How Congress Can Respond to George Floyd | Opinion

What comes next? With peaceful protests, riots and looting gripping dozens of American cities large and small, it is time to ask what comes after the passions cool.

If history is a guide, little will change. The officer who murdered George Floyd will get justice, but other bad cops will use the color of state power to wreak havoc on the lives of people—and their unions will largely stand behind them. Communities gutted by rage and opportunistic looting of the desperate will remain bereft of hope. There will be grandstanding and pandering by politicians, and maybe a bone thrown here and there, but it is very likely that the most disadvantaged in our society will be the ones most hurt by this outburst of anger and frustration. As one pastor on the predominately African-American west side of Chicago noted, the area that was devastated over the past few days had not yet recovered from the 1968 riots after the murder of Martin Luther King Jr.

The facts are bleak and what we are doing isn't working. There has been some progress for African-Americans, but not nearly enough. According to the National Institutes of Health, the life expectancy of white people is four years longer than black people. The Census Bureau reports that about 28 percent of African-Americans live in poverty, compared with about 12 percent of white Americans. A study by the Cleveland Federal Reserve Bank found that if no changes are made to policy, it would take over 200 years for the average black family to have 90 percent of the wealth of the average white family. African-Americans are five times more likely to be incarcerated. Even those fortunate enough to make it to college—the gateway to success in America—fare much worse than their white colleagues: Black dropout rates are more than double white ones.

Both Democrats and Republicans have their preferred remedies for this sad state of affairs. Democrats want to expand the social safety net; Republicans worry about the incentives this creates for hard work and self-reliance. Democrats want to use race-based preferences to expand opportunities for those historically barred from elite institutions; Republicans generally share the view, as expressed by Chief Justice John Roberts, that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Democrats want to improve public schools with more money; Republicans want to improve public schools by subjecting them to competition. Democrats talk about respect; Republicans talk about family values.

Both sides claim the moral high ground and posture for votes. But African-Americans continue to suffer and to feel oppressed.

There is a way forward and it should be founded on the following core principles. It must be based on the idea that our society is judged by how we provide opportunities for everyone to succeed. It must be depoliticized as much as possible. It must be based on the best available social science, supported by experiments wherever possible. And it must be accountable to the American people.

While this sounds impossible, these are the principles invoked during the New Deal when we created numerous federal agencies with exactly such a mission. In areas from securities regulation to environmental protection, the idea was to have experts in the field make rules based on general standards enacted by Congress. Under the Administrative Procedure Act, these rules would be crafted based on the best available science or social science, would be subject to public commentary and would be subject to judicial review, often using cost-benefit tests to hold the experts' feet to the fire. While the various alphabet agencies in Washington are not without their critics and their success varies widely, there have been several prominent successes, such as the Securities Exchange Commission and the Environmental Protection Agency.

Congress should now create a new five-member independent agency focused on African-American opportunity. The Bureau of African-American Affairs (BAAA) could bring together and/or fund the best minds in social science to develop empirically testable solutions to problems ranging from police tactics to education to health outcomes.

Right now, there are countless studies happening across the country on these topics, but there is no centralized body to take these lessons and put them into practice. Reports should be made and submitted to Congress. The commissioners of the BAAA (politically divided three to two, depending on the party in power) should be accountable for its performance. If there is any lesson to be drawn from this past week of violence, not to mention the failures of American policy since Reconstruction, it is that we need a coordinated federal response to the problems of race in America.

Protesters outside U.S. Capitol
Protesters outside U.S. Capitol Sarah Silbiger/Getty Images

There are many possible objections to this proposal, but let me address two.

First, the agency will become a hotbed of radical elements with a single point of view. While possible, the fact that the BAAA would be part of the executive branch would mean that it would be subject to control by the president (who would appoint the chair and whose party would have a majority of the seats), thus reducing the chance that it would be too narrow-minded. In addition, the American people can simply demand, through our representatives, that it do better. The BAAA could sponsor research from a variety of points of view, run experiments designed to get to the truth, and generally hold itself to the high standards of other agencies, like the National Institutes of Health.

Second, the BAAA would be unconstitutional. This is not a trivial concern, given the current composition of the Supreme Court and the widespread view that favoring someone on the account of race is, legally, the same as disfavoring someone on the account of race. In terms of public opinion, this concern is overblown. If the BAAA effectuates good social science and demonstrates that a particular policy will improve matters substantially net of the costs, these policies will get widespread support. In terms of legal doctrine, there are also analogs. The Bureau of Indian Affairs (BIA) has existed since the early 1800s, and it coordinates federal policy (and an entire chapter of the U.S. Code) for Native Americans. The Supreme Court upheld preferences in hiring at the BIA and has never hinted that special laws for Native Americans are constitutionally suspect, even though they are, at bottom, based on racial classifications. The special history of oppression of Native Americans justifies a special agency to help them. The descendants of those brought here in chains deserve the same.

It would be easy to dismiss the protests as the doings of troublemakers or driven by the pent-up energy of the broader coronavirus lockdowns. But while surely true to some extent, this is shortsighted. America can only improve if, while condemning violence, we put the underlying issues aside and look for a way to ensure this never happens again. Making a commitment to African-Americans that we will finally live up to the promise of emancipation by bringing the best social science to the matter is a good first step.

M. Todd Henderson is professor of law at the University of Chicago Law School.

The views expressed in this article are the writer's own.