Reparations Commission wrestles with legal questions around recommendations

Facing a June deadline, the Community Reparations Commission met three times this month to complete voting on 39 recommendations to the City of Asheville and Buncombe County for how the local governments can repair harm caused by generations of systemic racism.

While all 39 of the commission’s recommendations passed, not all were unanimous. Disagreements arose over language modifications to satisfy legal concerns.

“Some folks voted against some recommendations specifically because we can’t single out Black residents because of the 14th Amendment [to the U.S. Constitution],” said facilitator Vernisha Crawford at the commission’s June 10 virtual meeting.

The 14th Amendment, ratified in 1868 after the Civil War, grants citizenship to all persons born in the United States. It also ensures no citizens explicitly receive privileges and everyone has guaranteed equal protection of the law. The City of Asheville has its own anti-discrimination ordinance that similarly prohibits “discrimination against any person on the basis of race, color, sex, religion, disability, familial status or national origin.”

After meeting with City Attorney Brad Branham and County Attorney Michael Frue, Crawford suggested language amendments.

Instead of creating an economic development center “for Black Asheville,” for example, the commission could create one “designed to benefit Black Asheville,” while understanding that it may also benefit other people, Crawford said.

Additionally, instead of providing scholarships specifically for Black students, the commission could recommend that scholarships be provided to “people who are descendants from legacy neighborhoods, affected by urban renewal redlining and are of low income,” she said.

Several commissioners were frustrated with the apparent contradiction between the commission’s establishing resolution and advice from Branham and Frue.

Dewana Little, who was elected chair to replace Dwight Mullen at the commission’s June 1 retreat, said the city and county charged commissioners with repairing harm specifically for Black people.

“What makes it different now that we’re using the same language that city and county used?” she asked the attorneys June 10. “Technically, it was illegal to charge us to do what we did. Now at the end, recommendations are being scrutinized. We should be able to figure it out because we were charged with a task. It didn’t say ‘all people’ in the charge that was given. [It was] specific to Black people, and now the recommendations can’t be specific to Black people.”

Legally defensible?

Commission member MZ Yehudah cut right to the point. “Are reparations for Black Asheville legally defensible?”

Frue said the legality will be determined by implementation as well as the language, and because the recommendations are not yet in the implementation phase, he doesn’t know if they will ultimately pass legal muster. The effects of the implementation of recommendations will determine if they are discriminatory or not, he said.

“This has always been the complexity in the difficult task that each of you have been tasked to do. You were tasked with recommendations for reparations. At the local level, no one has done this before. A handful of local governments have tried this. Several are now in lawsuits over this. If there was a road map to achieve this, we would have given it to you,” Branham said.

Branham stressed that the legal team wanted to provide resources and advice without directing the commission on how to make recommendations.

“Naming those individuals who are deserving of the reparative process is never something we want to stand in the way of. But we do want to make sure you know where those obstacles lie,” he said. “Are you willing to be a little less specific to gain some legal defensibility?”

Frue suggested that commissioners could recommend programs be put in place at community centers in legacy Black neighborhoods as a way to hit their target demographic while specifying geography rather than race as a way to thread the legal needle.

But as commission member Tiffany DeBellott pointed out, many of those neighborhoods have experienced gentrification, and are not majority-Black anymore, opening up their programs to anyone.

“I can’t easily think of a way of fashioning a program under current law just for Black people,” Frue said. He added that recommendations in the current phase should be considered an aspiration, and as the city and county worked through how to implement them, their legality could be ensured.

“At the end of the day, we’re not allowed to implement a discriminatory program,” Branham added.

Ultimately, commissioners voted to approve language suggested by the legal team.

Watered down

After voting was complete at the commission’s in-person meeting June 17, commission member Dewayne McAfee, who has frequently abstained from voting for or against recommendations, sounded off on the changes in language.

“The United States Supreme Court used language that specifically targeted Blacks, and for anyone to tell us now as we try to understand and unwrap slavery and Jim Crow that there are words that we can’t use because we may offend another ethnic group … the 14th Amendment should not reshackle us as we go through this process.

“I don’t think we need to be polite to people because they certainly were not polite when these events were going on, and if America cannot address the harm that they’ve done, if we can’t have an open and honest discussion about it here, where do we ever get a chance to address it?” he continued.

McAfee said he believes the commission watered down its recommendations when it deleted specific references to Black people as beneficiaries of its programs, and worries that other disenfranchised groups such as white women can now benefit from work that was supposed to address atrocities done to the descendants of enslaved people.

“If your ancestors weren’t swinging from a rope, I don’t want you to do anything in this process,” he said.

As the commission enters its next phase, he said he hopes it will “acquire a backbone.”

Extension request

The commission agreed to submit a formal extension request to City Council so it can continue to receive staff support from city departments such as legal and communications.

One of the main reasons the commission needs an extension, said commission member Osundu McPeters, is to move the work from theoretical to implementation.

According to a draft extension request passed by commissioners June 10, the commission has to complete a final report of recommendations before a potential joint meeting of Asheville City Council and the Buncombe County Board of Commissioners, which has yet to be scheduled. Until a possible extension is granted, commission meetings will continue biweekly with limited city and county staff support. The next meeting is scheduled for Monday, July 15.

Representatives of the commission will present a formal extension request at the Tuesday, July 23, City Council meeting.