But How Will We Repair? Practical Legal Approaches

By Chris Sanders

Will America ever look its sins of the past square in the eye? Or will we, as usual, just “move on,” as though moving forward and never looking back is a greater good? But how will we ever become whole unless we repent and repair?  

Wholeness is a healthcare term. An analogy: The legacy of American slavery is an old, old cancer that has permeated the body politic, causing deep damage and incapacitation with occasional outbreaks of symptoms, all the while defying a cure and forcing occasional responses to those outbreaks of symptoms. The victim lies in intensive care long-term, mostly forgotten except in response to outbreaks.

By comparison and contrast, the body politic is responsive to the meningitis of attacks on the most recent of its immigrants and refugees. Whether DACA “Dreamers” or children separated from their parents at the southern border, they are young and were relatively healthy in the morning of the last presidential administration. But without immediate treatment, they could be dead by night. So, the entire healthcare system springs into crisis response, filing lawsuits and using lots of resources and goodwill to save the innocent patients. 

Meanwhile, the longsuffering victims of the cancer of slavery lie in the next bed in intensive care, in view of the doctors and nurses scurrying around the little victims of Trump’s meningitis. Blacks are unnoticed and ignored, with only the occasional pitying glance, as though the immigrants have it worse and are more perfectly innocent. Meanwhile, the situation for the blacks gets worse as the years pass, with we outsiders blaming these victims for their plight.

What will it take to put black people on everyone’s list of the innocent persecuted? Why is our view of pure victimhood lacking? Why is this narrative messy and complicated, instead of simple and compelling? Must Trump deport black people for them to be included among the persecuted? What must government do that so overtly puts black people in the Other, that white people again clearly see blacks as persecuted? Must we put literal walls around black communities as  gates to keep them out? What is it that can put blacks currently in the cross-hairs? Is an obviously disparate impact enough? Can we make people see with new eyes so that the injustice is new and current once again?     

Where does a sense of responsibility for the legacy of slavery and Jim Crow originate? A better question: Why do so many white people feel no sense of responsibility for the current situation founded upon past events? Do white people feel no “people-ness” under American individualism that we cause us to feel responsibility for what was done by white people in the past? Any white people? All white people? Are white Americans so individualistic as to avoid recognition of our own privilege? 

Why don’t people white like me feel responsible? Is the fleeting recognition of massive responsibility so hard to dwell upon that we reject it? And in kneejerk rejection, we avoid it and then rationalize it away? Psychologically, that’s fear and flight. If so, how do we turn to, face and accept responsibility? 

I don’t think that enough of us will. It’s too much to expect a mass change of heart, through education, evangelism or otherwise. Even a substantial minority isn’t enough to make change; the goodwill of some alone will not do it. Compassion alone will not do it. Liberal intentions will not do it. Activist drive alone will not do it. Prophetic witness alone will not do it. The willingness of even significant numbers of people with a variety of motives to offer improvement in order to achieve closure will not do it. None of these alone–or even all of these in concert — will lead to major change. For years, decades and centuries, we are still not there.  

To create space for change, there must be an inevitable reckoning with justice on the near horizon — looming in the not-too-distant future. Another analogy: The need for reparations is like a long-running dispute that finally ends up in litigation. To resolve the case through trial or settlement, the judge sets the case for trial. The judge orders the parties to try to settle. The trial date looms and hangs over the  heads of the parties involved. The parties work against time under an order to attempt to settle before an inevitable decision arrives. 

A date certain with destiny for reparations is essential to “tee up” the controversy. Otherwise, reparation languishes for decades more. And we don’t have decades left. 

A certain date creates tension for everyone with a stake in the outcome. And almost everyone in America does. It puts the controversy on America’s agenda, and everyone with a stake in the outcome must get in motion, or be changed involuntarily. It’s a date with destiny.

How do we get to a date with destiny? I totally agree with the economic and political assessment of slavery as the foundation of American capitalism. Two hundred and forty-six years of slavery was horrendous and captures the imagination. But the biggest problem with legally challenging the horrors of the past is that they are in the past. Yes, the effects and results are felt in the present. But litigation requires live controversies, current damage and recent indignities and incidents. 

Statutes of limitation built into federal, state and local law are archaically called statutes of repose. That’s repose — as in sleep. Let the past stay in the past; you can’t bring it to court. Don’t try to visit the sins of the many-times-removed fathers (and mothers) upon the present generation. The courts aren’t for that. Bring it to the public eye through education and rhetoric. Bring it via direct action. Bring it to the private sector, politely asking for its good graces in conviction, repentance and compassionate goodwill. Bring it to government through partisan elections, budget allocation and legislation. But don’t bring it to court. 

Some cases were brought to court in the early 2000s seeking massive reparation for U.S. slavery. The claims were against the corporate and banking interests built on slavery that thrive today from their vicious beginnings.  The courts dismissed them as untimely: slavery began in 1619, 400 years ago, and ended in 1865, over 150 years ago. Most statutes of limitation require claims to be brought within six months, or one year, or two to five years, or at most 15 years.  The courts opined that such claims were rhetorical and political, thus not proper live controversies, and dismissed them to that realm. International claims in other countries, despite very different legal systems, to make reparation for the Atlantic slave trade have similarly ended. 

The hard-handed message to us is, “Don’t bring claims to court, unless it’s for something that happened recently.”

Fine, we won’t seek repair from the earliest atrocities to the present quandary, back to front, earliest to latest. We won’t ask the law to fix the problem from its early roots to the present day. We’ll start with present controversies and imminent damage.

Go after mass incarceration, with two million imprisoned, way too many of them the descendants of American slaves. That’s a huge spike in American incarceration in the last 20 years as a result of cash bail requirements that fall hardest on the black poor. It is caused by the school to prison pipeline; caused by private prisons which are a lucrative business; caused by recent statutes, like the “three strikes” provisions of 1994; caused by the politics of winning elections by blaming “super-predators” in the mid-1990s.  Mass incarceration is a metastasizing cancer that should be excised through litigation now.  

Go after redlining, a nefarious practice begun under federal law in the 1930’s that is with us still today. Simmons College of Kentucky in Louisville is actively challenging redlining. America needs a national redlining center, and Simmons may be just the place to do launch it. (Simmons, a Historically Black College rising from decades of oppression, named after its second president, a former slave, would be a great institutional beneficiary of a history-driven remedy.) We need research papers and books; congressional hearings on current real estate and insurance practices;  a change of heart toward mandating first-refusal rights in economic development for long-term communities;  litigation under the Fair Housing Act of 1968 to break the disparate impact of redlining on black communities.

Here’s a live controversy that’s in court under the Fair Housing Act now. Look at the attack on black communities in the run-up to the subprime mortgage scandal that drove America into the Great Recession only 10 years ago. Some subprime mortgage lenders violated the 1968 Fair Housing Act by willfully targeting and/or disparately making predatory mortgage loans to minorities. They knew that those loans were destined to fail, that they likely would result in default and then foreclosure. The loans thus denied the borrowers their housing, the only wealth most Americans ever have.  That damaged the communities they live in.

Predatory lending places the financial interests of the lender far above the best interests of the borrower.  In the mortgage lending context, these practices generate mortgage loans that are unsustainable  and are destined to fail. They include:

• Targeted marketing of  mortgage loans on unfavorable terms to vulnerable borrowers who are unsophisticated or without access to traditional credit sources;
• Steering credit-worthy borrowers to more costly loans;
• Incorporating unreasonable terms, excessive fees, pre-payment penalties and/or yield spread premiums  to the loan broker (i.e. kick-backs);
• Basing loan values on inflated or fraudulent appraisals;
• Repeated refinancing of loans that do not benefit the borrower and often jeopardize the property (loan flipping);
• Lending based on the value of the real estate asset collateralizing the loan and not the borrowers’ ability to repay (“equity-stripping”); and
• Inclusion of other loan terms and conditions that make it difficult or impossible for a borrower to reduce their indebtedness.

Subprime lenders had every incentive to make these loans, whether or not they were in the best interests of the borrowers and irrespective of the borrowers’ ability to repay. The lenders earned more money to do so through higher fees, passing the risk of loss onto third parties by securing and selling the loans. Every participant in the subprime mortgage lending and securing process had enormous financial incentive.  

Lenders obtained many willing borrowers by targeting their direct and wholesale lending activities to communities with high concentrations of minority homeowners. These are the quickest and easiest ways to make such loans, since those borrowers traditionally lack access to competitive credit choices.  Subprime lenders further enabled the process with willfully bad underwriting and falsification of appraisals.

The Fair Housing Act, 42 U.S.C. §§ 3601 et seq. protects communities (and the individuals residing in them) from discriminatory acts, policies and/or practices that make housing unavailable or establish terms and conditions in real estate- related transactions, including real estate financing activities, that discriminate on the basis of race, ethnicity or gender.  Sections 804 and 805 of the Act, 42 U.S.C. §§ 3604 and 3605, respectively, are designed to prevent predatory lending practices using “reverse redlining” – the targeting of an area based on its socio-economic or racial make-up – or other discriminatory practices. 

There are cases active around the country now to combat reverse redlining. Cities and counties chockfull of vacant and abandoned properties have sued major Wall Street financial firms for the targeting of just a dozen years ago. Since foreclosures in black communities are still active, the cases are timely. Communities paying for police and fire protection, property maintenance and more are pursuing their rights. Cities are entitled to the many millions of dollars sucked away from middle America to Wall Street coffers. 

Mass incarceration, redlining and more are just a few ideas for “front-to-back” litigation challenges to the legacy of North American slavery.  The sins visited upon God’s children today with their teeth set on edge by the sour wine of years of brutal practice by the generations before must be addressed. Seek a reckoning now.   

— Chris Sanders is an attorney in Louisville, Kentucky, a churchman, a member of the staff at Simmons College, has been deeply involved in the creation of the Angela Project, and is an outspoken advocate for racial jus- tice. He is the Director of Empower West and is active in the Cooperative Baptist Fellowship.

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