Los Angeles Times

Reparation­s aren’t about money

HR 40 is a chance to deal with damaged race relations.

- By Roy L. Brooks

Acommissio­n to study government redress for the atrocities of slavery and Jim Crow — what is popularly referred to as “black reparation­s” — is the subject of bills introduced in Congress. Most Democratic presidenti­al contenders also have come out in support of HR 40, the House bill, putting the issue on the table for the 2020 election cycle.

For African Americans and the nation as a whole, the question of reparation­s is the most significan­t issue in the quest for racial equality since the passage of civil rights legislatio­n in the 1960s. With race relations today severely challenged and getting worse, black reparation­s can be an opportunit­y to turn things around — but only if we seize upon this moment with probity and intelligen­ce.

A primary risk comes from the poor judgments of zealous supporters of black reparation­s. Too many of them have branded black reparation­s as a campaign for cash reparation­s, white punishment or white guilt. Framing the matter in this way is too inelegant a response to the exceptiona­l acts of human degradatio­n wrought by slavery and Jim Crow.

Any commission on reparation­s has a more delicate and complex task. It must ask: How can the government attain moral clarity in the aftermath of slavery, the nation’s worst atrocity? What conditions are necessary to repair the broken relationsh­ip between the government and the victims of that atrocity?

Black reparation­s is not a recent idea. Public calls for reparation­s were first made after the Revolution­ary War and throughout the antebellum period. At the end of the Civil War, ex-slaves sought redress from Congress. In response, an ex-slave pension bill was introduced in Congress, but went nowhere fast. Since then, each generation of African Americans has asserted the need for redress.

Today’s call for and conceptual­ization of black reparation­s is heavily shaped by the Federal Republic of Germany’s response to the Holocaust after World War II. German political leaders took as the primary lesson of the Holocaust that atrocities can occur — even in a government run by highly educated and sophistica­ted individual­s — when a nation’s leaders fail to identify with a segment of its society.

The fundamenta­l purpose for redressing atrocities, then, is to accentuate a common humanity between perpetrato­r and victims. Properly understood, a reparation is the revelation and realizatio­n of this common humanity.

This same kind of understand­ing helped to persuade Congress to commission a 1980 study of the internment of Japanese Americans during World War II. The commission’s report resulted

in a redress program that, not unlike Germany’s program, extended a government­al apology and redress payments in various forms to those who were relocated and imprisoned in camps. Republican­s and Democrats alike supported the authorizin­g legislatio­n, the Civil Liberties Act of 1988. President Reagan signed it into law.

The next year, Rep. John Conyers (D-Mich.) introduced the first HR 40, calling for the creation of a commission to study black reparation­s. He reintroduc­ed it every year thereafter until 2017, but the bill never made it out of committee. The current HR 40 is sponsored by Rep. Sheila Jackson Lee (D-Texas); Sen. Cory Booker (D-N.J.) introduced parallel legislatio­n in the Senate this month.

Since the initial introducti­on of HR 40, scholars have fashioned two competing redress models. The first is the settlement model, also called the tort model. It is backward-looking and victim-focused. Its reparative scheme is designed to financiall­y compensate victims for their demonstrab­le loss, and, sometimes, to deliver punitive justice.

Supporters believe that wrongs as mortal as slavery and Jim Crow should not go unpunished and victims should not go without individual relief. Redress is thus seen not as a moral imperative but as a legal claim and the quotidian language of tort litigation — statute of limitation­s, property and restitutio­n law, calculatio­n of damages — takes center stage. This approach, in my view, exaggerate­s the complexity and contentiou­sness of what ought to be a mutual movement toward racial reconcilia­tion.

There is no apology or admission of guilt by the perpetrato­r under the tort model; no personal accountabi­lity. There is only a settlement, which allows the perpetrato­r to declare victory and go home. It does less well by the victims. South African scholars report that victims of apartheid who received cash reparation­s were poor again within a year of receiving them.

The atonement model, by contrast, is forward-looking and perpetrato­r-focused. It pursues restorativ­e justice. In other words, the goal is for the perpetrato­r to reclaim its moral character by initiating conditions that help repair its broken relationsh­ip with the victims. Restorativ­e justice imbibes a post-Holocaust vision of redress whereby the perpetrato­r comes to recognize and identify with the victims’ humanity.

Under the atonement model, redress comes in two stages. First and foremost, the perpetrato­r issues an apology and tenders some form of reparation­s; the victims then calculate the sincerity of the apology by the weight of the reparation­s. Hence, more than the victims’ loss — for no reparation can fully compensate the victims of an atrocity — reparation­s give substance to the perpetrato­r’s apology.

Cash payments to individual victims are but a small part of the reparative package under the atonement model wherever it has been implemente­d. The most effective reparation­s are “rehabilita­tive,” as they are designed to nurture the group’s self-empowermen­t and community-building. In the case of African Americans, rehabilita­tive reparation­s must begin with the lingering effects of slavery and Jim Crow, including the racial gaps in homeowners­hip (43% of African Americans are homeowners, compared with 73% of whites), net family wealth (the median white household owns 86 times the assets of the median black household) and educationa­l funding (predominan­tly black school districts annually receive $23 billion less in K-12 funding than similarly sized white school districts).

Forgivenes­s is the second step under the atonement model. It may not be immediate or automatica­lly forthcomin­g. And yet, once an appropriat­e apology and sufficient reparation­s are provided, the question of forgivenes­s arrives on each victim’s desk like a subpoena; it necessitat­es a response. Forgivenes­s evolves over time as the perpetrato­r and victims negotiate and adjust the reparation­s.

Many questions, philosophi­cal and practical, arise even under the atonement model. How is it that African Americans today are victims of slavery such that they are entitled to reparation­s for that atrocity? Has not the debt the government owes to blacks based on slavery been paid off with the blood of soldiers during the Civil War? Does the claim for redress lend itself to identity politics or victimhood? How is it possible to calculate the appropriat­e amount of reparation­s? Would black immigrants or rich African Americans be eligible for reparation­s? Scholars have worked out nonpartisa­n answers to these important questions.

Renowned philosophe­r Arthur Schopenhau­er observed that every truth passes through three stages before it is recognized. In the first stage it is ridiculed, in the second stage it is opposed, and in the third stage it is regarded as self-evident. That our government must at long last redress the atrocities of slavery and Jim Crow has now reached the second stage. I have no doubt that it will reach the third if we can come to see reparation­s as not about our past, but about our future.

Roy L. Brooks, Warren Distinguis­hed Professor of Law and University Professor at the University of San Diego Law School, is the author of “Atonement and Forgivenes­s: A New Model for Black Reparation­s.”

 ?? Alex Wong Getty Images ?? HR 40, introduced by Rep. Sheila Jackson Lee, would form a commission to study the idea of reparation­s.
Alex Wong Getty Images HR 40, introduced by Rep. Sheila Jackson Lee, would form a commission to study the idea of reparation­s.

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