Commentary

It’s time to stop asking, and time to start suing, for reparations | Michael Coard

We do whatever needs to be done to attain justice and we do it by any means necessary. And one of those means is litigation

By Michael Coard

As I point out each month, this column is generally designed to compel white businesses/entities in Philadelphia and white employers in Philadelphia to treat Black consumers and Black applicants/employees with respect. But, more important, it is also designed to convince Black people in Philadelphia to “do for self” economically as well as politically because, in a capitalist democracy, money and politics talk — meaning persuade — and BS walks — meaning leaves empty-handed.

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This month, I’m addressing what white governments and corporations owe us and how we should collect. In other words, I’m writing about reparations- with a focus on litigation.

But first, allow me to define reparations. (Although the word “reparations” is, grammatically speaking, plural, I’ll be using it as if it is singular because common parlance dictates such.) Reparations is the making up for a wrong. It is a restoration to good condition. It is a repairing. As a result, America must make up for the wrong it did. America must restore us to the condition we would have been in if we had voluntarily emigrated here like Europeans did. America must repair the damage it caused.

We, as Black folks, have attempted to persuade America to reasonably and rationally address the issue of reparations. But since racism is, by definition, unreasonable and irrational and since the U.S. Congress is made up of — in large part — racists, all attempts have been thwarted.

You want proof? Here’s proof: H.R. 40, initially introduced in 1989 by Michigan Democratic Congressman John Conyers and reintroduced every year by him until he retired in 2017 and then by Texas Democratic Congresswoman Sheila Jackson Lee since then, has not been allowed to even proceed to a vote. And this is despite the fact that H.R. 40 doesn’t actually request reparations.

It merely reasonably and rationally requests the creation of a commission to study reparations as a possibility and it reasonably and rationally requests a formal apology by the U.S. government. That’s all. And for racists, that’s just too much.

So what do we do? Well, we do whatever needs to be done to attain justice and we do it by any means necessary. And one of those means is litigation. In other words, we sue ‘em!

Slavery existed in America and in its predecessor colonies from 1619 to 1865 beginning with the bondage of approximately 20 kidnapped and enslaved Angolans in Jamestown, Virginia, until the adoption of the 13th Amendment. That’s 246 years.

And when that legalized slavery is combined with the de jure and de facto oppression of the post-slavery Black Codes, the exploitative sharecropping, the brutal peonage labor, the “slavery-by-another-name” system known as convict leasing, and the widespread Jim Crow, it’s actually 345/346 years because it wasn’t until the Civil Rights Act of 1964 and the Voting Rights Act of 1965 that a movement toward substantive change kinda/sorta began.

By the way, did you know that the U.S. Justice Department needed to continue prosecuting plantation owners on slavery/forced labor criminal charges, involuntary servitude charges, assault charges, and even murder charges as recently as 1954? Well, it happened in Alabama with the Dial family as defendants and also in 1921 in Georgia with farm owner John Williams as the defendant along with his co-defendant overseer Clyde Manning who testified against him.

That means 246 years of slavery from 1619 to 1865 (or 346 years of slavery plus slave-like conditions from 1619 to 1965) and a mere 56 years since 1965 of relative so-called “freedom.”

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Accordingly, there is arguably a meritorious legal basis for a reparations lawsuit involving not just slavery but the residue of slavery, which includes systemic and institutional racism on the city, state and federal levels.

And it’s not just local, state and federal governments that are tenably liable. It’s also private corporations in the insurance, cotton, tobacco, mining, railroad, and other industries — all of which profited directly and immensely from slavery and convict leasing. They and their successor corporations gotta “pay” what they owe.

Hence, anyone who can prove that he or she has an ancestor who was enslaved anytime between 1619 and 1865 or who can prove that he or she was personally and directly affected by slavery’s residue of systemic and institutional racism between 1865 and 1965 (or, more realistically, between the 1930s and 1965) arguably has a meritorious case.

And that case involving slavery or slavery’s residue would be based on averments of murder/wrongful death, kidnapping, rape, assault, robbery, theft of services, forced labor, intentional infliction of emotional distress, employment/education/housing/health care/voting discrimination, etc.

Reparations lawsuit considerations:

1. Unjust enrichment: Even though no white person alive today ever enslaved anyone and even though no Black person alive today was ever enslaved, the legal theory known as “unjust enrichment” could apply. That simply means, for example, that although a person didn’t steal an item and didn’t even know it had been stolen, that person is nonetheless legally required to surrender it to the police if it’s determined to have been stolen. Our labor and property (along with many other things) were stolen.

2. Standing: If a white governmental or corporate defendant asserts you don’t have a right to sue regarding slavery in particular because you were never enslaved and asserts you therefore have no legal standing, you simply respond with your state’s Statutes of Descent and Distribution and prove that a particular ancestor had been enslaved.

3. Statutes of limitations issue: If a white governmental or corporate defendant asserts that the injury or wrong you’re suing for is too old to be considered by a court, you simply respond with the concept known as “ongoing wrong” or “continuing violations” as well as the principle of “tolling.”

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4. Damages: Damages is a term that pertains to monetary compensation. In other words, how much money should a person be required to pay you for the injury or wrong he or she caused? Well, my reparations lawsuit wouldn’t seek to put any cash into my pocket at all. Why? Because reparations is much bigger than money.

Instead, as previously stated, reparations is about “the making up for a wrong. It is a restoration to good condition. It is a repairing.”

Moreover, cash as reparations is blood money and insufficient blood money at that, regardless of the amount. I certainly hope white folks don’t think my ancestors who were dragged kicking, screaming and fighting onto the slave ship that docked on the shores of Angola in 1619 said to their devilish pale-faced captors, “I willingly give my permission to you to kidnap, shackle, enslave, buy, sell, rape, sodomize, whip, torture, amputate, lynch, dehumanize and “second-class” me and my children, grandchildren, great-grandchildren, and so forth for 346 years and I also willingly give my permission to you to strip me and my generational offspring of our land, language, religion, and culture during those 346 years. You can do all of that, as long as you give some of those descendants some cash in 2021.”

I don’t think so.

If not cash, then what?

Here’s the what: Recompense Black folks with a vast area of fertile and valuable land somewhere in the United States where we can re-create Tulsa, Ok.’s 1906-1921 “Black Wall Street” on a statewide level with our own banks, schools, colleges, laboratories, factories, warehouses, farms, supermarkets, department stores, hospitals, etc.

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In addition to that, recompense us with, for example, federal tax waivers, free education across the country, cultural museums and libraries in every state, free mental health therapy for what Dr. Joyce DeGruy diagnosed as “Post-Traumatic Slave Syndrome,” small business start-ups funding and enhanced affirmative action.

For more information about the filing of an individual and/or a national class action reparations lawsuit against various local, state, and federal governments as well as against corporations, check out some of my future Black Dollars Matter columns for The Philadelphia Tribune. Even better, contact me at [email protected].

Opinion contributor Michael Coard is an attorney and radio host. His work appears regularly on the Capital-Star’s Commentary Page. He wrote this column for the Philadelphia Tribune, where it first appeared

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