drafting the plans must define the beneficiaries as the descendants of slaves and not by their race. Only Black Californians who can prove a direct lineage to enslaved ancestors should be eligible for benefits. However, this strategy is not foolproof, as the Supreme Court may decide that the slavery requirement serves as a “proxy” for race.

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