*778 IV. BLACK REPARATIONS
The Black reparations movement proclaims that a debt is owed for the crimes of slavery and Jim Crow segregation. Some reparations advocates have focused upon the strategy of litigation, working within the system, whilst others, including the adherents of Critical Race *779 Theory (CRT), have looked more to the transformative power of reparations to remake society.
This Article bridges this divide, proposing a strategy which includes litigation while responding to Richard Delgado's call for critical scholarship which leads to real structural reforms. Any attempt to remedy health disparities cannot be limited to mere legal fictions of equality; Title VI has been ineffective in reducing disparities in Black health. Token efforts will always be confronted with the troublesome facts of 73,000 excess Black deaths per year and the continuing gap in Black life expectancies. One example of a token effort which does not affect the underlying social structures is Virginia's recently-announced plan to offer reparations for racial exclusion in education in the years following Brown v. Board of Education by offering college scholarships to the individuals (now in their 50s and 60s) who were denied access to education more than four decades ago. While apologies and scholarships are certainly appropriate, the scholarships are not nearly as useful near the end of life as they would have been at age 20. Perhaps the scholarships should be offered to the grandchildren. Better yet, everyone should receive an excellent education. Rough justice is preferable to injustice.
*780 Correcting disparities in Black health is a worthy goal because success will require massive structural changes in society. As a litigation strategy, focusing on disparities in Black health seems a much more likely strategy than the current crop of unsuccessful reparations lawsuits.
A. Legal Barriers to Litigating Black Reparations
The practical barriers to a successful Black reparations lawsuit are well known to any first year law student taking Civil Procedure. All of the broadly-focused suits have foundered on Rule 12 motions to dismiss, citing lack of standing, expiration of the statute of limitations, failure to state a claim upon which relief can be granted, sovereign immunity, and proximate causation. The Farmer-Paellman “corporate reparations” suits, consolidated in the Federal District Court in the Northern District of Illinois, were dismissed on July 6, 2005 on that basis. The Tulsa Race Riot reparations lawsuit was dismissed due to the statute of limitations. The 10th Circuit Court of Appeals conceded that the statute of limitations might have been equitably tolled for some period after the 1921 riot, but the tolling ceased no later than the publication of a 1982 book describing some of the aspects of the riot, not to mention the publication of Professor Brophy's excellent book Reconstructing the Dreamland: The Tulsa Riot of 1921, Race, Reparations, and Reconciliation (2002). In this case, the writing of history tends to block litigation remedies.
*781 Richard Delgado suggests the possibility that litigation may be a dead end strategy for Black reparations. Continued losses on Rule 12 motions is an unlikely path to success. Disparities in Black health may provide a better foundation for successful litigation, resolving major issues in standing, statutes of limitations, and sovereign immunity.
1. Standing
Legal slavery in the United States ended with the ratification of the 13th Amendment to the Constitution on December 6, 1865, 140 years ago. “Surely all applicable statutes of limitation have run,” opponents of reparations say, and federal judges tend to agree. Related objections include appeals to “not get mired down in old history” or statements that all slaves and slave owners are long dead. The remoteness of the injury gives rise to challenges based on both standing and the statute of limitations.
Reparations plaintiffs have not succeeded with claims of “derivative” standing by descendants of slaves. A more promising line of approach is to focus on more recent acts of racial oppression, the “Jim Crow” strategy. Challenging disparities in Black health is one example, with millions of living citizens who suffer well-documented health disparities, beginning in slavery and extending to the present day. Standing should not be a barrier when the class is Black Americans currently suffering from health disparities, or alternatively, *782 living Americans who received care during the period of legal segregation in health care. Indeed, the August 2005 study by David Barton Smith finds that de facto racial segregation in health care is still quite common in nursing homes, hospitals and outpatient care. Black children who are born in 2005 are expected to suffer a life expectancy many years shorter than their white counterparts. Millions of Black American citizens are living members of the potential plaintiff class.
Focusing on disparities in Black health also sidesteps difficult issues on tracing descent from slaves. If slavery and its aftermath can be shown to have damaged the health of living Blacks, of any ancestry, then a plaintiff class is more clearly identified. Several million persons living in the United States today have been directly harmed by substandard health. Much of this resulted from official strategies of neglect or indifference, as described in detail in Section III.TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA above.
If Blacks had seamlessly merged into America's immigrant “melting pot,” then Black reparations might not have relevance today. The issue might have been primarily class, not race. But slaves were not immigrants; they arrived in chains. For the vast majority, the Statute of Liberty did not greet them upon arrival; their fate was the auction blocks of Charleston, New Orleans, or even the Nation's capitol. For disparities in Black health, the proposed plaintiff class is not selected by race or descent from slaves. The plaintiff class was selected by the governments, institutions, health care organizations, and society at large which marginalized the health needs of Blacks. The plaintiff class would include a recent immigrant from Angola who was relegated to a second-class Black health care system, as well as the descendants of Virginia slaves.
Jim Crow strategies also improve the process of identifying defendants. Opponents of reparations may say “I never owned a *783 slave,” “My family never owned slaves,” or “All slave owners are now dead.” The issue is most acute if Black reparations are to be assessed against individuals, based on descent. If the injury occurred much more recently, living defendants will be easier to find. Moreover, if a defendant is a legal entity (such as a government or corporation) with continuity to the injury period, then this objection loses force. Many of the potential defendants for a health disparities reparations case are governments and corporations (charitable or for profit) which can be shown to have participated in the creation and continuation of the Black health disparities as described in Section III.TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA above.
While it may seem unfair to expect current shareholders or taxpayers to pay for the “sins of their fathers”, the legal principle is well established that corporate liability follows the entity, without regard to the changing composition of the pool of shareholders. Likewise, government entities in continuous existence retain liability without regard to changes in the makeup of its citizens and taxpayers.
Other Jim Crow strategies are possible. Alfreda Robinson has examined the convict labor system, particularly in Alabama. While legal slavery ended in 1865, oppressive labor systems such as peonage and convict leasing sprung up to replace slavery with little improvement in the basic living conditions of southern Blacks. Other examples include the (unsuccessful) recent suit against the 1921 Tulsa Race Riot and the successful suit against the federal government for discriminatory lending practices against Black farmers.
In the rush to pursue Jim Crow strategies, let us remember Richard Delgado's call for structural change. One has to ask whether the Black farmers' suit has achieved much lasting change in social structures. Even if it had been successful, the Tulsa suit was not *784 a model for widespread replication. The remedy for disparities in Black health is not a sum of money; the remedy is equality of health outcomes. Achieving that equality will require remarkable changes in American society.
2. Statutes of Limitation
Slavery's remoteness in time also prompts the defense of the statute of limitations. Several legal scholars had suggested theories of equitable tolling of the statutes of limitation, but none were persuasive for Judge Norgle in his July 2005 ruling against Black reparations. The Jim Crow strategy partially responds to this issue by bringing the injury into the present (or at least into the recent past). But Jim Crow suits which rely on events from decades ago, such as the 1921 Tulsa Race Riot, are still quite remote, and are being dismissed on statute of limitations grounds.
Professor Brophy has noted that justifications for statutes of limitation are ‘under-theorized’ in the reparations context. The strength of the policy justifications upholding the statute of limitations depends to some degree on the type of defendant. Compelling cases for the statute of limitations can be made when the defendant is a human individual, or when the passage of time has rendered a defense impossible. It is less clear that governments which supported the system through state action should be so protected, or that justice requires the statute of limitation to apply when the defense is not able to demonstrate prejudice. For these reasons, this present study - and my prior examination of slave taxes - focuses upon government responsibility. When the defendant is a government, the defense of the statute of limitations converges with sovereign immunity, a concept which is discussed briefly below. When the defendant is a corporate entity, the seeds of the statute of limitations may find more fertile soil. Yet these ideas did not prove persuasive to the 10th Circuit Court of Appeals when it dismissed the Tulsa Race Riot reparations suit on *785 statute of limitations grounds. All of this again highlights the value of a claim with clear injury in 2005.
3. Sovereign Immunity
In every successful reparations program of the last generation, the issue of sovereign immunity was effectively waived by an enabling statute. When governments pay reparations it is essentially a political act. For example, in the Civil Liberties Act of 1988, President Reagan authorized an apology to Japanese-Americans for internment in World War II, while President George H. W. Bush signed the bill which appropriated the $1.1 billion dollars necessary to make the $20,000 reparation payment to internees and some descendants. In each of the Holocaust-era reparation commissions, governments participated without resort to the doctrine of sovereign immunity. Black reparations may ultimately be forced to rely on the same process when the defendant is a government. But sovereign immunity does not shield many of the private parties complicit with racial discrimination in health care, including the entities described in Section III.TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA, supra.
B. The Reparations Heuristic
Section II.ETIOLOGICAL REDUCTIONISM: SEARCHING FOR MICRO CAUSES IN A MACRO WORLD of this Article critiqued etiological reductionism which seeks to adjust health disparities studies for all SES variables. In exchange, this Article offers reparational analysis as a heuristic device for health disparities research. Reparational analysis modifies some of the methodologies and assumptions in the epidemiological literature on disparities in Black health. In research design, reparational analysis questions all adjustments for confounding variables which are themselves associated with a history of racial injustice. For Blacks, income, wealth, education, housing, and employment have all suffered under parallel histories of oppression. No matter how the strands are *786 twisted and knotted, racism was a major cause of disparities in each of these variables. Reparational analysis reverses the decision to adjust for many SES variables, and will result in finding larger Black health disparities than are now reported.
As a policy making tool, reparational analysis is also more holistic, reminding us that many factors influence health other than health care. The causes of ill health include major structural and societal components, including residential segregation, wealth and income disparities, inadequate investment in public health, and employment disparities. If these factors are just intermediate causes of disparities in Black health, then the remedies must run broadly and deeply. Some of the most interesting work on health disparities takes this approach, connecting the health care system to other social factors such as racial segregation, education, employment and public health. This research is also helpful in identifying the appropriate remedies. Opponents of reparations deride the notion of giving large sums of cash to Blacks, including people of mixed race or recent immigrants. Remedial programs in health will address Black disparities without cutting checks on the basis of skin color. One *787 possible remedy would be specific performance, making the changes necessary to equalize Black health. Even if the damages were limited to the cost of first-class health care for the balance of their lives, the monetary value of this award would run to hundreds of billions of dollars, similar in magnitude to much broader Black reparation claims. Eliminating Black health disparities is a much more significant claim (in dollars) than other Jim Crow strategies, particularly single-event suits like the 1921 Tulsa Race Riot. To truly address Black health disparities would require changes to many of the confounding variables described in Section III.TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA, supra, such as unequal distributions of income, residential segregation, education and employment. Repairing Black health fully would require fundamental changes in American society.
Even if one limits the remedy to the health care system, much would have to be done. Professor Sidney Watson identified four prongs to any program to remedy racial disparities in health: health care financing (financial access); attracting sufficient providers to the inner cities (geographic access); combating discrimination (enforce Title VI); and developing a health care system which is responsive to the needs of the population (cultural competency). More recently, *788 she has called for using quality improvement tools to reduce racial and ethnic disparities in health. Major structural changes will be required. Eliminating the second-class nature of Medicaid will require reimbursement of providers on the same basis as Medicare, and tying Medicare and Medicaid participation together. Massive changes in the system of educating providers would be required. Public health investments would be strongly supported, and not merely as a defense against terrorism. These and other remedies will not only improve Black health, but will have positive spillover effects to other minority groups and society as a whole.
In the law, the reparations heuristic moves us beyond the atomistic search for intentional individual discrimination. The focus shifts to disparate impact and institutional discrimination. The absence of de jure discrimination has done little to reduce disparities in Black health. Waiting many generations for the situation to correct itself is not a morally tenable option. Focusing on institutional discrimination may involve the law more meaningfully in the process of improving Black health: Medicaid cannot continue to offer second-class care with limited provider participation. Data must be collected to illuminate the scope of the problem and to guide remedial and enforcement efforts. Title VI cannot continue to be a dead letter.
Reparational analysis also avoids the tyranny of presentism. The Black reparations movement connects modern disparities in Black health with the historical record. As Williams and Rucker stated:
[W]e can only regard these [racial health disparity] findings as surprising if we take an ahistorical and decontextualized view of the data. . .Throughout the history of the United States, non-dominant racial groups have, either by law or custom, received inferior treatment in major societal institutions. Medical care is no exception. [FN268] *789 This historical approach has many practical implications. For example given the history of political under-representation and agency indifference, relying on government agencies in a Chevron [FN269] mode is ill advised. As Alexander v. Sandoval [FN270] and its expected progeny further restrict private rights of action under Title VI, the situation becomes dire. Reparational analysis suggests the need for a private right of action, placing the case in front of a life-tenured federal judge, rather than relying on majoritarian democratic politics as mediated through interest group politics. The historical approach also avoids the tendency to blame the victim, as some observers lay the blame for some health disparities upon cultural preferences. These cultural preferences - such as a distrust of the formal medical system - must be understood in the context of the history of medical abuse and neglect described in Section III.TRAGEDY IN HISTORY: BLACK HEALTH IN AMERICA above. Finally, the historical record also suggests that the remedy will not be cheap and easy. The injury spans many generations, and inflicted a remarkable crime against humanity. The remedy is likely to be equally powerful.
Finally, the reparations heuristic may also facilitate the resolution of otherwise intractable issues, such as racial differences in the allocation of kidneys for transplant. The authors of an important article on this topic in the Vanderbilt Law Review appealed to something akin to the concept of reparations, although not by that name:
[R]esponding to this disparate racial access can be justified as an attempt to eliminate the effects of past discrimination. Kidney failure is associated with a number of other factors that may be exacerbated in black communities because of past discrimination - including poverty, stress, alcohol use, and poor medical care. To the extent that past discrimination has left blacks disproportionately poor and that poverty induces higher rates of kidney failure, these lingering effects of discrimination also supports society's corrective concern. At a minimum, we believe it is incumbent on society not to ignore the equitable claims of *790 blacks in favor of other possibly less pressing equitable claims. . . Other examples include affirmative action in education, which could be supported on reparational grounds independent of Justice O'Connor's diversity rationale.
Two potential problems with the heuristic must be mentioned. The first is very practical. Programs to eliminate health care disparities have some recent momentum in Congress, with support from both sides of the aisle. The Senate Majority Leader, Bill Frist (R-TN), is the sponsor and leading proponent of some of these programs to reduce racial disparities in health, but is probably not an ardent supporter of Black reparations. Why undermine Republican support for the program by linking it with Black reparations?
The second question is also political. The heuristic supports a special warrant for groups that have been uniquely oppressed. If one accepts the general analysis that Blacks have been subjected to crimes against humanity, where does that leave other groups with racial disparities in health, but a different history?
To the first question I would say that many reform programs move forward with multiple philosophical foundations, even contradictory foundations. The anti-slavery movement in the 19th Century united religious abolitionists and hard-nosed businessmen, cynical politicians and idealists. It ultimately did not matter that they supported anti-slavery for different reasons. As for the second question, the Black reparations movement does not oppose the *791 elimination of all racial disparities in health. It merely stakes uniquely powerful claims for Black equality. Successfully equalizing Black health in America would require such major social changes that the spillover effect for all other groups would be significant. This rising tide would lift all boats.
