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Here’s something else that Sept. 11 stole from us: a societywide discussion on lawsuits that were scheduled to be filed this fall seeking reparations for African-Americans still harmed by slavery and its long aftermath. But in the spirit of the president’s charge that we not let terror distract us from our way of life, let me try to rekindle some of that debate now. Since it surfaced as a serious topic of public discussion in the last few years, the idea of reparations has often been met with a mix of shock, insult, and caricature. Shock, from the assumption that reparations would be in cash and that they would be made in return for a policy of enslavement that ended with the Civil War. Insult, most vividly from the pen of right-wing agitator David Horowitz, who earlier this year claimed that blacks in America should be thankful that their ancestors came here in chains. And caricature, in distorted support for reparations — for instance, from columnist Charles Krauthammer — to the effect that America should be happy to pay off blacks so that everyone will shut up about race. But as easy as it might seem to skewer reparations suits, they should not be dismissed — either by the public or by the courts. Properly viewed, the suits respond to important needs of our society, in a manner that the law should be able to swallow, in ways that other attempts to address race in America cannot. Viewing the suits properly means realizing that they aren’t about slavery and they aren’t about money. Rather, they’re about the ongoing effects of slavery and how to repair them. Meaning — as the reparations lawyers have said — that the suits are really about affirmative action. A STRUGGLING STRATEGY Without getting into the details of the defenses and critiques of affirmative action here, consider this one fact: The recent Bush v. Gore recount shows that votes in black population centers in Florida were invalidated at “a rate … that was three times higher than in predominantly white precincts,” according to The Washington Post. Clearly, whatever the mechanics, blacks in America — even recent immigrants — still suffer from the legacy of slavery and Jim Crow. Affirmative action, of course, faces fierce opposition in the courts — especially in the Supreme Court. For more than two decades, the Court has used various rationales to strike down race-based efforts — by a state medical school for admissions ( University of California Regents v. Bakke in 1978), by a city for construction contracts ( Richmond v. J.A. Croson Co. in 1989), and by a state legislature for congressional voting districts ( Shaw v. Reno in 1993 and Shaw v. Hunt in 1996). It has also remanded for reconsideration under strict scrutiny a federal program to grant transportation contracts to companies using minority subcontractors ( Adarand Constructors Inc. v. Pe�a in 1995). The only kind of affirmative action program that the Court has explicitly sanctioned recently does not, on its face, involve race. Earlier this year in Hunt v. Cromartie, the Court finally upheld a congressional district explicitly drawn to hold proportionally more blacks than other districts in North Carolina — on the basis that the district was drawn not to corral African-Americans but to corral Democrats. A further test of nonreparations justification for affirmative action will likely make its way to the Court within the next couple of years as a result of two cases involving the University of Michigan. In them, the university attempts to justify its affirmative action programs by arguing that a diverse student body is necessary to its educational mission. This is where reparations suits come in. Properly prosecuted, they can overcome the Supreme Court’s procedural objections to affirmative action, while presenting a more honest — and potentially more enduring — rationale for affirmative action. The Court has established three restrictions on affirmative action programs that reparations suits can — potentially — meet. First, the Court has held that the 14th Amendment generally prohibits states from instituting affirmative action programs themselves. In theory, though, the federal government is under no such constraint. As Justice Sandra Day O’Connor stated in Croson, Congress’ explicit and unique power to enforce that amendment, pursuant to its Section 5, “may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations.” Second, the Court has prohibited affirmative action programs seeking to remedy the effects of widespread but diffuse societal discrimination despite — or, rather, because of-that rationale’s power. As Justice Lewis Powell Jr. stated in Bakke, “societal discrimination” is “an amorphous concept of injury that may be ageless in its reach into the past.” Instead, the Court only considers allowing programs aimed at correcting particularized histories of discrimination in narrowly defined industries and institutions. Third, the Court’s decisions indicate that the judiciary has the power to impose strong affirmative action programs. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the Court upheld a plan that aggressively used race to reassign students in a historically segregated school district. The Court invoked its broad equitable powers, stating, “The task is to correct, by a balancing of individual and collective interests, the condition that offends the Constitution.” A reparations suit might satisfy each of these restrictions. First, any such suit would undoubtedly include the federal government as a defendant. After all, the Constitution explicitly permitted slavery and contained a fugitive-slave clause that the federal government used to help capture escaped slaves. So the federal government both actively participated in the regime of slavery and permitted the states to do so. Similarly, the federal government participated in Jim Crow society directly — for instance, by operating segregated schools in Washington, D.C. — and indirectly — by not interfering as the states subjugated African-Americans. As the defendant, the federal government could respond to a reparations suit by passing legislation and funding for affirmative action programs pursuant to Section 5 of the 14th Amendment. Of course, such legislation could, with full Section 5 protection, reach further than the federal government’s own entities-through incentives to states and even to private institutions. Second, by suing the federal government, a reparations suit potentially dodges the Supreme Court’s particularized discrimination requirement. With the institution at issue being the United States and its constituent parts, a lawsuit could blur the line between institutional discrimination and societal discrimination. In effect, the suit would define society as the institution of the federal government. Not only does this approach plausibly describe the overarching role the federal government played in sanctioning slavery, but it also gives proper emphasis to the very real, uncentralized harm that blacks have suffered and still do suffer. Third, reparations suits have the advantage that any affirmative action programs they produce would be established by the courts, instead of by individual institutions or legislatures, state or federal. This would give them the protection of Swann. TELLING THE TRUE STORY Affirmative action programs established through reparations suits would also have the advantage of being honest. Policies that help blacks without admitting why are disingenuous. This is true for policies that explicitly take race into account but claim no goal of reparations, such as diversity efforts in education. It is also true of policies that are technically race-neutral but have the broad intent and effect of helping blacks, such as programs that guarantee top students — including those from schools that are largely de facto segregated-a place in state university systems. Both alternatives fail to acknowledge that the situation of African-Americans today is still linked to our history of discrimination, subjugation, and slavery. Without that acknowledgement, it is impossible to create and modify the sorts of unique programs that blacks need. (Of course, if the reparations justification ultimately fails, other options should still be pursued. University of Virginia Professor Kim Forde-Mazrui, whose work has been very helpful to me in thinking through this issue, has written a strong defense of the constitutionality of race-neutral affirmative action.) None of this, of course, means that courts will approve of such suits. Despite the special treatment that O’Connor’s Croson opinion said that it would give federal affirmative action programs, the Court virtually ignored that statement in the first Adarand decision. Also, the Court might shudder at the formal logic of redefining society as a single institution. And, finally, the Court might reject the parallel between the court order approved in Swann and the sort that would be at issue in reparations suits. But even if the suits are a long shot, they are an honest way to try to guarantee that affirmative action remains a vital option. It might seem inappropriate to discuss such a potentially explosive topic while the country is still reeling from the terror attacks; this is a time for Americans to come together. But far from being divisive, a forthright plan to solve the longstanding inequities facing blacks can only help realize the goal of togetherness. If we truly take to heart the obvious fact that we rise and fall collectively, then fixing one of American society’s most glaring and enduring problems is a good place to start. Evan P. Schultz is associate opinion editor at Legal Times . He can be reached at [email protected]

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