This is part of a seven-part series on Race Relations, and is being considered for submission.
Cultural Reparations to Address Modern Poverty
In the following essay, I will argue that many of the repercussions of slavery and segregation are cultural and social, not economic. I will further argue that economic reparations are insufficient to remedy these effects, not just because the cause is economic but because financial reparations can offer no lasting remedy.
There is no arguing the point that many of the effects of slavery and segregation are economic. After liberation, many slaves were set free with little more than the clothes on their backs. Yet inheritance itself cannot be the only cause. 91.9% of Americans receive no inheritance whatsoever, and only 2.7% receive $50,000 or more. Therefore, other factors must be at play in the wide economic disparities between racial groups.
Certain factors of a parent’s wealth affect a child’s ability to thrive later in life. Middle class parents can purchase a better education for their children. They live in wealthier school districts, which have higher quality schools. They can often afford tutors, and can pay tuition at colleges. Children of wealthier parents have less need to resort to theft, drug sales, and other crime in order to attain the goods they want. Although the incidents of thrill-seeking criminal behavior among the off-spring of the rich is on the rise, such incidents are far less likely to impact that child’s future when the parent can purchase a good lawyer. Furthermore, an increasing prominence of high-end labels in urban culture only worsens this effect; consumerism and peer pressure now tempt children in poverty towards items they cannot afford.
However, these factors alone still cannot explain the link between slavery and modern poverty. For example, although most Vietnamese-Americans descend from recent refugees, their income and employment levels are higher than those of the African-American averages. Not only does this difference indicate that inherited wealth is not necessary to economic success, but it may provide suggestions for approaches to the problem at hand. The refugees were largely educated and skilled, and received sponsorship and other support from American agencies and citizens.
While poverty is not the sole direct cause of the high rate of poverty in African-American communities, it is an indirect cause though many incidents of poverty. Education, crime, single parent families, and culture are all factors which are self-perpetuating in modern culture. Education – Finance
It is rarely questioned that a good education helps children succeed in life. Local funding of schools means that children who are raised in poverty attend some of the lowest rated public schools in America. Meanwhile, some of the best public schools are located in neighborhoods which few lower- and middle-class families can afford to live in. Various solutions have been suggested and even tried – such as bussing children to schools in wealthy districts, creating quota systems to distribute children by race, subsidizing private education, and the creation of magnet schools.
These solutions are problematic in and of themselves, but moreover they are piecemeal solutions to a large, systematic problem. Bussing creates a hardship on children who must endure a longer commute than their peers, and who often find themselves unable to fit in with classmates of a different background. Such social ostracism can and does have an effect on a child’s ability to concentrate and perform well. Quotas are problematic both because they incorporate the commuting difficulty and because they have a tendency to stigmatize by creating racial classifications.
The subsidy of private education is problematic as well. Since it only covers part of the cost of the education, it does little to help the poor who cannot afford the remainder. Furthermore, it diverts funds from the public schools where those poor children remain. Lastly, the creation of magnet schools does much to help the accelerated children who can qualify for admission, but little for the average and below-average students who cannot.
What I propose is a policy that entitles each child in America to the same amount of funding. Each school, regardless of the wealth of its local residents, would receive an equal amount per child. Such a move may be a drastic departure from our current system. It has not yet been prominently advocated for by those who propose education reform. Yet in the context of reparations, the analysis is different. We are remedying the horrors of slavery, and the shame of segregation. We are compensating for countless years of unpaid labor. In this context, the proposal seems less dramatic.
Of course, this solution is not without its difficulties. If a national system cannot be upheld under federalism principles, there will still be State to State differences in funding. Higher crime rates in poor neighborhoods may mean that quality teachers will need to be paid more, resulting in less money to spend on other things. (or even justifying giving these districts more per child)
Yet another problem is cultural. There is a reason that I am joined here at Harvard Law not just by graduates of the wealthy public high school where my father teaches, but by the children of his colleagues as well. Although as the children of teachers we did not enjoy the same financial advantages, we certainly were taught an enduring emphasis on education which doubtlessly contributed to our academic success. In short, parents’ involvement in their child’s schooling is an important factor in predicting academic success. 
African-American parents are less likely to be involved in, and knowledgeable about their children’s schooling than European-American parents. The possible causes of these discrepancies are difficult to pinpoint. A lifetime of enduring racism may have lead a parent to have little hope for their child’s academic success. A parent working longer hours or multiple jobs will have less time for homework help, preventing truancy, or parent teacher conferences – a problem exacerbated by higher incidences of single-parent households among the poor. A parent’s own knowledge is part of the cycle of education – a mother is less likely to be able to help her older child with homework than a mother who received higher or better education.
Just as difficult is finding a solution. One possible remedy is tutoring – state-funded homework help and scholastic monitoring can help alleviate the difficulties that face time-strapped and under-educated parents. Yet insofar as a different emphasis on the importance of education may be a factor, the solution is far more elusive and fraught with potential difficulties of cultural stereotypes and cultural insensitivity.
Criminal convictions correlate highly with both poverty and race. This fact cannot be analyzed in a vacuum; it is inevitable that improvements in educational opportunities, and an overall reduction in poverty will decrease this tendency among black youth. Yet this problem is so pervasive it cannot wait for incidental improvements that will doubtless evolve over time.
Crime is a trickier issue, since members of the criminal’s race are typically the victims of his crime. The state of modern criminal law is unfair; the wealthy can afford lawyers who make a real and significant difference in negotiated plea bargaining and trial results. The reality of subtle and unconscious racism still infects juries even where overt racism is on the decline.
Yet any attempt to remedy this would place a burden on black victims of crime. By allowing these criminals to obtain shorter sentences in plea bargains, and to escape prison by procedural and trial acumen, the subsequent crimes those freed commit will mainly affect law abiding blacks and their communities.
Does this mean that white people are burdened by the current leniency toward whites? The effect is far more slight since the rate of criminality is so much lower. To the extent that white persons live in crime-ridden neighborhoods, they do indeed pay similar costs. Yet the remedy is not to make law abiding blacks suffer just as much as they do.
This higher cost does not conclude the matter. One may also argue that procedural fairness is a right all Americans enjoy. To the extent that the public defenders are providing inadequate assistance of counsel, the need for all to have competent counsel may mean the costs to the black community are an incidental effect we must tolerate to have a fully functional criminal justice system. Additionally, if lawyers are not adequately vindicating violations of the fourth and fifth amendments of blacks, the lesser application of the exclusionary rule my mean that all blacks are subject to more violations of their civil rights. Without an effective remedy, we rely solely on the integrity of police officers to protect these rights. Sadly, this is not always adequate.
For these reasons, I propose equality of legal defense as a means of cultural reparations, but tentatively. While cognizant of the harm that will occur to black communities, I would advocate adequate counsel as a basic right that the US government is failing to ensure. The current standards that allow a judge to overturn a conviction for ineffective assistance of counsel are woefully insufficient, and allows such behavior as falling asleep during the trial and failure to adduce evidence during sentencing.
A cognizable argument could be made that this right inures irrespective of reparations. However, in a country that fails to recognize positive economic rights, there is not widespread acceptance that providing a higher standard of counsel, including the high costs we would need to bear, is our responsibility. Reframing the higher criminality rates as a result of the poverty that stems from slavery and segregation may provide the argument needed to gain support for expensive improvements.
An alternatve argument would be to mimic the Canadian system, in which there is a spending limit on counsel. By setting this limit high enough, we could avoid forcing all defendants to a defense below the standards all should enjoy. Yet insofar as expensive counsel can free the guilty above and beyond simply vindicating their rights and ensuring fairness, an argument could be made that this limitation would provide the greater equality that we owe the victims of racism.
There is one area in which such a remedy is warranted – death penalty sentencing. If all defendants facing capital punishment were granted a higher level of legal assistance, the costs on the black community would be minimal. Since the alternative at this point is typically life imprisonment, those freed by a higher level of legal representation would not be able to commit more crime. While an argument could be made that it would reduce alleged deterrent power of the death penalty, such an argument rests on speculation at best. The possibility that a deterrent effect exists, and that it may be controlled by the ability of those considering crime to later afford good counsel, is overridden by the need to ensure procedural fairness and to compensate the descendants of slaves for both the unpaid labor of their ancestors and the ancillary effects that has had on their own generation.
These are only a few of the possible means of reparations through cultural endeavors. By directly targeting the most harmful effects of slavery, segregation, and racism, we can ensure that those efforts are efficient and long lasting.