The task force has voted to distinguish between descendants of enslaved people who immigrated to California from other states, and Black people who immigrated from other countries. Its arbitrary classifications are likely to have legal, political and cultural repercussions.
By Eric J. Miller, Special to CalMatters
Eric J. Miller is a professor at the Loyola Marymount University Loyola Law School in Los Angeles, where he is co-director of the Loyola Anti-Racism Center.
The California Reparations Task Force recently determined its criteria for eligibility for reparations to be paid by the state of California. Under its guidelines, only descendants of people enslaved in the United States or freed from enslavement in other countries before 1900 will receive a payment. Task force Chair Kamilah Moore has relied heavily on both the text of Assembly Bill 3121, the statute creating the task force, as well as the testimony of the statute’s sponsor, California Secretary of State Shirley Weber.
Foregrounding descendants of enslaved people for reparations is certainly justified as the task force investigates slavery and its legacy in California. The descendants of enslaved Americans are right to point out that discrimination has always shunted Black people to the back of the line when we have demanded justice.
However, while approximately 2,000 people were enslaved in California — primarily during the Gold Rush period — the number of their descendants in California pales compared to the number of descendants of enslaved people who have immigrated into the state. The vast majority immigrated to California after 1900, during the Great Migration and beyond. The task force has voted, however, to make a distinction between descendants of enslaved people who immigrated to California from other states, and Black people who immigrated from other countries, such as Jamaica or Haiti.
The task force gets around this problem by assessing the legacy of Jim Crow laws, redlining, and unequal education and policing, much of which occurred after 1900. Zoning and redlining are most certainly creatures of the 20th century: In the 1926 case of Village of Euclid v. Ambler Realty Co., the Supreme Court endorsed racially based zoning, which led to the practice of racially restrictive covenants used to exclude Black people from white neighborhoods. Redlining, the practice of denying mortgages to Black folks seeking to live in the suburbs, got underway following World War II. Both practices applied to all Black people, and did not (unlike the task force) discriminate among whether and where their ancestors had been enslaved.
In California’s racial struggles, ugly nativism is nothing new. In the aftermath of the Los Angeles uprising following the murder of Latasha Harlan and the beating of Rodney King, a narrative emerged between Black and immigrant communities over who was more American and so more deserving of state resources: those who had been here the longest, or those who most fit in with the “American Dream.” Rather than addressing the failures of white supremacy in local government and policing that led to these incidents, each community of color pointed the finger at the other. For decades, activists and organizers have worked to overcome these divisions, recognizing our shared interests in opposing racism in California. That divisive narrative is now replaying itself within the Black community, however.
Unfortunately, the task force’s arbitrary classifications are likely to have legal, political and cultural repercussions. For example, is it going to assess reparations based on redlining or discrimination in education and contracting in California — of all descendants and all immigrants? That would create a number of problems. It would significantly overcount the amount of reparations due to nonimmigrants, rendering any payment open to challenges under Prop. 209 and the U.S. Constitution. The state would become vulnerable to litigation by immigrants seeking to obtain their share of any payment made by the government. Just this sort of litigation was mounted by German internees challenging federal reparations to the Japanese-American incarceration survivors. That reparations statute survived because the federal courts found that the payments were narrowly tailored to a group that suffered a distinctive racial harm. The same cannot be said for post-1900 slave descendant victims of anti-black zoning, redlining and discrimination because the injuries are inflicted because of race, not past enslavement, and so include all Black Californians injured in these ways.
As a political and cultural matter, if the task force counts Black immigrants for purposes of calculating payment, but not for purposes of receiving reparations, that move is eerily reminiscent of the Constitution’s infamous three-fifths rule, which allowed enslaved people to count as a fraction of a person for apportioning votes to the Southern states, but denied them the right to vote at all.
Finally, suppose Gov. Gavin Newsom decides to put the controversial issue of reparations to a referendum: How smart will splitting the Black vote look then? Shirley Weber may be about to find out. She is engaged in a historic quest to become the first elected Black secretary of state (she was appointed to succeed Alex Padilla when he advanced to the Senate after then-Sen. Kamala Harris became vice president). When it comes to rounding up the votes of Black people to support her candidacy, is she going to ask where their ancestors come from?
So what can Californians do to participate in making state reparations inclusive for all Black victims of the legacy of slavery? They can go to the Ralph J. Bunche Center reparations task force portal to complete the survey or record their personal story. They can attend upcoming reparations task force hearings and share their thoughts about the impact of slavery on all Black people in California. And they can read the task force’s June Interim Report, form study groups, discuss the findings, and come up with their own recommendations for reparations in California.