Excerpted From: Jon D. Michaels, Designing a Latter-day Freedmen's Bureau, 71 UCLA Law Review Discourse 70 (2023) (65 Footnotes) (Full Document)



JonDMichaels.jpegThe State of California is poised to take three significant and pathbreaking steps: to officially apologize for sanctioning and supporting the enslavement of Black Americans, to take remedial measures to end ongoing forms of systemic and institutional racism, and to offer compensation for the descendants of slavery. The state's work began in earnest with passage of Assembly Bill (A.B.) 3121 in September 2020. Though civil rights advocates had been championing reparations for years, political support surged in 2020 as part of the racial justice awakening, one that followed hard on the heels of the killings of George Floyd and Breonna Taylor. A.B. 3121 established the Task Force to Study and Develop Reparation Proposals for African Americans (Task Force) and directed that nine-member body to study, among other things, California's active and tacit support of chattel slavery, its promulgation and acceptance of systemically racist policies that “disproportionately and negatively affect African Americans as a group and perpetuate the lingering material and psychosocial effects of slavery,” and measures that can now be taken to reverse longstanding harms and provide compensation (and perhaps restitution) to African Americans, particularly those who are descendants of enslaved persons.

Though the Task Force published its final report at the end of June 2023, this Essay focuses on the Task Force's interim report (Interim Report), issued in June 2022. Given my hope, however fanciful, that this Essay could be of some use to state legislators and state agency officials, I deemed it preferable to publish my comments on the Interim Report and thus have those comments in circulation while political and legal deliberations were still ongoing.

To be sure, the Interim Report is a magisterial document in its own right. It weaves together history, economics, and demographic analysis to develop a comprehensive record of great value not only to state legislators and state agency officials but also to scholars, teachers, civil servants, community leaders, and the families of California whose history has been largely erased, ignored, or downplayed. Needless to add, its value undoubtedly extends far beyond state borders as all Americans can benefit tremendously not only from what's contained in this manuscript but also from the example its sponsors, authors, and contributors have set by simply undertaking a project of this magnitude and import.

The Interim Report focuses primarily on the historical, economic, and moral case for reparations--and offers recommendations for how best to proceed. Quite understandably, the Report does not devote as much space and attention to questions of institutional design, implementation, and administration--that is, how can the legislature best translate the Task Force's proposed initiatives into durable, legible, legitimate, and readily accessible programs. Such questions may seem overly wonky or distracting, especially to audiences understandably focused on what substantive services, programs, and benefits will or won't be included (not to mention those audiences understandably focused on legal challenges). But no matter how inspired a substantive reparations package may be, its ultimate success depends critically on careful institutional design and a thoughtful governance strategy. Moreover, decisions regarding institutional design may have some bearing on whether and how legal challenges may be framed.

This Essay aims to give fuller treatment to some of the principal design and governance issues that warrant close consideration. The ordering of this Essay is top-down: from a proposed agency's architecture, to staffing, to public engagement.

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Any number of complications--both those relating specifically to institutional design and those that sound in substantive programming or constitutional litigation--may affect how the state proceeds with (or decides to abandon) the CFAA. And, given the enormity of the proposed undertaking and the all-but-certain political and legal pushback, compromises will be inevitable. Still, as this Essay aimed to underscore, a strong and cohesive design is an absolutely critical component of any successful program or set of programs. This is especially true when it comes to an initiative so bold, so fraught, and so potentially generative that it could and likely will be the model for many other states and municipalities to follow.

Professor of Law, UCLA School of Law.