Monday, December 16, 2019

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Abstract

Excerpted from: Adjoa A. Aiyetoro and Adrienne D. Davis, Historic and Modern Social Movements for Reparations: The National Coalition of Blacks for Reparations in America (N'COBRA) and its Antecedents, 16 Texas Wesleyan Law Review 687 (2010) (280 Footnotes) (Full Document)

AyietoroandDavisIn the 1950s, a young mother in Fairbanks, Alaska joined her local NAACP. Ten years later, a freshman student at Bowdoin College in Maine began studies that included a course on Jean-Paul Sartre's existentialism. During the same decade, two social workers blended their work for New York's state and municipal organizations with their racial activism. In between, in the early 1960s, the son of a Garveyite attended Malcolm X's speeches in New York City's Mount Morris Park. What these seemingly disconnected individuals have in common is that in the 1980s and 1990s they would all find their way to the National Coalition of Blacks for Reparations in America (N'COBRA) and its Litigation Committee. Among the approximately twenty members of the Committee some would be lawyers; others not. Some would believe in the redemptive power of law to right wrongs; others would reject legal justice as an oxymoron in the United States. They would subscribe to political ideologies as diverse as Herbert Marcuse's Marxism; Black nationalism; and liberal integrationism. Some were members of the Black elite; others embraced a working-class consciousness and/or rejected the allures of middle-class integrationism.

Most of the legal scholarship on reparations for Blacks in America focuses on its legal or political viability. This literature has considered both procedural obstacles, such as statutes of limitations and sovereign immunity, as well as the substantive conception of a defensible cause of action. Indeed, Congressman John Conyers introduced H.R. 40, a bill to study reparations, in 1989 and every Congressional session since, and there have been three lawsuits that have received national attention. This Essay takes a different approach, considering reparations as a social movement with a rich and under-explored history. As Robin Kelley explains, such an approach is “more interested in the historical vision and imagination that has animated the movement since the days of slavery.” In keeping with such an emphasis, this Essay focuses on the diverse array of individual actors and institutions that for over a century have comprised the reparations movement. Contemplating reparations in this way, as a social movement, shifts attention away from the doctrinal and policy questions that have dominated the legal literature on the feasibility of reparations, and instead poses an intriguing set of other questions about the reparations movement's complex, and at times competing, set of actors, institutions, and ideologies that, like N'COBRA, have been underexplored in the legal literature. This Essay takes as its case study seven of the diverse group of Black activists and lawyers who in 1995 joined the N'COBRA Reparations Litigation Committee. Using interviews with these original Committee members, it situates their contemporary activism within the long history of Black activism that viewed reparations and redress as part of the struggle for liberation from slavery and its vestiges. In so doing it changes the barometer by which we measure its effectiveness; instead of focusing solely on whether a specific legal result has been obtained, a social movements approach also questions how ordinary people develop a common “oppositional consciousness” and mobilize to confront what they perceive as injustice. This Essay tells their history, leading up to the resurgence of reparations activism today. It concludes that conceiving reparations as a century-old social movement in addition to a political and legal claim casts the contemporary reparations movement in a different light, illuminating competing visions of Black political subjectivity and activism within the reparations movement.

In addition, although this Essay exposes evolving and varied understandings and conceptions of reparations, it also reveals an underlying theme of calls for compensation, repair, and redress that distinguishes reparations from a conventional civil rights focus on antidiscrimination and equality. While the legal history of racial activism remains overwhelmingly the history of civil rights struggle, the Authors' incorporation of the N'COBRA activists, and their predecessors, gives a very different view of Black struggle for liberation.

First, this approach suggests that a crucial distinguishing factor in reparations movements is the turn (or return) to courts and law as potential instruments of justice. Historians Dylan Penningroth and Martha Jones have urged that, in order to more fully understand the relationship between law and race in the U.S., we have to look not only at how the law operated on Black people, but also at the claims Blacks made on the law. Writing about the nineteenth-century, both have contended that Black actors viewed law instrumentally as a vehicle for personal and group self-determination, succeeding in construing themselves as legal and political subjects, even when they lost the particular cases they brought. Similarly, reparations claims are meaningful not only for what they tell us about the law and legal institutions, which thus far have largely denied redress, but also for what these suits and other non-legal activism reveal about the people who bring them and the social movements in which they participate. As this Essay will demonstrate, some reparations activists have turned to the courts and other legal institutions, making “claims” in Penningroth and Jones's language; others reject legal institutions as illegitimate and urge reparations either in international forums or as a matter of revolutionary politics. Thus within the reparations movement, the legitimacy of the law, and hence the meaning of reparations, is viewed in starkly different terms.

Second, the history of reparations also reveals deep-seated class tensions between Black Americans. In Reparations as a Dirty Word, law professor Lee Harris contends that “Public advocacy of slavery reparations has come largely from historically controversial figures and groups.” Harris makes explicit a latent characteristic of the reparations movement: that, until very recently, its primary proponents and leaders have been grass-roots organizers, activists, and racial radicals, rather than members of the Black social and economic elite. Indeed, Black elites and their institutions have largely rejected, belittled, or distanced themselves from racial reparations, perhaps as a strategy of racial respectability. And of course, this view of reparations activists as outsiders and “controversial figures” has long shaped how white Americans and others viewed the legitimacy of reparations claims, including how it is viewed today. Historians such as Mary Frances Berry and Robin Kelley have taken note of how reparations movements both reflected and generated tensions between elite and non-elite Blacks. As the Essay explores reparations history, a crucial part of what it contrasts will be how elites and non-elites viewed reparations claims and racial justice more generally. Hence, part of the largely untold history of reparations is the struggle not only for reparations itself, but also the struggle between distinct Black classes over strategies for citizenship and the right to envision the racial future.

Third, a “social movements” approach also reveals significant and under-attended ideological differences among reparations advocates. Some have viewed reparations as a route to full citizenship for Black Americans, almost part and parcel with conventional civil rights. This tradition has culminated with the modern-day “Dream Team” --a cadre of extremely talented lawyers and academics, some drawn from the nation's most elite institutions. In stark contrast, other activists have viewed reparations as a path to racial nationalism and sovereignty, as some seek redress in the form of an independent state for Black Americans or repatriation to Africa. These include The Republic of New Afrika; the Black Panthers; even the Nation of Islam. Still others, such as civil rights activist James Forman, have embraced reparations within socialist frameworks. Thus, within the reparations movement, there is a diverse array of competing ideologies.

In the end, the Authors hope to show how reparations is one arc of the centuries long struggle for Black racial equality, even preceding what Jacquelyn Dowd Hall has called “the long civil rights movement.” Reparations activism is notable not only for its challenges to conventional legal structures and institutions, but also as a lens into the Black struggle for liberation from slavery and its vestiges. Conceiving reparations as a social movement foregrounds different visions of “freedom” and “redress” and how those visions are shaped by class and ideology.

Part I of this Article offers an introduction to some of the historical individuals and institutions who were the principal early advocates for Black reparations. While many have contributed to the struggle for racial reparations, the Essay focuses on activists who devoted significant effort to the cause; conceived of their vision in the language of reparations, i.e., recompense for slavery; and organized institutions or movements to implement their vision.

Section II then situates these activists within reparations conceived as a social movement. It also teases out of the history some of the tensions and competing visions within the movement--over the legitimacy of U.S. legal institutions; between racial elites and non-elites; and ideological differences over the purposes of reparations, i.e., full citizenship or separate nationhood.

Part III supplements this history by introducing the National Coalition of Blacks for Reparations in America (N'COBRA), which was founded in 1987 with the express goal of revitalizing reparations as a grass-roots movement that would simultaneously be attractive to mainstream Blacks. While N'COBRA has been largely overlooked in the legal literature on reparations, a social movements approach foregrounds its contributions to the modern reparations activism.

Part IV then presents biographical narratives of seven members of the N'COBRA Reparations Litigation Committee. The Authors interviewed these seven, asking them about the political and personal influences that led them to become reparations activists and to join N'COBRA's Litigation Committee. (The questions we asked the interviewees are included as an Appendix to this Article.)

Part V concludes with some thoughts about how incorporating a “social movements” approach to reparations activism and this case study of N'COBRA's Litigation Committee and its members both supplements and challenges the emerging legal history of reparations and, more broadly, the struggle for racial equality and human rights for Black people.

[. . .]

Frequently the reparations debate is cast in racial terms, as a conflict between whites and Blacks. Alternatively reparations claims are often dismissed as “fringe” or “naïve” because of the lack of doctrinal precedent and significant procedural hurdles. This Article has taken a different approach, conceiving reparations as a social movement with a rich set of historical and contemporary individuals and institutions. It has tried to show how approaching reparations in this way illuminates the distinct and at times competing visions and goals of reparations activism, in the process lending a more nuanced and intricate view of Black activists' conceptions of and negotiations over political subjectivity for their community.

The civil rights movement is the classic study of social movements. As this Article illustrated, there can be a tendency to conflate reparations with civil rights, to cast the claims of reparations activists so broadly that it is no longer distinguishable from broader calls for Black equality. This Article has urged a narrower, and a more precise definition of reparations--as an entitlement for wrongs done--distinct from civil rights not only in its conception of injury and remedy, but also with a distinct history of activism. Much outstanding scholarly work across disciplines has been done on the civil rights movement--on its chronology and periodization; mobilization processes; cultural symbols, oratory, and meaning-making; and its internal divisions and tensions over matters ranging from tactics and goals to class and gender dynamics.

The Authors would like to call for similar work to be done on reparations. Social movements scholars focus on what set of factors give a traditional political space oppositional content. The civil rights movement produced a sort of moral authority that completely altered what was considered “natural” in terms of U.S. race relations. Stewart Burns has characterized civil rights' ideological framing as a “battle for democracy.” It effectively mobilized oppositional consciousness through its protest politics, e.g., sit-ins, boycotts, and strikes, as well its cultural productions (songs, oratory, and “letters”) and institutional collaborations with Black churches and colleges. And, of course, the civil rights movement was handed a ready set of villains--George Wallace, Bull Connor, Orville Faubus, and the array of anonymous thugs and supremacists--that drew the attention of the national media and eventually the sympathy of the nation.

Through its consideration of historical and contemporary reparations activism, this Article has shown that the reparations movement proceeded differently, as an alternative site of struggle for Black freedom. Approaching reparations as a social movement de-centers the Black church and college as the dominant institutions, protest politics as the dominant form of activism, and rights struggle as the dominant mode of legal engagement. More work needs to be done on the reparations movement's distinct periodization, strategies of mobilization, ideological frames, cultural productions, and internal dynamics, all no less diverse and contested than within the civil rights movement. If the primary factor triggering social movements is “the ebb and flow of political struggle,” what influenced and shaped what we might call the “long reparations movement” ? There has been much debate on how “external factors,” such as changes in the media, global politics, and American politics more broadly influenced and was influenced by the civil rights movement. There needs to be similar work on the history of reparations activism. Finally, the sustained study of how reparations activists interacted with state actors may open new chapters in both legal and political history, including how we understand the first amendment and government harassment of citizens asserting equality or self-determination claims. Students of American history, politics, and sociology, not to mention law, know strikingly little about reparations as an activist movement. This Article has been one small effort to rectify that.

In this initial effort to construe reparations as a social movement, this Article proceeded in four steps. First, it reviewed the history of the movement through some of the leaders and institutions who were the antecedents to the modern reparations renaissance. The next step was to derive a few latent themes from this movement history. Until very recently, reparations proponents overwhelmingly came from the Black poor and working class, not its elite. Unlike the civil rights movement, in which elite and non-elite Blacks both participated actively, at times battling over diverging visions, until very recently the Black elite eschewed reparations. Hence for most of its history, reparations was a movement dominated by the Black non-elite and their political vision. In addition, exploring reparations activism reveals competing views about the legitimacy of law. Among reparations advocates, the Article has found both skepticism and a cautious confidence, or instrumental investment, in U.S. political and legal institutions. The third theme was to suggest that reparations embodies a long-standing debate among Blacks over what racial liberation would look like. Both Black nationalists and those seeking integrative citizenship have viewed reparations as instrumental to their vision.

Next, viewing reparations as a social movement, rather than a legal issue in the abstract, this Article turned its attention to the National Coalition of Blacks for Reparations in America. Although part of the activist tradition of Callie House, Queen Mother Audley Moore, and James Forman, N'COBRA has been largely overlooked in reparations history, marginalized perhaps because of its association with non-elite, nationalist approaches to racial liberation. This Article offered a detailed history of N'COBRA's founding, organization, and launching of its Reparations Litigation Committee. It described N'COBRA's goals and mission, which were to publicize and “mainstream” the question of Black reparations. The Article suggested this met with mixed success--N'COBRA succeeded in helping to bring reparations into public debate, although the organization itself was not able to attract large numbers of elite or mainstream Blacks.

In the final step, the Authors summarized interviews with seven N'COBRA Litigation Committee members to situate their biographies within both the broader history of the reparations movement as well as N'COBRA's institutional history. These interviews suggest the extent to which contemporary reparations activists continue to grapple with negotiations with the Black elite, ambivalence over the legitimacy of legal institutions, and debates over ideology and definitions of racial liberation.

In the end, viewing reparations as a social movement sets a research agenda for historical and sociological work on reparations activism that the Authors hope will begin to parallel the rich work on the civil rights and other, more mainstream Black freedom movements. In addition to recovering individuals and institutions mainly lost to the history of Black activism, the Article contends viewing reparations as a social movement also casts the contemporary reparations renaissance in a different light. Instead of evaluating, and often dismissing, reparations solely as a legal claim, i.e., whether it is doctrinally or legally feasible, viewing it as a social movement suggests an alternative metric for measuring its success--in terms of its tactical innovation, altering public debate, and mobilizing new oppositional consciousnesses.


Associate Professor of Law, University of Arkansas, William H. Bowen School of Law;

William M. Van Cleve Professor, Washington University School of Law.


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