"The Case for Reparations"

Charles Ogletree, Jr. 

Source:  USA WEEKEND, Aug 16-18, 2002, pp. 6-7.  This reproduction for academic purposes only.

Questions to Consider

1.  Has the U.S. government ever issued an apology for slavery? 
2.  What events show that the government may now be ready to acknowledge and redress past wrongs? 
3.  Why is it significant that in past cases the government has been willing to waive its immunity from suit? 
4.  How has the reparations cause gained greater credibility in the last decade? 
5.  What is the legal basis of the case for reparations? 
6.  What, according to Ogletree, is the fundamental difference between historic discrimination against African Americans and discrimination against other minorities?  How has the discrimination endured? 
7.  Besides compensation, what does Ogletree hope the debate over reparations will accomplish? 
8.  What form should compensation take and who should it go to? 

        The story of African slaves and their descendants in America is one of history's worst injustices.  No other group has been forced to endure what slaves did.  Beginning in the early 1600s, millions of Africans were brought to this country against their will, auctioned off like cattle, kept in bondage and forced to perform hard labor under the most wicked of institutions.  As many as 25 million lives were lost.  This atrocity was compounded by the U.S. government's resistance to issue even a formal apology in the 139 years since slavery was abolished.

        Now a number of events indicate the government's willingness to acknowledge and remedy past wrongs.  In 1988, a bipartisan Congress agreed to pay each aggrieved Japanese American $20,000 as a result of their forced internment during World War II.  More recently, the U.S. government reached a consent decree with a class of more than 20,000 black farmers to compensate for years of discrimination by the Department of Agriculture.  The case represents the largest civil-rights settlement ever, with a likely compensation of $1 billion.  The judge in the that case began his opinion with "Forty acres and a mule," the phrase that has become synonymous with African-American reparations.  In each instance, the government waived its immunity from suit, lifting the bar that ordinarily prevents a sovereign state from being taken to court.  That is important because it provides even more momentum to the case for reparations.

        Compensation claims, until recently, were marginalized as goals of radicals and fringe groups.  However, the effort gained ground after last year's U.N. Conference Against Racism issued a document defining slavery as "a crime against humanity."  The case has reached a fever itch, culminating in this weekend's planned "Millions for Reparations" march in Washington.  Since spring, two class-action lawsuits have been filed in the Northeast, and there is one in South Africa focusing on international claims of reparations related to the apartheid regime.

        The Reparations Coordinating Committee, of which I am co-chairman, plans to file an unprecedented reparations lawsuit in the coming months that could amount to trillions of dollars.  In the single largest reparations settlement involving blacks in America to date, the Florida Legislature approved in 1994 the payment of $2 million to survivors of the Rosewood race riots of 19233.  Our committee was formed in 1999, shortly after the release of Randall Robinson's galvanizing book The Debt:  What America Owes to Blacks.  We have spent the last two years engaged in legal research and identifying a number of potential defendants such as government entities, corporations and private institutions.  The legal team includes civil rights lawyers Adjoa Aiyetoro and Rose Sanders; attorneys Johnnie Cochran, Willie Gary and Dennis Sweet; social scientists Johnetta Cole, Manning Marable and Ronald Walters; and U.S. Rep. John Conyers, D-Mich., who introduced a bill in 1989 calling for a study of slavery.  All work on a volunteer basis.

        I first became aware of reparations as a student at Stanford University in the 1970s, when I met Audrey "queen Mother" Moore, the matriarch of the movement.  But it wasn't until years later, when I began to really study slavery and talk with Robinson, my close friend and fellow Harvard Law School graduate, that the issue became personal, and now I've embraced reparations as the most important work of my legal career.

        Reparations stem from, but are not limited to, a "breach of contract" between newly freed slaves and the government.  The formal period of slavery ended as a result of the Emancipation Proclamation, signed in 1863 by President Lincoln.  In January 1865, slaves were promised, among other things, "a plot of not more than (40) forty acres of tillable ground" in Special Field Order No. 15, issued by Gen. William T. Sherman.  But three months later, the order was rescinded by President Andrew Johnson, and the government seized the land it already had given to 40,000 blacks in Florida and South Carolina.  In the end, four million men, women and children across the nation were freed without a cent.

        The root of the word "reparations" is "repair," and it is without question that damage has been done.  Of course, African slaves and their descendants are not the only group to suffer in our nation; the Native American, Irish, Italian, Mexican - almost every minority has been singled out, wronged or discriminated against.  The fundamental difference in the case of African Americans is that it was written and enforced law, not just a matter of custom.  Equally important is that slavery in America, which existed for nearly 250 years, was followed by an era of legalized discrimination and continuing practices that perpetuate black subordination.  The legacy of slavery is seen today in well-documented racial disparities in access to education, health care, housing, employment and insurance, and in the form of racial profiling, the high rate of single-parent homes and the disproportionate number of black inmates.

        Bringing the government into litigation will generate a long overdue national debate about slavery.  The claim will demonstrate, among other things, the significance of slavery to this country's development, how its benefits extended to every segment of the economy, and how it still adversely affects millions of black Americans.

        One major challenge is moving past popular misconceptions.  A few years ago, HBO's The Chris Rock Show did a segment on reparations.  Rock, whose comedy often deals very directly with race, interviewed people on the streets of New York.  He asked blacks in Harlem if African Americans should receive reparations.  They answered yes - and in the millions of dollars.  The attitude of whites in Midtown could be summed up with he phrase "Kiss my white butt."  Rock struggled to get whites to contribute even one dollar to his personal reparations fund.  This vignette is so funny precisely because it presents an accurate picture of what people seem to think African-American reparations are about:  blacks asking any and all whites for a handout, and whites telling them where to go.

        My own view is compensation shouldn't be in the form of individual checks.  It's not designed to benefit the Tiger Woodses and Oprah Winfreys or so many other who have overcome the barriers of institutional discrimination.  Instead, a trust fund should administer money received through claims, and an independent commission should distribute those funds to the poorest members of the black community, where damage has been most severe.

        But the reparations effort is not solely focused on money.   Underlying this movement is a unifying principle we can't continue to ignore:  This is about making America better, by helping the truly disadvantaged.  For more than a year, we have traveled the world to make the case for reparations, holding presentations in Chicago, Memphis, Detroit and Africa.  We have spoken at large conferences as well as small black churches.  People are excited and relieved that someone is finally focusing on the fact that in many respects blacks are bottom-stuck to this day.  Some symbolic progress has occurred, but there is a growing sense the government has the moral authority and economic resources to address America's problems in a more comprehensive way.  African-American reparations can achieve that goal.

Charles Ogletree, Jr., a renowned Harvard Law School professor, is a criminal law specialist and the Jesse Climenko Professor of Law at Harvard University.