Following the death of George Floyd in 2020, Governor Gavin Newsom of California signed a bill to create a nine-member slavery reparations task force (“Task Force”). The Task Force’s creation and implementation is a joint effort between California’s executive and legislative branches. Governor Newsom appointed five members, the President Pro Tempore of the California Senate appointed two, and the Speaker of the Assembly appointed two.
Once assembled, the Task Force spent over a year traveling across the state of California to hold hearings, solicit witness testimony, and request evidence on the effects of slavery and discrimination. The Task Force then released a nearly 500 page report in June 2022 outlining its conclusions. In addition to remedying the lingering effects of slavery, the report seeks to compensate black Californians for five categories of harms: housing discrimination, mass incarceration, unjust property seizures, and the devaluation of black businesses and health care.
Following the release of the report, the Task Force settled on an interim proposal to provide $223,200 to descendants of American slaves. In a 5-4 vote, the Task Force limited reparations to descendants of American slaves—as opposed to compensating all black Californians—to best overcome any future legal challenges. Otherwise, many details are not final. For example, the Task Force is debating whether payment would be in the form of housing vouchers, tuition assistance, or cash. The Task Force has until June 2023 to release its final numbers and details to the California state legislature. At that point, the final proposal will go up for a vote in the California legislature.
The proposal could face political opposition before the California legislature. According to polls, slavery reparations are greatly unpopular, supported only by black respondents. There is already strong political opposition to the proposal’s $569 billion price tag. The state has $286.4 billion of expenditures in its 2022-2023 budget. Since California must have a balanced budget, the state would have to raise taxes to implement the plan.
If the bill overcomes political opposition and is signed into law, then California will have to overcome a Rice v. Cayetano legal challenge. Harold Rice, a Hawaiian citizen who was born in Hawaii, sued Hawaii Governor Benjamin Cayetano, who had denied his application to vote for a minister of the Office of Hawaiian Affairs (OHA). The Governor limited the right to vote for a minister of OHA to those who were at least half descendants of “native Hawaiians” who occupied Hawaii in 1778. The Supreme Court classified this restriction as a racial restriction on the right to vote that is prohibited under the Fifteenth Amendment.
A court would likely find Cayetano controlling and hold that California’s ancestry requirement is a proxy for race that must survive strict scrutiny. While it is legal to compensate those belonging to a single race who directly suffered a legal wrong—as the Reagan Administration did for Japanese Americans interned during World War II—it is illegal to use ancestry as a proxy for race to administer government benefits.
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