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Jewish World Review Feb. 12, 2004 / 20 Shevat, 5764

Jonathan Turley

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Reparations cause is coming up empty: Potential lawsuits destined to remain meritless in courts | Reparations and reality collided this week in a federal courtroom in Chicago. U.S. District Judge Charles Norgle dismissed the entire slavery reparations lawsuit brought against 19 blue-chip firms such as banks, railroads and insurance and tobacco companies. Despite Norgle's ruling, reparations have become something of an urban legend that is impervious to any corrective legal measure or reality check. It is a myth kept alive by a virtual cottage industry pushing the idea of legal reparations or "black tax rebates" despite mounting costs to African-Americans.

In their reparations lawsuit, the plaintiffs were asking the court for the impossible: to set aside the most fundamental principles of legal process and constitutional law. The court would then order billions in damages thus far denied by Congress and oversee a fund that would dwarf the budgets of some federal agencies.

To get there, the judge was expected to bulldoze through foundational definitions of injury, standing and proof to allow the plaintiffs to recover for injuries committed over a century ago to their ancestors. Some of the plaintiffs, like Marcelle Porter in an interview with the Chicago Tribune this month, dismissed such legal requirements as irrelevant: "I don't have to prove anything," Porter stated, "I'm black."

The law, however, does not operate on such conclusory, unilateral assertions. It demands showings of such things as proof, injury and timeliness that distinguish the visceral from the legal.

Despite these insurmountable flaws, few politicians are willing to say the obvious about these reparations lawsuits: They are meritless. Instead, politicians and activists continue to give false credence to the idea that a court will order up to a trillion dollars of damages for the descendants of slaves. The reason is that reparations have been described as a "litmus test" for black leaders. To question the basis of reparations lawsuits or defend targeted companies is to invite the ire of the overzealous.

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Consider the modest statement of Carole Brown, senior vice president of Lehman Brothers brokerage firm, one of the companies sued in the reparations lawsuit. When asked about the lawsuit, Brown simply stated that "the Lehman Brothers in the 1850s is not the company that it is today."

Even this modest statement led to a scathing personal attack by Ald. Dorothy Tillman (3rd) that had disturbing racial overtones. Because Brown is black, Tillman demanded her resignation from the CTA board on the grounds that "if she's that insensitive as an African-American woman not to understand the effects and residues of slavery, she certainly can't represent us on the CTA board." While this is the first indication that CTA board members are appointed to represent racial groups, Tillman added that "she [Brown] should have kept her mouth shut and said, "I'm not going to speak against my people."

It is shrill, unhinged attacks like Tillman's that reveal the problem with the reparations movement, where anyone stating the obvious is subject to attack as disloyal or an Uncle Tom. Instead you have frivolous statements of entitlements from leaders like Ald. Carrie Austin (34th), proclaiming on reparations that "I want 40 acres and a Lexus. You can keep the mule."

Austin is not alone. Civil rights activist Al Sharpton once demanded in 1978 that Ed Koch, then the mayor of New York City, support the payment of $50 billion in reparations and an agreement to set aside all summer jobs in New York City for black youths exclusively. Obviously, such claims are intended to achieve popularity, not results. However, they reveal the corrosive element within the reparations movement where a political symbol is no longer tethered by any legal or limiting principle.

Black publications have also fueled this atmosphere of unrealistic and often unlawful expectations. In April 1993, Essence magazine started one of the biggest tax scams in history. Essence editor Lena Sherrod wrote a piece informing readers that "The People's Institute for Economics" had calculated the current value of 40 acres and mule at $43,209. She told readers that they could claim a black refund "on line 59 of [tax] form 1040--which asks you to list `other payments"--simply enter $43,209 in `black taxes' and compute accordingly."

Thousands followed Sherrod's directions and the Internal Revenue Service was deluged by refund requests, often with a copy of the Essence article attached. Incredibly, the IRS paid out tens of millions in such refunds before realizing the mistakes. Some African-Americans have now been fined and some tax preparers have recently gone to jail over the scam. Thousands of others have been ripped off for hundreds of dollars by con artists using the promise of $43,209 in reparations tax credit.

A few years after the scam took flight, Essence ran a brief reference to the alleged rebate and noted "although many historians" supported the claims, the IRS did not. This meek quasi-retraction, however, has not been enough to stop the urban legend of reparations tax credit started by Essence.

While wildly popular, the use of legal or tax claims for reparations serves only to create false and dangerous expectations. With each legal defeat or criminal fine, the sense of injury and powerlessness only increases. Black leaders should serve as responsible stewards in their communities and publicly caution against such meritless claims. The inescapable fact is that reparations have always been a political issue that can only be resolved in Congress. It is there, as citizens of all races, that we should debate this question and decide the question openly, fairly and finally.

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JWR contributor Jonathan Turley is a professor at George Washington Law School. Click here to visit his website. Comment by clicking here.

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© 2003, Jonathan Turley