Remember the Harvard
Black Afro-American Studies
department? While Cornel West still
considers
decamping for Princeton, his colleague Charles Ogletree
has turned from the narrow pursuit of personal career goals
to the more noble cause of
slavery
reparations.
But a few things about the quest are puzzling. Like the choice of
plaintiffs. Says Ogletree, "Brown University, Yale University and
Harvard Law School have made headlines recently as the beneficiaries
of grants and endowments traced back to slavery and are probable
targets." Brown, in fact, was originally endowed by a family which
(like quite a few New England grandees of the time) made their money
on the slave trade. But the University that bears their name is not
accused of slave trading itself, just of taking their money. If it
can be sued, how about all the other recipients of their tainted cash?
Their descendants? Their shipbuilders? The descendants of the
shipbuilders? (If the ships were purpose built, it's at least as
strong a case).
And then there's the question of where the cash will go. Says Ogletree:
- The reparations movement should not, I believe, focus on
payments to individuals. The damage has been done to a group -
African-American slaves and their descendants - but it has not been
done equally within the group. The reparations movement must aim at
undoing the damage where that damage has been most severe and where
the history of race in America has left its most telling evidence. The
legacy of slavery and racial discrimination in America is seen in
well-documented racial disparities in access to education, health
care, housing, insurance, employment and other social goods. The
reparations movement must therefore focus on the poorest of the poor -
it must finance social recovery for the bottom-stuck, providing an
opportunity to address comprehensively the problems of those who have
not substantially benefited from integration or affirmative
action.
But the government, which Ogletree plans to include
as a plaintiff, and which has more money than the rest of
them put together,
already is disbursing funds targeted at
that class of individuals --- welfare programs among others. So, in
effect, Ogletree isn't proposing so much to rectify specific damages
to specific individuals (well-off blacks, he says, don't need to get
much), as to take an entire class of social programs out of the hands
of Congress, and give them to the courts. Would the courts also get
taxing authority to raise funds for the government programs they would
create as part of the reparations process? (And by the way, do funds
already disbursed through those programs count against reparation
damages?)
Lastly, there's the question of motive. You'd think a lawsuit
would be narrowly aimed at discovering the appropriate damages for a
specific tort. But Ogletree casts a wider net:
- Bringing the government into litigation will also generate
a public debate on slavery and the role its legacy continues to play
in our society. The opportunity to use expert witnesses and conduct
extensive discovery, to get facts and documentation, makes the
courtroom an ideal venue for this debate.
A full and deep conversation on slavery and its legacy has never
taken place in America; reparations litigation will show what slavery
meant, how it was profitable and how it has continued to affect the
opportunities of millions of black Americans.
Litigation is required to promote this discussion because political
accountability has not been forthcoming. ...
So Ogletree thinks that just about the entire experience of blacks
in America is grist for assessing the damages. I guess he wants to be
the first academic ever granted the power of subpoena to further his
social research.
Civil courts do not exist to "generate public debate". They exist
to adjudiciate disputes on narrowly considered factual situations,
according to relevant law. In fact, they have rules of evidence which
are designed to exclude facts which are not directly relevant to the
legal issues at hand. This is not a process which lends itself to
"full and deep conversation". The land claims of the Sioux, the
damages done to interned Japanese during World War II, the
discriminatory loan policies of the Agriculture department ---
precedents which Ogletree cites (well, not the Sioux, but he should
have) --- were all cases designed at redress of grievances for
specific government acts, not everything that has ever happened to
Indians, Japanese, or Blacks in America. "A full and deep
conversation on slavery and its legacy" might be a good thing, but a
civil court is not the right venue.
This seems to be an outbreak of one of the nastier infectious memes
that infests the United States: "If you don't like what you're getting
out of life --- your house, your job, the tenor of public debate on your
pet issue --- find someone to sue." But this is a new strain. Fortunately,
it doesn't seem virulent. At least not yet.