First-of-Its-Kind Reparations Plan Faces Legal Test in Chicago Suburbs

In 2019, Evanston, Illinois, became the first U.S. city to enact a reparations plan for its Black residents. Two years later, the Chicago suburb adopted its first initiative: a housing program offering up to $25,000 to individuals to remedy the harm caused by decades of discriminatory housing practices.

Since then, the city has distributed more than $1 million in home improvement benefits and mortgage assistance and is projected to distribute much more, according to city documents. The program targets Black residents who lived in Evanston between 1919 and 1969 and their direct descendants. The program has a $10 million budget and is funded by the city’s marijuana sales. Last year, Evanston officials voted to expand the program to offer direct cash payments. 

Now, Evanston’s program faces its first legal test: A federal class action lawsuit alleging that the program is unconstitutional and racially discriminatory.

The conservative nonprofit Judicial Watch filed a civil lawsuit in May against the city on behalf of six non-Black Evanston residents who, according to the lawsuit, are all direct descendants of Evanston residents.

The individuals satisfy all of the program’s eligibility requirements, the lawsuit says, except for the program’s “race-based eligibility requirement.” 

“Plaintiffs remain able and ready to apply for payments under the program and intend to apply if the race-based eligibility requirement is declared unconstitutional and enjoined,” the suit says, meaning that the plaintiffs want the program open to all Evanston residents. 

When reached by Prism for comment, the city said it doesn’t comment on the specifics of pending litigation but that it will “vehemently defend any lawsuit brought against our city’s reparations program.”

Supporters of the program say the lawsuit seeks to undermine a core component of the city’s reparations plan: addressing past discrimination against Black people.

“It’s a very dangerous argument that if you have owned up to harming a group of people on the basis of race, [then] you cannot own up to that and make amends on the basis of race because a group that wasn’t harmed is now harmed by your efforts to make up for what you did through government action,” said Alvin Tillery Jr., a political science professor at Northwestern University. “It’s just nonsensical.” Tillery, who also runs the Center for the Study of Diversity and Democracy, has worked with the city on its reparations program.

The lawsuit alleges that Evanston’s use of race as an eligibility requirement cannot survive strict scrutiny. Strict scrutiny is a standard applied by the federal courts under the 14th Amendment’s Equal Protection Clause when a statute, regulation, or government action “distributes burdens or benefits based on race, ethnicity, or national origin.” A governmental action or program based on race must show that it serves a compelling government interest. 

“Remedying discrimination from 55 to 105 years ago or remedying discrimination experienced at any time by an individual’s parents, grandparents, or great-grandparents has not been recognized as a compelling governmental interest,” the lawsuit states. 

The city provides documentation on its website that outlines the basis for its reparations program. One report said that the city passed a zoning ordinance in 1919 that “zoned almost every block where Black people lived to commercial use,” effectively forcing Black people to reside in West Evanston. “The city, by both practice and policy,” the report said, “segregated Black families into an area that became undervalued and underserved.”

“What the Evanston [council] established were reparations for past discrimination carried out by the government to victims of [that] discrimination and their descendants,” said Taonga Leslie, the director of policy and program for racial justice at the American Constitution Society. “And this has been well accepted and considered in federal courts.”

Leslie likened Evanston’s program to past efforts to remedy the discriminatory treatment against other racial or ethnic groups. He points to the 1992 case Jacobs v. Barr, in which a federal appeals court rejected a 14th Amendment challenge to the Civil Liberties Act, a law Congress passed in 1988 that established a reparations fund for Japanese Americans and their descendants who were incarcerated during World War II.

“Congress had found that the U.S. government had a policy of interning Japanese Americans because of their race,” Leslie explained, “so it was perfectly in line with the Equal Protection Clause for [the U.S.] to make amends by paying them back reparations.”

Michael Bekesha, a Judicial Watch attorney for the plaintiffs, told Prism that they don’t just take issue with the race-based requirement. Bekesha said the program doesn’t require residents to show that they were injured or harmed by the city’s discriminatory policies. Prism reached out to an Evanston city spokesperson for comment but did not receive a response. 

Bekesha said the lawsuit isn’t about whether reparations are right or wrong. “We don’t dispute that redlining occurred during that time period,” Bekesha said, adding that if the city is concerned about its past actions, “there are probably race-neutral ways to remedy those concerns.”

Although Bekesha says the case isn’t about reparations, opponents of the lawsuit and similar efforts see cases like this as the latest attempt to hamper progress by targeting diversity or race-based programs and initiatives.

This month, for example, the 11th U.S. Circuit Court of Appeals blocked a business grant program geared toward Black women after a conservative nonprofit run by the same activist who successfully challenged affirmative action last year sued the Atlanta venture capital fund that runs the program, The Atlanta Journal-Constitution reported.

The Evanston case also comes as other cities like Asheville, North Carolina, pursue reparations programs. Lawmakers in California are considering a slate of reparations proposals. 

“Unfortunately, the sociopolitical climate shifted with the ruling in the affirmative action case,” said Brandon Greene, the policy advocacy director at the Western Center on Law & Poverty. “So the real question is whether or not jurisdictions and states that have done the work will continue to be bold in their work. Because oftentime, these sorts of lawsuits have a chilling effect.”