The summer of 2020 Black Lives Matter protests/riots revived discussion of reparations for slavery and segregation. President Biden recently added his support to a congressional campaign to study the issue.
The fact of the matter is that we’ve had reparations, in the form of “affirmative action,” for the last half-century. Fifty years ago today the Supreme Court gave its approval to the “disparate impact” theory of discrimination under the Civil Rights Act. A month later the Third Circuit Court of Appeals approved the Department of Labor’s “affirmative action” orders, which the Supreme Court let stand.
“Affirmative action” as a technical term first appeared in the National Labor Relations (Wagner) Act of 1935. The Wagner Act made it illegal for employers to discriminate against union members or organizers. If they violated the law, the National Labor Relations Board could order them to reinstate, provide back-pay, and take any other “affirmative action” that the Board prescribed. Ironically, this law empowered many unions that excluded or segregated blacks, and the NAACP and Urban League opposed it for this reason.
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