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Liability back on the table for Harvard’s use of slave photos

The Massachusetts Supreme Judicial Court revived an emotional distress claim from a woman who lobbied Harvard University about its profiting off daguerreotypes taken 172 years ago of her enslaved ancestors.

BOSTON (CN) — A descendant of enslaved individuals who were stripped and photographed decades ago to advance a racist theory about the origins of the human race can pursue a civil lawsuit against Harvard University.

The ruling from the Massachusetts Supreme Judicial Court on Thursday revives a 2019 lawsuit filed by Tamara Lanier that said Harvard has been profiting for years from daguerreotypes of her ancestors taken in 1850. The images are some of the oldest photographs of enslaved individuals known to be in existence.

While the court said Lanier cannot seek the possession of the daguerreotypes, it does allow her to allege that the school's response to her query about the images caused her to suffer emotional distress.

Lanier’s lawyers say they are eager to continuing their “legal and moral battle for justice” against the Ivy League institution.

We “look to repair the damage and degradation that they have caused Tamara Lanier, her ancestors, and all other people of color exploited by their institution,” attorney Ben Crump said in a statement.

Harvard University did not return requests for comment.

The daguerrotypes at issue were created by Harvard professor Louis Agassiz to illustrate a paper on polygenism, the pseudoscientific theory that said different racial groups descended from different origins. It was a theory used to buttress the institution of American slavery and further white supremacy.

Because at that time slavery had been abolished in Massachusetts for years — the result of a lawsuit after the commonwealth’s constitution went into effect in 1780 — Agassiz made the images of a enslaved man named Papa Renty and his daughter, Delia, during a trip to South Carolina.

Lanier messaged Harvard University about the daguerreotypes in 2011. In a complaint that offers more personal insight to the people behind Agassiz's studies, she notes that Papa Renty quietly resisted his enslavement by teaching himself to read, acquiring a Bible and then leading studies of it in secret.

Lanier says she approached Harvard out of concern about how it was using the photos, and what plans it had for them in the future. She allegedly received a vague reply, but no follow-up from the institution.

Three years later, the university told a reporter writing about the daguerreotypes that Lanier never provided proof that she was descended from Papa Renty. The images later appeared on the cover of a book about photography and anthropology, and Lanier says she suffered nausea and insomnia because of Harvard’s actions.

While the Middlesex County Superior Court dismissed Lanier's case, the Massachusetts Supreme Judicial Court reversed Thursday, saying that Agassiz's dehumanizing conduct toward Papa Renty and his daughter was not only outrageous and extreme but would have also been illegal in Massachusetts at the time.

“Harvard's past complicity in the repugnant actions by which the daguerreotypes were produced informs its present responsibilities to the descendants of the individuals coerced into having their half-naked images captured in the daguerreotypes,” Justice Scott Kafker wrote in the 39-page lead opinion.

In a concurring opinion, Chief Justice Kimberly Budd said Harvard violated ethical principals laid out by groups such as the American Alliance of Museums and the Society of American Archivists, who cautioned institutions to have respect for items that are culturally sensitive.

“By failing to engage respectfully and transparently with Lanier when she approached the university to explain her connection to the daguerreotypes, Harvard transgressed archival institutions' values, selfishly putting itself and its agenda before any effort to reckon with its past or make amends in the present,” Budd wrote.

Lanier argued in her complaint that the institution negligently inflicted emotional distress, but Kafker said the facts of the case suggest that Harvard’s actions crossed over to the reckless. While Lanier is entitled to amend her complaint to make a claim for reckless inflection of emotional distress on remand, the court said she cannot ask for possession of the daguerreotypes given the significant passage of time.

This was an issue that Justice Elspeth Cypher attempted to remedy in her concurring opinion, where she suggested Lanier and other descendants of enslaved individuals face a court system unable to fully carry out justice.

Citing the years of discrimination and Jim Crow laws that deprived Black Americans of their rights, Cypher wrote, “the plaintiff now faces a legal system several generations later devoid of a sufficient remedy for the injuries and injustices she has faced as a descendant of enslaved Africans and African-Americans."

She suggested the court could have gone further to say descendants of enslaved individuals could bring suits to recover artifacts created during their ancestors’ enslavement.  

Kafker said, however, that that common law does not support Cypher’s proposed cause of action, and that such a remedy is instead best left for the legislative branch.

Meanwhile, Kafker said Harvard could be partially insulated from Lanier’s emotional distress claims because the First Amendment protects speech made over public concerns, such as the history of American slavery.

“This is true even if Harvard was complicit in this evil history, and not describing and accepting responsibility for its own misconduct,” Kafker wrote.

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