Experts say the proposals may be unconstitutional
California Democrats are finding ways to make reparations to black descendants of slaves that don’t include direct cash payments, as voters overwhelmingly reject the idea of money handouts. Instead, they are moving ahead with ideas like subsidized property taxes and expedited business licenses—which experts say may violate constitutional guarantees of equal treatment.
California’s emerging reparations package includes two contentious proposals that would single out reparations-eligible black Californians for special treatment: one would order all the state’s professional licensing bodies to expedite their applications, while another would subsidize their property taxes by up to $4,000. The package would create the “California American Freedman Affairs Agency“—a permanent state bureaucracy—to decide which Californians should receive reparations benefits and to make sure they are doled out. It would be funded through a separate proposal to siphon off budget reserves specifically for reparations.
These bills, which lawmakers have been quietly pushing after California’s headline-nabbing reparations task force last June issued a 1,100 page report full of costly policy demands, have easily cleared committee vetting without substantive debate and appear to have the support to pass the legislature’s approval. They are far more modest than many of the reparations panel’s recommendations such as cash payments, which the majority of Californians oppose and which Newsom and black leaders have refused to endorse.
Even so, critics say giving black residents preference for work licenses and helping them with property taxes could open up the state to constitutional challenges, since these policies may violate guarantees of equal treatment of citizens regardless of race, as well as last year’s landmark U.S. Supreme Court ban on affirmative action.
Andrew Quinio, an attorney with the public interest law firm Pacific Legal Foundation, told lawmakers Tuesday that the occupational licensing bill could hurt all Californians who have to apply for these permits to work. Some two million people in the Golden State, or one in six workers, have to be licensed to do their jobs—from contractors to landscapers, hairdressers, teachers, and realtors.
“By passing [this bill], you will be telling these hard-working Californians that their spot in line in order to get a license is dependent on their race,” Quinio said. “That is plainly unconstitutional.”
Lee Ohanian, UCLA economics professor and senior fellow at Stanford’s Hoover Institution, said the measure “would seem to run afoul” of civil rights law and the 14th Amendment’s equal protection clause. A spokesman for the bill’s author did not respond to a request for comment.
Quinio noted that the property tax measure, authored by former reparations task force member and state senator Steven Bradford, raises similar constitutional questions—a claim Bradford’s office shrugged off. The lawmaker’s spokesman said the legislation has precedent in a longtime state program that refunded some property tax for elderly, disabled, and blind Californians.
Yet Quinio said the policies can’t be correlated.
“Being African American is not a disability, so they aren’t on the same level,” he said. “When you have an immutable characteristic like race being equated with getting tax subsidies, you’ll be running into constitutional issues that would absolutely be subject to strict scrutinies.”
Around California, cities and counties have already been fighting challenges to various race-based benefit programs. Californians for Equal Rights last year filed suit against four “universal basic income” programs in San Francisco that target certain racial groups. The Pacific Legal Foundation has taken up a separate case against San Diego for offering tens of thousands of taxpayer dollars for first-time homeowners who are “black, indigenous, or people of color.”
