San Francisco’s reparations fund has a serious constitutional problem

San Francisco’s “Reparations Plan,” signed by Mayor Daniel Lurie late last year, intends to correct historic ills, but good intentions don’t make unconstitutional policy constitutional.

Nor do they permit the government to address past discrimination with more discrimination.

And that’s exactly the problem with the Reparations Fund, which a group of city residents and the Californians for Equal Rights Foundation has challenged in court.

Under the Reparations Plan, eligible individuals could receive a $5 million lump-sum payment, annual income supplements for 250 years, forgiveness of all personal and educational debt, guaranteed city-backed insurance, property tax exemptions, and preferential treatment in city contracts and employment.

These are extraordinary benefits — and every single one of them is conditioned on race and ancestry.

The lawsuit filed by Pacific Legal Foundation on behalf of plaintiffs argues that the Reparations Plan is a straightforward violation of the Equal Protection Clause of the Fourteenth Amendment. And they’re right.

In 2020, San Francisco created the African American Reparations Advisory Committee to study the city’s history of discrimination. The committee released recommendations in 2023.

Then, in December, the Board of Supervisors unanimously passed an ordinance creating a Reparations Fund — administered by the city’s taxpayer-funded Human Rights Commission — to implement those recommendations. Mayor Daniel Lurie signed it into law on Dec. 23, 2025.

The eligibility criteria require applicants to be African American descendants of enslaved people or to have identified as black on public documents for at least 10 years. That’s the threshold. 

While eligible recipients must also demonstrate that either they or their ancestors went through one of the program’s qualifying harms, they do not have to prove that each of these harms was racially motivated.  San Francisco presumes the connection based on the race and lineage of the recipient.

That’s the constitutional line that San Francisco has crossed.

Under the U.S. Constitution, “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”

Thus, when a government program sorts people by race to determine who gets benefits, it must survive strict scrutiny: It must serve a compelling government interest and be narrowly tailored to achieve that interest. San Francisco’s plan fails on both counts.

Strict scrutiny of laws based on race and ancestry is necessary under the Constitution because, as one key precedent has held, “there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual.” 

Yet, in San Francisco’s view, ancestry, and not individuality, is destiny. Depending on your race, the government will assume that your individual challenges are insurmountable and compensable, or that your individual success is unforgivable and disqualifying. San Francisco is essentially pushing race-based stereotypes, which the Constitution doesn’t allow.

Richard Greenberg (a frequent contributor at The California Post) and Arthur Ritchie, the two resident taxpayers suing San Francisco, are not asking the city to ignore history. They’re asking that San Francisco treat them and all residents as individuals, which the Constitution requires. To that end, they’re asking that public money — their money — not be spent on a program that the Constitution forbids.

That’s a reasonable thing to ask. And under California law, taxpayers have standing to challenge exactly this kind of unlawful government spending.

There are real, lawful ways for San Francisco to address historic discrimination — such investing in housing, education, and economic development in historically harmed communities, in ways that help everyone who was affected, regardless of how the government might classify them racially.

Those approaches can be powerful. They don’t require the city to divide its residents by ancestry and diminish their individuality.

Taking history seriously means crafting remedies that actually hold up — legally, constitutionally, and as a matter of equal treatment under the law. San Francisco’s Reparations Fund, as written, doesn’t do that. The lawsuit challenging it deserves to succeed.

Acknowledging past injustice does not give the government license to spend public resources on programs that sort people by race and ancestry today. That’s not a radical position. It’s the position the Constitution requires.

Andrew Quinio is an attorney with Pacific Legal Foundation and represents the Californians for Equal Rights Foundation in its lawsuit against the San Francisco Human Rights Commission.