MUNICIPAL REPARATIONS: CONSIDERATIONS AND CONSTITUTIONALITY.

• Author: Simone, Brooke

Demands for racial justice are resounding, and in turn, various localities have considered issuing reparations to Black residents. Municipalities may be effective venues in the struggle for reparations, but they face a variety of questions when crafting legislation. This Note walks through key considerations using proposed and enacted reparations plans as examples. It then presents a hypothetical city resolution addressing Philadelphia's discriminatory police practices. Next, it turns to a constitutional analysis of reparations policies under current Fourteenth Amendment jurisprudence, discussing both race-neutral and race-conscious plans. This Note argues that an antisubordination understanding of the Equal Protection Clause would better allow political branches to rectify vestiges of past discrimination and ongoing inequities through reparations plans such as the hypothetical Philadelphia City Council resolution. With these suggestions in mind, municipalities must boldly imagine and extend reparations to marginalized groups that have suffered harms. Similarly, the Court must reimagine its constitutional doctrine.

INTRODUCTION I. CONSTRUCTING REPARATIONS A. Why Municipalities? B. The Menu of Choices 1. Who Are the Beneficiaries? 2. What Form of Compensation? 3. Who Pays? C. Philadelphia as a Case Study 1. History of the Philadelphia Police Department 2. Hypothetical Philadelphia Resolution II. THE CONSTITUTIONALITY OF REPARATIONS A. The Legal Standard B. Constitutional Analysis of Reparations Under the Equal Protection Clause 1. Race-Neutral Reparations 2. Race-Conscious Reparations III. A REIMAGINED EQUAL PROTECTION FRAMEWORK A. Problems with Anticlassification Theory B. Antisubordination Theory: A Better Understanding CONCLUSION INTRODUCTION

The mere word "reparations" can prompt an involuntary response. Some consider reparations an incoherent absurdity or a frightening threat, many an impractical rallying cry, and others, a worthy but utopian demand. (1) Though renewed calls for reparations began decades ago, (2) there is still little consensus on what reparations truly mean or demand. But while public support for a commonly sought-after reparations program--a federal taxpayer-funded plan providing redress to the descendants of enslaved people--remains low, (3) calls for reparations are no longer disappearing into the void. They are beginning to reverberate.

Political and civil unrest throughout the summer of 2020 galvanized state and local governments to consider programs to combat systemic racism, with some contemplating reparations. As Providence mayor Jorge Elorza noted, "There is an appetite and an urgency to make the most of this moment and make sure there is real structural change that comes out of it." (4) Most of the jurisdictions that have discussed reparatory justice programs began doing so after May 25, 2020, when George Floyd's murder catalyzed demands for racial justice. (5) Many governments are in the strategy phase (6) or are convening task forces to study the possibility of providing reparations. (7) Others, like Durham, North Carolina, have announced concrete goals created by preexisting reparations task forces. (8) While some jurisdictions have been less friendly to the idea of reparations, (9) others have seen considerable momentum, and justifiably so. As Burlington mayor Miro Weinberger remarked, "[W]e'll never fully realize the ideals of our country until the issue of reparations is addressed." (10)

So, if a more perfect union is the goal, how should reparations be achieved? Public understanding of reparations is tied to chattel slavery, (11) but the concept is much broader. (12) Defined as "the act of making amends, offering expiation, or giving satisfaction for a wrong or injury," (13) reparations can theoretically be extended to any harmed group or individual by any group or individual. The conversation about reparations has historically focused on the federal government, but advocates are now concentrating their efforts on a more local level.

There are a host of philosophical, ethical, and political theory questions that accompany any debate about reparations, but a comprehensive discussion of these ideas extends beyond this Note. Instead, this Note will operate from three premises. First, it is grounded in a belief that reparations are good and warranted. Second, it avoids traditional punitive or adversarial methods and instead relies on restorative justice, favoring a community-centered, future-oriented focus on reconciliation. (14) It also builds on transitional justice, which aims to provide redress for systematic abuses and facilitate the transformation of the systems that caused such abuses. (15) Third, it adopts an understanding of collective responsibility rather than ethical individualism, in which only individuals have moral obligations for harms they themselves caused. (16)

Even with these principles in mind, determining the details of how a municipality should provide reparations is no easy task. Efforts by federal, state, and local governments, as well as private institutions, reveal several potential paths forward. This Note examines some of these paths in the context of a specific problem: systemic racism in the Philadelphia Police Department. Part I discusses various considerations involved in crafting reparations legislation and proposes a hypothetical Philadelphia City Council resolution. Part II engages in a constitutional analysis of this resolution and other reparations plans under current Fourteenth Amendment jurisprudence. Part III argues for a reimagined vision of the Equal Protection Clause that would better allow political branches to rectify past and ongoing racial discrimination.

1. CONSTRUCTING REPARATIONS

   Crafting reparations first requires an understanding of their import and purpose. For centuries, nonwhite groups have faced violence, exclusion, and discrimination. These groups continue to be treated like sub-citizens, if not sub-human, and denied rights, legal protections, and respect. (17) Reparations addressing racial injustice seek to repair our racist society, close gulfs of disparity, and ensure equal opportunity for all. (18) This endeavor to create transformational change in response to wrongs that have gone uncorrected and unrepented is necessary for healing and progress. (19) In addition, public dialogue and awareness stemming from the process of creating reparations can be just as valuable as the ultimate outcome. (20) This increased consciousness advances a greater goal of social healing. (21)

   As for their intended effects, reparations are both backward- and forward-thinking. They rectify past wrongs and also further distributive justice, the reconstruction of American society, and future peace and stability. (22) Reparations seek to provide acknowledgment, restitution, and closure. (23) They provide hope of a better society and a more just world.

   This Part addresses some of the most salient considerations in creating reparations legislation. Section I.A contends that municipalities are the best venue for current reparatory efforts. Section LB then presents possible choices in crafting reparations, including variations in beneficiaries, compensation, and funding. Finally, Section I.C offers the case study of a hypothetical reparations plan to address Philadelphia's racially discriminatory police practices.

   1. Why Municipalities?

      Compared to federal and state governments, courts, or private institutions, municipalities (24) are the most suitable site for reparations. Of the various levels of government, they are the proper locus for two reasons. First, as Howard University political scientist Niambi Carter explains, there is a political will for reparations present in municipalities that is absent at the gridlocked state and federal level: "It's really local activists and local actors, members of city councils ... who are empowered in ways in their small communities to do things and to act outside of what the state would do and even the nation would do." (25) By contrast, former U.S. Representative John Conyers introduced a reparations bill in every session of Congress from 1989 until his passing in October 2019, but these bills never came to a vote. (26) And although President Biden indicated his support for a reparations commission, (27) any sudden action is unlikely. (28) This federal reluctance isn't entirely lamentable. Although local policymaking is often undervalued, decisions made closer to home can have larger impacts on Americans' everyday life than decisions made in Washington, D.C. (29)

      Second, municipalities provide the opportunity for community-centered reparations that other levels of government do not. A local approach allows for powerful, close-to-home storytelling, (30) enabling greater understanding of connections between past and present; (31) in turn, this animates the development of thoughtful, conducive reparations. Additionally, municipalities can solicit input more easily from community members and encourage their involvement. (32) A municipality-based approach also allows for accessibility and proximity between government and beneficiaries once the policy is in place. Such a plan can more effectively empower the community and enable rebuilding relationships with perpetrators of the injustice. (33)

      Municipal reparations are not without shortcomings. According to economist William Darity Jr., municipalities' insufficient funds (34) and piecemeal actions "cannot meet the debt for American racial injustice." (35) He estimates an approximately $ 10 trillion price tag for effective reparations to Black Americans. (36) Others argue that a "patchwork" of state or municipal reparations laws could distract from a comprehensive federal approach. (37) However, the viability and community-centered benefits of local reparatory justice plans outweigh these concerns, at least for now. As the system and appetite...