Thursday, June 23, 2022

Slave Descendants Have Claim Against Harvard Reinstated

The Massachusetts Supreme Judicial Court has remanded the dismissal of a claim brought by a descendant of slaves against Harvard for use of photographic depictions of her ancestors.

The oral argument is linked here from Suffolk Law's web page. 

Editor's note: Benjamin Crump's pro hac vice argument is nothing short of brilliant. A model of effective appellate advocacy.

The court

In 1850, the Harvard professor Louis Agassiz arranged to have daguerreotypes made of Renty Taylor and Delia Taylor, who were enslaved on a plantation in South Carolina. Renty was ordered to disrobe. His daughter, Delia, was stripped naked to the waist. Their images were then captured in four daguerreotypes. These daguerreotypes were later used by Agassiz in an academic publication to support polygenism, a pseudoscientific racist theory for which Agassiz, a prominent scientist, was a vocal proponent.

Identifying herself as a descendant of Renty and Delia Taylor, the plaintiff, Tamara Lanier, contacted Harvard University seeking recognition of her ancestral connection to Renty and Delia and requesting information regarding Harvard's past and intended use of the daguerreotypes. When the university dismissed Lanier's claim of descent from Renty and Delia and ignored her requests, continuing to use and display images of Renty without informing her, she brought this action against the defendants, the President and Fellows of Harvard College, the Harvard Board of Overseers, Harvard University, and the Peabody Museum of Archaeology and Ethnology (collectively, Harvard), seeking relief for emotional distress and other injuries, as well as restitution of the daguerreotypes to her.

A judge of the Superior Court granted Harvard's motion to dismiss, determining that each of the claims Lanier raised failed as a matter of law and that the facts as alleged in her second amended complaint did not plausibly suggest an entitlement to relief.

Because we conclude that the alleged facts, taken as true, plausibly support claims for negligent and indeed reckless infliction of emotional distress, we vacate the dismissal of the plaintiff's claim for negligent infliction of emotional distress and remand the case to the Superior Court to allow the plaintiff to amend her complaint to incorporate allegations of reckless infliction of emotional distress. The dismissal of Lanier's other claims, however, we affirm.

When the daguerreotypes were re-discovered

In 1976, the daguerreotypes were discovered in a wooden cabinet in a corner of the Peabody Museum's attic by a museum researcher. Although the researcher who made the discovery expressed concern for the families of the men and women depicted in the daguerreotypes, Harvard did not act on the researcher's concerns. Rather, it simply claimed the daguerreotypes as its property. The discovery itself attracted national media attention, as the daguerreotypes were believed to be the "earliest known photographs of American slaves."

The family connection was discovered fulfilling a dying wish of the plaintiff's mother as in the story of "Roots"

The plaintiff's mother, Mattye Thompson, often told the story of their family, which began with a man named Renty Taylor, also known as Papa Renty or "the Black African." Papa Renty was an indomitable man who defied slavery's tyranny by teaching himself and others to read and by conducting secret Bible readings and study on the plantation where he was enslaved. As a reminder to never forget the family history that began with Renty Taylor, Mattye Thompson repeatedly told her children and grandchildren, "Always remember we're Taylors, not Thompsons."

She brought her concern to the attention of then-President Drew Gilpin Faust ("a distinguished historian of the antebellum South and the Confederacy"), who advised her that the daguerreotypes were part of an "ongoing project" and that Harvard "agreed to be in touch..."

A broken promise.

Then

In 2017, Renty Taylor's image from one of the daguerreotypes at issue was used on the cover of the thirtieth anniversary edition of "From Site to Sight," a volume on anthropology and photography published and marketed by Harvard University Press. Harvard also used the image at a national academic conference it hosted on universities' historical connections with slavery in March of that year. At the conference, which the plaintiff attended with her own daughters, Renty's image was projected on a large screen onstage and was also featured on the front cover of the conference program, where it was accompanied by the following caption:

"The man you see on the program's front cover, Renty, lived and worked as a slave in South Carolina in 1850, when his photograph was taken for the Harvard professor Louis Agassiz as a part of Agassiz's scientific research. While Agassiz earned acclaim, Renty returned to invisibility."

According to the plaintiff's complaint, this description "took [her] breath away," not only because it omitted the "racist and dehumanizing" nature of Agassiz's work, but also because it "relegate[d] Renty to 'invisibility,'" in "flagrant disregard for [her] repeated attempts to share Renty's story and restore a measure of the humanity that Agassiz [had] stripped from him."

She then demanded that the daguerreotypes be "immediately relinquished" to her and sued when rebuffed.

Justice Cypher concurred and would keep an order to return the property on the table

The making of the daguerreotypes was a horrific harm to Renty and Delia, inflicted by their enslavers and by Louis Agassiz, a Harvard professor who ordered that the daguerreotypes be created. I agree with the court that the judge properly dismissed the specific property causes of action pleaded in the plaintiff's complaint based on our existing jurisprudence. However, if the plaintiff ultimately prevails on the surviving tort causes of action articulated by the court, the trial court will not be able to award the plaintiff with possession of the daguerreotypes, which was the plaintiff's primary reason for bringing suit...

Failing to recognize that the plaintiff, as a descendant of Renty and Delia, may have a claim to the daguerreotypes superior to Harvard's is precisely the sort of miscarriage of justice that the late Chief Justice Gants warned us against perpetuating. We are faced with an aggrieved plaintiff who has pleaded facts that, if proved, demand a full remedy and nothing less. It is within this court's authority to provide such remedy by recognizing the cause of action I have articulated today.

Notably, an amicus brief on behalf of the descendants of Louis Agassiz supports Ms. Lanier

We, the descendants of Louis Agassiz urge the Court to side with Ms. Lanier and we implore Harvard University, an institution with which our family has been intertwined for hundreds of years, to release the daguerreotypes to Ms. Lanier and provide the restitution she requests. We also call on the University to publicly apologize for the damage Agassiz and Harvard have done, not only to Ms. Lanier, but to generations of African-Americans. This gesture would begin an honest accounting of what is owed for Harvard’s historical support for slavery and elevation of Agassiz, who used his reputation and position at the university to enshrine the racist myth of white superiority...

As Ms. Lanier has said many times, it is because she grew up hearing stories about an enslaved ancestor, Papa Renty, or Congo Renty, that she began to uncover her relation to the man in the daguerreotype. Papa Renty’s efforts — and the oral history lovingly passed down through the generations to Ms. Lanier — have prevailed in heroic defiance of the legacy of chattel slavery, an institution that functioned to sever family ties and erase lines of ancestry for enslaved Africans. The history of our family, and that of Harvard, will forever be linked to that same odious institution. We do not choose our ancestry, but we can choose to learn from a history that has given us prestige, privilege and wealth at the expense of others. 

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/06/the-massachusetts-supreme-judicial-court-has-remanded-the-dismissal-of-a-claim-brought-by-a-descendant-of-slaves-against-harv.html

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