That formerly enslaved people have had to sue for promised reparations suggests that racism and related injustice didn’t simply vanish with the Emancipation Proclamation and, in 1865, the 13th Amendment. For the most part, have our courts done their part to honor the reparations intentions of former enslavers?
The courts did not do their part to address the legacies of slavery or to fully excise it from American law. By extension, racism and injustice have persisted in insidious ways. When it comes to honoring the intentions of enslavers, however, courts were more deferential. Not all freedpeople won their suits and received bequests, but usually that occurred when one of the specific conditions for inheritance laid out in the will had not been met. For example, one will said the bequests would only be paid after the death of the testator’s wife; that hadn’t happened yet when freedpeople brought the suit, so they lost their case. Otherwise, judges upheld the terms of the wills, and freedpeople were able to inherit.
It is important to recognize that these judicial rulings should not be read as victories for racial justice. The courts in these cases were deferring to the desires of white enslavers to disperse their assets as they saw fit. That was a core prerogative of whiteness and liberal citizenship. So even when freedpeople won and enjoyed the often generational benefits of those victories, neither the law nor the mindset of judges on southern benches transformed in any meaningful way. The racial status-quo antebellum survived despite the victories.
On campus in May, you moderated a panel discussion about reparations in California. Any updates from the California Reparations Task Force?
One of the panelists served on the task force, and he did not offer a very optimistic picture for the future. He argued that the framing of the task force’s recommendations in prominent media outlets has made any meaningful progress on reparations in California almost impossible. Reporting has focused on cash payments — which is only one of hundreds of recommendations — in the abstract instead of contextualizing any monetary reparations as a repayment of debts incurred for specific harms suffered by a subset of Americans.
That said, the state legislature has begun moving forward on some recommendations. Late last month, the state senate passed a bill that would compensate people whose property had been taken by the state through eminent domain. I think this is a smart place to start because the harm committed is specific, calculable, and involves state action. It’s easier for people to understand why someone would be owed damages for a wrong done to them by the state. It’s more difficult to educate people about the harms caused by more abstract things that did not necessarily involve the state, such as wage gaps or discriminatory hiring practices, for example.
A rough road. But progress has been made.
It is important to note that a statewide conversation about reparations would have been unthinkable even 7–10 years ago. So the fact that the state convened a task force that undertook really serious work to document racial harms is incredibly significant. It also provided a model for other localities to follow.