Jewish World Review Jan. 29, 2004 / 6 Shevat 5764
Reparations on trial briefly: Now it's time to address blacks' biggest problems
At last the highly charged issue of reparations for the
descendants of slaves has had its day in court and the
court threw it back out again.
No big surprise there. Not if you understand how courts
Nor should you expect that judgment to be the end of the
reparations issue. Not if you understand how soul-deep
the passions run on both sides of this endless
I am a descendant of American slaves but I was neither
surprised nor disappointed by U.S. District Judge
Charles R. Norgle's ruling in Chicago Monday. I cannot
be disappointed when I've failed to receive something I
didn't expect to get in the first place.
I certainly didn't expect to receive reparations from this particular lawsuit. Even a
novice, armchair lawyer like me could see that it simply failed to pass the most
fundamental tests of law and lawsuits: who inflicted what damages on whom, who
deserves to be compensated for the damages, how much in dollars and cents and
are the damages actual or punitive?
The law loves specificity.
As Judge Norgle eloquently explained in his 75-page opinion, the suit failed to allege
a specific connection between the slave-descendant plaintiffs on whose behalf the
suit was filed and the companies that it named as defendants.
This particular suit, first filed in U.S. District Court in New York in 2002 and later moved
to Chicago, names companies like the Lehman Brothers brokerage firm, the
insurance firm Aetna Inc. and RJ Reynolds Tobacco Co., saying they or their corporate
ancestors made money off slavery.
In some cases, that historical culpability is not disputed. When Deadria
Farmer-Paellmann, the former law student who filed the original suit, asked Aetna for
documents on its role in insuring slaves, the company provided them to her.
FleetBoston Financial Corp. is a successor to another bank, which it says, was
founded by a Rhode Island slave trader. Even so, these defendant companies and
others argue that even if they were connected to slavery in some way, they are very
different companies today.
Besides, even if some guilt is established, who gets paid? Who of us among the
current generation of slavery descendants would deserve to receive the damages?
Contrary to popular myth, there is no precedent in American courts for damages to be
awarded in this way to a class of historical victims. Believe me, I have checked.
Yes, some Jews won compensation for the Holocaust and some
Japanese-Americans for their internment during World War II, but neither won their
cases in court. European governments and companies agreed to settle with some
Nazi-era slave laborers in the late 1990s under diplomatic pressure from the United
States. And Congress passed legislation to compensate surviving
Japanese-American internees in 1988, but not their offspring. Both cases were won in
the court of public opinion, not courts of law. And the compensation was limited to the
actual victims, not their descendants.
Native American Indian tribes can make such historical claims, provided they have
treaties to back them up. Unfortunately, our proverbial "40 acres and a mule" was an
attractive piece of political rhetoric in the post-Civil War era, not an actual contract. As
Martin Luther King Jr. said in his "I Have a Dream" speech, freed slaves were handed
only a symbolic "promissory note that has been returned marked `insufficient funds'."
Norgle's ruling came, ironically, "without prejudice," a legal term that means plaintiffs
can try again if they can make a stronger case. In the meantime, he advised that this
issue is best settled in the political arena, not the courts.
I agree. Even if a court were to decide reparations should be awarded to today's
slavery descendants as a class, it would not end the argument. It would only begin a
bigger argument, among black folks as much as anyone else, as to how the
compensation would be dispersed.
State legislatures are the best places to work out whether reparations should be paid
and how. For example, California and Chicago each have passed laws in the past two
years requiring any insurance company that contracts with their governments to
provide documents of any associations with slavery.
But that doesn't end the argument. It only begins the larger one of how reparations
could make more than a dent in black America's biggest problems: crime, illiteracy,
joblessness and child poverty rates.
That, to me, is the most troubling aspect of the endless arguments about reparations.
They keep us black Americans focused too narrowly on what white people need to do
to save black America instead of what we black Americans should be doing to save
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