Wednesday, April 25, 2018

Racial reentrenchment

 Time to Fix Civil Rights Act of 1964

Excerpted from: Christopher Dunn, Time to Fix Civil Rights Act of 1964,  Race Discrimination Protections, 2/24/2009 New York Law Journal 3 (col 1) (6 footnotes omitted).

With the arrival of the administration of President Barack Obama, civil-rights advocates have high hopes for a new era of civil-rights advocacy and protections. The president bolstered those hopes with his signing last month of legislation negating a 2007 U.S. Supreme Court decision that seriously undermined sex-discrimination protections in Title VII of the Civil Rights Act of 1964.

Important as that step was, it was just the first 'fix' of many being considered to address Supreme Court decisions that have seriously damaged the Civil Rights Act. Of particular significance is possible legislative restoration of essential protections against race discrimination that the Court eviscerated in 2001. The rise and fall of these historic protections in the Supreme Court, beyond illustrating the Court's central role in civil rights, provide a roadmap for appropriate legislative reform.

Overview of 'Title VI'

Included in the Civil Rights Act of 1964 was a Title VI, which addressed racial discrimination by entities receiving federal funds. Specifically, it provided that '[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.' Given the vast number of state, municipal and local entities as well as private institutions that receive financial assistance from the federal government, Title VI's statutory prohibition provides far-reaching protections against racial discrimination.


In its 1983 decision in Guardians Association v. Civil Service Commission, however, the Court ruled that this prohibition, which is found in 601 of the statute, reached only intentional racial discrimination. Because so much of the intentional discrimination that existed when the Civil Rights Act was enacted in 1964 had been eradicated by the time the Court decided Guardians Association, this ruling threatened to substantially undermine the vitality of the statute by preventing it from reaching less explicit forms of racial discrimination that were becoming far more common.

Nonetheless, the statute remained important because it was extended to federal-funds recipients that, even without a showing of intent, took actions that had a disparate impact on minorities. This considerable extension was based on 602 of the statute, which authorizes federal agencies to promulgate regulations implementing 601. And pursuant to 602, every federal department and more than two dozen federal agencies have promulgated regulations specifying that recipients of federal funds cannot use 'criteria or methods of administration which have the effect of subjecting individuals to discrimination.'

Under these so-called 'disparate-impact' regulations, a federal-funds recipients' policy or practice, even though race-neutral on its face, may violate Title VI if it imposes a disparate impact on minorities that cannot be legally justified. Title VI disparate-impact regulations have been used to challenge a wide array of policies and practices, including (to name just a few) procedures used to hire, evaluate and promote government employees; admissions and testing procedures employed by schools; procedures used in conjunction with public contracts; and policies governing access to housing.

Private Suits

Conspicuously absent from Title VI is any language that deals with the issue of whether private parties can bring lawsuits to challenge discriminatory practices by recipients of federal funds. In the absence of such lawsuits, enforcement of the statute would be left to the federal government, which could cut off or seek to recoup its funds as a sanction.

As early as 1974, however, the Supreme Court recognized that private suits were available. In Lau v. Nichols a class of non-English-speaking Chinese students challenged the San Francisco school district's failure to provide services that would compensate for the students' language deficiencies and alleged violations of the equal protection clause and of Title VI. The district court had dismissed the claim, and the Ninth Circuit had affirmed, but the Supreme Court reversed.

The Court addressed only the Title VI claim and in doing so relied expressly on the impact regulation then in effect, quoting the mandate that no recipient 'utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination.' The Court then held that the defendants' failure to provide the language services at issue violated the Title VI regulations:

It seems obvious that the Chinese-speaking minority receives fewer benefits than the English-speaking majority from respondent's schools system, which denies them a meaningful opportunity to participate in the educational program, all earmarks of the discrimination banned by the regulations.

Nine years later came Guardians Association, which involved a challenge to written examinations administered by New York City to make entry-level appointments to the police department. While ruling there that the statute's non-discrimination provision was limited to intentional discrimination, the Court seemed to endorse a private cause of action for violations of that impact regulations.

And shortly thereafter, in Alexander v. Choate, the Court, in a case involving 504 of the Rehabilitation Act, observed that Guardians Association 'suggests that the regulations implementing 504...could make actionable the disparate impact challenged in this case.' Consistent with these rulings, nine of the federal Courts of Appeals had endorsed the availability of a cause of action for private litigants seeking to remedy violations of Title VI's impact regulations.

Given the Supreme Court's consistent, though hardly definitive, treatment of Title VI, it was a surprise in 1998 when the Court granted a writ of certiorari in a case from the Third Circuit (involving a disparate-impact claim under regulations promulgated by the Environmental Protection Agency) in which the question presented was whether Congress intended 'to create a private cause of action in federal court...under section 602 of Title VI of the Civil Rights Act of 1964, simply by alleging discriminatory effect of the administration of programs and activities of federally funded state and local agency.' The case became moot, however, and the appeal was dismissed (though in doing so the Supreme Court vacated the Third Circuit's lengthy opinion holding that such a cause of action did exist).

It did not take long, however, for the Court, which was growing increasingly conservative, to find another opportunity to revisit the enforceability of Title VI. And that opportunity presented itself three years later in the form of Alexander v. Sandoval.

'Sandovol' and Its Aftermath

At issue in Alexander v. Sandoval was a policy, spurred by a 1990 amendment to the Alabama Constitution making English the state's official language, that required applicants for drivers licenses to pass examinations administered only in English.

Perhaps sensing a willingness by the Supreme Court to revisit basic principles of Title VI, Alabama advanced three fundamental challenges. First, the state argued that no private cause of action existed to remedy even acts of intentional discrimination prohibited by 601 of Title VI. Second, it contended that, even if such a private right of action did exist, it did not extend to impact regulations promulgated by federal agencies pursuant to 602. Finally, Alabama argued that Title VI disparate-impact regulations, regardless of the availability of a private cause of action, were invalid because they extended beyond the intentional-discrimination prohibition contained in 601 and therefore could not be said to reflect the intent of Congress when it enacted Title VI.

The Court split 5-4, with Justice Antonin Scalia writing for a majority that included Justices William Rehnquist, Sandra Day O'Connor, Anthony Kennedy and Clarence Thomas.

On the first issue of whether private litigants could sue under 601 to challenge intentional discrimination, the Court squarely rejected the state's position: 'It is beyond dispute that private individuals may sue to enforce 601.' And with respect to the last issue about whether 602's disparate-impact regulations were valid notwithstanding 601 being limited to intentional discrimination, the Court only assumed they were 'for purposes of deciding this case' because the state had not properly challenged their validity.

That left to be decided the issue of whether a private right of action existed to enforce the impact regulations. More specifically, the question was whether, since Title VI did not by its terms authorize private lawsuits, an 'implied' right of action existed to enforce the disparate impact regulation.

Employing an analysis that purported to be guided by Congressional intent, the Court readily concluded that Congress did not intend to create an implied right of action to enforce the Title VI's disparate-impact regulations. As an initial matter, it held that 602 itself did not create any such right. This was not surprising, given that 602 purported to do nothing more than to authorize federal agencies to issue regulations.

More significantly, the Court rejected the more fundamental proposition that the regulations created enforceable rights, concluding that this argument 'skips an analytical step.' According to the Court,

Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Thus, when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself.

Because 601 was limited to intentional discrimination and because 602 created no enforceable rights, argued the Court, there was no connection between the disparate-impact regulations and any Congressionally-created enforceable right. Thus, the disparate-impact regulations were rendered unenforceable through an implied right of action.

Sandoval did not necessarily mark the death knell of Title VI disparate-impact litigation because, as the dissent pointed out, private parties might still be able to resort to suing under 42 U.S.C. 1983, which the Court in 1980 had held creates an express cause of action to enforce certain rights contained in federal statutes and the Constitution. The three Courts of Appeals that have addressed the issue since Sandoval, however, all have held that no cause of action is available even under 1983 to enforce Title VI's disparate-impact regulations. In doing so, the lower courts have relied on the Sandoval analysis to conclude that the regulations themselves simply contain no enforceable rights and therefore have nothing that can be enforced through 1983. And thus ended private litigation seeking to remedy a wide range of racially discriminatory practices.

A Legislative Fix

Last April, identical bills were introduced in the House of Representative and in the Senate that would restore the enforceability of Title VI's disparate-impact regulations. In light of the Supreme Court's interpretation of Title VI in Sandoval, which effectively precluded any notion of enforceable disparate-impact regulations, the proposed legislation simply dispenses with a regulatory approach to racially disparate impact practices.

Rather, it amends 601, the section that expressly bars intentional discrimination, to add a new subsection that would also bar any practice 'that causes a disparate impact on the basis of race, color, or national origin.' It also would amend 602 to expressly state that private individuals could bring lawsuits to remedy violations under Title VI, including the new disparate-impact provision.

These bills expired with the end of the last Congress but are likely to be reintroduced this coming summer. If civil-rights advocates have their way, Mr. Obama will have another opportunity to sign a bill restoring important discrimination protections that have fallen victim to the Supreme Court.

CHRISTOPHER DUNN is the associate legal director of the New York Civil Liberties Union.

Recent Developments in Desegregation Cases

Danielle Holley-Walker

Excerpted from: Danielle Holley-Walker, A New Era for Desegregation , 28 Georgia State University Law Review 423 (Winter, 2012)(248 Footnotes)



In recent years, there has been significant activity in a handful of desegregation cases. Many of these cases have remained dormant for decades, but these pending cases are now being used to combat resegregation, gain additional resources for impoverished school districts, and challenge the growing influence of charter schools.

A. The Role of the Federal Government

The federal government will likely be the decisive factor in determining whether there is a new era in desegregation cases. One of the reasons that desegregation litigation has failed to have a significant impact in recent history is that over the past forty years, under no administration, Democratic or Republican, has DOJ taken a thoughtful, transparent, comprehensive, and strategic approach to its school desegregation Due to the federal government's role as plaintiff in a large number of the remaining desegregation cases and the historic lack of attention to these cases, if desegregation cases are going to become reinvigorated, the federal government will have to take a leading and strategic role in the process.

The history of the federal government's role in desegregation cases is complex and has had more twists and turns than a mystery novel. Mirroring the broader history of desegregation itself, the federal government took almost no steps to initiate school desegregation litigation in the ten years following Federal involvement in desegregation cases took off after the passage of the Civil Rights Act of 1964, specifically Title IV, which authorized the Attorney General to begin desegregation litigation against states and school districts after receiving a written complaint from private individuals, and Title VI, which prohibited racial discrimination in programs that received federal money. In the 1960s the federal government brought approximately six hundred administrative proceedings and over five hundred lawsuits against school districts and states to force desegregation. President Nixon's administration was the end of these aggressive initiatives and kicked off the next several decades of neglect (sometimes benign, at other times intentional) of the traditional desegregation cases.

After the election of President Barack Obama, there have been questions about the approach that the DOJ and other federal agencies will play in the continuing struggle to racially integrate America's public schools. The current Civil Rights Division of the DOJ has publicly expressed a commitment to enforcing the traditional desegregation orders in cases in which the United States is a plaintiff. The Civil Rights Division recently stated, The enforcement of the Equal Protection Clause and Title IV in school districts is a top priority of the Justice Department's Civil Rights

An important indication of the DOJ's renewed commitment to desegregation cases is the recent activity in a desegregation case in Walthall County, Mississippi. The Walthall County school system was ordered to desegregate in 1970. In the 1970 desegregation order, the district court enjoined the school district from:

[D]iscriminating against any student on the basis of race or color in the operation of the Walthall County School District and failing or refusing to immediately terminate the operation of a dual system of schools based on race and to operate, now and hereafter, a single, non-racial unitary system of public schools.

In 2007, the DOJ sought information from the school district about whether the district was in compliance with the 1970 Order. After receiving the school district's responses, the DOJ alleged that the district was in violation of the desegregation order. The DOJ asserted that the school district allowed approximately three hundred students a year to complete intra-district transfers. Most of these students were white students who sought to transfer out of their assigned residential zoned school to another school in the district that is predominately white. These transfers allowed one group of schools to become racially identifiable white schools, while the student enrollment in other schools became predominately black.

The DOJ also alleged that the school district administrators clustered disproportionate numbers of white students into designated classrooms at three schools, creating segregated, all-black classrooms at each grade

The school district declined to file a response to the DOJ's allegations, and the district court entered a finding that the evidence supported the DOJ's allegations. The district court concluded that the school district was in violation of the 1970 Order and ordered the school district to deny all requests for intra-district transfers, except in limited circumstances. The district court further ordered the school district to cease using race in the assignment of students to classrooms in a manner that results in the racial segregation of

A further indication of the DOJ's seeming renewal of its commitment to the desegregation docket is the ongoing monitoring provisions the DOJ sought in the Walthall County case. Upon the DOJ's request, the district court ordered the school district to annually report the numbers of intra-district transfers and the racial demographics in classrooms. This signaled the DOJ's intention to closely oversee the school district's efforts to comply with the most recent court order.

The DOJ cited the threat of resegregation as its primary reason for reactivating the Walthall County, Mississippi, desegregation case: More than 55 years after Brown v. Board of Education, it is unacceptable for school districts to act in a way that encourages or tolerates the resegregation of public

Of course, the renewed activity of the DOJ and private plaintiffs to enforce desegregation orders may also spur school districts to actively attempt to close the pending cases. As noted by Wendy Parker, many school districts are aware they are still under a desegregation order, but many districts do not actively seek to have the cases terminated.

B. The Role of Private Plaintiffs

There are also indications that in desegregation cases with private plaintiffs, there may be a renewed effort to enforce desegregation orders.

This renewed interest of private plaintiffs is evident in the ongoing desegregation case in Tangipahoa Parish, Louisiana. Considering the centrality of football to Southern culture, it may come as no surprise that a dispute over the hiring of a high school football coach led to the first significant activity in decades in a desegregation case in Tangipahoa Parish. The 1965 desegregation case was filed by private plaintiffs who were represented by lawyers from the NAACP Legal Defense Fund.

The plaintiffs alleged that the failure of the school district to hire an African-American football coach was a classic example of how those in control of the Tangipahoa Parish School System have historically ignored and refused to respond to their responsibility under the Fourteenth Amendment to eliminate all vestiges of racial discrimination in the public school In particular, the plaintiffs argued that without the ongoing supervision of the district court in the desegregation case, the school district continued to engage in a historical pattern of racial discrimination against black teachers and administrators. The plaintiffs urged the district court to resume an active role via the desegregation case and to provide oversight for the hiring decisions of the school district. The plaintiffs also insisted that the burden was on the school district to demonstrate that its actions were not racially discriminatory, due to the judgment that the school district violated the Equal Protection Clause.

In the wake of their initial Motion for Further Relief, the plaintiffs filed additional motions, requesting the court make findings and enter orders related to student transfers and compose interracial committees to locate qualified minority faculty members. After an extensive evidentiary hearing, the district court ordered the hiring of an African-American football coach and it ordered the defendant school district to draft a consent order to address other issues, such as student transfers.

Almost two years after that order, and after countless negotiations between the parties in consultation with the court's compliance officer, the district court issued a comprehensive order to address the conditions and facets of the operations of the school system in which additional remedial efforts are needed and for which judicial supervision should The district court focused on several areas: student assignment, administrative and faculty assignments, and implementation of the order.

The recent activity in the Tangipahoa Parish case provides a window into the potential future of traditional desegregation litigation. These cases require ample financial and time resources for plaintiffs. These cases may lay dormant for a substantial time; often, there must be an event to precipitate the commitment of resources to pursue the essential reopening of the case. The scope of the court oversight is potentially broad and may impact a diverse number of topics.

In lean economic times, a desegregation case may provide a unique opportunity to allocate additional resources to impoverished school districts and minority students.

C. Desegregation and School Choice

Frustration with school choice initiatives, particularly the proliferation of charter schools, may also provide an impetus for private plaintiffs to seek to enforce desegregation orders. Traditional desegregation cases may become a battleground for concerns about racial isolation in charter schools and the broader debate between integrationists and reformists. The ongoing desegregation litigation in Little Rock, Arkansas, provides an instructive example of the way desegregation and school choice come into tension. In 1982, the Little Rock School District (LRSD) filed suit against the Pulaski County Special School District (PCSSD), the North Little Rock School District (NLRSD), the State of Arkansas, and the State Board of Education. These three school districts are all located in Pulaski County, Arkansas, the most populated metropolitan area in the state. LRSD prevailed in the lawsuit, with a finding that the state and the school districts acted concurrently in engaging in segregative practices across school district lines. The Eighth Circuit concluded that:

The defendant school districts have acted concurrently and independently to perpetuate the interdistrict problem of school segregation. The long legacy of inferior schools for blacks in PCSSD and NLRSD ... induced many blacks to attend school in LRSD, often with a subsidy from PCSSD or NLRSD. PCSSD ... has perpetuated segregation through school siting and student assignment, unequal apportionment of the transportation burden between the races, failure to meet staff hiring goals, overclassification of black pupils in special education programs, and failure to cultivate the full participation of black students in the educational process.

The court further found that the state and PCSSD engaged in practices that created and perpetuated housing segregation in Little Rock, further contributing to racially segregated schools across all three districts. The school districts urged the court not to find inter-district violations in the wake of the Supreme Court's decision in Milliken The Eighth Circuit rejected the comparison to Milliken I, finding that Pulaski County had a history of state-imposed segregation, inter-district transfers, boundary changes, and housing discrimination that were not part of the record in Milliken

These findings of inter-district constitutional violations led to a 1989 settlement agreement between the parties (1989 Settlement The key features of the settlement agreement were: that all three school districts would permit and encourage voluntary majority-to-minority inter-district the designation of inter-district schools that would maximize the participation of students from all three districts and have an ideal racial balance of 50% black and 50% non-black; the creation of additional magnet schools with racial balancing goals to encourage voluntary inter-district transfers; and the infusion of state funds to create these schools and fund transportation for inter-district transfers.

In May 2010, the LRSD filed a motion seeking enforcement of the 1989 Settlement Agreement. LRSD alleges that the State Board of Education has violated the agreement by authorizing the uncontrolled inter-district movement of students in Pulaski County by its unconditional approval of open-enrollment charter schools in Pulaski The Arkansas Charter Schools Act of 1999 gives the State Board of Education the authority to approve applications for open enrollment charter schools. The Act specifies that for school districts under desegregation orders, the State Board of Education shall carefully review the potential impact of an application for a public charter school on the efforts of a public school district or public school districts to comply with court orders and statutory obligations to create and maintain a unitary system of desegregated public LRSD alleges that the State Board of Education has failed to properly apply this portion of the Charter Schools Act.

LRSD alleges that the State Board of Education has approved essentially two groups of charter schools that violate the 1989 Settlement Agreement. No excuses charter schools have been approved for operation within the boundaries of LRSD. These charter schools have almost exclusively black enrollment and are high-poverty schools. The plaintiffs allege that these no excuses charter schools are racially isolated and will likely suffer from the trends seen in other high-poverty schools, such as a lack of highly qualified teachers and administrators and a lack of parental involvement.

The State Board of Education has also approved a group of magnet charter schools in Pulaski County. The plaintiff argues that these schools do not meet the racial balance goals of the 1989 Settlement Agreement because white students are overrepresented, and that these schools are draining non-black students and high performing students from the traditional public schools in Pulaski The plaintiff is requesting that the district court enjoin the approval of any additional open enrollment charter schools in Pulaski County and any increase in the enrollment of existing charter schools.

This latest development in the Little Rock desegregation case is an important moment in the history of traditional desegregation cases. As the UCLA Civil Rights Project demonstrates, the debate surrounding race and charter schools has been ongoing over the last few decades as charter schools have risen in popularity. Now, through the prism of a traditional desegregation case, a district court will have the opportunity to explicitly decide whether charter schools drain high-achieving students from the traditional public school systems and whether authorizing large numbers of charter schools encourages patterns of racial segregation.

Modern Narratives About Race and Slavery: Post-Racialism, Race-Consciousness, and Reparations

Atiba R. Ellis


Permission Requested: Atiba R. Ellis, Polley V. Ratcliff: a New Way to Address an Original Sin? , 115 West Virginia Law Review 777 (Winter 2012) (158 Footnotes)


      The past is never dead. It's not even past. --William Faulkner

      A remarkable thing happened in Wayne County, West Virginia, on April 6, 2012. Judge Darrell Pratt of the Circuit Court of Wayne County entered a decree declaring that the children of Mr. Peyton Polley--Harrison, Louisa, and Anna --who had been freed from slavery in 1849 and then kidnapped and forced again into slavery in 1851--“were, and are, FREE PERSONS as of March 22, This remarkable judgment ended a 160-year saga by giving a final resolution to this long-open case.

      As remarkable as this judgment is, what is more remarkable is the motivation behind it and what it could mean for how we think about race in twenty-first century America. The plaintiffs, through their next friend, Mr. James L. Hale, a fifth generation descendent of Harrison Polley, pursued this action to have a declaration on the record concerning the legal status of the Polley children. Indeed, the Court itself, on the record, stated that it granted a trial on this matter under its equitable powers under the nunc pro tunc doctrine to “set the record straight” about the history of the Polley family. This was not only litigation to remedy an omission from the judicial record; this litigation represented a kind of truth telling about the American history of slavery, a telling validated by the fact that it took place under the sanction of a court and was validated by entry of a final judgment. This Essay will argue that this kind of “Truth and Reconciliation” process can lead to a transformative result for the participants and for society by allowing us to reframe our conceptions of the legacy of American slavery.

      While writing this Essay, I told various friends, acquaintances, and colleagues about this singular happening--the trial of a Dred Scott-era kidnapping and emancipation case. Aside from the amazement people expressed, the story of the 2012 Polley v. Ratcliff litigation elicited reactions that ranged from befuddlement about what this case meant, to curiosity about the narrative, to amazement that a court would expend judicial resources on an irrelevant matter. In particular, several of my colleagues inquired about the legal theory behind the case; some asked what the plaintiffs in this case could expect to get out of this decision, if anything, especially in light of the fact that the Thirteenth Amendment to the U.S. Constitution ended slavery. Other colleagues wondered whether a follow-up suit for damages might be appropriate in light of the emancipation ruling.

      These different ways of seeing the Polley case lie at the heart of the argument this Essay will make. This Essay claims that Polley suggests a novel approach to thinking about our history of slavery in particular, and more generally, a way of having discussions about the American legacy of racism. The reactions I mentioned above revealed the three different lenses through which we currently look at this history: the lens of reparations for damages done during slavery; the lens of race-consciousness (even if there is nothing one can “do” about the past); and the lens of declaring the issue moot. This last view echoes the perspective announced in recent slavery reparation litigation-- that such claims are stale --and it echoes the post-racialism paradigm that such discussion is irrelevant.

      Yet, some, including the family of the plaintiffs and the Circuit Court Judge, believed that history needed to be clarified--that the record should be set straight for the benefit of the descendants and for society. This approach--a state-sanctioned airing of the history of racial oppression through the acknowledgement that the Polley children were indeed free persons who were kidnapped and treated as chattel, along with a validating judgment where the state acknowledges the truth of this claim--seems to suggest a lens distinct from racial awareness, reparations, or post-racialism. The Polley litigation is more akin to a Truth and Reconciliation approach to the history of slavery in the United States. This novel methodology could lead to a needed dialogue and transformation of understanding about race in twenty-first century America.

      This Essay is meant to record the history of the Polley case within the realm of legal academia and to inform scholars, lawyers, and the public about this remarkable case. This is not to say that this historical period has not been discussed at length. A number of scholars have discussed this period generally. However, to my knowledge, the history of the Polley case has not been discussed in detail in the law review literature--though several historians have noted the famous Polley case in the academic historical literature of the late antebellum period. More importantly, this Essay serves a second purpose--it will use this history as a lens on the question of what our societal response to slavery and racism has been over time and what it ought to be in the twenty-first century. It will contemplate whether this court's approach can begin a serious dialogue about race and reparations in the United States.

      This Essay will approach this task in the following manner. In Part II, it explores the history of the nineteenth century Polley case, and then analyzes the April 6, 2012, judicial opinion. Through its nunc pro tunc powers, the court sought to, in its words, “set the record straight” concerning the plight of the Polley family both as a historical matter and in light of the fact that succeeding generations of the Polley's descendants will bear the legacy of this decision. Part III of this Essay examines the broader context through which we read cases like Polley by briefly considering our approaches to analyzing the American legacy of slavery and racism. Part IV of this Essay considers the Polley decision as a different precedent for addressing the rifts of slavery. This Essay ponders whether the Truth and Reconciliation or truth-telling approach suggested in the Polley case is an appropriate use of governmental resources and whether this approach--or a variation on it--could be used to address other slavery-era wrongs more broadly. The ultimate question this Essay poses is whether this approach can open a new avenue of reconciliation and truth telling in relation to the history of slavery in the United States. This Essay argues that such a conversation may better and more mindfully inform the ongoing dialogue about reparations for racial subjugation in the United States.

II. Polley v. Ratcliff: Then and Now

      In the main, the law was a foe, not a friend to free blacks.

       --Carol Wilson

A. The Nineteenth Century Polley Litigation

      In November 1839, David Polley of Pike County, Kentucky, wrote a will of manumission intended to emancipate his seven slaves. Under the terms of the will, Peyton Polley, along with his six siblings were to “be free and liberated from all servitude” after David Polley's death. After David Polley's death in January of 1847 and the subsequent probate of his estate, the seven Polley siblings of African descendants were emancipated. The African Peyton Polley family, which included Peyton's spouse, Violet, and the couple's twelve children, remained in Pike County, Kentucky, near Nancy Polley Campbell (David's daughter) and her husband, David Campbell. The Polley family and the Campbell family had a good relationship.

      Although the will freed the Polleys under Kentucky law, David Campbell and Nancy Polley Campbell decided to execute a deed of manumission (or bill of sale) to insure the freedom of the Polleys. They took this action because David Campbell, a failed businessman, gained a reputation as a heavy drinker, and allegedly distributed illegal alcohol. He generated a significant amount of debt from his failed enterprises and bad habits, and he feared that his creditors would attach the Peyton Polley family as collateral to secure Campbell's debt.

      To avoid this, David and Nancy sold the Peyton Polley family to Douglas Polley, a free black man residing in Ohio, on January 20, 1849. The Bill of Sale included Violet and seven children. The Circuit Court opinion states that Douglas Polley paid a sum of $5 for the family, as well as other various debts acquired by David Campbell that prohibited him from leaving Kentucky. However, other records show that Douglas Polley paid as much as $800 to emancipate and remove the family to Ohio. Once this transaction was completed, the Peyton Polley family migrated from Kentucky to Lawrence County, Ohio, just across the Ohio River from their former residence in Kentucky.

      After the Peyton Polley family took up residence in Ohio, David Justice, a well-known slave catcher, reached an agreement with David Campbell to settle a $1,000 debt in exchange for ownership of the slave children. On this basis, David Justice claimed that he was the rightful owner of the Polley children and took matters into his own hands to regain his property.

      On the night of June 6, 1850, Justice led a gang of four white men from Kentucky across the Ohio River into Ohio. They assaulted the Polley household and kidnapped seven of the Polley children: Hulda, Peyton (Jr.), Harrison, Nelson, Anna, Louisa, and Martha. Justice sold four of Peyton Polley's children, Harrison, Nelson, Louisa, and Anna, to William Ratcliff of Wayne County, Virginia for $1000. Hulda, Peyton (Jr.), and Martha were sold to James McMillian of Fayette County, Kentucky.

      The cases for the freedom of the Polley children were litigated separately in the separate states where the kidnapped children were taken. Hulda, Martha, Peyton (Jr.), and Mary Jane won their freedom after the case was tried in Pike and Fayette County, Kentucky, in 1853. Securing the freedom of the remaining four children in Virginia proved much more difficult.

      Governor Reuben Wood of Ohio initiated proceedings in Virginia, just as he had in Kentucky. Leroy D. Walton filed a writ of habeas corpus for the case of Peyton Polley v. William Ratcliff in 1851 in Cabell County, Virginia. The writ was issued, but William Ratcliff was allowed to retake possession of the Polley children until subsequent proceedings resolved the matter. The efforts undertaken by the State of Ohio continued through the governorships of Salmon P. Chase and William Dennison. On September 15, 1854, the case finally proceeded to trial, and the court declared the Polley children free persons. However, in 1855, the Virginia Supreme Court of Appeals reversed the decision on the grounds that the Cabell County Court lacked jurisdiction to hear the case. Under the law at the time, the case should have been tried where the persons in dispute resided, Wayne County, Virginia.

      Once the matter had been dismissed, John Laidley, a representative of Ohio and resident of Virginia, filed suit against Ratcliff to sue for the freedom of the three remaining Polley children. Laidley filed this lawsuit in 1856 in Wayne County, Virginia. Both Governor Chase and John Laidley shared Ralph Leete's sentiment that “it is wrong to let the case be abandoned now; if the Federal Government could spend $100,000 to reduce one man to slavery, certainly the State of Ohio should not withhold the necessary amount of means to restore three persons to The Polley case remained pending until March 22, 1859, when an incomplete and unsigned order was filed by the court on the record. The order suggests that counsel for Ratcliff was to show cause why the assignment of John Laidley as counsel should be set aside, reversed, and annulled. Ohio had spent more than $3,000 in prosecuting the suits and it was unlikely that the Virginia Polleys would be returned to freedom. After entry of this incomplete order, there was no further record, entry, or action in the case until 2012.

B. The Twenty-First Century Polley Trial

      In 2012, James L. Hale, the great, great grandson of Harrison Polley, petitioned the Wayne County (now West Virginia) Circuit Court to hold a trial in the Polley case. The Circuit Court granted Mr. Hale's petition and a trial was held on April 6, 2012.

      At trial, the court heard the matter through deposition testimony collected from the original trial in Polley v. Ratcliff, as well as depositions taken from the related Polley family cases. The court heard deposition testimony from Campbell and other witnesses. This testimony explained the nature of the intention to emancipate the Peyton Polley family both by will of manumission and by deed of manumission and to convey them to Ohio. Mr. Hale and other descendants of the Peyton Polley family presented this testimony. Additionally, members of the bar of Wayne County read into evidence deposition testimony from William Ratcliff, David Campbell, and David Justice. The essence of the defense was that David Campbell had engaged in a sham transaction in order to protect his “property”--the Polley children--from his creditors, including David Justice. On this basis, as the argument goes, Justice was justified in returning his property from Ohio to Kentucky, and the sale of his property to William Ratcliff was proper.

      Judge Pratt, speaking for the Circuit Court of Wayne County, West Virginia, rendered an Order and Judgment declaring that the Polley children should have been declared free as of 1859. In order to exercise its power to do so, the court relied on the equitable doctrine of nunc pro tunc (“now for then”) in rendering its decision.

      The nunc pro tunc doctrine allows courts the equitable power to remedy an injustice which existed due to the court's mistake or oversight in making a ruling. The doctrine is designed to remedy injustices where a delay of judgment effectively causes that judgment to be denied. In its modern usage, the doctrine is applied to correct mistakes that affect the rights of the burdened parties in matters such as criminal sentencing, post-conviction relief, murder convictions, bankruptcy, and immigration proceedings. Where the equities mandate application of the doctrine, the present court exercising nunc pro tunc power is obligated to apply the law that existed at the time the matter was being considered (that is the “now for then” element) and either render the ruling that was never made or render the correct ruling that is appropriate. The doctrine cannot apply where there is no evidence of a delayed disposition or an incorrect disposition. Interestingly, courts have applied the nunc pro tunc doctrine once in relation to fugitive slave cases, and in relation to matters stemming from slavery, it has never been applied since the mid nineteenth century.

      In Polley v. Ratcliff, the court reasoned that the delay of over 150 years had prejudiced the plaintiffs and that the case was appropriate for a nunc pro tunc disposition. The court in its Conclusions of Law applied the law related to fugitive slaves and the emancipation of slaves, as it existed in Ohio, Kentucky, and Virginia during the 1850s, to the facts presented. Specifically, the court reasoned that under the law in effect in the 1850s, the family of David Polley had adequately affected the emancipation of the family of Harrison Polley. This was true both through the valid will of manumission that David Polley had properly executed and duly probated and through the deed of manumission (or bill of sale) of the Polley family by David and Nancy Campbell to Douglass Polley. Thus, it followed that the detention of the Polley children by David Justice and the detention of the children (and their return to slavery) by William Ratcliff was unlawful. Moreover, the court rejected as a common and outlawed strategy that the defense raised by Ratcliff that the bill of sale was fraudulent. On this basis, the Circuit Court of Wayne County, West Virginia reached the conclusion that the Polley children should have been, and are, declared free persons as of 1859.

III. Modern Narratives About Race and Slavery: Post-Racialism, Race-Consciousness, and Reparations

      We do not see things as they are, we see them as we are.

       -- Anais Nin
      The Polley case brings to the present a past that is often referred to, but not often discussed, in non-academic contemporary contexts. Indeed, Judge Pratt and the Polley descendants had a dual purpose in bringing this 150 years overdue case to trial. The judge and the descendants sought to “set the record straight” for the knowledge of the Polley descendants and to raise the historical awareness of the general public. In doing so, this case raises larger concerns about how we ought to consider the American history of slavery in our modern context. This next section will offer some introductory remarks on this matter and then briefly examine our varying approaches to this question--how America considers the narrative of slavery and the resulting challenges of race that come with it.

      To put it directly, slavery has often been called the “original sin” of the United States. Slavery existed in each one of the thirteen original colonies. And although never referred to by name in the document itself, the original Constitution of the United States made reference to and laid a foundation for the federal government to mediate the political economy of slavery during the first half of the nineteenth century. Subsequently, the abolition of slavery and the effort to address the consequences of its ending were the key purpose of the Reconstruction Amendments to the Constitution. These amendments have defined our constitutional law and serve as a cornerstone of the individual rights every American holds.

      Moreover, slavery and the racial, cultural, and political divides that slavery created have been intrinsic parts of the history and present-day culture of the United States. Though it goes beyond the scope of this short Essay to provide an extended discussion of the history of slavery and its overarching contribution to defining modern American race relations, most would agree to the basic proposition that slavery defined the American condition. The question then becomes how best to understand this past and what relevance should it have in our present. The claim of this Essay is that slavery is the defining first idea of relations between peoples in the United States.

      At the heart of this idea is the notion that slavery has defined this nation and shaped its contours. This claim creates a narrative lens through which one might view how American society functions and what its core principles are. Slavery thus created a narrative within the United States about how Americans should understand the damage done by slavery. In this narrative, slavery created (or at least contributed to) a hierarchy based upon white male supremacy and the subjugation of women and people of color. While some might argue that this is the correct assumption through which to understand American society, others would argue that such assumptions are no longer warranted given the passage of time and the advancements that minorities have made in American society.

      At the heart of this larger debate is the question of what remedy, if any, ought to be provided in light of the harms one believes are still relevant from the history of slavery (assuming one believes there are still present harms). Put another way, what obligation still exists to create equality between those who suffered slavery and those who benefitted from slavery? There are those who, depending on their narrative, would argue that the harms of slavery have already been remedied, or would argue that the harms need to be addressed in an ongoing way. Even though it may appear that this issue is one of mere history, these debates about remedies for the legacy of slavery continue in modern-day issues, like affirmative action.

      Although one might debate the effects of slavery on modern-day America, the Polley case presents a different challenge: How should one speak of this history and what remedies for specific actions in the past should be carried out in the present? Rather than focus on cumulative effects and societal changes over time, the Polley case forces us to consider whether, how, and to what extent the past should be spoken of in the present. It requires us to think about historical mindfulness and concrete facts about our collective past.

      Nonetheless, any American reading these cases approaches them with some combination of three modern narratives about slavery and racism in the United States. We must inevitably view the history of the Polley case through these lenses. This part of the Essay will now turn to briefly analyzing the core assumptions of each of these lenses. It will begin by examining the ideology of post-racialism, the view that America no longer needs to consider the problems of racism in its public policy discourse. Then, the Essay will discuss what I am calling the race-conscious viewpoint, which claims that racism is present, salient, and should be considered in addressing modern-day public policy concerns. Finally, this section will examine the reparations approach, which not only claims that racism is salient in modern-day society, but that compensation ought to be paid for the overt harms done by the majority to the minorities during the period of de jure racial subjugation. Then, in the next part, this Essay will consider in more detail how the Polley case may offer a different approach through which we might consider our collective--and individual--past.

A. Post-Racialism and the Discontinued Relevance of Slavery

      Probably the most contemporary lens through which the American dilemma of race is viewed (and as a result it provides a narrative for the history of slavery) is the idea that America is a “post-racial” society. The narrative relies on the premise that American society has concluded its struggle with race and, therefore, when it comes to the structuring of our laws, there is no further need to discuss issues of race. It is the ideology that claims that America has moved beyond race and that there is thus no need to discuss race as a salient issue.

      Scholars have explained that post-racialism works as an ideology--it offers a point of view about the world and, thus, allows the adherent to consider and reflect on various issues through this particular lens. In particular, Professor Sumi Cho points out that the power of post-racialism is that of making conversations about race irrelevant to the adherent of the ideology. Adopters of the post-racialism point of view tend to discount the importance of race as the relevant guidepost for the way society is organized. Conversations about race become irrelevant, and those who wish to discuss race are seen as divisive and destructive.

      Working in close relationship with post-racialism is the separate but complementary view of colorblindness. Colorblindness is an aspirational concept that takes expression for many as a view that by force of societal change, race will become irrelevant throughout society; where, in contrast, post-racialism is an ideology which shapes decisions about how the world ought to be viewed and explains choices concerning issues regarding race.

      Professor Cho argues that colorblindness, though it is still important to the mainstream, traditional political right, is relatively outmoded in comparison to the ideology of post-racialism. Post-racialism is more virulent and persuasive because it represents an ideology that converges with enough of the facts of the moment and the hopes of people across the political spectrum to offer a salient battle-is-over analysis of the current state of race relations in the United States. Put more directly, post-racialism offers the point of view that the ideology of White Supremacy has effectively run its course, and thus, the adherents of White Supremacy are no longer forced to confront their own prejudice. White people are, therefore, redeemed of their prejudices and absolved of their past bad conduct.

      Thus, from this point of view, discussions about race are irrelevant to the public policy and legal conversations of our era. For political conservatives, analyses of social problems are cast in terms of defending the apparent status quo and the existing hierarchy of social class as neutral and beyond race. In particular, analysis of social problems is placed in the context of completing the (illegitimate, they would argue) mission of remedying racial inequality. From this point of view, for example, the election of Barack Obama becomes a hallmark of triumph, and thus, the attention that the left wing racial rabble-rousers have received can be directed to other issues. Moreover, the ideological oppression of the right can be lifted. In other words, the condemnation that it suffers for perpetuating racial hierarchies is now invalid because a minority has ascended to the highest office in the land, thus feeding the narrative that any person may have access to the social goods of the United States without being limited by race.

      Similarly, for the political left, the completion of the conflict concerning race also liberates American society from further need of discussion of the topic. To use again the example of the election of President Obama, it represents the ability to move on to more important concerns because the battle concerning race is now complete, and the liberal vision of America in terms of race is now a reality. Moreover, the problems of social inequality are viewed as having to do with factors other than race--for example, the misdistribution of educational benefits is considered to be one that can be remedied by emphasis on class analyses rather than race.

      The effect of this shift of the mode of thinking is that we now arguably have a society that desires to avoid altogether conversations that have to do with race generally. This, in essence, completes the work done by the legal movement towards colorblindness. The aspirational scheme of colorblindness sought to steadily move away from a vision of combating racism towards a vision of a world where race is completely irrelevant. Conversations about race are relegated to the past, and those who attempt to raise the issue are seen as irrelevant. This is despite the mountain of evidence of the role race plays in political conversations from day to day. Post-racialism represents the achievement of this goal to those who buy into the ideology. The logical conclusion of such a view is that the issue of race as a framework for organizing preferences and priorities in our society is outmoded.

      Thus, the post-racialist lens would likely treat a unique historical occurrence like the Polley litigation as historical trivia, and therefore view it as irrelevant to modern considerations. More to the point, a post-racialist view would see this as an interesting story about a kidnapping over 150 years ago, but would likely deem it a waste of time for a court to be involved in rehashing wounds from a time long past concerning a history that is no longer relevant. And even if the history were relevant for historical purposes, the use of judicial resources and governmental action in making a declaration of freedom would nonetheless be a waste.

B. Critical Race Theory and an Awareness of Slavery

      In contrast to the race-is-now-irrelevant position of the ideology post-racialism and colorblindness, the ideology of race-consciousness begins with the assumption that racism is a tool through which society is organized, and thus, racial hierarchies exist and affect how we see the world. Racism is a present reality, and, thus, policy and practice on both a societal level and an individual level should take this into account in order to improve the state of being throughout our society.

      Racism, as both a collective and an individual nature, serves to structure our society. As a collective matter, racism creates a hierarchy where society is structured along racial lines so that members of one race receive more status and benefits than others. In particular, in the United States especially, members of the white race have been the beneficiaries of this distribution where members of other races--for example, Blacks, Latinos, and Asian Americans--have been denied the same degree of benefit. Indeed, members of these groups have suffered detriment. Given the nature of the system, race-conscious theorists would call this a system of White Supremacy. This system of racial preference distributes prime material benefits to white people and denies or creates a detriment to people of other races.

      In addition to the material nature of racism, racism also has an ideological dimension. Racism forms a lens through which one sees the world, or, put another way, it creates a narrative that has explanatory power about how the world is structured. Racism as ideology provides “a pool of beliefs, symbols, metaphors, and images that justify and ‘naturalize’ its Racism creates a narrative by which one might apply this particular logic whereby one can understand the world. Thus, the racial distribution of property and privilege and social status has a justification. It also provides a view of history whereby the distribution and the beliefs are rationalized and made functional. Racism is both a system of privilege and an epistemology.

      The question then becomes whether and how to combat this system in its modern-day guise. For the person who believes this entire narrative, and sees it as the correct structure, no further analysis is necessary. Obviously, this person would be an unrepentant White Supremacist--content with the ideological structure of the world as is (or this person may even desire a shift of the current system of racism to be more in line with his or her ideology). In contrast, the adherent to the race-conscious point of view of which I speak-- which perceives racial discrimination as a wrong--would believe that race-consciousness is the beginning of an effort to effect a remedy to such discrimination.

      Logically, such a desire to combat the system of White Supremacy would begin with the question of whether the ideology of racism can ever be supplanted. The late Professor Derrick Bell, who is often touted as the founder of the Critical Race Theory intellectual movement in the legal academy, famously argued that racism is permanent. In other words, racism is an immutable characteristic of American society and it is impossible to eradicate. To this end, Bell believed that conscious awareness of racism would lead to a more sane and aware scope of life for individuals and for society. For others, strands of critical race theory have taken a different tact than Bell and do not necessarily agree that racism is permanent.

      Despite what view one might take concerning the ultimate nature of racism, most race-conscious theorists would agree that advocacy against racism is an appropriate reaction to societal and institutional racism, and that laws of antidiscrimination and conscious awareness of interpersonal interaction would provide a way to ultimately combat--and ideally eliminate--racism on the personal and cultural level. Thus, like the aspiration of colorblindness, the race-conscious combatant of racism would seek a day where racism is irrelevant to our modern lives, but the race-conscious school of thought does not believe that this goal has been reached in the present day. Thus, it must be combated continually through efforts to make people aware of the material harms, status harms, and psychic harms that racism causes.

      Within this context, the race-conscious ideology would value an exploration of the history of race revealed by cases like the Polley kidnapping. Conscious confrontation of the “original sin” of slavery and its continuing effects is necessary from this ideological point of view. Thus, an explanation of the harms of slavery and the objectifying nature of its practice--as the Polley case illustrates vividly--is a necessary and welcome exercise. Indeed, in the Polley case specifically, the narrative is powerful precisely because a legal institution legitimized the Polley descendants' claims. In this sense, the Polley family is validated and legitimized because society has recognized their ancestors' proper status as “FREE PERSONS.” Moreover, the Polley court, through undertaking the hearing and ruling in this case, expresses the values of our modern society. It is powerful to hear the implicit pronouncement of freedom despite imposed slavery by a court of law, even if this effort at justice was 150 years delayed. Furthermore, through naming the history that the Polley children and their descendants suffered, it would, from this view, go a long way to remedying the psychic harms of slavery and its long legacy.

      However, even in the race-conscious approach, there are limits. While the Polley case may be useful as a psychic exercise to raise consciousness, it would not necessarily satisfy the remedial needs for the harms caused. Those critical race theorists would believe that such a debt exists, whether that debt is material, financial, or psychic, and that the debt should be paid as a necessary step in racial reconciliation. This leads us to discuss the reparations position.

C. Reparations and the Present Demand for a Material Remedy for Slavery

      Within the realm of race-conscious ideology is a particular movement that is directed to the state's obligation to address the harms of slavery and the long legacy of racism. This particular claim is premised on the notion that awareness is insufficient to remedy the harms of slavery and racism. The reparations school of thought would argue that racism has created tangible material harms against specific people. They, and their descendants, have suffered material, status, and psychic harms as a result of the existence of racism, and those harms should be remedied. Moreover, the White Supremacist power structure perpetuated and benefitted from such economic, physical, and psychic injury. The nature of society today is built upon this foundation, and, therefore, those who benefit from it should remedy this injurious situation by providing compensation--reparations--to those who have suffered the harms.

      This argument has societal and individual dimensions. However, most of the modern debates concerning reparations are about remedying societal and broad economic harms. Various reparations lawsuits have been brought to remedy specific harms such as race riots, systemic and specific harms to groups of people of color, medical experimentation on people of color, and similar large-scale harms. These lawsuits have failed, however, due to a number of legal concerns regarding standing, the complexity of causation, statute of limitations, and the difficulty of conceptualizing the remedy.

      Another theoretical issue concerning the reparations movement is how to conceptualize the nature of the remedy. As suggested above, those who advocate for reparations often see themselves as wishing to address material economic and social harms. Most often this is framed as a consideration of specific economic compensations for damages done. But others have framed this consideration as repairing the status and cultural harms done by long-term racism, such as providing educational benefits and economic revitalization to minorities so as to remedy the effects of slavery. There are those who have also argued that an apology, given the authority of and on behalf of the state, would also count as a type of reparation.

      From this point of view, the unearthing of facts relating to the harms of slavery would be the first necessary step to providing compensation for its harms. It would then follow that the person to be held accountable--or their successors--would then provide compensation for the harms done to the minority or former slave or their successors. It would, in and of itself, establish a relationship and require a connection that recognizes the nature of the harm and provides compensation for it.

      In light of these competing ways of understanding the history of slavery, the twenty-first century Polley case represents something that is different from the three modalities described above. The Polley descendants did not ask for any compensation, or any apology, or any concession from the state. This would certainly not represent an effort to obtain reparations as classically conceived. The act of adjudicating this case (where the legal need to do so in light of the Thirteenth Amendment might be thought of as dubious by some) and putting the imputer of the state upon this decision definitely flies in the face of the post-racialist model. A race-conscious theorist would see value in unearthing and making people aware of this history, and they would find a declaration or judgment remedying the error of omission at the heart of the West Virginia Polley case essential to an understanding of the present fight against racism. And certainly a post-racialist attitude would deny wholesale the need to even have this conversation, and in particular, place judicial resources behind such a declaration. At best, such a view would relegate the Polley case to the history books.

      If the Polley case does not fit our current models of how to think about race, and as a result how we view the history of slavery, then what does it represent? The next part of this Essay will attempt to offer some thoughts on this by considering the Polley case as a nascent Truth and Reconciliation approach to understanding our history of slavery.

IV. Towards Truth and Reconciliation: The Polley Case as a Model?

      Slavery is the greatest atrocity in human history. For my kids to witness the freedom of their ancestors is overwhelming.

       --Anisa Dye-Hale

      The Polley case is novel on several levels. First, it is the first time since 1855 that a court has used nunc pro tunc to remedy a slavery case. This, by itself, is quite fascinating and may represent an interesting piece of trivia. Were this all that the Polley case represented, there would not be much else to say.

      It could be argued, however, that the Polley case decision is a step towards truth telling with respect to the institution of slavery and the harms it continues to instill. This is reminiscent of various Truth and Reconciliation Commissions that have taken place across the world to address the human rights abuses inflicted by national governments, militaries, or armed forces of each respective country. Truth and Reconciliation Commissions are intended to investigate these past violations of human rights and formally acknowledge this “long-silenced past.” As opposed to placing importance upon finding the truth underlying these human rights abuses, these commissions serve the purpose of officially acknowledging the truth. Although the principle of truth commissions is to acknowledge the truth and heal the wounds of the past, they are not always successful and can be set up by a government to manipulate the public's perception.

      Seen in this light, the Polley case is novel in a different and potentially more transformative respect. The Polley trial of 2012, by virtue of the fact that both the descendants of the Polley children and the Circuit Court of Wayne County, West Virginia felt it necessary to “set the record straight” about the status of the kidnapped Polley children, took a new approach to addressing the harm of slavery. The plaintiffs and the court explicitly sought to address directly the history of stigma through utilizing nunc pro tunc to conclude an adjudication and make a declaration that the Polley children should have been declared free persons as of 1859.

      Admittedly, this situation is probably as unique as it is novel. The likelihood of similar cases concerning emancipated slaves who were then kidnapped wrongfully and for whom nunc pro tunc adjudication would be appropriate is probably quite low. And even if it were not low, the fact of the matter is that the amount of historical research necessary to bring to light another similar case would be extraordinary.

      In these respects, Polley defies these odds. As both the judge and the family members pointed out, their desire was to “set the record straight” and to bring to light this unresolved history. This seems to run counter to the trends of wanting to avoid conversations of slavery and its effects; it brings it to light so that the family that suffered its indignity can know the truth and the present community can acknowledge and at least be aware of its history.

      This deliberate choice represents an important model--or at least an important suggestion--about how to approach the difficult history of slavery in our society. Though there is not likely a literal open case waiting for adjudication like Polley, conversations could nonetheless be based on the reality of slavery and a concrete consideration of that history based on what happened to the real enslaved people and the injustices they faced. Put another way, the twenty-first century adjudication of the Polley case represented an instance where the plaintiffs' representatives had the opportunity to name the indignity they suffered and claim redress--even if the redress only has rhetorical force over 150 years after the crime was committed--and a court recognized and sanctioned that need.

      This kind of truth telling is reminiscent of the various and occasional efforts to establish Truth and Reconciliation projects in various places throughout the world. In South Africa, for example, the effort to recover from Apartheid was undergirded by the Truth and Reconciliation Commissions established throughout that country. Those commissions worked on the premise that persons who were involved in the crimes and abuses of the Apartheid regime could come and state their role and disclose completely the crimes of which they knew. In exchange, they were in many cases granted amnesty for their actions, but they were required to face the public and acknowledge their actions. The benefits were numerous, including the ability for both the perpetrators of the crimes and the victims (or their descendants) to know the whole truth about the actions of the state during that time. This created a path for dialogue and created a possibility for national healing--a unique occurrence so soon after the ending of the South African Apartheid regime.

      These essential elements--an opportunity to be heard, a redress for past wrongs, and state recognition and sanction of the redress--seem to provide suggestions as a way forward to considering how to address the left-over wrongs of the era of de jure White Supremacy.

      This conversation has never happened on the institutional level in the United States. Indeed, the legacy left by the end of the slavery era was one of renewed American Apartheid through Jim Crow and then eventually the changes brought about by the political and legal Civil Rights Movement of the 1950s and 1960s. At least one unintended consequence of this movement of change and evolution was the fact that conversations about the legacy of slavery and the government's responsibility for that legacy have remained at the level of abstract policy. The government has not engaged in a dialogue about the lived history of slavery and its enduring legacy. This dialogue--which is not about monetary reparations, but about creating awareness and seeing the past, and eventually the present, as it is--seems essential in order to create progress in the ongoing confrontation of the legacy of racism. It provides an opportunity to reframe not only our history, but also our modern debates concerning race. If we can consider anew the indignity of slavery, segregation, and second-class status perpetrated by systems and individuals in our tortured legacy around race, we can understand the discourse that surrounds affirmative action, immigration, and even reparations in a different way.

      Moreover, beyond the societal and collective potential that a Truth and Reconciliation type discussion would allow, this approach provides a real opportunity for validation and transformation on the individual and community level. The descendants of the Polley children through their own reflections have spoken to the psychic benefit that the court's declaration provided. For example, in reflecting on the import of the trial, Theresa Polley Shellcroft said, “I am struck by the overwhelming emotions of this entire event . . . [t]o go from not knowing who you are--or your roots--to knowing your family history with court records to document that history, to witnessing the decision that began 160 years ago about whether your ancestors were legally free or slaves is James Hale also reflected on the momentous nature of the trial: “[T]his is a legacy for our family that future generations can talk about . . . [m]y grandchildren can say, ‘I sat in the courtroom as part of the

      These quotes suggest that for the descendants of the Polley children, the declaration validated what they believed about themselves and their ancestors and transformed the narrative of kidnapping and enslavement to one of freedom. Moreover, for the audience in attendance at the trial, those who read the newspaper accounts and even now as you the reader consider this Essay, this truth telling provides an opportunity for us to consider concretely the history of slavery and transform our own views about it. And yet, as I reflect on this, I am aware of the fact that this specific factual scenario would be difficult to implement en masse. As Shellcroft explained, “[T]here are not many people, period, in the world who can find their family history documented. It's overwhelming. It's knowing who you are and where you came from. For many African-Americans that's not possible.”

      Yet, through using the power of the state to provide space to allow voices that were silenced to speak their truth about their indignities, it is possible that the larger validation and awareness can take place. Perhaps the Polley case represents a way to rethink the historical trap of forgetfulness and continually defining our world by the legacy of White Supremacy. The adjudication completed history, validated the Polley descendants views about their ancestors and themselves, and raised the consciousness of those involved and those who watched it.

V. Conclusion

      The Polley case represents an amazing history and a conscious decision by the State through the Circuit Court of Wayne County, West Virginia, to bring that history to light for both the Polley descendants and for the residents of Wayne County to name the Polley children as free persons and to educate the broader community. This choice was to use the court as a space where the truth about the Polley children could be told. Its ends included the transformation of the descendants of the Polley children and the opportunity to make real and present the legacy of slavery, which continues to define the United States and its ongoing struggles concerning race.

      In the end, the Polley adjudication suggests that the power of truth telling is an important interest that the government could pursue as a means to take responsibility for the history of slavery, a history the government itself helped to perpetuate. Moreover, such truth telling can go towards healing the harms of slavery on a personal and societal level. In this sense, there is more to be done than to stop discriminating on the basis of race. The wounds that racial discrimination has inflicted (and continues to inflict) should be brought to light so that healing on all sides can actually take place. The Polley adjudication serves as a pointer towards this approach. It is up to future work to develop it into something more.



[1]. Associate Professor of Law, West Virginia University College of Law.

Subjective and Objective Indicators of Racial Progress

Betsey Stevenson and Justin Wolfers

Betsey Stevenson and Justin Wolfers, Subjective and Objective Indicators of Racial Progress, 4 Journal of Legal Studies 459 (June, 2012) (21 Footnoted)


The civil rights movement revolutionized the lives of blacks in the United States. A series of legal victories and public policy changes in the 1950s and 1960s outlawed de jure discrimination. These legal and policy changes--Brown v. Board of Education (37 U.S. 483 [1954] ), the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968-- opened the doors to schools, jobs, housing, and private establishments that served the public throughout the country. Sociologists have argued that during this period blacks experienced large improvements in occupational status, which led to the rise of the black middle class (Wilson 1980, pp. 126-30; Thomas and Hughes 1986).

These legal and policy changes yielded improvements in the objective circumstances of the lives of blacks, particularly in the period right after the laws were passed. Donohue and Heckman (1991) study the timing of the changes in the law and labor market gains accruing to black men. They conclude that the wage gains experienced by black men relative to white men in the period from 1965 to 1975 were due to the reduction in de jure discrimination, particularly in the South. However, since then, the earnings gap by race has widened for both men and women. Altonji and Blank (1999, p. 3149) note that “although black men's wages rose faster than white men's in the 1960s and early 1970s, there has been little relative improvement (and even some deterioration) in the 25 years since then.”In the decade since their article there has been little change in the ratio of median weekly earnings of black and white men.

At the time of the legal reforms, blacks reported levels of subjective well-being that were well below those of whites. Sociologists examining data on subjective well-being have pointed to this large gap and concluded that improvements in the civil rights of blacks have had little impact on their subjective well-being despite having made improvements in objective measures. In 1986, Thomas and Hughes evaluated data from the General Social Survey (GSS), showing that “blacks score consistently lower than whites on measures of psychological well-being.”Further, they argued that “the differences between blacks and whites remained constant between 1972 and 1985.”This led them to conclude that race continues to be an important factor determining subjective well-being, “in spite of recent changes in the social and legal status of black Americans” (Thomas and Hughes 1986, p. 830). In 1998, they revisited the question and concluded that even with the longer run of data, there had been no change in the self-reported happiness of blacks (Hughes and Thomas 1998).

Yet more recent studies have found that the black-white happiness gap has shrunk since the 1970s. However, none of these studies have investigated the racial gap in happiness in depth, nor have they attempted to consider what may be behind these declines. We show in this paper that the black-white happiness gap observed in the 1970s was three times greater than that which can be explained by objective differences in the lives of blacks and whites. Moreover, differences in happiness by race were greater than differences in happiness between other groups, such as rich and poor. For instance, in the 1970s, blacks at the ninetieth percentile of the black household income distribution had as much income as a white person at the seventy-fifth percentile; however, their average level of happiness was lower than that of a white person with income at the tenth percentile. This finding is consistent with health studies that find that the health outcomes of blacks are worse than those of whites even when conditioning on income (Franks et al. 2006).

We show that there has since been substantial improvement in the happiness of blacks both absolutely and relative to whites. In the 1970s, nearly a quarter of all blacks reported being in the lowest category (“not too happy”), compared to a tenth of whites. By the 2000s roughly a fifth of blacks reported being in the lowest category, compared to a tenth of whites. Blacks have moved out of the bottom category of happiness and in doing so have become more likely over this period to report being in the top category (“very happy”). In contrast, whites have become less likely to report being very happy. While the opportunities and achievements of blacks have improved over this period, the happiness gains far exceed those that might be expected on the basis of these improvements in conventional objective measures of status.

Social changes that have occurred over the past 4 decades have in creased the opportunities available to blacks, and a standard economic framework would suggest that these expanded opportunities would have increased their well-being. However, others have noted that continued discrimination presents a barrier to realizing these benefits. And there has been little progress in closing racial gaps in many objective measures. As previously noted, there has been little progress in closing the earnings gap since 1980, the education gap has been stubbornly persistent since 1990, and unemployment disparities are little improved. In addition, health differences, such as higher infant mortality rates among blacks, have proven persistent (MacDorman and Mathews 2011; Krieger et al. 2008). Our study illustrates that the fruits of the civil rights movement may lie in other, more difficult to document, improvements in the quality of life--improvements that have led to rising levels of happiness and life satisfaction for some blacks. But these improvements have taken decades to be realized, and even if current rates of progress persist, it will take several more decades to fully close the black-white happiness gap.

Our contribution in this paper is to carefully document trends, over several decades, in subjective well-being by race in the United States, collecting evidence across a wide array of data sets covering various demographic groups, time periods, and measures of subjective well-being. To preview our findings, Section 2 shows that blacks in the United States were much less happy than whites in the 1970s and that the racial gap in happiness was greater than that which would be predicted by objective differences in life circumstances. We next show that over recent decades, blacks have become happier, both absolutely and relative to whites. Blacks continue to report lower levels of happiness compared to whites, but the gap has been systematically closing, and much of the extant gap is explained by conditioning on objective circumstances. In Section 3 we show that this fact is robust to accounting for trends in incarceration (potentially missing data) and to exploring other data sets and measures of subjective well-being. In Section 4, we consider who has received the greatest gains in happiness among blacks and how that has contributed to the closing of the racial gap. We also explore the relationship between income and happiness by race and take a look at other measures of well-being.

BETSEY STEVENSON is Associate Professor of Public Policy at the Gerald R. Ford School of Public Policy, University of Michigan; Faculty Research Fellow at the National Bureau of Economic Research; and Research Fellow at CESifo. JUSTIN WOLFERS is Professor of Public Policy and Professor of Economics at the Gerald R. Ford School of Public Policy and the Department of Economics, University of Michigan; Senior Fellow at the Brookings Institution;

The site is available without logging in. However, if you want to post a comment you must login. Your email address will only be use to provide updates on race, racism and the law.