40 Acres and a Mule: Accountability for Corporations to Provide Reparations to Historically Black Colleges and Universities for Profits from Slave Labor

• Publication year: 2023

40 Acres and a Mule: Accountability for Corporations to Provide Reparations to Historically Black Colleges and Universities for Profits from Slave Labor

Meghan K. Marks

40 ACRES AND A MULE: ACCOUNTABILITY FOR CORPORATIONS TO PROVIDE REPARATIONS TO HISTORICALLY BLACK COLLEGES AND UNIVERSITIES FOR PROFITS FROM SLAVE LABOR

Table of Contents

I. Corporations Must Acknowledge Their Past Ties to Slavery and Offer Remedies to Bridge Racial Gaps.............313

A. Corporate Beginnings and Ties to Slavery .............................. 314
B. Corporate Responsibility and Purpose of Reparations ............316

II. Historically Black Colleges and Universities: Establishment, Contributions, and Deficient Funding.........320

A. Establishment and Legislation ................................................ 320
B. Importance of HBCUs to the Country and the Black Community ............................................................................. 321
C. HBCU's Disparity in Funding................................................. 323
D. HBCU Endowments ................................................................ 326

III. Importance of Accreditation and HBCUs' Legal Actions ... 327

A. Accreditation .......................................................................... 327
B. Bennett Coll. v. S. Ass'n of Colleges & Sch. Comm'n on Colleges, Inc........................................................................... 328
C. Paine Coll. v. S. Ass'n of Colleges & Sch. Comm'n on Colleges, Inc........................................................................... 330
D. Hampton Univ. v. Accreditation Council for Pharmacy Educ.......................................................................................333
E. Coal. for Equity & Excellence in Maryland Higher Educ. v. Maryland Higher Educ. Comm'n............................... 334
F. Legal Efforts Led By Students ................................................. 338

IV. Efforts to Increase HBCU Funding.........................................338

A. Capitol Hill and Other Legislative Efforts to Increase Funding.................................................................................. 338
B. Current Corporate Partnerships ............................................. 341

Conclusion.............................................................................................346

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"Indeed, in America there is a strange and powerful belief that if you stab a Black person 10 times, the bleeding stops and the healing begins the moment the assailant drops the knife."

- Ta-Nehisi Coates

I. Corporations Must Acknowledge Their Past Ties to Slavery and Offer Remedies to Bridge Racial Gaps

Since their establishment in the late 18^th century, historically Black Colleges and Universities ("HBCUs") serve as pillars of support and excellence for the Black community.¹ An HBCU is a higher education institution that was created before 1964 with a sole focus on education for African Americans.² After emancipation, such educational opportunities were sparse, which led HBCUs' establishment.³ HBCUs paved the way for Black Americans' education. Prominent figures in the Black community like Dr. Martin Luther King Jr., Oprah Winfrey, and Vice President Kamala Harris matriculated at an HBCU.⁴ Despite producing legendary change agents, HBCUs are extremely underfunded, especially compared to predominantly white institutions ("PWIs"). Without adequate funds, HBCUs have deteriorating infrastructures, cannot provide state-of-the-art equipment and technology, provide low salaries for professors, receive small endowments, and lack academic programs for students.⁵ Though there are some policies and legislative acts that center on HBCU funding, they lack the funding that prior legislation guaranteed them.⁶ After the Black Lives Matter Movement (the "BLMM"), corporations donated large sums to HBCUs to aid the Black Community, but this Comment argues for a shift in messaging when corporations make such donations to acknowledge their past involvement with slavery. Corporations should offer scholarships, donate endowments, and provide job opportunities to HBCU students to increase

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the pipeline of a diverse workforce and equip Black citizens and slaves' descendants with an exemplary education. In that way, corporations can keep expanding partnerships with HBCUs and institutions founded for former African American slaves. Though this would not forgive their profits off slave labor, it would allow corporations to acknowledge and attempt a remedy for their past harms.

A. Corporate Beginnings and Ties to Slavery

Many corporations profited off slave labor in their early years. Scholars often consider slavery as the United States' first big business.⁷ African American slave labor spurred most of this country's wealth, which enriched its citizens regardless of individual involvement or blame.⁸ Companies' profits from slavery came from fee taxes, collections from slave ships, lending fees to slave traders, and slave labor's exploitation.⁹ Slaves built this country's infrastructure from railroads to streets to agriculture.¹⁰ Various newspapers insured and sold their lives.¹¹ For example, Bank of America's and JPMorgan Chase's predecessors accepted enslaved people as collateral for loans.¹² Wells Fargo was one of several banks that also counted enslaved people towards a slave owner's assets.¹³ Banks across the country sold securities that allowed slave-operated plantations' growth.¹⁴ Brooks Brothers, one of the country's oldest apparel companies in the country, sold clothing for slaves to slave owners and traders.¹⁵ (Funds from a slave-operated cotton mill founded Tiffany and Company, a renowned jewelry company.¹⁶ Insurance companies across the country provided slave owners with

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insurance policies for their slaves' deaths or injuries.¹⁷ Norfolk Southern, one of the nation's premier transportation corporations, rented enslaved people to construct railroads.¹⁸ Companies in the United States have a dark past with slavery and they must face their wrongdoings and attempt to provide a remedy for past harms.

JPMorgan, one of the nation's largest banks, was among the first corporations to acknowledge and apologize for its ties to slavery.¹⁹ After Chicago issued an ordinance that requires that companies disclose their ties to slavery, JPMorgan recognized that two predecessor banks had links to slavery.²⁰ One Louisiana predecessor accepted nearly 13,000 African American slaves as collateral before the Civil War.²¹ JPMorgan apologized to the African American slaves' descendants for their predecessors' roles in the tragedy of slavery.²² After its apology, JPMorgan created Smart Start Louisiana, which will donate $5 million to undergraduate scholarships for Black students.²³ More companies must not only acknowledge their past involvement for slavery, but also provide a remedy to the Black community.

New York Life, the country's third largest life insurance company, profited significantly from slave labor's exploitation.²⁴ New York Life issued insurance policies to slave owners that allowed them to regain three quarters of a slave's value on their death.²⁵ Insurance policies covered the slaves in precarious environments like mines, steamboats, and lumber mills.²⁶ For example, Policy no. 447 covered Nathan York's life, a slave forced to work in Virginia's dangerous coal mines.²⁷ Policy no. 1141 covered Warwick's life, a slave who

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toiled at the furnaces in the steamboat industry.²⁸ New York Life apologized for their predecessor company's involvement in slavery and reiterated its dedication to the African American community, including sponsoring the National Museum of African American History.²⁹ However, companies should do more to help African Americans achieve justice in several areas.

B. Corporate Responsibility and Purpose of Reparations

Society must hold corporations accountable for utilizing slave labor in the past and demand a remedy for their harms. We can hold corporations as a whole responsible under corporate law doctrine because individual involvement or innocence is irrelevant.³⁰ Additionally, under corporate law, corporations exists in perpetuity and are not limited to its shareholders' power.³¹ Corporations should first acknowledge their dark history and profits from slave labor. Then, they must provide reparations to the Black community. Reparations allow a corporation to admit and correct its prior bad actions.³²

Slavery still has lingering effects. Studies show that white households are worth approximately more than twenty times Black households.³³ Although segregation ended in the 1960s, African Americans remain the most segregated race in the nation.³⁴ Voter suppression, housing restrictions, the criminal justice system, and educational barriers highlight slavery's lasting effects.³⁵ White college graduates have approximately seven times more wealth than their Black counterparts.³⁶ Reparations represent an attempt to make amends with African American slaves' descendants.

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In his renowned "I Have a Dream" speech, Dr. Martin Luther King, Jr., argued for reparations as a way for African Americans to achieve justice.³⁷ A key goal of reparations is to fix the paralyzing damage the Black community faces in the areas that need the most reform and aid, like discriminatory insurance practices and unequal access to social goods (e.g., health care and education).³⁸ Disparities that are still prevalent in the Black community range from discriminatory insurance practices to unequal access to social goods, such as health care or education.³⁹ Federal action and law suits seek such reparations. In Johnson v. MacAdoo, the earliest lawsuit for reparations, Plaintiff sued the United States Department of the Treasury and alleged the government's tax on slave-produced raw cotton equated to unjust enrichment from African American labor.⁴⁰ Reparation lawsuits'...