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Kindaka Jamal Sanders

excerpted from: Kindaka Jamal Sanders, Re-assembling Osiris: Rule 23, the Black Farmers Case, and Reparations, 118 Penn State Law Review 339 - 373 (Fall 2013) (278 Footnotes)

The slavery reparations debate--the debate concerning the alleged debt owed to African Americans for the continuing harm caused by slavery--has long since subsided, with reparations opponents seeming to have carried the day. However, it may well be that the dead have arisen, newly incarnated, in the Black Farmers case cluster. The Black Farmers case is a massive race discrimination case originally filed by a class of black farmers in August of 1997 as Pigford v. Glickman. The Kindaka Sandersplaintiffs claimed that the U.S. Department of Agriculture ("USDA") discriminated against them systematically in the awarding of farm ownership and operating loans. The Pigford case ended in an unprecedented civil rights settlement of over a billion dollars. More than 15,000 farmers recovered, and an additional 65,000 claimants may *341 yet recover under a new iteration of the Black Farmers case, In re Black Farmers Discrimination Litigation, which was recently settled.

In December 2010, President Obama signed into law a bill, the Claims Resolution Act of 2010, providing $1.1 billion to fund the settlement of In re Black Farmers Discrimination Litigation. The bill was passed over the objections of some lawmakers in Congress, including Representative Steve King from Iowa, who argued that the Black Farmers case was just a slavery reparations case in disguise. His argument was that due to the low burden of proof that claimants had to meet in order to recover, and the lack of procedural safeguards against fraud, most of the African Americans who stood to recover had no connection to farming. Representative King further asserted that this sort of loophole was intended by the congresspersons, in particular then-Senator Barack Obama, who enabled various pieces of legislation along the case's trajectory, including a bill tolling the statute of limitations in the case. Although this Article characterizes the issue much differently, it agrees with Congressman King that the procedural mechanisms at play in the Black Farmers case substantially reduced the barriers between race and recovery. This Article also does not deny that the Claims Resolution Act could be seen as reparations, and furthermore, it is argued here that a close relationship between race and recovery is central to any workable definition of reparations.

The Black Farmers case may constitute a technical reparations effort or, put differently, a reparations-related action, because of the nature of the relief sought, the historical circumstances justifying relief, and the technical processes that enabled recovery. This Article focuses on the technical processes that enabled recovery. It does so because technical issues, such as standing, statute of limitations, and causation, have been at the heart of the failure of slavery reparations litigation since the beginning. What is so remarkable about the Black Farmers case is that it was able to surmount these procedural and technical obstacles. At *342 the core of the black farmers' feat are two primary mechanisms: class certification and claims adjudication.

This Article examines why the Black Farmers case may technically qualify as a slavery reparations case. It explores how the case became a viable slavery reparations case in a legal and political environment hostile to race-based claims and slavery reparations-related litigation. In doing so, this Article offers a legally cognizable definition for slavery reparations and a viable path for future reparations-related litigation. In describing the path for future reparations litigation, this Article highlights the role of the class action device as essential to the reparations equation in the Black Farmers case.

Commentators critical of the class action device argue that the coercive force of class actions gives plaintiffs inordinate power to force the settlement of meritless claims. It is argued here, however, that in the Black Farmers case, the class action device was not used to circumvent merit, but instead to vindicate it. This Article is divided into the following parts: Part II provides an overview of the reparations debate; Part III discusses some prominent reparations-based cases and highlights lessons to be accounted for in future litigation; Part IV discusses the Black Farmers case cluster; Part V examines the role of Rule 23 of the Federal Rules of Civil Procedure in the success of the Black Farmers case; Part VI explores how the case can be used as a model for future litigation-based reparations; and Part VII discusses strategy for litigation-based reparations going forward.

* * *

The Black Farmers case presents many lessons for reparations-related litigation going forward due to the bargaining power the farmers amassed. The certification of the class in Pigford increased the size and power of the class exponentially and gave the class the bargaining power to create a claims process and relief structure that, in effect, amounts to reparations. The claims process, by allowing claimants to prevail with little to no documented proof, substantially reduces the evidentiary barriers between race and recovery and thus circumvents many of the traditional procedural obstacles precluding successful reparations litigation. The relief structure is, by definition, reparations because its purpose is to repair harm, such as loss of property, farm operations, or income, caused by a historic injustice. Rule 23(b)(2) requires less for the certification of a class when declaratory and injunctive reliefs are the primary remedies sought. A focus on declaratory and injunctive relief makes the certification of civil rights actions more probable, and, because of the strategic benefits endemic to the class action vehicle, makes relief for individual class members more likely. The litigation-based conception of reparations contemplates remedies that will fix the problems caused by slavery. This idea of reparations coincides with pronouncements of the Supreme Court regarding remedies meant to address race-borne injuries. As the Supreme Court held in Swann v. Charlotte-Mecklenburg Board of Education, "the nature of the violation determines the scope of the remedy." In Swann, the Court took a results-oriented approach to desegregating the Charlotte-Mecklenburg school system by requiring that the school actually desegregate as opposed to ceasing policies resulting in segregation--that is, drawing racially neutral attendance *373 zones. Much has changed since Swann. The further removed we are from the Civil Rights Movement, the less successful civil rights litigation has become. Yet social ills rooted in racial inequities abound. Creative strategies combining activism with adjudication, such as the strategy employed by the Black Farmers litigators, are necessary to combat these current legal hurdles.

 Assistant Professor of Law, Texas Southern School of Law; B.A., Morehouse College; J.D., Harvard Law School.