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Excerpted from: Carlton Waterhouse, Avoiding Another Step in a Series of Unfortunate Legal Events: A Consideration of Black Life under American Law from 1619 to 1972 and a Challenge to Prevailing Notions of Legally Based Reparations, 26 B.C. Boston College Third World Law Journal 207 (Spring, 2006) (374 Footnotes)(Full Document)


If you stick a knife nine inches into my back and pull it out three inches, that is not progress. Even if you pull it all the way out, that is not progress. Progress is healing the wound, and America hasn't even begun to pull out the knife.
—El Hajj Malik El Shabazz (Malcolm X 1964)


Carlton WaterhouseIn a series of children's books and a recent feature film, Lemony Snicket chronicles the lives of the Baudelaire orphans—three orphaned children from a wealthy family imperiled by a conspiring unscrupulous adversary, a neglectful guardian, and an otherwise dangerous world. Following the demise of their parents, these children find themselves subject to the schemes of uncaring adults seeking to gain their sizable fortune. Instead of rescuing them, the intervention of a neglectful banker responsible for providing them with a safe environment merely carries them from one set of unfortunate events to another. To survive, the children draw on their own unique abilities to stay alive and escape the plots launched against them. The title for this article emanates from that story because it offers a helpful, albeit imperfect, metaphor for blacks' experiences under law in America, from their arrival in 1619 to the close of the second reconstruction in 1972 and beyond.

Rather than a crowning achievement of American democracy, the civil rights legislation of the 1960s and 1970s represented one more step in a series of unfortunate legal events that ultimately reflected the dominant attitude of society's white majority toward ending the Jim Crow practices of the south. Despite their role in removing the imprimatur of legal legitimacy from much overt discrimination against blacks and others, these laws were merely a continuation in a series of unfortunate legal events. The courts' subsequent rejection of affirmative action as a remedy for historic racial bias, and the shifting legal standards applied in Equal Protection, Title VI, and Title VII civil rights cases, over the intervening thirty-three year period, reflect the most recent events in the unfortunate series. Like the Baudelaire orphans, blacks still have not found a guardian whom they can depend on to protect them from those who would betray their rights.

This article contends that America's laws and legal system constitute a poor guardian for blacks against the “the tyranny of the majority” because, in historic and contemporary analysis, they respond to and facilitate majoritarian racial bias in the executive, judicial, and legislative contexts. Rather than a general claim regarding all contemporary legal matters, this article asserts that legal issues explicitly regarding race such as affirmative action, civil rights law, and reparations reflect a majoritarian racial bias. In light of the foregoing, scholars and activists advocating legal based reparations for American slavery and its legacy display what this article asserts is an unwarranted degree of confidence in the American legal system.

Specifically, the article challenges those supporting legal based reparations to explain their reliance on the legal system to provide reparations despite the historic and contemporary legal subordination of blacks and other racial minorities when it corresponds with the perceived interest of the majority. The article also challenges those opposing reparations, however, based on its supposed unfairness to America's current citizens, to explain how their position differs from that of past generations of legal scholars and politicians who opposed reparations and related legal efforts to redress racial injustices. Failure by commentators, on both sides, to address law's historic role of protecting the interest of the racial majority by subordinating blacks' just legal claims presages a tenuous posture for legal reparations—a posture this article argues may encourage the development of yet another chapter in a series of unfortunate legal events.

Recent federal court decisions regarding the victims of the Tulsa, Oklahoma race riots and a suit by the descendants of enslaved blacks for reparations illustrate this point. In 1921, white rioters ravaged Greenwood— Tulsa, Oklahoma's African American neighborhood—indisc- riminately killing and injuring the community's residents in the process. In 2004, survivors of the riot and their descendants brought a claim against the city and state for damages associated with the riot. In affirming the judgment of the United States District Court for the Northern District of Oklahoma granting a summary judgment motion for the defendants, Chief Circuit Judge Deanell Reece Tacha wrote, “[t]he Tulsa Race Riot represents a tragic chapter in our collective history. While we have found no legal avenue exists through which Plaintiffs can bring their claims, we take no great comfort in that conclusion.”

A recent decision of the United States District Court for the Northern District of Illinois provides another example of the way courts view reparations based suits. After considering the claims brought by the descendants of enslaved Africans against corporations who supported enslavement and its legacy, the Court rendered a decision granting defendant corporation's motion to dismiss. In that case, plaintiffs' claims against the corporations included conspiracy, conversion, and unjust enrichment for their role in the institution of slavery and its legacy in the Untied States. After considering the allegations, the court offered the following conclusion:
It is beyond debate that slavery has caused tremendous suffering and ineliminable scars throughout our Nation's history. No reasonable person can fail to recognize the malignant impact, in body and spirit, on the millions of human beings held as slaves in the United States. Neither can any reasonable person, however, fail to appreciate the massive, comprehensive, and dedicated undertaking of the free to liberate the enslaved and preserve the Union. Millions fought in our Civil War. Approximately six hundred and twenty thousand died .... The impact of this struggle on the families of the wounded and the dead was immeasurable and lasting. The victorious and the vanquished together shared the cup of suffering .... The impact of this struggle on the Union as a whole was also significant. The enslavers in the United States who resisted or failed to end human chattel slavery sustained great personal and economic loss during and following the four years of the War. Generations of Americans were burdened with paying the social, political, and financial costs of this horrific War. two cases and the judges' opinions reflect a view that each set of circumstances represented unfortunate events in American history, but not ones that the law could address. While the opinion in the Tulsa case seems much more sympathetic to the unique suffering of the Plaintiffs and their descendants, the result and effect of the decision offers no more to the victims of the Tulsa riot than that provided by the reparations case to the slave descendants. These opinions reflect the judicial attitude that black reparations advocates can almost certainly expect to encounter from the American judiciary when seeking redress for America's past racial injustices.

Neither the American judiciary nor its legislatures has provided blacks with a consistent level of protection against, or remediation of, racial injustice. In America, race law is never settled; it remains, instead, in constant flux dependant on the prevailing attitude of the majority. This article contends that basing reparations on such an unstable and undependable legal system will likely produce undesirable and unsatisfactory results.

The article is divided into five parts.

Part I considers some insights from moral philosophy to better explicate the goal of reparations. In using this approach, the article seeks to extend the discussion beyond the confines of traditional legal argument to deepen the consideration of reparations' proper goal. This part then concludes by introducing arguments contesting the American legal system's ability to meet reparations' proffered goal.

Part II discusses the foundations of the “Reign of Terror.”

Part III presents a survey of laws governing black life from 1619 to 1972. The survey examines federal, state, and colonial laws used to restrain blacks' educational, political, and economic rights and opportunities from their initial arrival to the civil rights era. The part also includes a brief consideration of civil rights laws passed from 1963 to 1972 and their efficacy for repairing the harms caused to black communities and individuals by the previous legal regime.

Part IV assesses the proficiency of American laws to provide racial justice to blacks in light of Derrick Bell's theory of racial realism, Kimberle' Crenshaw's understanding of restrictive and expansive civil rights jurisprudence, and the political insights of Ralph Bunche. Drawing on the work of each of these figures, this part explores the future prospects of the American legal system to protect blacks from the excesses of America's non-black majority.

In light of the insights gained from the analysis in Part IV, Part V looks to the work of Gary Peller in examining the theoretical roots of America's historical discourse about race-consciousness and its rejection as an approach to racial issues. Extending Peller's analysis, the part explores why race-consciousness constitutes an essential ingredient in pursuing the goals of a black reparations program. Finally, the conclusion highlights some specific proposals for a black reparations program designed to remedy the educational, political, and economic harms visited upon black communities.

. . .

To meet the goal of reparations to provide black communities with the educational, political, and economic resources necessary to enable their members to exercise and enjoy their civil liberties, I propose a plan of institutional development. The development I propose facilitates the enjoyment of freedom envisioned by abolitionists Benjamin Franklin and Wendell Phillips and embellished by moral philosopher Timothy Jackson in his discussion of libertas. This approach takes full account of the limitations of the legal system in securing community remediation, in accord with the political sensibilities of Ralph Bunche and the “racial realism” of Derrick Bell. Finally, the solutions proposed herein embrace the race-consciousness counseled by Gary Peller as a vital component of an institutional approach to reparations.

Community well-being and the quality of life of community members have been shown to correlate with the strength of community institutions. In the most depressed and blighted communities in America, the educational, political, and economic institutions range from weak to non-existent. To repair the longstanding harms resulting from the “Reign of Terror,” I advance the creation of new and the reformation of existing black educational, political, and economic institutions. My proposal begins with the creation of three independent trust funds: the Educational Fund, the Political Fund, and the Economic Fund. Each of these funds will operate in accordance with a governing charter to guide it in funding organizations and institutions committed to building black communities.

Educational reparations would focus on improving the education provided to the youth of black communities. To accomplish this, I suggest that the Educational Fund provide grants to aid in the establishment of charter schools in black communities. These schools would be open to all children, but their curricula would be geared toward meeting the educational needs of black children. Similar to businesses funded by the Economic Trust, schools gaining support would show their commitment to promoting the values adopted by the Education Trust. Trust-sponsored schools would retain their freedom to design their charters in different ways as long as the values of the Education Trust are included. School types should vary widely to include diverse educational foci such as math and science, performing arts, international language and culture, and public service among others. Along with seeding the creation of new charter schools, the Educational Fund would support the creation and expansion of private academies open to all students but dedicated to meeting the educational needs of black youth. My proposal also includes substantial funding for targeted programming by historically black colleges and universities. These grants would cover scholarships and fellowships for students, endowed chairs for faculty, as well as reparations related research. The Educational Fund would also make scholarships and fellowships available to undergraduate, graduate, and professional students at majority institutions who commit to black institutional service.

The focus of the Political Fund would be the creation and development of black political institutions. This trust would have the responsibility for funding institutions and organizations that enhance the political awareness of black community members and increase their political influence. While these organizations would demonstrate a commitment to the communal and other values proffered by the Political Fund, they could use a variety of means and approaches tailored to their primary constituency. Black political institutions would likely begin with a local and regional focus by organizing the black electorate in the southern states and a selection of large cities with substantial black populations. Sponsored institutions would develop constituent support by designing local and regional goals and objectives in light of the political ideologies of black communities. One organization might be a non-partisan issue oriented membership organization. This organization would operate through local chapters and a national policy office. It will conduct grass roots organizing to inform residents about the political process and then support their involvement around local and regional issues. Young adult involvement, education, and organizing should be a fundamental strategy of this organization. By training and involving youth, the organization furthers two critical objectives: 1) strengthening its volunteer workforce, and 2) building a foundation for future political organizing.

My proposal also includes the creation of a Bethune Washington Institute to support the scholarship mandate of the reparations charter. The Institute would operate like the Brookings Institute as a nonpartisan organization committed to supporting the research of a wide range of scholars related to questions of reparations. Scholars with full-time commitments to other institutions would serve as affiliates working along with Institute fellows in conducting research, publishing findings and making policy recommendations based on that research. Beyond governmental policy, Institute scholarship would address the political, educational, economic, and legal policies of private groups and individuals. Through the work of the Institute, black educational, political, and economic institutions committed to reparations would receive meaningful insights into fulfilling their objectives. Furthermore, fellows can address relevant questions regarding cultural, medical, and familial reparations through research, publication and the use of developed networks of dissemination.

In the economic realm, I propose that the trust support the development of new and existing black businesses that demonstrate a commitment to the goal of reparations. Enhancing the quality and number of black businesses serves two purposes: providing jobs and increasing the availability of quality goods and services to community members. Specific businesses ideas could include such as a national newspaper and a major production studio for the creation of television and cinema productions, collaborative business ventures with Caribbean and African nations, and development programs focused on training black youth for future business ownership and management.

These programs would compose a communal approach to reparations rooted in the formation and reformation of black institutions. This approach differs from the prevailing notions of reparations focused on legal theory or congressional enactment, in its independence from governmental action and its emphasis on institutional development. Rather than a court-ordered remedy or a legislative design, my proposal begins and ends with black communal action. In this sense blacks, like the Baudelaire orphans, will use their own abilities to secure their futures in the world. In the event that those who owe them duties and responsibilities meet their obligations, they can accept their acts with pleasure as a complement to their own efforts. By focusing on their own abilities and initiative, however, blacks need not risk the disappointment and damage that might result from the ongoing series of unfortunate legal events.

Carlton Waterhouse, Assistant Professor of Law, Florida International University, College of Law;