America has become fluent in acknowledgment. We commemorate slavery, teach Jim Crow, and ritualistically invoke the language of civil rights. Yet when the conversation turns from recognition to repair — actual repair — the nation retreats into abstraction, euphemism, and delay.
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America has become fluent in acknowledgment. We commemorate slavery, teach Jim Crow, and ritualistically invoke the language of civil rights. Yet when the conversation turns from recognition to repair — actual repair — the nation retreats into abstraction, euphemism, and delay.
The unresolved truth is this: the United States has never made whole the descendants of enslaved Black Americans for centuries of government-sanctioned racial subjugation. That failure is not merely moral. It is legal, structural, and ongoing.
No single policy can redress an injury of this magnitude. But unprecedented federal investment in Historically Black Colleges and Universities, paired with direct educational restitution for Black Americans by lineage, would represent a constitutionally sound and morally necessary step. It would not extinguish the debt; but it would finally acknowledge that the debt exists.
Real legal harm requires real redress
Slavery and Jim Crow were not social accidents or regional deviations. They were state-sanctioned systems enforced through constitutions, statutes, courts, and police power. The original Constitution protected slavery through the Fugitive Slave Clause and the Three-Fifths Compromise. In Dred Scott v. Sandford (1857), the Supreme Court declared that Black Americans “had no rights which the white man was bound to respect.” In Plessy v. Ferguson (1896), the Court constitutionalized racial segregation under the doctrine of “separate but equal,” entrenching a racial caste system for nearly six decades.
Even after formal emancipation and Brown v. Board of Education (1954), which repudiated Plessy in theory, the state continued to impose racial disadvantage through Black Codes, racially targeted policing, and widespread tolerance of racial terror. Federal policy reinforced this hierarchy. As Ira Katznelson documents in When Affirmative Action Was White, New Deal programs explicitly excluded Black Americans from Social Security, labor protections, and homeownership benefits. Federal Housing Administration underwriting manuals sanctioned redlining, while the GI Bill was administered in ways that overwhelmingly denied Black veterans access to higher education and housing capital.
This was not incidental discrimination. It was cumulative, inheritable, and legally constructed. Under any serious theory of remedial justice, a harm created by law demands a response grounded in law. Yet when redress for Black Americans is raised, we are told our Constitution forbids it. That assertion is historically and doctrinally inaccurate. Supreme Court precedent has never imposed a categorical ban on race-conscious remedies. What the Court has demanded is narrow tailoring and evidentiary grounding. In United States v. Paradise (1987), the Court upheld race-conscious relief imposed to remedy entrenched, state-sponsored discrimination within the Alabama Department of Public Safety. In City of Richmond v. J.A. Croson Co. (1989), while striking down a poorly supported set-aside program, the Court reaffirmed that remedial action is permissible where the government has a “strong basis in evidence” of its own discriminatory conduct. Even Regents of the University of California v. Bakke (1978) distinguished impermissible racial quotas from permissible remedial uses of race tied to past discrimination.
The constitutional problem, then, has never been remediation itself. It has been the refusal to tailor remediation honestly to the actual harm.
Different harms require different remedies
This refusal often hides behind what critics call the “safe legal category” problem. Native Americans receive group-specific remedies, we are told, because tribes are treated as political sovereigns. Japanese Americans received reparations under the Civil Liberties Act of 1988 because internment was a discrete wartime policy. Black Americans, by contrast, are said to lack a comparable legal status.
But this claim collapses when placed alongside another, often omitted example: financial redress provided to Jewish Holocaust victims with the direct involvement and support of the United States government. Through postwar restitution frameworks, U.S.-supported agreements with Germany, and the facilitation of compensation, pensions, and property recovery via institutions such as the Conference on Jewish Material Claims Against Germany, material redress was recognized as a legitimate and necessary response to catastrophic, group-specific harm. The United States did not dismiss these efforts as constitutionally suspect, racially impermissible, or socially destabilizing. The legal principle was straightforward: when identifiable groups suffer systematic, government-enabled harm, restitution is warranted.
Placed alongside Indigenous treaty obligations, Japanese American internment payments, and Holocaust restitution, the exclusion of Black Americans from comparable federal redress is not a matter of constitutional impossibility. It is a matter of selective application. If lineage-based, group-specific remedies can survive constitutional scrutiny for others, the claim that Black Americans are uniquely ineligible cannot be sustained on doctrinal grounds.
Black Americans descended from enslaved persons constitute a historically defined remedial class created by explicit government action. Eligibility can be grounded not in race as abstraction, but in lineage tied to documented state harm. American law routinely recognizes such status-based remediation. Veterans’ benefits, September 11th Victim Compensation Funds, and restitution schemes all rely on eligibility flowing from government conduct rather than individualized fault. The Supreme Court has never held that lineage-based remediation tied to state action is per se unconstitutional.
The insistence that Black Americans are too integrated into the polity to receive redress is not a legal doctrine. It is a political anxiety. Slavery and segregation were not peripheral to the American state; they were foundational to it. A remedy that acknowledges that fact necessarily unsettles national mythology.
This argument must also be distinguished clearly from xenophobia. It does not deny discrimination faced by Black immigrants, other immigrant populations, or marginalized groups. It simply adheres to a basic principle of law: different harms require different remedies. Black immigrants and other immigrants who arrived after the Immigration and Nationality Act of 1965 did not inherit the legal disabilities imposed by American slavery and Jim Crow. They may certainly have faced racism, but they were not dispossessed by American law across generations. Precision in redress is not exclusion. It is legal integrity.
Much of the confusion surrounding this issue stems from how affirmative action evolved. What began as a remedial project tied to correcting specific, state-sponsored legal exclusion of Black Americans during slavery and Jim Crow was gradually transformed into a diversity initiative. That shift was driven less by moral clarity than by constitutional caution. In Grutter v. Bollinger (2003), the Supreme Court upheld race-conscious admissions not as repair, but as serving the educational benefits of diversity.
Diversity, however, is an instrumental interest, justified by its forward-looking benefits. Remediation is a justice claim, rooted in accountability for past harm.
When Black American redress was collapsed into a general diversity framework, one that included recent immigrants and racially heterogeneous groups, the original moral logic was diluted. The policy became rhetorically safer but ethically weaker and legally more vulnerable, a vulnerability confirmed by Students for Fair Admissions v. Harvard and UNC (2023). That expansion also absorbed gender-based preferences, further distancing affirmative action from its original remedial justification. While sex discrimination is real and unlawful, its legal and historical contours differ markedly from the state-created racial caste imposed on Black Americans. Over time, white women became among the greatest beneficiaries of affirmative action policies, a reality well documented in employment and higher education outcomes and widely recognized in the scholarly literature. The effect was not justice denied to women, but the dilution of the remedial purpose, as a policy designed to repair race-based exclusion was rebranded as a generalized tool for inclusion.
Historically Black Colleges and Universities sit squarely within this unresolved tension, as institutional substitutes for a remedy the nation never fully provided. HBCUs exist because Black Americans were excluded by law from white institutions. For generations, they functioned as a substitute remedy offering access without equity and opportunity without parity. Courts routinely accepted the existence of HBCUs as evidence of “separate but equal” provision well into the twentieth century. Yet these institutions were systematically underfunded, denied land-grant parity, and expected to produce disproportionate outcomes with limited resources.
A massive, unprecedented federal investment in HBCUs would therefore be lawful, necessary, and overdue. It would directly address historic underfunding traceable to segregation and strengthen institutions created as a response to government exclusion. But institutional investment alone cannot close the racial wealth gap or restore denied opportunity. That requires direct investment in people.
At this point, critics will inevitably object that such measures would violate principles of equal protection. That objection misunderstands both history and doctrine. The Constitution has long permitted narrowly tailored remedies for government-created harm, even when those remedies are group-specific. What equal protection forbids is arbitrariness, not accountability. A program grounded in documented state action, limited in scope, and designed to remediate identifiable injury does not undermine constitutional principles; it fulfills them.
Others will argue that explicit redress risks deepening social division. History suggests the opposite. What corrodes legitimacy is not repair, but avoidance. Unaddressed injustice does not dissipate with time; it hardens into resentment and mistrust. Societies fracture not when they confront wrongdoing, but when they insist on moving forward without repair. Honest redress is not destabilizing; it is stabilizing.
Accordingly, the federal government should pair transformative HBCU investment with educational restitution in the form of vouchers of up to $25,000 per year for four years, up to $100,000 total, redeemable at any state-supported college or university and at all public and private HBCUs, a level consistent with existing federal higher-education benefits and deliberately framed as a partial educational remedy for Black Americans who can demonstrate lineage to those subjected to U.S. slavery and Jim Crow. Such a program would be remedial rather than punitive, lineage-based rather than race-essentialist, narrowly tailored, and grounded in extensive historical findings. Political resistance does not render such a program unconstitutional. To the contrary, it exposes how long the nation has chosen avoidance over accountability in the face of its own history.
America’s greatest unrepentant sin is not slavery alone. It is emancipation without repair, desegregation without restitution, and neutrality declared only after inequality had hardened into structure. HBCUs are not the debt itself. They are evidence that the debt exists.
Unprecedented investment in them, paired with direct educational redress, would not complete the work of justice. But it would finally move the nation from acknowledgment to tangible redress, and from rhetoric to responsible accountability. To be clear, the nation has acted before through the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Fair Housing Act, and related reforms that dismantled formal racial exclusion, but those laws secured rights and access, not restitution, and they left untouched the economic losses and wealth deprivation suffered by generations of Black Americans, the effects of which remain present today, produced by centuries of governmentally sanctioned racial hierarchy.
The Constitution permits this. History demands it. And if either political party were willing to lead, it would offer something rare in American life: moral clarity aligned with legal courage. Justice requires more than the guarantee of rights and legal equality. It requires a foundational principle of American jurisprudence in tort: compensation for harm done. It requires payment.
A. Zachary Faison Jr. is president of Edward Waters University, Florida’s first independent institution of higher learning and first Historically Black College or University, founded in 1866 by the African Methodist Episcopal Church.
