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Breaking the Chain, continued

Some critics--including other members of the HLS faculty--fear the reparations debate could in fact widen racial chasms among whites, blacks, and other minorities. Others question who should be paid--when no American slave is alive today to collect--and who should pay. At a time when so many Americans are the descendants of post-Emancipation immigrants, why penalize those who have no link to American slavery through deed or blood? Others dismiss the effort as impractical, foreseeing towering legal hurdles, such as the doctrine of sovereign immunity--which protects the federal government from damage suits, as it did from one of the early reparations cases against the Treasury Department in 1915.

The committee is considering a range of arguments and taking into account the many obstacles. Its investigation goes well beyond the borders of the United States, Ogletree says, noting it would be impossible to thoroughly examine American slavery without taking into account the role that African governments and individuals played. In August Ogletree will attend a UN conference in Durban, South Africa, on issues related to racism, racial discrimination, and xenophobia, and will participate in discussions of demands for reparations.

Ogletree does not underplay the importance of earlier attempts to remedy slavery and its effects, including the Civil War, the Reconstruction Amendments, civil rights legislation, affirmative action, and other government programs. These measures, he says, simply did not go far enough. He in fact compares the reparations suit to the landmark school desegregation case Brown v. Board of Education in importance but also in its strategy of drawing on experts to help shape claims.

The legal team, whose members are working pro bono, includes tort lawyers who have been involved in cases that led to billion-dollar settlements--among them a suit against the U.S. Department of Agriculture on behalf of black farmers. Criminal lawyer Johnnie Cochran is also part of the team. They are joined by activists--including the legal counsel for the National Coalition of Blacks for Reparations in America, representing thousands of members around the country--as well as academics.

U.S. Rep. John Conyers (D-Mich.), who for the last 12 years has tried to create a federal commission to study slavery, is also on the committee. He is advising members on how legal action might further legislative solutions. As they prepare for the lawsuits, neither Ogletree nor Robinson loses sight of the fact that legal action, at best, has played an indirect role in past reparations settlements in this country. From the $1.5 billion to Japanese-Americans interned during the war to the $2 million to black survivors of the Rosewood, Fla., race riot, apology and settlement came years after failed lawsuits. At that time, as Ogletree put it, Congress had "the moral courage" to explore and address the wrongs, which then became known to a wider public.

Looking at slavery, Ogletree says, has drawn the committee into a complicated and personally agonizing examination of American history. Before any lawsuit is filed, the committee will hold public meetings this fall. Ogletree is particularly eager that the findings be shared with the American people. He says that working on these issues has been a life-altering experience.

"Very few of us have a clear sense of the actual tragic circumstances that led to the death and destruction of millions of Africans simply being transported from Africa to the United States," he said. "It is in some sense every bit as tragic as the Holocaust, and yet it has received considerably less attention." Moreover, Ogletree says that "there hasn't been a decade when the chain of discrimination and bigotry and prejudice has been unbroken. And as much as you can talk about Jim Crow laws and de jure and de facto desegregation in the 19th century, you can talk about things like racial profiling, a discriminatory death penalty, and disparity in sentencing in the 21st century."

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Ogletree has the orator's gift of holding on to the beginning of a long sentence until he reaches the end, as if the words were no more than a piece of string held tautly between two fingers. But his passionate eloquence when he speaks of wrongs to be righted is equaled only by his lawyerly reticence when asked about the particulars of the developing legal strategy. In fact, Ogletree seems wearied by the barrage of inquiries from national and international media.

Details are confidential, he says, but the committee has agreed on at least one core lawsuit (likely class action) against the federal government, with serious consideration of multiple suits. He did not reveal the identity of the defendants. Possible claims encompass issues as straightforward as access to educational opportunities and issues as broad and complicated as racial profiling and racial disparities in the criminal justice system. In addition, the committee is looking at private concerns that may have profited from slavery. Some companies, like Aetna Insurance, for example, have publicly acknowledged responsibility. More are likely to come forward as laws are passed, such as one in California, compelling companies to reveal such information. Harvard Law School itself is not free of this stain. Isaac Royall, who endowed the first chair in the law at Harvard, did so with lands he obtained by selling slaves he owned in Antigua. Ogletree says people are aghast when they hear such facts, but when it comes to the history of slavery in this country, it's just the tip of the iceberg.

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