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A dictionary entry for the word "reparation," as refracted through a magnifying glass.

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The death knell for race-based affirmative action may give way for American descendants of slavery (ADOS), Black Americans whose ancestors were enslaved in the United States, to receive positive considerations in college admissions. With a particular look at lineage rather than race, the case also needs to be made for offering full-tuition support for ADOS pursuing higher education as a measure of reparative justice.

The insights of Supreme Court justices Brett Kavanaugh and Neil Gorsuch in this summer’s ruling in the Students for Fair Admissions cases brought against Harvard College and the University of North Carolina at Chapel Hill may pave an interesting path forward in the decades-long race-based affirmative action battle. In a concurring opinion, Gorsuch called out what he deemed to be the arbitrary nature under which racial categorizations have been used in higher education. Gorsuch asserted that current racial categories are rooted in racial stereotypes and configured by bureaucrats with no expertise and unaided by insights from, say, ethnologists. “‘Black or African American’” as a category, he wrote, “covers everyone from a descendant of enslaved persons who grew up poor in the rural South, to a first-generation child of wealthy Nigerian immigrants, to a Black-identifying applicant with multiracial ancestry whose family lives in a typical American suburb.”

Kavanaugh’s question to the petitioner’s lawyer during oral arguments further highlights how intraracial heterogeneity entails a multitude of narratives—narratives that may be obscured when considering only broad racial categories. In search of nonracial criteria that colleges could give positive considerations to, Kavanaugh queried, “What if a college says we’re going to give a plus to descendants of slaves? Is that race-neutral or not?” The lawyer’s response that lineage begins “very quickly” to look like a proxy for race reverberates loudly in much of our tin-eared–to–intraracial-nuance thinking.

Such monolithic, unnuanced racial views decontextualize ADOS from their connection to American chattel slavery and the ethical considerations that follow from this experience. The fact that Blacks in America are often not distinguished based on ethnic lines and are viewed as a racial monolith can make calls for reparative justice appear to be an overwhelmingly tall order.

However, one doesn’t have to imagine the world anew to realize ADOS reparations in higher education. University of Indiana legal scholar Kevin Brown, in his book Because of Our Success: The Changing Racial and Ethnic Ancestry of Blacks on Affirmative Action (Carolina Academic Press, 2014), lays out a blueprint for Black disaggregation and favorable admissions consideration for ADOS. Duke University economist William A. Darity Jr. and A. Kristen Mullen have devised practical recommendations for determining lineage so as to avoid the frequently used-in-bad-faith argument that the logistics of reparations on a grand scale are unfeasible. For example, Black Americans could prove their eligibility for reparations by showing they have at least one ancestor on the 1870 (or 1880) U.S. Census, the first to take into account the more than four million freedmen and freedwomen.

The goal of race-based affirmative action went from redress to diversity in Regents of the University of California v. Bakke, a 1978 Supreme Court decision striking down a special admissions program at UC Davis’s medical school that gave preference to racial minorities. In deciding the case, which was brought by Allan Bakke, a white man twice denied admission to Davis’s medical school, redress for past discrimination was seen as unfair. As Justice Powell put it, “The purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like respondent [Bakke], who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”

While it is clear that a medical student like Bakke bears no personal responsibility for past societal discrimination against minorities, the medical school’s initiative in reserving slots for minority students (particularly ADOS) was a reparative act. This is especially noteworthy given the medical field’s exploitative relationship with Black Americans—a relationship developed in tandem with the burgeoning American medical apparatus in the 19th century. During that time, not only did medical students practice with unclaimed cadavers of the incarcerated, but also with those stolen from graves of the enslaved and formerly enslaved. Universities like Thomas Jefferson’s University of Virginia carried on the Jeffersonian tradition of economically exploiting Black bodies, but in this case through nonconsensual scientific study that has gone on to benefit the entire human species.

Henrietta Lacks is perhaps the most well-known contemporary example of this exploitative relationship. Her cervical cancer cells were studied and led to innovative treatments such as for AIDS and HIV. Decades after Lacks’s death in 1951, her family reached a settlement with the biotech company that used her cells just this past August and is now, finally, able to reap the benefits of her incalculable contribution to the world. All this stemmed from her cells being taken without her consent—reminiscent of another era when enslavers had unfettered access to Black bodies. Lacks’s story is the ADOS story writ large, and the bill is due.

In calling for full-tuition support and positive consideration in admissions for ADOS, pushback is all but expected, especially in a zeitgeist where U.S. chattel slavery is being undermined in many a public school, where most ADOS receive their K-12 educations. Despite the signs of the time, the University of California system’s Native American Opportunity Plan is an exemplar of reparative justice in higher education for a designated group. The plan provides tuition-free undergraduate and graduate education for federally recognized First Nations peoples. This move by the UC system circumvents Proposition 209, the state measure prohibiting race-based affirmative action in admissions at public universities, due to the fact that recognized tribal nations are considered to be a political class, rather than a racial group.

What would it mean for ADOS to be acknowledged as a specific protected class due to their ancestors’ positions as the nation’s enslaved? The tendency to steer the conversation toward the professed impracticality of reparations due to the nation’s financial means and issues of logistics often seems a way of skirting around the ethics of it all. As a nation laden in anti-Blackness (specifically, aversion to ADOS culture), it is not unreasonable to think that this is tantamount to saying, “They don’t deserve it.” Let us not reach the conclusion that reparations for ADOS in the realm of higher education is a pipe dream by making our ideals of what reparations should look like the enemy of any good we can do to redress the lingering effects of the “peculiar institution” on ADOS.

James E. Murray Jr. is a Ph.D. candidate studying educational policy studies and a Lyman T. Johnson Diversity Fellow at the University of Kentucky. He is currently working on his dissertation, which argues for ADOS reparations in higher education.

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