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 Abstract

Excerpted From: Kendall Godley, Reparations & H.R. 40: Call to Action for Congress, 49 Southern University Law Review 209 (Fall, 2021) (171 Footnotes) (Full Document)

The United States owes an undeniable debt to African Americans who have suffered under a system of unequal treatment since the country's conception. This unequal treatment must not be tolerated any longer. For black citizens, the treatment is a constant reminder of their oppressed state and the virulence of white supremacy. For white citizens, the unequal treatment of black citizens shines a light on their position of privilege, which ultimately manifests itself in guilt or resentment. To date, this unequal treatment has been inadequately addressed by (1) symbolic statements or “speaking out” without subsequent action and (2) sluggish legislation that addresses the symptoms of racism rather than the underlying illness. Both methods have proven insufficient to disassemble a system rife with injustice and unequal treatment.

During the Trans-Atlantic Slave Trade and chattel slavery, Africans and their descendants were robbed of their labor, culture and humanity. Following this repugnant period, many African Americans were barred from accessing America's promise of opportunity through the institution of Jim Crow laws and widespread discrimination. Today, black citizens face substantial inequality to whites, including, but not limited to, a tremendous racial wealth gap, disparities in home ownership, disproportionate rates of incarceration, and unequal access to education and healthcare. African Americans are owed reparations for the conditions imposed on them by a long history of systemic racism. The enactment of the Commission to Study and Develop Reparation Proposals for African Americans Act (H.R. 40) is a logical step towards accomplishing reparations.

On either side of the issue of reparations, commentators focus exclusively on the abstract issue of whether reparations are just and warranted, while ignoring questions about reparations program design. The inability of contemporary reparations scholars to reach at least a majority opinion on fundamental reparations program considerations such as form, distribution, and eligibility undermines efforts to make reparations for African Americans a reality. In recognition of this scholarly standoff, this Article does not make a redundant contribution to the discourse about the justice or moral obligation of reparations. Instead, this Article intends to push the conversation forward by responding to critical questions relevant to reparations program design, while briefly discussing historical reparations commentary to provide context for the reader. Specifically, this Article addresses: (1) the forms of reparations that should be awarded; (2) the instrumentality by which these reparations shall be provided; and (3) who will be eligible for compensation under the reparations program and what forms of compensation they will be awarded.

This Article proceeds in three parts. Part I discusses this Article's working definition and purpose for reparations, historical justifications for reparations, and explains what H.R. 40 is and does. Part II explains why public discourse about reparations is discouraged and provides recommendations for the form of reparations that should be paid, the instrumentality through which reparations should be distributed, and who should be eligible for the benefits of a reparations program. Finally, Part III provides a brief conclusion to this Article that recounts the information herein. The primary goal of this article is to spark discussion about the reparations commission's essential tasks. Specifically, this Article provides commentary on the Commission's duties as set out in H.R. 40 Section 3(b)(7)(F). This provision tasks the Commission with determining the form of compensation to be awarded under reparations, instrumentalities of reparations distribution, and compensation eligibility.

[. . .]

Dr. William Darity proposed two necessary criteria for black reparations eligibility. First, an individual must demonstrate that they have at least one ancestor who was enslaved in the United States. Second, an individual must demonstrate that for at least ten years before the onset of the reparations program or the formation of the study commission, whichever comes first, they self-identified as black, Negro, or African American. The first criterion requires genealogical documentation-- but would, under no circumstances, include phenotype, ideology, or DNA testing. The second criterion requires the presentation of a suitable federal or state legal document that the person declared themselves to be black.

The United States owes lost wages and damages to the descendants of the people it enslaved. Under an effective reparations program, African Americans that can trace their ancestry to persons enslaved in the United States and its territories should be eligible for direct payment, recurring tax credits, and housing down payment, and revitalization grants. African Americans who cannot trace their ancestry back to slavery but can show that they or their ancestors resided in the United States during 1865 - 1964 should be eligible for recurring tax credits, and housing down payment and revitalization grants. African Americans who cannot trace their ancestry back to slavery or 1865 - 1964 should be eligible for a reduced recurring tax credit.

A three-tiered chart of proposed reparations eligibility follows:

Eligibility Tier
Tier Description
Reparations Benefit Eligibility

Tier 1
African Americans that can trace their ancestry to persons enslaved in the United States and its territories.
• Direct Payment
• Recurring Tax Credit
• Down Payment/Housing Revitalization Grants

Tier 2
African Americans who cannot trace their ancestry back to slavery but can show that they or their ancestors resided in the United States from 1865 to 1964.
• Recurring Tax Credit
• Down Payment/Housing Revitalization Grants

Tier 3
African Americans who cannot trace their ancestry back to slavery or the period of 1865 - 1964.
• Reduced Recurring Tax Credit
• Down Payment/Housing Revitalization Grants

[. . .]

An H.R. 40 Commission should, at a minimum, propose reparations compensation in the form of direct payments, temporary tax credits, trust development and funding, and housing down payment and revitalization grants. Congress will approve and implement the Commission's proposed reparations program. Eligibility for compensation shall be determined by self-identification and genealogical verification of ancestry by documentation. However, eligibility for certain categories of reparation compensation could be based on an eligibility matrix such as the matrix described herein.

Overall, H.R. 40 has the potential to be landmark legislation for black Americans and the whole of American society if implemented fairly and with intent to ultimately deploy a comprehensive reparations program. Reparations for black Americans is an urgent need because of their collective relatively inferior socioeconomic status, which was guaranteed by United States' policy and procedure from the nation's founding and throughout its existence. Without repairing the damage done by slavery, the Jim Crow era, and ongoing discrimination the United States will forever be hampered by a negative relationship with its black citizens.

Kendall Godley is an Associate at Denver law firm, Davis Graham & Stubbs

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