At a BC Law conference, a debate over amends for slavery

For seven hours on a Friday in March, at a symposium held in a fourth-floor lecture hall in a quiet corner of the Law School campus, the effects of African-American slavery were treated as an urgent matter for today's consideration: What is to be done now to redress the damage of well over a century ago?

The symposium was organized by BC's student-run Third World Law Journal, under the title "Healing the Wounds of Slavery: Can Present Legal Remedies Cure Past Wrongs?" It drew some of the leading proponents and critics in the emerging "reparations for slavery" discourse, as well as interested scholars from BC and other area universities and about 50 students who filled out the audience. The panelists will submit papers extending their arguments for a special issue of the Third World Law Journal due out next winter.

The keynote speakers were Professor Charles Ogletree of Harvard Law School and Professor Keith Hylton of Boston University School of Law. Ogletree is one of the nation's foremost advocates of slavery reparations; Hylton is a noted law and economics scholar who professes to be skeptical of lawsuits that claim a direct relationship between the immediate harms of slavery and modern plaintiffs' disadvantages.

Their presentations were a contrast in both style and content. Ogletree spoke passionately about slavery's history and about crimes committed against African-Americans in the Jim Crow years. Hylton, who was a student in Ogletree's criminal law course many years ago, gave a dispassionate analysis of the way traditional tort doctrine "has been stingy toward derivative claims."

Ogletree recounted the long, winding road of the reparations debate, noting that African-Americans who fought in the Civil War were promised "40 acres of tillable land" by General William T. Sherman—a promise that was rescinded by President Andrew Johnson. "There were reparations after the Civil War," Ogletree said, "but they were to former slave owners who were given income and land," a reference to laws passed in Missouri and the District of Columbia. Scholars in the 1960s and 1970s began again examining the case for reparations, but a common conclusion was that the wrongs of slavery were too far in the past. "And it's a remarkable, ironical, and perhaps just whimsical notion," Ogletree said, "that the slaves were told in 1865, 'It's too early to talk about reparations' and then in 1965 they're told, 'It's too late.'"

In recent years, a few potentially precedent-setting developments have offered new hope, Ogletree said. In 1988, Congress approved a reparations law to compensate Japanese-Americans who were interned during World War II. In 1997, a judge in Washington, D.C., called on the U.S. Department of Agriculture to settle a class-action suit filed on behalf of black farmers who had been systematically denied agricultural subsidies during the 1980s and 1990s; the eventual result has been a $1 billion federal payout. And now Ogletree is part of a team arguing a case before the U.S. District Court against the city of Tulsa and the state of Oklahoma stemming from the 1921 race riots in Tulsa, in which a prosperous black section of the city was destroyed by white mobs, aided and abetted by state and city officials. Tulsa is "ground zero" for reparations advocates, Ogletree said. "It is in our view the first, but not the last, of claims that will begin a real debate about reparations."

Making the counter- argument, Hylton zeroed in on a class-action lawsuit filed in March 2002 in U.S. District Court on behalf of descendants of slaves against FleetBoston, the Aetna insurance company, and CSX Railroad. The suit seeks compensation for labor that was uncompensated by these companies under slavery. He argued that the tort system, designed to redress damage or injury, shuts the door on claims in the distant past, and cannot be used to advance broad or historic "social welfare claims." The Tulsa case, he said, is different: There are surviving victims and evidence of government wrongdoing.

The more noteworthy disagreement to emerge in the course of the day, however, was among the proponents of reparations themselves, as advocates showed markedly different views of how their cause might best be advanced. Recognizing the potential for polarization, Ogletree said at the outset, "When I talk about reparations, I am not trying to win a popularity contest. I don't need your vote. I'm not looking for your blessings. I'm convinced this is an issue of great moment and that it will result in, I think, broad and fundamental change." Dean Alfreda Robinson, of the George Washington University Law School, took a similar stance. Responding to the argument that bringing up old grievances is "troubling settled waters," Robinson said, "There are no settled issues when it comes to matters of race."

But how best to stir the waters? How far can advocates get with an "I don't need your vote" approach? The questions were addressed in a lunch presentation by Eric Miller, a research fellow at the Harvard Criminal Justice Institute. Miller, who is working closely with Ogletree on the Tulsa case, criticized reparations lawsuits that make the blanket claim that whites have benefited from "unjust enrichment" due to slavery. "A moral claim for reparations is more complex than is usually acknowledged," he said. He raised questions about whether the educational and reconciliation goals of the reparations movement might be better achieved with a less "bellicose" style.

The most sweeping challenge to reparations activists was presented in an afternoon session by David Lyons of Boston University. Lyons is a professor of both law and philosophy. He cautioned against an approach that puts all whites on one side and blacks on the other. "American working people have not clearly benefited from the systems of slavery and Jim Crow. White laboring people and black laboring people both were disadvantaged by that division on the basis of race," Lyons said.

Lyons argued that the legacies of slavery and Jim Crow are still very much with us but that they should be addressed by programs that are not race specific. Mentioning national health insurance, a guaranteed annual income, educational opportunity, good public transportation services, and the elimination of residential segregation, Lyons said, "We could describe a number of programs that are not particularly targeted, could not be classified as 'reverse discrimination,' [but that would] undo the inequities of slavery and Jim Crow."

That vision, of course, requires a political will on the part of the American populace that some doubt exists. Indeed, one African-American in the audience put the question directly to Lyons: "Do you sincerely believe that this nation really gives a damn?"

Lyons responded that there have been "times when American public opinion has changed very substantially on specific issues." He was backed up by Dean Robinson: "I may be sounding schizophrenic here, but  . . . we have cause for being quite optimistic that things will change. Our history is that they have changed."

In closing remarks, Professor David Hall of Northeastern School of Law, who had served as moderator throughout the symposium, broached the reparations debate as something more than a financial matter. "This society is trapped," he said, "in a race conundrum." Reparation "has the potential to be the balm in Gilead, to heal the racially sin-sick soul of this nation." But it must "come from the heart of America and not just from its coffers," he said, "if it is to be that healing force."

Dave Denison

Dave Denison is a writer based in the Boston area.

Photo: Dean Alfreda Robinson of George Washington University School of Law, at the podium. Seated left is Professor Calvin Massey of the University of California at Hastings School of Law (formerly a visiting professor at BC Law). By Lee Pellegrini


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