SJC slams Harvard, but says university can keep slave photos

THE SUPREME JUDICIAL Court on Thursday revived a lawsuit brought by a woman who claims Harvard University caused her emotional distress when she sought information about and the return of nude photographs a Harvard professor took of her slave ancestors in 1850.

Tamara Lanier sued Harvard seeking return of the photographs and payment of damages. The SJC affirmed a lower court judgement dismissing most of her claims, including her request to return the photographs, but let the case continue in Superior Court to determine if Harvard is liable for negligent and reckless infliction of emotional distress.

“We conclude that Harvard’s present obligations cannot be divorced from its past abuses,” Justice Scott Kafker wrote for the majority of the court.

Lanier’s attorney, Josh Koskoff, applauded the decision. “This historic win marks one of the first times in United States history a court has ruled that slaves’ descendants can seek accountability for the atrocities to which their family members were subjected over 170 years ago,” he said.

Harvard spokesperson Rachael Dane said Harvard is still reviewing the decision. “Harvard has and will continue to grapple with its historic connection to slavery and views this inquiry as part of its core academic mission,” Dane said. “Harvard also strives to be an ethical steward of the millions of historical objects from around the globe within its museum and library collections.”

The case stems from an incident dating back to 1850, when Harvard professor Louis Agassiz picked seven slaves on a South Carolina plantation to be photographed nude, part of his attempt to prove the now-discredited theory of “polygenism,” that Whites and Blacks were parts of different species and Whites were inherently superior. He commissioned daguerreotypes, pictures in which the subjects had to pose without moving for extended periods of time. Two of the slaves were Renty Taylor and his daughter Delia, who are referred to by their first names in court briefs.

The daguerreotypes were found in Harvard’s Peabody Museum in 1976, where they had been since the 1930s. They attracted attention because they were believed to be the earliest known photographs of American slaves. In 2017, Harvard used the Renty daguerreotype to advertise a conference on universities and slavery.

Lanier is Renty and Delia’s descendant, who learned about the prints while researching her ancestry. She asked Harvard for information about the prints and how Harvard planned to use them, but the university dismissed her claims of descent and largely ignored her requests. She then asked for the prints.

The court concluded that once Lanier made her claims of ancestry known, Harvard had a duty to respond. “In light of Harvard’s complicity in the horrific actions surrounding the creation of the daguerreotypes, once Lanier communicated her understanding that the daguerreotypes depicted her ancestors and provided supporting documentation, we discern in both existing social values and customs and appropriate social policy a duty on Harvard’s part to take reasonable care in responding to her,” Kafker wrote.

Harvard officials did tell Lanier they would keep her informed of any new information about the daguerreotypes, but the university never provided any information. Harvard officials publicly dismissed her claims of ancestry in a local newspaper and did not tell her about their plans to use the images in a book and conference.

“Harvard cavalierly dismissed her ancestral claims and disregarded her requests, despite its own representations that it would keep her informed of further developments,” Kafker wrote. The court found that Lanier’s claims of emotional distress – including symptoms of insomnia and nausea – from Harvard’s actions are enough to justify suing Harvard on the grounds that the university recklessly or negligently caused emotional distress.

The decision is harsh in its condemnation of Agassiz’s tactics, which all parties involved agree are unconscionable by today’s standards. “There are few acts more extreme and outrageous than forcing another held in a condition that precludes giving valid consent to pose half-naked for a photograph, and subsequently displaying and exploiting the resulting images for one’s own ends,” Kafker wrote.

In letting the lawsuit continue, the court made clear that the justices believe Harvard needs to take responsibility for its role in employing Agassiz and sanctioning his conduct. “Basic community standards of decency dictate that the institution complicit in the extreme and outrageous actions by which the degrading daguerreotypes of Lanier’s ancestors were produced should, in the words of [Lanier’s] complaint, ‘willingly make amends’ for its past actions or at least ‘stop perpetuating the wrenching pain of its past’ by engaging in good faith with her, both about her ancestral connection to the individuals depicted in the daguerreotypes, and about how these degrading and dehumanizing images would be used going forward, particularly in public displays,” Kafker wrote.

The court acknowledged Harvard’s free speech rights in using the images for a public conference and book, especially since the history and legacy of slavery in America are clearly matters of public interest. But it allowed the lawsuit to proceed focused not on Harvard’s use of the images, but on how Harvard interacted with Lanier in its decisions about using them.

The court, however, dismissed Lanier’s property claims, in which she argued that she, not Harvard, should own the images. This is due to a statute of limitations that limits the time she had to file the claims, and also a law that gives ownership of photographs to the photographer or person who contracted their creation, not their subject.

In an unusual circumstance, the 91-page decision includes no dissent but two concurring opinions, one written by Justice Kimberly Budd and the other by Justice Elspeth Cypher.

Budd wrote that she agrees with the court’s conclusions about the outcome of the case but wants to stress the wrongness of Harvard’s actions in light of modern standards for research institutions. “I write separately to emphasize that the alleged conduct of the defendants (collectively, Harvard) here clearly transgressed moral standards broadly adopted by archival institutions,” Budd wrote.

Cypher goes further than the rest of the court, in an opinion that runs for 33 pages and proposes the creation of a new legal right to remedy the injustices of slavery.

Cypher acknowledges that current law would not give Lanier a property right to the daguerreotypes. But she argues that it was the legal system that subjugated Renty and Delia by allowing slavery. Cypher draws on a notion of flexibility in the law, which she said “permits development of the law to follow evolving societal norms surrounding what is reasonable and tolerable.”

In this case, Cypher accepted Lanier’s argument that the current law lets wrongdoers keep the spoils of their wrongdoing. She proposes a new legal standard in which a direct descendant of a slave would be entitled to sue for the return of an artifact, if that artifact was created as a consequence of slavery and is held by a defendant who participated in its wrongful creation.

The other justices disagreed with her analysis. Budd wrote that Cypher’s proposal “comports with an intuitive sense of what is just and fair.” But Budd said that was not enough. “An appeal to the abstract notion of justice by itself cannot justify the judicial creation of new rights and remedies,” Budd wrote.

According to Harvard, the daguerreotypes today are extremely fragile and are not on display or being lent to other institutions. Dane said they are being stored in a state-of-the-art archival storage room at an ideal temperature for preservation being cared for by a photographic conservation team in accordance with professional standards.