* Jesse Climenko Professor of Law and Vice Dean for the Clinical Programs, Harvard Law School. This essay results from a lecture given by the author at the reparations conference hosted by the Boston College Third World Law Journal on March 14, 2003.
1 See Dalton Conley, Op-Ed, The Cost of Slavery, N.Y. Times, Feb. 15, 2003, at A1 (proposing a net-worth-based solution for reparations and generating several subsequent letters to the editor); Allen Guelzo, Reason in Disrepair, Wall St. J., Nov. 22, 2002, available at 2002 WL-WSJ 103126916 (criticizing a conference at Columbia University on reparations and the law); Gary L. Schell, Letter to the Editor, Slain Union Soldiers Paid ‘Blood Costs’ for Slavery, Wall St. J., Dec. 3, 2002, available at 2002 WL-WSJ 103127610 (responding to Reason in Disrepair by suggesting the lives sacrificed by Union Soldiers during the Civil War are ignored by reparations advocates); sources cited infra note 2.
2 ABC News 20/20: America’s IOU (ABC television broadcast, Mar. 23, 2001) (including clips of Chris Rock asking strangers on the streets of New York for their opinions on reparations for slavery as part of his show); Barbershop (MGM Pictures 2002).
3 See Charles J. Ogletree, Jr., Reparations for the Children of Slaves: Litigating the Issues, 33 U. Mem. L. Rev. 245, 245–47 (2003) (discussing motivation for reparations as representation of those who worked and died as a result of slavery).
4 I have made the connection between President Johnson and reparations in Charles J. Ogletree, Jr., Repairing the Past: New Efforts in the Reparations Debate in America, 38 Harv. C.R.-C.L. L. Rev. 279, 317–18 (2003) [hereinafter Ogletree, Repairing the Past].
5 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (recognizing “mixed motive” discrimination); see also Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003) (clarifying the evidentiary standard to be applied in mixed motive cases).
6 And so any redistribution of resources along the lines suggested by reparations advocates is justified, and the continuing failure to redistribute is wrongful.
7 See Derrick A. Bell, Jr., Brown v. Board of Education and the Interest Convergence Dilemma, in Critical Race Theory: The Key Writings That Formed the Movement 20, 22 (Kimberlé Crenshaw et al. eds., 1995) [hereinafter Bell, Interest Convergence].
8 Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism 7 (1992) [hereinafter Bell, Faces at the Bottom of the Well].
9 See Derrick A. Bell, Jr., Dissection of a Dream, 9 Harv. C.R.-C.L. L. Rev. 156, 157 (1974) (reviewing Boris I. Bittker, The Case for Black Reparations (1973)).
10 See Harbour Fraser Hodder, Riven by Reparations: The Price of Slavery, Harv. Mag., May/June 2003, at 12, 13.
11 See, e.g., Plaintiff’s Complaint and Jury Trial Demand, Farmer-Paellmann v. FleetBoston Fin. Corp. (E.D.N.Y. filed Mar. 26, 2002) (No. 02–CV–1862).
12 See, e.g., Slavery Era Insurance Policies Act, Cal. Ins. Code §§ 13810–13813 (West Supp. 2003); Act of May 4, 1994, 1994 Fla. Sess. Law Serv. ch. 94–359 (West) (relating to Rosewood, Florida) (codified in part at Fla. Stat. ch. 1004.60, 1009.55 (2003)); 1921 Tulsa Race Riot Reconciliation Act of 2001, Okla. Sess. Law Serv. ch. 315 (West) (codified at Okla. Stat. Ann. tit. 74, § 8000.1(3) (2002)).
13 See, e.g., John M. Broder, The Business of Slavery & Penitence, N.Y. Times, May 25, 2003, § 4, at 4 (discussing Los Angeles City Council’s unanimous approval of “an ordinance . . . that would require any company wishing to do business with Los Angeles to investigate and disclose any profits derived from the American slave trade”); Sabrina L. Miller & Gary Washburn, New Chicago Law Requires Firms to Tell Slavery Links, Chi. Trib., Oct. 3, 2002, § 2, at 1 (discussing Chicago Ordinance).
14 Plaintiffs’ First Amended Complaint, Alexander v. Governor of Oklahoma (N.D. Okla. filed Feb. 28, 2003) (No. 03–CV–133).
15 Ewart Guinier, Book Review, 82 Yale L.J. 1719, 1723 (1973) (reviewing Boris I. Bittker, supra note 9).
16 See Plaintiffs’ First Amended Complaint ¶¶ 2, 17, Alexander (No. 03–CV–133); Don Ross, Prologue to Tulsa Race Riot: A Report by the Oklahoma Commission to Study the Tulsa Race Riot of 1921, at ix, xi (2001) [hereinafter Tulsa Race Riot], available at http://www.ok-history.mus.ok.us/trrc/freport.htm (last visited Nov. 12, 2003).
17 See Alfred L. Brophy, Reconstructing the Dreamland: Contemplating Civil Rights Actions and Reparations for the Tulsa Race Riot of 1921, at 3 (2000) (preliminary draft of report to Tulsa Race Riot Commission) [hereinafter Brophy, Preliminary Report] (unpublished, available online at http://www.law.ua.edu/staff/bio/abrophy/abrophy_links.html (last visited Nov. 12. 2003)).
18 Plaintiffs’ First Amended Complaint ¶¶ 5, 9, Alexander (No. 03–CV–133).
19 Okla. Stat. Ann. tit. 74, § 8000.1(3) (2002); John Hope Franklin & Scott Ellsworth, History Knows No Fences: An Overview, in Tulsa Race Riot, supra note 16, at 21, 22–23.
20 See Okla. Stat. Ann. tit. 74, § 8000.1(3).
21 Scott Ellsworth, The Tulsa Race Riot, in Tulsa Race Riot, supra note 16, at 37, 88.
22 Tulsa, 112 Nation 833, 839 (1921), quoted in Alfred L. Brophy, Reconstructing the Dreamland: The Tulsa Riot of 1921, at 107 (2002) [hereinafter Brophy, Reconstructing the Dreamland].
23 Tulsa Race Riot, supra note 16, at 20.
24 See Plaintiffs’ First Amended Complaint ¶¶ 66, 557, Alexander (No. 03–CV–133).
25 Professor Alfred L. Brophy, who wrote the seminal book on the Riot and its legal consequences, has been indefatigable in his efforts to ensure that the plaintiffs had their day in court. It is no understatement to say that this lawsuit could not have been filed without that fantastic resource. See generally Brophy, Reconstructing the Dreamland, supra note 22. Professor Brophy also served on the Oklahoma Commission to Study the Race Riot of 1921, and contributed a chapter to its report. See Alfred L. Brophy, Assessing State and City Culpability: The Riot and the Law, in Tulsa Race Riot, supra note 16, at 163, 163–83. He also wrote a more trenchant and as yet unpublished argument for reparations for the riot victims. See generally Brophy, Preliminary Report, supra note 17. Professor Eric J. Miller, Michele A. Roberts, Adjoa A. Aiyetoro, Suzette M. Malveaux, Johnnie Cochran, Denis C. Sweet III, and several local Oklahoma attorneys, including Leslie Mansfield and James O. Goodwin, are among the individuals who assisted me in drafting the complaint in Alexander, which is the suit brought on behalf of survivors of the Tulsa Race Riot of 1921 and descendants of the victims of that riot, suing the Governor of the state of Oklahoma, the city of Tulsa, the Chief of Police of the city of Tulsa, and the Tulsa Police Department for damages and injunctive relief under the Fourteenth Amendment, 42 U.S.C. §§ 1981, 1983, and 1985, and for supplemental state-law claims. See Plaintiffs’ First Amended Complaint ¶¶ 38, 489, 518–64, Alexander (No. 03–CV–133).
26 See Bell, Faces at the Bottom of the Well, supra note 8, at 7; Guinier, supra note 15, at 1719, 1723.
27 See Keith N. Hylton, A Framework for Reparations Claims, 24 B.C. Third World L.J. 31, 32–33 (2004).
28 See id.
29 349 U.S. 294 (1955) (“Brown II”).
30 See id. at 301. The first of the Brown opinions outlawed racial discrimination in public education. See Brown v. Bd. of Educ., 347 U.S. 483, 1495 (1954) (“Brown I”).
31 Roy L. Brooks, Integration or Separation? A Strategy for Racial Equality 190 (1996).
32 See id. at 104, 189–213.
33 See id. at 190.
34 See id. at 105. Brooks’s analysis replicates that of Professor Bell in his early article on interest convergence. See Bell, Interest Convergence, supra note 7, at 23–24.
35 See Brooks, supra note 31, at 256, 263–69, 284–85.
36 See Bell, Faces at the Bottom of the Well, supra note 8, at 10. Bell considers the relationship between racism and liberal democracy to be “symbio[tic],” such that “‘liberal democracy and racism in the United States are historically, even inherently, reinforcing; American society as we know it exists only because of its foundation in racially based slavery, and it thrives only because racial discrimination continues.’” Id. (quoting Jennifer Hochschild, The New American Dilemma 5 (1984)).
37 See id. at 3–10. As evidence of the permanence of racism, Bell points to the “unstated understanding by the mass of whites that they will accept large disparities in economic opportunity in respect to other whites as long as they have a priority over blacks and other people of color for access to the few opportunities available.” Id. at 10.
38 Id. at 12.
39 See Bell, Faces at the Bottom of the Well, supra note 8, at 8–9.
40 See id. at 7.
41 See Eric Foner, Diversity over Justice, Nation, July 14, 2003, at 4, 4.
42 See, e.g., Neil J. Smelser et al., Introduction to 1 America Becoming: Racial Trends and Their Consequences 1, 12–13 (Neil J. Smelser et al. eds., 2001) (stating that research suggests that stereotypes lead teachers to expect less of black students than non-Hispanic whites, and this expectation leads to lower performance on test scores); James P. Smith, Race and Ethnicity in the Labor Market: Trends over the Short and Long Term, in 2 America Becoming: Racial Trends and Their Consequences 52, 56 (Neil J. Smelser et al. eds., 2001) (stating that on average, blacks complete fewer years of education than whites).
43 See Bell, Interest Convergence, supra note 7, at 23–24.
44 See Randall Robinson, The Debt: What America Owes to Blacks 85–86 (2000).
45 See generally Hylton, supra note 27, at 36–38 (discussing hurdles such as identifying the victims and defendants, causation, and statutes of limitation); Calvin Massey, Some Thoughts on the Law and Politics of Reparations for Slavery, 24 B.C. Third World L.J. 157, 161–65 (2004) (discussing hurdles related to the passage of time).
46 See, e.g., U.S. Const. art. I, § 2, cl. 3 (three-fifths clause); U.S. Const. art. IV, § 2, cl. 3 (fugitive clause).
47 See Robinson, supra note 44, at 204–08.
48 70 F.3d 1103, 1106, 1111 (9th Cir. 1995).
49 Id.
50 Id. at 1111; see Administrative Procedures Act, 5 U.S.C. § 702 (2000); Tucker Act, 28 U.S.C. § 1491, 1505 (2000).
51 Civil Liberties Act of 1988, 50 U.S.C. app. §§ 1989–1989d (2000); Obadele v. United States, 52 Fed. Cl. 432, 444 (2002).
52 Obadele, 52 Fed. Cl. at 436.
53 Id. at 442.
54 See Plaintiffs’ First Amended Complaint, Alexander (No. 03–CV–133); Plaintiff’s Complaint and Jury Trial Demand, Farmer-Paellmann (No. 02–CV–1862); First Amended Complaint, Hurdle v. FleetBoston Fin. Corp. (Cal. Super. Ct. filed Sept. 10, 2002) (No. CGC–02–412388); see also Ogletree, Repairing the Past, supra note 4, at 298–308 (commenting on these suits).
55 Hylton, supra note 27, at 33–34.
56 Id. at 33.
57 See, e.g., Plaintiff’s Complaint and Jury Trial Demand ¶¶ 50–70, Farmer-Paellmann (No. 02–CV–1862).
58 See Ogletree, Repairing the Past, supra note 4, at 281.
59 See, e.g., Jim Auchmutey, Slave Museums Confront a Painful Past, Atlanta Journal-Const., Mar. 9, 2003 (describing “the sensitive nature” of the topic of memorializing slavery), available at 2003 WL 13244321; Jacqueline Trescott, Capitol Site Favored for Black History Museum; Presidential Panel’s Report Envisions 2011 Completion, Wash. Post, Apr. 3, 2003, (discussing “the long and often fractious history of deciding whether a museum dedicated to the African American story should be built on the [National] Mall [in Washington, D.C.]”), available at 2003 WL 17425494.
60 See Auchmutey, supra note 59.
61 See, e.g., Commission to Study Reparation Proposals for African Americans Act, H.R. 40, 108th Cong. (2003); H.R. 3745, 101st Cong. (1989); see also Ogletree, Repairing the Past, supra note 4, at 281, 290 (discussing Representative Conyers’ introduction of this bill each year for the last fourteen years).
62 Civil Liberties Act of 1988, 50 U.S.C. app. §§ 1989–1989b-9 (2000).
63 Act of May 4, 1994, 1994 Fla. Sess. Law Serv. ch. 94–359 (West) (relating to Rosewood, Florida) (codified in part at Fla. Stat. ch. 1004.60, 1009.55 (2003)).
64 See Rosner v. United States, 231 F. Supp. 2d 1202, 1205 (S.D. Fla. 2002) (discussing Plaintiff’s assertion that it was only after the Presidential Advisory Commission on Holocaust Assets released its report that they had the necessary facts for their complaint); Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 123–24 (E.D.N.Y. 2000) (discussing commissions created by the French government to draft proposals for redress of Holocaust-era injuries); Plaintiffs’ First Amended Complaint ¶ 22, Alexander (No. 03–CV–133).
65 Tulsa Race Riot, supra note 16.
66 See Editorial, Double Jeopardy: Suit Cites Statute of No Limitations, Daily Oklahoman, Feb. 28, 2003 (re-characterizing the 1921 Riot as a “racial war” that left both blacks and whites dead, and referring to reparationists as “professional race-baiters”), available at 2003 WL 13945084.
67 See, Arnold Hamilton, ’21 Tulsa Riot Case Polarizes: Some See Suit Emerging as Bellwether for Black Reparations Movement, Dallas Morning News, June 23, 2003, at 1A.
68 See Hylton, supra note 27, at 36–38; Anthony J. Sebok, How a New and Potentially Successful Lawsuit Relating to a 1921 Race Riot in Tulsa May Change the Debate over Reparations for African-Americans, Mar. 10, 2003, ¶¶ 1–4, at http://writ.news.findlaw.com/sebok/20030310.html.
69 See Rosner, 231 F. Supp. 2d at 1204 (tolling statute of limitations for 58 years); Bodner, 114 F. Supp. 2d at 121, 134–36 (tolling statute of limitations for over 50 years).
70 See Sebok, supra note 68, ¶¶ 22–27.
71 347 U.S. 483 (1954); see also Bell, Interest Convergence, supra note 7, at 20–24 (suggesting the Court’s opinion in Brown can best be understood by looking at its value to whites).
72 See Hirabashi v. United States, 828 F.2d 591 (9th Cir. 1987). But see Hohri v. United States, 586 F. Supp. 769 (D.D.C. 1984) (dismissing reparations claim on statute of limitations grounds).
73 Bell, Interest Convergence, supra note 7, at 22.
74 See Claudia Kolker, A Painful Present as Historians Confront a Nation’s Bloody Past, L.A. Times, Feb. 22, 2000, available at 2000 WL 2213090; Nicholas Von Hoffman, U.S. History, U.S. Riots: A Thread of Mob Violence, Civil Unrest, L.A. Times, May 15, 1992, available at 1992 WL 2914207.
75 Graphic evidence of this history of violence, often sponsored by states and municipalities, has been collected in photographs in Without Sanctuary (James Allen ed., 2000), a memorial to the victims of lynching throughout the nation. Many of the photos can be viewed online at the Without Sanctuary Musarium, http://www.musarium.com/ withoutsanctuary/main.html (last visited Nov. 12, 2003). These trophy pictures were circulated as souvenirs of the lynchings they depict. A similar photograph, entitled “Running the Negro out of Tulsa” is depicted in Professor Brophy’s excellent book, Reconstructing the Dreamland: The Tulsa Riot of 1921, supra note 22, and in the Greenwood Cultural Center’s Riot Museum in Tulsa, Oklahoma. The Greenwood Center also maintains an online museum of the Tulsa Race Riot at http://www.greenwoodculturalcenter.com/ (last visited Nov. 12, 2003).
76 Bell, Interest Convergence, supra note 7, at 20–24.
77 515 U.S. 200 (1995).
78 488 U.S. 469 (1989).
79 See Spencer Overton, Racial Disparities and the Political Function of Property, 49 UCLA L. Rev. 1553, 1558–59, 1568–70 (2002). Professor Overton states that mandatory segregation policies in education, employment, housing, and business increased the inequality in the control of resources between white Americans and black Americans. Id. at 1558–59. Furthermore, he asserts that wealth disparities that stem from past segregation reduce the ability of significant numbers of people of color to participate in democracy by making campaign contributions, purchasing airtime and billboards, and retaining lobbying assistance. Id. at 1568–70.
80 On empathy or “intimacy” as a goal of the reparations movement, see Eric J. Miller, Reconceiving Reparations: Multiple Strategies in the Reparations Debate, 24 B.C. Third World L.J. 45, 78–79 (2004).
81 See, e.g., Sebok, supra note 68.
82 See Ogletree, Repairing the Past, supra note 4, at 308–19.
83 See Derrick Bell, Brown v. Board Of Education: Forty-Five Years After The Fact, 26 Ohio N.U. L. Rev. 171, 175 (2000).
84 See Hylton, supra note 27, at 34–36.
85 See Miller, supra note 80, at 48–56.