a BC Law conference, a debate over amends for slavery
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
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that was rescinded by President Andrew Johnson.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
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."
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