The Supreme Judicial Court ruled today that a woman who sued Harvard University both to gain possession of four daguerreotypes of two of her ancestors ordered stripped half naked in 1850 by professor Louis Agassiz, whose contributions to geology were matched by the depths of his racism, has no right to the images, but that she does have the right to try to convince a jury that Harvard committed "negligent and indeed reckless infliction of emotional distress" by continuing to use the images for its own purposes even after she objected.
In 1850, Agassiz went to South Carolina in pursuit of photos to prove his theory of "polygenism," which the state's highest court described as "a pseudoscientific racist theory" that the various races had no common ancestry, and which became one of the theories used to promote the inferiority of Blacks. Somehow, Agassiz became convinced that daguerreotypes of near naked Black people would bolster his claim. But while Blacks had lived in the Boston area since before the Revolution, South Carolina proved easier for him to get such photos, since slavery had been outlawed here in 1780, while in South Carolina he could simply pay a slave owner to have two of his slaves - Renty Taylor and his daughter Delia - stripped for the photos.
At the B.F. Taylor plantation in Columbia, Agassiz selected several individuals from among the enslaved population, including Renty and Delia Taylor, to be photographed using the daguerreotype process. Renty and Delia were taken to the studio of photographer J.T. Zealy, where Renty was ordered to disrobe and Delia was stripped naked to the waist, following which Zealy photographed them in various poses and from different angles, according to Agassiz's instructions.
The court adds that Agassiz included the four photos in a paper he wrote:
As a leader in the scientific community, with a reputation buttressed by his affiliation with Harvard, Aggasiz's views purported to give scientific legitimacy to the myth of white racial superiority and the perpetuation of American slavery.
The daguerreotypes were eventually handed over to Harvard's Peabody Museum, where they moldered, forgotten, in a drawer until 1976, when a researcher found them and Harvard disregarded his pleas to consider the harm to the subjects' descendants, word of the discovery got out and Harvard gained notice for possessing what were considered the oldest photos of American slaves.
Fast forward to 2011:
Identifying herself as a descendant of Renty and Delia Taylor, the plaintiff, Tamara Lanier, contacted Harvard University seeking recognition of her ancestral connection to Renty and Delia and requesting information regarding Harvard's past and intended use of the daguerreotypes. When the university dismissed Lanier's claim of descent from Renty and Delia and ignored her requests, continuing to use and display images of Renty without informing her, she brought this action against the defendants, the President and Fellows of Harvard College, the Harvard Board of Overseers, Harvard University, and the Peabody Museum of Archaeology and Ethnology (collectively, Harvard), seeking relief for emotional distress and other injuries, as well as restitution of the daguerreotypes to her.
A Middlesex Superior Court judge dismissed her case, but the SJC's ruling today reinstates her emotional-distress claim, while rejecting her claims to ownership of the images.
The court said that by getting all haughty and alternately denying or ignoring her requests to stop using the images and give them to her - at least once by ignoring her and talking to a reporter at her hometown newspaper - Lanier had made a good enough of a case to have a jury consider whether the school had harmed Lanier and her relatives.
Without any prior notice to Lanier, Harvard publicly dismissed her claim of an ancestral connection to Renty and Delia in her local newspaper. The university also failed to contact her when it subsequently used Renty's image on the cover of a book it published, and prominently featured that same image in materials connected with a conference that it hosted. Harvard also rebuffed her attempts to tell "Renty's story," in the words of the complaint. In sum, despite its duty of care to her, Harvard cavalierly dismissed her ancestral claims and disregarded her requests, despite its own representations that it would keep her informed of further developments.
Moreover, Lanier has alleged that as a result of Harvard's mistreatment of her, she suffered emotional distress that produced physical symptoms of insomnia and nausea. A fact finder could determine both that this distress was the actual and foreseeable consequence of Harvard's conduct toward the plaintiff and that her distress was a reasonable reaction to that conduct.
Taken together, then, Lanier's various factual allegations are sufficient to "raise a right to relief" on her claim of negligent infliction of emotional distress "above the speculative level."
The court also found that Harvard's actions, both in the way Agassiz had the images made and the way, 170 years later, it treated Lanier, rose to the level of "extreme and outrageous:"
We have no doubt that Agassiz's actions in 1850 -- having Renty and Delia taken, stripped, and forced to pose for the daguerreotypes -- would have met these requirements. What is directly at issue here is, however, the separate question whether Harvard's conduct toward a descendant of Renty and Delia nearly 170 years later satisfies these stringent requirements. Nevertheless, as emphasized in connection with Lanier's negligent infliction of emotional distress claim, Harvard's present actions cannot be divorced from its past misconduct. ...
Seized and made to pose for the camera under conditions in which no valid consent could have been given, Renty and his daughter suffered not only a gross interference with their bodily autonomy but also an invasion of their personal privacy and an affront to their dignity. Any subsequent display and dissemination by Agassiz and his associates of the daguerreotypes resulting from this sordid episode, by exposing to public gaze degrading and dehumanizing images of Renty and Delia, would have compounded these harms.
In sum, Agassiz's actions in 1850 were extreme and outrageous. Harvard has not suggested otherwise. Indeed, 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. Moreover, Agassiz's extreme and outrageous conduct was undertaken while he served as a Harvard professor and in his role as an academic researcher.
Even long after the deaths of Renty and Delia Taylor, the degrading and dehumanizing daguerreotypes that Agassiz arranged to have made of them retained their capacity to wound. The Peabody Museum researcher who discovered the daguerreotypes in 1976 seemed to recognize this, expressing concern for the descendants of the individuals depicted in the daguerreotypes, apparently aware that such descendants would be intensely interested in and concerned about the past mistreatment, and the ongoing degrading display, of their half-naked ancestors. But despite being notified of Lanier's belief in her lineage from Renty and Delia, as well as receiving documentation supporting this belief, at no point did Harvard engage meaningfully with her to verify her potential family connection to the individuals portrayed in the daguerreotypes. Instead of engaging personally with Lanier, Harvard ignored her and -- without informing her -- expressed its skepticism about her assertion of descent through a public statement given by the director of external relations for the Peabody Museum to Lanier's local newspaper that, from Harvard's perspective, she had given the museum "nothing that directly connect[ed] her ancestor to the person in [the museum's] photograph." Harvard also went on to repeatedly use the degrading daguerreotype of Renty in ways that exposed his image to public gaze, without at any time consulting with or even informing Lanier before doing so, or allowing her an opportunity to tell Renty's story.
As we have already observed, 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. Whether Harvard's response to Lanier's inquiries about the daguerreotypes resulted in a breach of basic community standards of decency cannot be evaluated without taking into account its historic responsibility for Agassiz's role in the horrific circumstances by which those very daguerreotypes were created. ...
When the plaintiff informed Harvard that the daguerreotypes of Renty and Delia Taylor that it had in its possession, and that it used according to its own purposes, were in fact photographic images of her ancestors, Harvard was put on notice that she would reasonably be greatly concerned about how the images -- created through coercion and depicting her ancestors in a degrading, dehumanizing light -- would be used, displayed, and disseminated. What was at stake for her was the continued exposure and exploitation of images of her ancestors, by the very institution complicit in the coerced and invasive creation of those images. In these circumstances, 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 her 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. Because, as alleged, Harvard did just the opposite, its actions plausibly rose to the level of extreme and outrageous conduct.
The court, however, rejected Lanier's demand that Harvard hand over the images, for a variety of reasons, including the fact that ownership of images belongs to the photographer, not the subject and the fact that state law requires civil-rights claims to be brought by the people harmed by an action and the people directly harmed by the way the daguerreotypes were taken were Renty and Delia Taylor, and they are long gone.
In a concurring opinion, SJC Chief Justice Kimberly Budd, the court's first Black woman chief justice, said Harvard's conduct an an "archival institution" was completely egregious and go against the ethical standards that various university and museum organizations, some of which Harvard belongs to.
Noting that these standards call on institutions to be particularly sensitive to holdings or collections that "were created or acquired under conditions of duress, violence, or nonconsent," she wrote:
Such practices reflect a shared recognition on the part of these institutions that to disregard such individuals' concerns would be to signal that the inequitable power structures that enabled the archival institution to possess the contested pieces live on. To send this signal is itself a form of violence.
Harvard's alleged conduct here inflicted just this sort of violence on Lanier. It brushed her off, publicly dismissed her ancestral claim, and continued to display and profit from the daguerreotypes without Lanier's input or involvement. This departs from every ethical code quoted supra.
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.Indeed, Harvard transgressed what it now upholds as its own values. Harvard recently released a report detailing the university's historic ties to slavery and recommending reparative action.
She notes the report specifically condemned Agassiz and the harm he did:
Harvard's refusal even to discuss respectfully with Lanier her request to possess the daguerreotypes of Renty and Delia flies in the face of its Harvard's conduct thus belies its purported commitment to enable descendants to "recover their histories," to "tell their stories," or to repair meaningfully the harm it has done to them.