Tragedy and Remedy: Black Reparations for Racial Disparities In Health1

The tragedy of American health care is the stubborn persistence of racial disparities in Black health,3 one hundred and forty years after Emancipation, and more than four decades after the passage of Title VI. Biomedical research into racial disparities in health is distracted by an etiological reductionism which overlooks the underlying history of slavery, racism and segregated health care. The epidemiological model of research is ill-equipped to adequately diagnose the health effects of race, controlling for variables such as income and education which themselves bear the legacies of racism in America. Biomedical research can also fall prey to the dangers of racialized research, reinforcing stigma through medical profiling based on race. Biomedical research has a race problem. Black reparations could provide a remedy for the historical crimes of slavery and discrimination, but is considered a fringe political and legal issue. The primary legal objection to Black reparations is remoteness of the injury – the crimes were long ago, all of the defendants and plaintiffs are dead, and the statutes of limitation have run. Lawsuits raising broad claims for Black reparations are invariably dismissed without reaching the merits. In July 2005, the African-American Slave Descendants Litigation was dismissed without reaching the merits. The Black reparations movement has a law problem. This Article attacks both problems by connecting Black reparations with racial disparities in health.4 When reparational analysis is applied to Black health disparities, some important research problems are resolved. Reparational analysis avoids the errors of etiological reductionism and racialized research by focusing upon the underlying causes of racial disparities, and connecting it with centuries of American history. 1 This Article is based upon presentations at numerous academic venues over the past five years, including presentations at the University of Cambridge (Hughes Hall) and the DePaul/Operation PUSH symposium on racial disparities in health. I want to thank Adjoa Aiyetoro, Co-Chair of the N’COBRA Litigation Committee and Co-Chair of the Reparations Coordinating Committee, for her inspiration on the issue of Black reparations. Michele Goodwin was successful in persuading me to finally write this Article for publication. The Hodges Research Fund supported this research. 2 Associate Professor, West Virginia College of Law. LL.M. University of Cambridge; J.D. Northwestern University. . 3 While many racial categories exhibit health disparities in the United States, this Article focuses on the Black experience. 4 Professor Randall appears to be the only legal scholar to have examined the intersection to any significant degree. See Vernellia R. Randall, Eliminating the Slave Health Deficit: Using R