There is no group more important for plaintiffs’ trial lawyers than the American Association for Justice, of which I am privileged to be a board member. At its recent annual meeting, the association honored the late Michael Koskoff.
In his speech accepting the award for his grandfather, who passed away in 2019, Joshua Koskoff described the last case Michael was involved in. The plaintiffs from that case, Lanier v. Harvard University, were the descendants of slaves whose images were used by a Harvard professor to promote racist theories and research and included descendant Tamara Lanier of which the motion was filed.
The Massachusetts Supreme Court reversed a decision of the lower court and held that Harvard’s continued use of the images for marketing and its refusal to return the images to the plaintiff constituted negligence, as well as the infliction of emotional distress.
The following is an excerpt from the opinion of the Massachusetts Supreme Court describing the case:
“Louis Agassiz was a Swiss natural scientist employed by Harvard from 1847 until 1873. Agassiz was a proponent of polygenism, the pseudoscientific theory that racial groups lack a common biological origin and thus are fundamentally distinct. Aggasiz’s views purported to give scientific legitimacy to the myth of white racial superiority and the perpetuation of American slavery.
“In 1850, Agassiz embarked on a tour of South Carolina plantations in search of people he believed were racially ‘pure’ Africans whom he could study as evidence to support polygenism. At a plantation in Columbia, Agassiz selected several individuals from among the enslaved population, including Renty and Delia Taylor, to be photographed. Renty and Delia were taken to the studio, where Renty was ordered to disrobe and Delia was stripped naked to the waist, following which they were photographed according to Agassiz’s instructions. Agassiz used the photographs [daguerreotypes] to support the polygenist conclusions he proposed in an academic article.
“In 1976, the daguerreotypes were discovered by a museum researcher. Although the researcher who made the discovery expressed concern for the families of the men and women depicted in the daguerreotypes, Harvard did not act on the researcher’s concerns.
“The plaintiff’s mother, Mattye Thompson, often told the story of their family, which began with a man named Renty Taylor. Papa Renty was an indomitable man who defied slavery’s tyranny by teaching himself and others to read and by conducting secret Bible readings on the plantation where he was enslaved. In 2010, Thompson implored her children to document their family history.
“Lanier concluded that Thompson is the direct lineal descendant of Renty Taylor. In March 2011, Lanier wrote to the president of Harvard University, Drew Faust, and stated that she had information that ‘confirm[ed]’ that two of the individuals depicted in the daguerreotypes were Thompson’s ancestors. Lanier asked for a formal review to verify that Renty and Delia Taylor were indeed her ancestors. In response, Faust stated that the museum was ‘involved in an ongoing project regarding those daguerreotypes’ and that the same staff members had ‘agreed to be in touch with you directly if they discover any new relevant information.’ But Faust never contacted Lanier.
“In 2017, Renty Taylor’s image from one of the daguerreotypes was published by Harvard University Press. Harvard also used the image at a national academic conference it hosted where it was accompanied by the following caption: ‘The man you see on the program’s front cover, Renty, lived and worked as a slave in South Carolina in 1850, when his photograph was taken for the Harvard professor Louis Agassiz as a part of Agassiz’s scientific research. While Agassiz earned acclaim, Renty returned to invisibility.’ According to the plaintiff’s complaint, this description ‘took [her] breath away,’ not only because it omitted the ‘racist and dehumanizing’ nature of Agassiz’s work, but also because it ‘relegate[d] Renty to invisibility.’
“Lanier sent another letter to Faust, in which she demanded that the daguerreotypes of Renty and Delia be ‘immediately relinquished.’
“Harvard responded to her letter without acknowledging her demand and the court ruled despite the university’s duty of care to her, Harvard cavalierly dismissed her ancestral claims and disregarded her requests. [H]er allegations are sufficient to establish that Harvard should have known that its conduct toward the plaintiff would likely result in emotional distress and that its conduct was the factual and legal cause of her distress.”
Few lawyers would have had the courage and foresight to take this case. But Michael Koskoff had the vision to understand how the law could be used to bring justice, however belatedly, to Renty and Delia’s descendants, including Tamara Lanier. These days, lawyers deservedly take their share of criticism, but I am grateful to have examples like Michael Koskoff to motivate me to try to continue to represent my clients with courage and creativity.
