My parents are still alive, and I begin there because everything that follows depends on it.
My father is 73. He started school in the racially segregated public schools of Clinton, North Carolina, in a state that had spent generations running one system for white children and another for Black children. His Black teachers saw something in him and told him so, and he rose to the top of his class. Then, when he reached the seventh grade, the district offered a program it called “freedom of choice.” His parents, believing they were doing right by their son, sent him to the predominantly white middle school, where he became one of only a handful of Black students to make that crossing. What awaited him there was ridicule, isolation, and a steady message that he was less than the children around him. He was barely a teenager, at the age when such messages sink deepest, and the experience shaped his confidence for the rest of his life.
None of that was a family failing. It was a governmental design. School boards across the South adopted “freedom of choice” so they could keep their separate schools standing, appear to comply with Brown v. Board of Education, and protect their federal funding all at once. Because white families never chose Black schools, whatever desegregation occurred depended entirely on Black children willing to cross alone. The Supreme Court eventually saw through the scheme. In Green v. County School Board of New Kent County (1968), a unanimous Court rejected such plans because they shifted onto Black families a burden the Constitution placed on the state. By my father’s junior year, choice had given way to compulsion, as the district closed Sampson High School, the Black high school, and sent its students to the formerly white Clinton High School. Yet the injury outlasted segregation itself. Integration came without repair, and children like my father paid for it. His parents had lived under that system, and so had theirs before them.
Let me be clear that this is not nostalgia for segregation. What wounded my father was the way the state chose to end it: slowly, and on terms that loaded the burden of integration onto Black children while offering them nothing for what had been taken.
I am 46 years old, and my own education carries the same history. I hold a law degree from the University of Georgia, which did not admit its first Black students until January 1961. Charlayne Hunter and Hamilton Holmes enrolled that month under federal court order, after a governor had campaigned on the promise that not one Black child would integrate Georgia’s white schools. Within days, a mob gathered outside Ms. Hunter’s dormitory. That was not some distant chapter of the nineteenth century. It happened during my parents’ childhood.
I dwell on this chronology for a reason. The most persistent objection to redress for Black Americans holds that the injury is simply too remote and that too many generations have come and gone for its consequences to be traced with the precision a constitutional remedy demands. That argument becomes far harder to sustain when the people who lived under the discriminatory regime are still sitting at our dinner tables.
In March, I argued that unprecedented federal investment in Historically Black Colleges and Universities (HBCUs), paired with direct educational restitution for Black Americans by lineage, is both constitutionally sound and morally necessary. The objection arrived right on schedule. Surely, the critics said, after Students for Fair Admissions v. Harvardand its companion case against the University of North Carolina, the Constitution would never permit such a thing.
This essay is my answer. When the Supreme Court rejected admissions programs built on diversity, it did not render educational redress for the descendants of American slavery and Jim Crow unconstitutional. Its own precedents leave open a different pathway, one in which Congress identifies specific governmental discrimination, documents its continuing consequences, defines the population it injured, and constructs a narrowly tailored remedy. Affirmative action is dead. Educational restitution is not.
Justice Powell’s Category Error
To understand how we arrived here, we have to return to Regents of the University of California v. Bakke in 1978. Justice Lewis Powell, whose opinion would govern admissions law for the next 45 years, acknowledged that the state has a legitimate and substantial interest in eliminating the disabling effects of identified discrimination. What he refused to accept was a remedy for “societal discrimination,” which he dismissed as an injury “ageless in its reach into the past.”
That framing was the original mistake, because Black educational exclusion was never societal discrimination. It was governmental discrimination, and there was nothing amorphous or ageless about it. It was written into state constitutions and statutes and enforced by school boards, regents, legislatures, and governors. It took the form of segregated public schools and exclusion from state universities, of public Black institutions funded at a fraction of what their white counterparts received, of duplicate programs built to preserve segregation, and of institutional missions deliberately constrained so that Black colleges could never compete.
Florida, where I now serve, supplies its own example. In 1949, Virgil Hawkins applied to the University of Florida College of Law. The state fought his admission for nearly a decade, defying the United States Supreme Court along the way, and he never enrolled. Society did not do that to Virgil Hawkins in some diffuse and unaccountable way. The State of Florida did it, acting as the State of Florida.
Diversity and Remediation are Different Claims
Once the injury is understood as governmental, a crucial distinction comes into focus. Grutter v. Bollinger (2003) asked whether racial diversity produces educational benefits. Educational restitution asks something else entirely: whether government may remedy an injury that government itself inflicted. Put another way, diversity asks what Black students can contribute to an institution, while remediation asks what government owes the people it injured.
That difference changes how the student is seen. Under diversity, the Black student is valuable instrumentally, because his or her presence enriches everyone else's education. Under remediation, the same student is the beneficiary of the remedy, the person whose connection to the governmental injury supplies the very reason for the benefit.
As I previously argued, affirmative action drifted from the second claim to the first out of constitutional caution. Powell left universities two roads. The remedial road required findings that few institutions were willing to make about themselves, while the diversity road required none. Unsurprisingly, they chose diversity, and the policy grew rhetorically safer even as it grew legally weaker. So, when the Court concluded in 2023 that diversity could not survive strict scrutiny, the remedial question was left exactly where Powell had set it aside.
What Students for Fair Admissions Actually Decided
Given how often that decision is cited as having closed the door, it is worth reading what it actually says. Students for Fair Admissions struck down admissions programs at Harvard and the University of North Carolina that had been defended principally on diversity grounds. The Court held those interests too immeasurable for meaningful judicial review and found that the programs lacked any logical end point.
Yet Chief Justice Roberts’s majority opinion also said something that deserves far more attention than it has received. Outside the context of higher education admissions, the Court identified only two compelling interests its precedents had recognized as justifying governmental action based on race. One of them was “remediating specific, identified instances of past discrimination that violated the Constitution or a statute.” Those words do not come from a dissent’s aspiration. They are the majority’s own account of the law, set down in the very opinion now cited as proof that no remedy is possible.
Nor does that passage stand alone. Adarand Constructors v. Peña (1995), hardly a decision friendly to affirmative action, held that strict scrutiny is not “fatal in fact” and that government may still respond to racial discrimination and its lingering effects. Parents Involved in Community Schools (2007) said much the same about remedying past intentional discrimination.
For that reason, I am not asking that strict scrutiny be relaxed. I welcome it. Let Congress prove the injury and identify its beneficiaries. Let Congress connect the remedy to the injury, demonstrate why alternatives that do not rely on race cannot accomplish the same remedial purpose, and limit the remedy in scope and duration. To be sure, the Court’s recognition of remediation as a compelling interest does not guarantee that any particular restitution program will survive judicial review. What it does is foreclose the claim that the Constitution categorically forbids government from using carefully tailored remedies for its own identified discrimination. Strict scrutiny is a demanding test, but it is not a constitutional command that government leave its own documented injuries unrepaired.
Why Congress, Why Findings, and Why Now
If that pathway exists, the next question is who must walk it and how. City of Richmond v. J.A. Croson Co. (1989) is often invoked as the end of this discussion, when it ought to be the beginning. Richmond’s program reserving a share of city contracts for minority businesses failed because the city relied on generalized national statistics rather than a strong basis in evidence of discrimination within its own jurisdiction. The lesson of Croson, then, is not that remedies are forbidden. It is that remedies must rest on a record.
Congress is uniquely positioned to build that record. Section 5 of the Fourteenth Amendment authorizes Congress to enforce equal protection against the states, including through appropriate remedies for unconstitutional state action. That authority is remedial rather than unlimited, however. Ever since City of Boerne v. Flores (1997), the Court has required congruence and proportionality between the constitutional injury Congress identifies and the legislative means it chooses. Congress therefore cannot simply declare a historical injustice and presume that any remedy will do. It must assemble a substantial evidentiary record connecting governmental educational exclusion to identifiable continuing consequences, and it must show that the proposed remedy responds proportionately to those injuries. Here an educational remedy enjoys a particular advantage, because it operates in the very sphere where the constitutional violation occurred.
The states were not the only actors, of course. Federal programs also restricted Black Americans’ access to education, housing, and capital, and Congress’s spending power independently supports federal educational benefits. Whatever power Congress invokes, though, a federal classification must still satisfy the equal protection guarantee of the Fifth Amendment. That is precisely why Adarand matters: Congress must prove a compelling remedial interest and tailor the benefit narrowly.
The statute, in other words, should begin not with a benefit but with a record, built through hearings, historical evidence, economic analysis, and findings that tie the remedy to the injury.
And that record must be built now. The Americans who sat in segregated classrooms and were turned away from public universities are in their sixties, seventies, and eighties today, and their testimony is the most direct evidence Congress will ever have. With the diversity rationale gone, remediation is the remaining constitutional pathway for any educational restitution that takes race into account, and its most powerful witnesses are leaving us one generation at a time.
This Injury is Within Living Memory
That urgency points to a larger truth. Congress need not prove that every contemporary disparity traces in an unbroken line to slavery, nor reconstruct an economic counterfactual beginning in 1619. The educational injury is far more immediate than that.
Americans alive today attended public schools segregated by law, and my father is one of them. Americans alive today were denied admission to public colleges and universities because they were Black, and their children and grandchildren are alive as well. The institutions that excluded them still exist, as do the governments that operated those systems. So do the statutes, appropriations, admissions policies, judicial decisions, and funding records that document the exclusion. And so, inescapably, do its economic consequences.
A person denied access to a public university did not regain that opportunity when the university desegregated years later. The credential was never awarded. The income was never earned, the home never bought, the savings never accumulated, and the resources that might have educated the next generation were never passed down. There is nothing abstract about that account of intergenerational disadvantage. It is simply how capital works.
The same logic holds for institutions. When a state spent generations building one system of higher education for its white citizens while confining its Black citizens to separate institutions with narrower missions and fewer resources, the resulting inequality did not vanish the morning admissions became formally colorblind. Buildings, endowments, professional programs, alumni networks, research capacity, land, and prestige did not reset to zero.
The Supreme Court confronted exactly this problem in United States v. Fordice (1992). Mississippi had maintained five historically white public universities and three historically Black ones, among them Mississippi Valley State, where I would later serve in the cabinet. The Court held that adopting neutral policies did not discharge the state’s constitutional obligation where policies traceable to its de jure system continued to produce segregated effects. If the Court was adjudicating those effects in 1992, they can hardly be dismissed as an unknowable relic in 2026.
That principle reaches well beyond Mississippi. Repealing a discriminatory law stops government from continuing an unlawful act, but it does nothing to compensate the people against whom that act was already committed. The Civil Rights Act, the Voting Rights Act, and the Fair Housing Act were indispensable, yet prohibition and restitution perform different legal functions. Prohibition commands government to stop doing the wrong. Restitution asks what is owed because the wrong was done.
For Black Americans subjected to governmentally imposed educational exclusion, America has largely answered the first question. It has never fully answered the second.
The Remedy Fits the Injury
Seen in that light, the proposal I advanced in my earlier essay published in March, becomes a constitutional test case rather than a slogan. It calls for educational restitution of up to $25,000 per year for four years, or up to $100,000 in total, redeemable at public colleges and universities supported by the states and at all public and private HBCUs. The figure is calibrated, not arbitrary. Four years is the length of a bachelor’s degree, and $25,000 a year covers most, though not all, of the roughly $31,000 the College Board reports as the average annual budget for a student attending a public university in his or her home state. The measure is thus tied directly to the cost of the very opportunity government historically denied, which is a college education.
It helps to be precise about what this proposal is not. It is not a racial quota, and it guarantees no one admission to any institution. It displaces no applicant from a seat and requires no university to alter its admissions standards. Nor is it available to anyone who simply checks a box.
Its structure matters, too. In Students for Fair Admissions, race operated inside the universities’ own admissions decisions. Under this proposal, no institution makes that judgment at all. The student arrives after admission carrying a benefit Congress created on the strength of its own findings, so the classification, and the burden of justifying it, rests squarely with Congress.
What the proposal is, then, is a remedy whose form mirrors the form of the injury. Government restricted education, and government now funds education. That symmetry gives the program a powerful claim to the narrow tailoring that strict scrutiny demands.
Narrow tailoring asks for more than fit, of course. It also asks whether alternatives that do not rely on race would adequately remedy the injury. Aid based on financial need is not an equivalent remedy merely because it also helps students pay for college. Pell Grants address present financial need, whereas restitution addresses a governmental obligation arising from documented historical injury. Congress would need to show why existing aid programs, even if expanded, cannot discharge that distinct remedial obligation. And unlike preferential admissions, this benefit neither reserves seats nor displaces applicants.
It is also a fundamentally different kind of remedy from the one that failed my father’s generation. “Freedom of choice” offered his family a choice that carried every burden and no support. Restitution offers a real one: resources, along with the freedom to decide where to use them, including at the institutions that educated Black Americans when no one else would.
The Lineage Question, Answered Directly
Critics will inevitably cite Rice v. Cayetano (2000), which held that ancestry can serve as a proxy for race. Whether lineage must be treated as racial in this context remains an open question, but the proposal does not depend on the answer. Assume that strict scrutiny applies. Lineage is not a way around constitutional review; on the contrary, it strengthens the remedy's claim to satisfy it.
Consider the alternative. A program open to every person of a given race would sweep in people whose families never lived under American slavery or Jim Crow. Lineage does not presume that every Black American suffered the same historical injury. Instead, it identifies the people whose families were actually subjected to the governmental system Congress seeks to remedy. That is genuine constitutional work, because it narrows the remedy toward the population Congress has identified through its findings.
Descendants belong in that class because, as I described earlier, an educational injury does not end with the person who suffered it. It travels through the family’s capital to the next generation. Still, ancestry alone cannot carry the full constitutional load. Congress would need to identify the specific governmental systems of exclusion being remedied, establish their continuing intergenerational consequences, and define eligibility by a demonstrable connection to the population subjected to those systems. Descendants of American slavery and Jim Crow are not invoked here as a substitute for evidence; they are the historically identifiable population whose exclusion from publicly supported educational opportunity Congress would be required to document. The legislative record must justify both the inclusion of descendants and the boundaries of the remedial class. That is how lineage becomes an instrument of constitutional precision rather than an attempt to evade constitutional scrutiny.
None of this means that descendants automatically inherit a constitutional claim, or that every contemporary disparity is legally attributable to discrimination decades ago. It means that Congress can make findings about whether the deprivation it documents produced identifiable effects across generations, and whether descendants remain sufficiently connected to that injury to fall within the remedial class.
That answers the lawyer. The ordinary reader, however, asks something simpler: why should one college freshman receive $100,000 while the student beside her receives nothing? The answer is that the benefit is not a reward for being Black. It responds to what government denied a particular family. When government denied one generation educational opportunity, it also impaired that generation's ability to acquire the credentials, earnings, property, and savings that families pass on to the next. The descendant did not choose that inherited deficit. Meanwhile, the student beside her loses no seat, suffers no admissions penalty, and remains subject to precisely the same admissions standards.
What Affirmative Action Got Wrong
Perhaps, in the end, the constitutional mistake of affirmative action was not that America tried to do too much for Black Americans. It was that America stopped describing honestly what it was trying to remedy.
Over time, the nation traded one claim for another. The first said, in effect, that we excluded you and remediation is therefore owed. The second said that your presence enriches everyone's education. The first creates an obligation, while the second creates only a preference. When the Court decided in 2023 that the diversity rationale could no longer sustain the programs before it, it left the remedial question unanswered. That question is still with us. If government may remedy identified discrimination, what does it owe when the identified discrimination was its own, when the victims and their children remain among us, and when the consequences remain measurable?
HBCUs stand as living evidence of that unpaid debt. They were built because the law excluded Black Americans, and they have been sustained ever since on resources the law never equalized. Unprecedented investment in them, paired with direct educational restitution, would not complete the work of justice. It would, however, test whether the Constitution means what the Supreme Court has repeatedly said it means: that government may repair what government broke, provided the remedy rests on evidence and is tailored to the injury.
Affirmative action asked for diversity. Educational restitution asks for repair. And repair still requires payment.
______
A. Zachary Faison Jr., Ed.D., J.D., 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. He holds a doctorate in higher education policy and leadership from Vanderbilt University and a law degree from the University of Georgia, and he has taught constitutional law.
