Reparations Roundtable: On Boris Bittker’s The Case for Black Reparations

It is difficult to imagine a more eloquent or persuasive case for African American reparations than Ta-Nehisi Coates’s recent essay for The Atlantic.[1] If you haven’t yet, please read it. You will be very happy you did, if stricken, no doubt, with the painful sense that the injuries of history demand real, tangible, material recompense.

Coates’s essay has generated a great deal of discussion among the establishment intelligentsia. Much of it is disappointing.

Consider this passage from a New Republic piece by Dean Starkman:

Any serious push for economic justice in the United States, Coates asserts, must take the different experiences of the races into account. For him, that process would begin with the passage of a long-stalled bill by Representative John Conyers that would formally explore potential reparations for African Americans. Deliberately leaving open what the actual reparations might entail, Coates emphasizes the benefits of opening a necessarily painful, potentially cathartic conversation about race in American society. Setting aside the fact that the Conyers bill remains a nonstarter politically, there’s a conceptual problem here: In the African American context, reparations are invariably associated with redressing wrongs from a distant era. But obstacles to wealth (i.e., methods of gross discrimination) remain very much in place for blacks today.

Starkman is plainly wrong, on several levels. First, what is more familiar in American politics than the mutation of today’s “political non-starter” into tomorrow’s inevitability? Second, following a distinguished tradition, he makes up out of whole cloth what the demand for reparations “in the African American context” might mean.[2] Third, in rushing to translate Coates’s article into a spur to policy proposals, Starkman overlooks the fact that the core of reparations demands is the interlocking demand for both financial restitution and provision of resources for further study, research, and education (this has been particularly true of the movement for African American reparations since the South African Truth and Reconciliation process of the 1990s, which inspired a broadly shared sense that apology for slavery and Jim Crow would be personally meaningful to descendants of those systems’ victims).

Fourth, and perhaps most importantly, Starkman’s mocking tone in regard to the therapeutic dimension of politics (a dimension that lurks at the heart of the Black Radical Tradition and particularly its Christian variants) reminds us of the tragic trajectory whereby Christopher Lasch’s nuanced jeremiads vis-à-vis the New Left’s devolution into a cult of feeling was jerry-rigged as an all-purpose assault on all but the most utilitarian versions of African American politics as a psychobabble-infused form of racial blackmail.

Starkman’s text calls to mind Mark Tushnet’s remarks on Boris Bittker, the Yale Law School tax professor who wrote The Case for Black Reparations in 1973[3] (Tushnet was Bittker’s research assistant on the project):

Bittker’s writing on civil rights, then, is a response to self-styled pragmatists on issues of race. They say, “Those ideas are nice in theory, but we cannot implement them in practice.” Bittker, the utopian technician, replies, “Here’s how you could indeed implement them. When you say that you can’t, you must mean that you don’t want to.”[4]

Or consider the way in which Bittker, in The Case for Black Reparations, laments the standard-issue response of white liberals to James Forman’s interruption of the Sunday morning service at the Riverside Church in New York City in May of 1969.

Reminding his readers that Forman’s “Black Manifesto” was a demand for $500 million as “a beginning of the reparations due us as people who have been exploited and degraded, brutalized, killed and persecuted,” with funds to be channeled to a “Southern land bank, publishing and printing industries, four audio-visual networks, a research skills center, a training center for teaching skills in community organization and communications, a black labor strike and defense fund, a black university, and several other institutions,” Bittker expresses concern with his peers’ “paucity of analysis.”

“Few,” Bittker lamented, “had anything to say about reparations as a concept of social justice.” Plus ça change.

***

What I would like to do today, then, is to use Coates’s essay as an occasion to look closely at Bittker’s The Case for Black Reparations.

The Case for Black Reparations is, in many ways, an astonishingly prophetic book—one can read it as an agenda and itinerary for much of the research pursued by historians of race and capitalism since the 1970s. Reading The Case for Black Reparations and Coates’s essay side-by-side illuminates the extent to which scholarship of the last three decades (by Thomas Sugrue, Melvin Oliver and Thomas Shapiro, Ira Katznelson, Kenneth Jackson, Michelle Alexander, and many many others) has demonstrated conclusively the systemic character of American racism (which, in Bittker’s book, often appeared in the form of folk knowledge or hunches rather than “data”).

“As a working hypothesis,” Bittker wrote, “I am prepared to accept the theory that statutes, ordinances, and other official actions have been the predominant source of the racial discrimination that has blighted our public and private life.” Such a hypothesis, amply confirmed by decades of scholarship, provides a “justification for publicly financed reparations to the victims of discrimination, even though some of the damage may stem from ‘private’ behavior that might have occurred in the absence of official encouragement or even in violation of official prohibitions.”

Perhaps the most remarkable detail about The Case for Black Reparations is that it was written by a white lawyer then in his 60s. Bittker worked not in the field of civil rights jurisprudence but in the wilds of tax law. Thus, while Tushnet notes that Bittker had sometimes “turned his attention to the interface of tax and civil rights,” the motivation for writing about African American reparations clearly had deeper roots.

All of the available evidence suggests that Bittker was moved to write The Case for Black Reparations because of a genuinely felt need to grapple with the central threat, as Tushnet writes, “to our country’s claim to being a land of justice.”

***

Boris Bittker was born on November 28, 1916 in Rochester, New York. He died on September 8, 2005. Bittker graduated from Cornell University in 1938, and received his JD from Yale Law School in 1941.

After finishing law school, Bittker clerked for Judge Jerome Frank of the Second Circuit of the US Court of Appeals. During the WWII years, Bittker worked as an attorney for the Lend-Lease Administration and later fought overseas, earning a Purple Heart.

Somewhat reluctantly, Bittker accepted a teaching job at Yale Law School in 1946. He gained tenure in 1951, and remained on faculty until the early 1980s.[5] Bittker’s area of expertise was tax law: he wrote dozens of books and articles on the topic, often earning the ire of conservative critics who bristled at Bittker’s refusal to criticize corporate and income taxes as symptoms of creeping socialism. A progressive with roots in the Old Left; a feminist and environmentalist, Bittker was in many ways the quintessential postwar legal liberal.[6]

To understand the road that took Bittker to The Case for Black Reparations, it is crucial to look closely at the institution within which it emerged: Yale Law School in late 1960s and early 1970s.[7]

Yale Law School was at the epicenter of struggles over the place of the university and law in the maintenance of (in the parlance of the times, and a phrase that featured prominently in Forman’s “Black Manifesto”) the “white power structure.” The cast of characters in the orbit of Yale Law School in the years between 1967 and 1973 is remarkable: Hilary Clinton, Clarence Thomas, Robert Bork, Mel Watt, Lani Guinier, Duncan Kennedy, Ronald Dworkin, Guido Calabresi, among many other future luminaries.

New Haven itself was a flashpoint in the late New Left escalation of protests against the Vietnam War and American racism. It was also the site, in 1970, of the infamous New Haven Black Panther trials, which proved to be an important turning point in the evolution of public understanding of the FBI’s reckless campaign against African American social movements.

In the late 1960s, some of Yale’s law professors worried as younger colleagues became “faculty-club revolutionaries,” permissive radicals simultaneously channeling some unholy mixture of Herbert Marcuse, Josef Stalin, and Dr. Benjamin Spock (exemplified, for many, by the briefly famous Yale Law professor Charles Reich, author of the counterculture classic The Greening of America).

In contrast, Bittker was broadly sympathetic to the youth and student revolt, and sought to understand the political philosophy espoused by African American radicals. “When Boris Bittker’s alumni contemporaries asked him how he could tolerate the younger generation,” Kalman writes, “he often reminded his friends that the students are ‘my children and yours’ and that ‘many of the things that the students wanted were things they had learned to prize at home.’”

Bittker later described himself as “one of the relatively few people on the faculty who had much sympathy with the students, at first with the primarily white students who were protesting and then later with black ones.” While he “disliked their tactics very much” he came to think that some of the things they wanted were “justifiable.” That he chose Mark Tushnet––a leading student radical and later a founder of the Critical Legal Theory movement––as a research assistant spoke volumes. Bittker took the lead, as well, in inviting students to sit on the faculty committee (today, a standard gesture, but then still an innovation). Later, in response to demands for classes less aridly jurisprudential and more connected to the concrete concerns of African American activists, Bittker offered a seminar entitled “The Role of the Black Lawyer.” (As far as I can determine, it was not until the late 1970s that Yale Law School had a tenured African American faculty member who could have taught such a course in a white professor’s stead).

Over the course of the 1950s and 1960s, Yale Law School had gained a reputation (in addition to its mythic status as the home planet of Legal Realism, and its fame as a welcoming intellectual home for Jewish students and faculty members, masters of the art of “thinking Yiddish and talking British”) as a magnet for African American students.

Kalman explains:

Beginning in 1948, Yale law professors had admitted any African American who, “in our judgment, was qualified in the sense that he or she could successfully complete the three years required to obtain a degree. All other applicants competed on a best-qualified basis—with the exception that, as a ‘national’ law school, we guarded against overrepresentation of particular regions of the country.” The statement was not quite accurate. As one internal memorandum admitted, “[W]e should be fooling ourselves if we refused to acknowledge” that “Yale connections” did not give children of law school alumni and those strongly supported by faculty members an edge in the admissions process too. The Yale Admissions Committee did not keep the African American track of its special admissions program secret, but did not publicize it. Yale supplemented its special admissions program with outreach. It recruited African Americans by sending its admissions officer out to speak about the school and awarding financial aid to those accepted, when possible. The approach was sufficiently effective that in 1965, Howard Law School charged Yale with “cherry-picking, ‘grabbing’ the cream of Negro undergraduates interested in studying law.” Even so, Yale’s affirmative action program had traditionally yielded no more than six black students annually, some of whom— Harvard College honors undergraduate Haywood Burns, for one— would undoubtedly have been admitted anyway. Small as that number was, it was substantial at a time when minorities were underrepresented in law school student bodies and the profession, and it contributed to Yale’s image as the law school concerned about social justice.[8]

This was a point of pride, as well as a source of tension (not unrelated to the new politics of resentment that took root in certain segments of the Jewish bourgeoisie in the late 1960s, as Ocean Hill-Brownsville exploded and magazines like Commentary ratcheted up its “cultural pathology”-inflected coverage of African American protest).

As the ‘60s unfolded, African American student groups (the most significant of which was the Black Law Students’ Union) began to press for further reform (Bittker supported these measures, resisted by more hidebound colleagues).

The entering first-year class in 1968 included the largest number of African American students the school had ever enrolled, including several students who would become key leaders. J. Otis Cochran (an Atlanta native, Morehouse graduate, and civil rights movement veteran) later remembered Bittker as having treated him with kindness and invited him to his home. (A very different reception was provided by Averell Harriman, who snarled waspily at Cochran: “Young man, I have a grandson I can’t get in here”).

The class of 1972 was remarkably saturated with students who identified with the “far left” (including thirty-five first-year women, 17 percent of the class: at the time a revolutionary event). This was perhaps even truer of the cohort’s thirty African American students than it was for their white counterparts.

When the former gained control of the Student Association in 1969, they were eager to articulate a radical agenda. Left-leaning students pushed for faculty approval of a resolution against Vietnam as a “racist war” (and a corollary renunciation of the principle of “institutional neutrality”). As fifty thousand antiwar protestors gathered in New Haven for one of the largest demonstrations that the United States had ever seen, the Student Association presented a formal declaration of protest against the Law School’s “evasion of its direct responsibility to Yale students and of its moral obligation to the New Haven community at large.” The complaint singled out the issue of “police harassment and abuse to which Black people (were) subjected daily by New Haven police.” A series of dramatic direct actions attracted attention from the New York Times and other national press outlets. Yale Law School was firmly on the map of the national radical imaginary.

***

This, then, was the immediate background against which The Case for Reparations was composed.The events of the late 1960s at Yale Law School (and throughout the world) had clearly made urgent a deep engagement with the question of juridical remedies for the racist injustices of the past.

The Case for Reparations was not Bittker’s first major statement on law and race. A decade earlier, in 1962, Bittker published the essay “The Case of the Checkerboard Ordinance” in the Yale Law Journal, with mixed results. In the final analysis, it had failed to affect the discourse on civil rights law in the manner its author had hoped.[9]

“The Case of the Checkerboard Ordinance” took the form of a thought experiment about a utopian planned community in Illinois that arranges its houses in a strictly tessellated grid (“Negro/White/Negro/White,” etc.,) and enforces restrictive covenants to maintain this balance as lots change hands.

“The Case of the Checkerboard Ordinance” was, apparently, an essay out of sync with its times—it moved too quickly to the finer details of integration at a moment of continuing “massive resistance.” As David Freund observes, 1962 was also the year in which white mobs in suburban Michigan reenacted the infamous hate riots of 1925 (in response to the African American physician Ossian Sweet’s attempts to move into a white-only neighborhood).[10]

Additionally, Bittker’s formal decision to stage the essay as a mock debate between fictional judges (a technique also used by Zechariah Chafee, Jr. and other writers in the orbit of Legal Realism) might have rendered the point of the “The Case of the Checkerboard Ordinance” obscure. Tushnet accounts for this literary ruse as evidence of Bittker’s “utopian technician” modus operandi: “It contains the kind of advice a good tax lawyer would give to a client contemplating a complex transaction: ‘If you want to do that, here’s what you have to do first.’”

This argumentative flexibility would also serve as the most distinctive feature of The Case for Black Reparations. Bittker seeks, throughout that text, to provide as many potential paths to reparations as he can think of—whether the one (say, a claim based in tort law and seeking damages for emotional harm) contradicts the other (say, a Fourteenth Amendment claim based on chronic mistreatment by state officials) was of little concern.

Bittker’s versatility chafed, however, against the political inclinations of the 1960s. Vietnam Era progressives favored sincerity and authenticity, fidelity to the Gandhi-an demand for justice, and devotion to the moral authority of those most unwavering in their commitments. Bittker’s exercises in Boolean logic may well have struck readers as dangerously close to the free-floating casuistry of state functionaries like Eugene V. Rostow (Bittker’s dean at the Yale Law School and friend, as well as brother to W.W. and sometimes State Department panjandrum).

Tushnet notes that while Bittker’s essay seemed to speak to a widely shared expectation (not necessarily endorsed by Bittker himself) that “white America had reached the point where the next problem it would confront would be reconciling extensive remedial and compensatory action with the fundamentals of constitutional theory,” the transition from the Kennedy to the Johnson years would instead see a next stage of “grudging acceptance of limited remedies.”

Despite its ambiguous legacy, “The Case of the Checkerboard Ordinance” did find its way into a number of significant citations, and it certainly helped Bittker clarify his own feelings about race and law. The limited remedies with which the American government had been tinkering were not only ineffective on policy terms, they were structurally flawed as stopgap responses to a crisis so deeply rooted and chronic that its amelioration required commitments of unprecedented vigor and expense.

“Seen in that way,” Tushnet writes, “The Case of the Checkerboard Ordinance” failed not because it was out-of-date but rather because it was “so far ahead of its time as to be fairly called utopian.”

The 1962 essay needs to be understood if the motives underlying the composition of The Case for Black Reparations are to be properly understood. Tushnet reconstructs the immediate reception context:

The reviewers seemed repeatedly to shake their heads in wonder as they asked themselves, “How could a serious scholar worry in such detail about the intricacies of a policy that has no chance of being adopted in his lifetime?” After all, the book was published in 1973, when “white backlash” was a potent political force and when the Burger Court was in place. Yet a large part of the book discusses the details of possible Section 1983 suits seeking reparations. Surely, the reviewers told themselves, Bittker must have known that it was sheer fantasy to imagine that such suits would succeed in the near future.

What is remarkable, then, about The Case for Black Reparations is its realism. Every argument is grounded in a rational interpretation of statutory language and relevant precedents; even a typical Bittker’s rejoinder to common moral-philosophical charges against reparations (for example, the New York Times editorialist who protested: “there is neither wealth nor wisdom enough in the world to compensate in money for all the wrongs in history”) is measured and pithy: “This blinding insight is the conservative counterpart of the revolutionary maxim that you can’t make an omelet without breaking eggs.”

***

Unworried about the abstract double-binds of moral philosophy nor the collateral damage inherent in omelet-preparation, Bittker announces his aim, in The Case For Black Reparations, as seeking to stimulate, at last, “the debate that was so strikingly missing in the months immediately after Forman’s interruption of the Riverside Church service in May 1969.”

Bittker’s writing is distinguished by two absences. On the one hand, there is almost no indulgence in the sentimentality, pity, or bathos that has plagued white writing on slavery and racism since the golden age of Abolitionist writing and Harriet Beecher Stowe. On the other hand, there is almost no engagement with white guilt or the melodramatics of expiation––Bittker is interested in culpability, not guilt; and in remedy, not sacrifice.

Bittker’s first task is to negotiate the question of whether African American reparations should be pegged to the injuries of slavery, or if it would not be more legally sound to foreground the abuses that followed the failure of Reconstruction. Drawing heavily on the work of C. Vann Woodward, Bittker makes a strong case for the latter strategy.

“Although the ‘Black Manifesto’ does not emphasize and barely even mentions slavery,” Bittker points out, “it is often assumed that the primary objective of reparations is compensation for the value of slave labor.”

He continues in a provocative fashion:

The preoccupation with slavery, in my opinion, has stultified the discussion of black reparations, by implying that the only issue is the correction of an ancient injustice, thus inviting the reply that the wrongs were committed by persons long since dead, whose profits may well have been dissipated during their own lifetimes or theirs descendants’ and whose moral responsibility should not be visited upon succeeding generations, let alone upon wholly unrelated persons.

Here, Bittker makes the book’s weakest point. There is no conceptual reason to disambiguate slavery from Jim Crow, and if the picture he paints here of the web of responsibility in which strangers find themselves holds, there is no reason that all reparation demands should not be scuttled on the basis of the impossibility of connecting causes to effects. That Bittker rejects Dr. Martin Luther King, Jr.’s insistence on the inter-embedded histories of slavery and Jim Crow in favor of the vexed complaints of one-time white supremacist Robert Penn Warren tells us all we need to know. It is worth quoting the passage from Robert Penn Warren that Bittker finds so convincing:

The whole notion of untangling the ‘debts’ of history smacks of fantasy. Would the descendants of an Athenian helot of the fifth century B.C., assuming that such a relationship could be established, have a claim today on the Greek government? And with or without accrued interest? Would the descendant of a mill girl in Lowell, Massachusetts, who died of lint-lungs in 1845, have a claim on Washington, D.C., in 1965? Or would it be Boston? … And while we are on the subject, let us branch out and try to calculate how many explosion-prone trade guns, ankers of rum, and iron bars the Nigerian government owes what percentage of the twenty million American Negroes––those things being the common currency the ancestors of the said Nigerians demanded in payment for the ancestors of the said American Negroes whom the ancestors of the Nigerians had bagged in the bush and put up for sale. The whole thing is a grisly farce. Come to think of it, it smacks not of fantasy, but of Bedlam.

While Bittker claims that “this type of response is not easily rebutted,” the rest of his book shows, in detail, that rebuttals abound. Drawing largely on the logic of torts and doctrines of equity, Bittker reveals numerous examples of settled precedent that has evolved, over the past several hundred years, to make possible the redress of harms complicated by interventions of time, space, chance, and history.

Had Bittker remained stuck in Warrenian conservatism, The Case for Black Reparations would no doubt have been impossible to write. Importantly, then, Bittker, proceeds to a second move: “slavery was only a necessary, not a sufficient condition for today’s compensatory proposals.” Bittker reads Woodward on the rise of Jim Crow as providing the warrant for serious contemplation of reparations:

In actuality, slavery was followed not by a century of equality but by a mere decade of faltering progress, repeatedly checked by violence. The hope kindled in the era of Reconstruction was snuffed out by the political settlement of 1877, and the Negro’s ‘proper place’ was soon defined as a status of inferiority, described succinctly by C. Vann Woodward…

It was the trauma of Plessy v. Ferguson that set in motion the injuries and interferences for which reparations might serve as minimal redress. By sanctioning “separate but equal” as merely a corollary of reasonable exercise of the police power, and “not for the annoyance or oppression of a particular class,” the Supreme Court ignored the wealth of readily available evidence that Jim Crow laws were precisely designed to annoy and oppress the particular class of African Americans, and to impose an “official badge of inferiority.” This illogic was at work in the North as well as in the South. The federal government was fully complicit, maintaining a segregated school system in the District of Columbia, and enforcing Jim Crow in federal buildings and the armed forces.

Thus, Bittker emphasizes is that reparations “seek to redress injuries caused by a system of legal imposed segregation that was eventually held in Brown to violate the equal protection clause of the Fourteenth Amendment.”

This line of argument immediately creates an analytical difficulty. The government is insulated from most legal actions seeking redress for government misconduct, even if that governmental misconduct causes “emotional or pecuniary damage to the citizen” the “normal approach of the courts is to eliminate the condition for the future rather than to provide pecuniary solace for the past.”

This dilemma, however, had begun to look less intractable in the 1960s; the Warren Court had begun to extend to victims of federal police misconduct the right to sue for mistreatment (extensions that were soon to be retracted in the decisions of the Burger and Rehnquist Courts). Drawing inspiration from the Warren Court’s innovations, Bittker writes:

The case for black reparations, however, need not rest on the theory that damages should be paid for every species of improper official conduct. We are in the realm of legislative discretion. More than any other form of official misconduct, racial discrimination against blacks was systematic, unrelenting, authorized at the highest governmental levels, and practiced by large segments of the population.

If such a proposal leads to the standard liberal response—why redress this historical trauma and not the thousands of others?––Bittker counters: “Should no wrongs be corrected unless all can be?’ Since, in both public and private life, “we constantly compare competing demands for the redress of injustice, knowing full well that the pit is bottomless” we must presuppose a society “that is prepared to respond to the most meritorious of these claims, rather than dismissing all of them as man’s ineluctable fate.”

In insisting upon this moral vision, Bittker’s The Case for Black Reparations (however flawed, imperfect, dated) remains an inspiring text. Read as a historical supplement to Ta-Nehisi Coates’s “The Case for Reparations,” Bittker’s essay helps the contemporary reader flesh out a certain vital historical lineage (often hidden behind other narratives of race and politics and ideas in the US).

“When you say that you can’t,” Bittker reminds us, “you must mean that you don’t want to.”[11]

[1] http://www.theatlantic.com/features/archive/2014/05/the-case-for-reparations/361631/

[2] Dean Starkman, “A Hole in the American Dream,” New Republic, June 30, 2014.

[3]Bittker, Boris I. The Case for Black Reparations. New York: Random House, 1973.

[4] Mark Tushnet, “In tribute to Boris Bittker: The Utopian Technician” 93 Yale L.J. 208.

[5] Pollak, Louis H. (2006). “Remembering Boris”. Yale Law Journal 115: 745.

[6] http://www.law.yale.edu/ylr/pdfs/v53-1/531bittker.pdf

[7] Kalman, Laura (2005-10-31). Yale Law School and the Sixties: Revolt and Reverberations (Studies in Legal History) (Kindle Locations 1313-1318). The University of North Carolina Press. Kindle Edition.

[8] Kalman, Yale Law School and the Sixties, 101.

[9] Boris Bittker, “The Case of the Checkerboard Ordinance: An Experiment in Race Relations,” 71 YALE L.J. 1387 (1962).

[10] David Freund, Colored Property. An allegorically rich detail of the story is that the 1962 pogrom was in fact in response to African American professional movers helping a white family move into a segregated neighborhood, mistaken by white alarmists for “radical” residential integrationists.

[11] Tushnet, op cit.