Lineage, Not Race: California’s Strategy to Advance Equity for Descendants of Slavery

Two years ago, California released the first-of-its-kind report, documenting harms committed by the government against Black residents — just as the nation’s highest court was dealing a devastating blow to race-conscious policymaking.

It was a dramatic split-screen moment: On June 29, 2023, the same day the California Reparations Task Force released a groundbreaking final report, the Supreme Court issued its monumental decision banning affirmative action in higher education.

Legal hurdles and shifting politics around racial justice have stalled many reparations-related proposals in the state Legislature.

Now, California lawmakers are advancing a new strategy: reparations not based on race, but on lineage. They hope to set up a clash over whether descendants of enslaved people can be given preference in areas such as college admissions, mortgage assistance and professional licensing.

“If it should go up to the Supreme Court, then let it be there,” said Assemblymember Isaac Bryan, D-Los Angeles, vice chair of the California Legislative Black Caucus. “But the country needs to say unequivocally that reparations and repair for slavery are either constitutional or unconstitutional.

“That’s the real foundational question that Black Americans are due [to have] answered in the immediate, and we want to pose that question as quickly as we can.”

The move carries legal risk, as opponents argue the bills attempt to circumvent state and federal limits on affirmative action and they, too, welcome a fight in the courts. Years before the Supreme Court’s ruling in Students for Fair Admissions v. Harvard, California voters passed their own ban on affirmative action in public education, employment and contracting.

The bills, if they become law, could generate reprisals from a Trump administration that has tried to punish state and local governments that have enacted diversity, equity and inclusion programs in housing or education.

There’s also the unfinished task of determining who qualifies for reparations programs. The Legislature has yet to create a new state agency to implement the report’s proposals or verify ancestry.

Despite broad support in the Capitol for the creation of the task force in 2020, legislators have had mixed success turning the panel’s recommendations into laws.

Earlier this year, the California Legislative Black Caucus announced a package of bills inspired by the task force’s recommendations, including Assembly Bill 7, which would allow California universities to grant preference in admissions to applicants who are descendants of enslaved people. Importantly, said Bryan, the bill’s author, the words “Black” or “African American” do not appear in the legislation.

“There’s no race in AB7 at all,” he added. “It’s a specific harm-based intervention for a group of people who were previously excluded or harmed by institutions of higher learning.”

The bill passed the state Assembly in early June and is set to be heard in the Senate Education Committee on Wednesday.

Stanford Law School professor Ralph Richard Banks predicted the bill would set off an intense legal fight if it is passed by the Legislature and signed by Gov. Gavin Newsom.

“On one side, you’ll have people saying, ‘Oh, an admissions preference for descendants of slavery — that’s just a transparent proxy for race,” Banks said. “And the other side of the argument will say, ‘Well, actually, there are reasons that we might be concerned about slavery and rectifying and responding to the damage and the harm done by slavery, which is distinct from any concern with race per se.’”

Banks said the Supreme Court’s affirmative action ruling is likely to suppress race-conscious policies beyond college admissions.

“The greater significance is that it would naturally be extended to all other sectors of life,” he said. “Not only college admissions, but employment and government policymaking related to housing … so the implications are dramatic and they’re still playing out.”

Such a precedent-setting court battle could also include two other bills making their way through the Legislature. Assembly Bill 57 would set aside 10% of funds in the California Dream for All home-loan assistance program for descendants of enslaved people. Assembly Bill 742 would prioritize descendants of enslavement for state licenses required for professions such as barbers, dental hygienists and physical therapists.

Last year, a similar bill proposed to prioritize Black Californians for professional licenses was shelved ahead of a committee hearing, in part due to legal concerns. Another bill aimed at weakening Proposition 209, California’s ban on affirmative action, also failed to advance.

Andrew Quinio, a lawyer with the Pacific Legal Foundation, a group opposing the bills, said the legislation is searching for a loophole to enact policies that benefit Black Californians.

“I think it is absolutely being used as a proxy of a race,” Quinio said. “Not only is the origin and the purpose of AB 7 demonstrative of the fact that it is trying to benefit a racial category, but the ultimate effect will be that only a particular racial category will benefit.”

Quinio said the bill’s authors have been explicit about their goal of enacting recommendations of the reparations task force, which was created “to study and develop reparation proposals for African Americans.”

“The bill package, which includes AB 7, among the other bills, is about repairing centuries of economic damage [and] abuse that was inflicted on Black Californians,” Quinio said. “So it’s very clear as to who the bills were meant to benefit and what the purpose is.”

Quinio pointed to a 2000 Supreme Court decision that struck down a Hawaii law restricting voting for a particular state office to people with Hawaiian ancestry. But he acknowledged the nation’s highest court has not ruled definitively on the kind of reparations policies being pursued in California.

To invite such a legal showdown, the Legislature will first have to pass Senate Bill 518, a bill that would create a Bureau for Descendants of American Slavery. The new agency would be tasked with verifying an individual’s status as a descendant.

A similar proposal stalled last year after opposition from the Newsom administration over cost concerns.

Dr. Marcus Anthony Hunter, a professor of sociology and African American Studies at UCLA, said his hope for the legal survival of the reparations movement has been buoyed by an unlikely source: conservative Supreme Court Justice Clarence Thomas.

In his concurring opinion in the Students for Fair Admissions case, Thomas argued that laws passed by Congress around the time of the 14th Amendment, particularly the establishment of the Freedmen’s Bureau, were race-neutral.

If laws meant to assist freed slaves were considered race-neutral and constitutional, Hunter wondered, could the same be true of laws meant to support their descendants?

“Part of what’s happening in the atmosphere is to test that theory out,” Hunter said. “There’s a lot of fear about what they’re going to accept or not accept, but they haven’t yet been made to come into the waters.”