Abstract

Excerpted From: Suzette Malveaux, A Taxonomy of Silencing: The Law's 100-year Suppression of the Tulsa Race Massacre, 102 Boston University Law Review 2173 (December, 2022) (484 Footnotes) (Full Document)

Over one hundred years have passed since the 1921 brutal massacre of Tulsa's African American community. Numerous centennial commemorations marked this notorious attack in 2021. Now that the commemorative activities have subsided, what has been learned? The answer to this question is crucial to preventing similar atrocities in the future.

One lesson is the importance of telling the story and honoring the voices of those who lived through one of the most infamous government-sanctioned racial attacks in U.S. history. Knowledge is power.

Another lesson is the realization of the law's pernicious capacity to silence those voices. From 1921 to the present, in many ways, things have come full circle. Chameleon-like, the law has morphed over time to mute the stories and lives of the survivors.

In its most barbaric form, the government used brute force, violence, and intimidation to outright destroy the Black Tulsan community. A campaign of lynchings and lawlessness set the stage for one of the worst government-sanctioned racial massacres in U.S. history. With a government overwhelmingly dominated by the Ku Klux Klan (“KKK” or “Klan”) and committed to white supremacy, it was not difficult for the state and local governments to bring all of their resources to bear to crush Black Wall Street. The City of Tulsa and the state of Oklahoma armed, empowered, and instructed a white mob to decimate one of the most successful Black communities--a feat accomplished in just twenty-four hours.

Violence as a means of control was replaced with more bloodless--but no less tenacious--attempts to squash the Greenwood community. In the face of tremendous resilience, the government turned to the antiseptic use of zoning regulations, segregation mandates, urban renewal policies, and systemic discrimination to prohibit community rebuilding. Silencing Black success required a far more sophisticated, systematic approach. Thus, the government employed laws and policies that operate as institutional barriers to recovery-- an approach that has resulted in Black Tulsans faring worse on almost every economic and social indicator today.

Not only has the law silenced Black success, it has also silenced white brutality. Almost immediately after the Tulsa Race Massacre (“Massacre”), the government began a well-documented campaign to hide what happened. From destroying evidence, to not prosecuting whites for any crimes, to burying Black bodies in unmarked graves, to erasing the Massacre from the history books, the government engaged in a conspiracy of silence that left later generations unaware of the Massacre's existence. Embarrassing national publicity following the Massacre catalyzed government officials to make false promises of restitution to Black Tulsans and incentivized white media to spin a counternarrative blaming Black Tulsans for starting a riot. It wasn't until almost eighty years later that the silence was broken by the publication of a bipartisan, state-commissioned report in 2001. After a comprehensive, four-year investigation, the record laid bare not only the gruesome attack on Greenwood, but also the government's active participation and leadership in the mayhem. The official erasure was unsuccessful, exposing the first government-sanctioned terrorist attack against American citizens on U.S. soil.

The law, however, would be wielded again to mute the voices of Massacre survivors and extinguish white accountability, this time through the federal court system. Upon learning of the government's complicity and its concomitant refusal to provide restitution, the survivors brought their first constitutional lawsuit against the City of Tulsa and the state of Oklahoma. Plaintiffs' biggest challenge was preventing Oklahoma's two-year statute of limitations from silencing their claims. The court's cramped interpretation and application of the filing deadline and its potential exemptions resulted in plaintiffs' claims being dismissed and their constitutional rights being extinguished. While an even-handed, consistent, judicial application of objective standards makes sense, equally critical is judicial discretion exercised equitably and justly. None of the goals of the limitations period--promoting efficiency, enhancing fairness to the defendant, or bolstering institutional legitimacy--were served by dismissing this case. Instead, the law shut down the claims and arguably the claimants themselves. The court's refusal to hear the Tulsa case continued the law's pattern of silencing.

Finally, the law has morphed again to quash the success of Black Tulsans and to hide white obstructionism--this time in the form of educational censorship. Just as knowledge of the Massacre was penetrating the mainstream consciousness surrounding the centennial anniversary, Oklahoma enacted a law--in the guise of an anti-discrimination statute--that threatens to quash robust, meaningful discussion of the Massacre and other racially-charged topics in the state's public schools. Teachers attempting to educate their students in a comprehensive and culturally competent manner reasonably fear that their pedagogy may cost them their jobs, or worse, their personal safety.

In sum, there is a through line of silencing that has gone from the Massacre to the present, with the law leading the way. This taxonomy of silencing reveals a painful reality about the law's centrality in subjugation.

However, there is another noteworthy through line--the resilience of Black Tulsans. The survivors of the Massacre are equally tenacious. One hundred years later, Black Wall Street's centenarians are still demanding that the legal system hear their cries and demands for justice. This Article attempts to give voice to their plight and power.

The Article is organized as follows. Part I hears from the Massacre survivors themselves and provides a first-hand account of the Massacre's legacy and the survivors' resilience. Part II illustrates the law's silencing of Black excellence through techniques ranging from brute terrorism to sterile statutes that obstructed Black Tulsa's rebuilding. Part III describes the law's silencing of white brutality via the government's successful coverup of the Massacre, exemption from accountability under the statute of limitations, and ban on meaningful discourse about the Massacre in public schools today. The Article concludes with a tribute to the survivors for their strength, courage, and humanity and a call to heed their voices and demand for justice.

[. . .]

Things have come full circle. The through line from the Massacre, to the sabotaging of rebuilding efforts, to structural discrimination, to the massive cover-up, to the denial of a constitutional remedy, now extends to the present. The law's recent turn to educational censorship is a more subtle attempt at subterfuge and silencing. Oklahoma's current attempt to police ideas through curriculum control and book bans is as pernicious as the obstructionist tools that preceded it. Notably, the statute of limitations silenced the legal claims related to the Massacre, but educational censorship silences understanding of the Massacre itself. Similarly, the limitations period--while bloodless--was as insidious as its predecessors. This procedural hurdle--cloaked in neutrality-- could more easily mask its harm than the overt Jim Crow segregation laws that came before it. While the most obvious forms of government suppression--in the form of brute violence and terror--are no longer viable, in their place are policies no less dangerous.

In conclusion, the legal system has suppressed Black Tulsans' voices over the course of a century, revealing a taxonomy of silencing from the Massacre to today. That suppression, however, has been neither absolute nor successful. The last three living survivors, now up to 108 years old, remain steadfast in their fight for justice. Their voices--like the rest of Black Tulsa--will not be extinguished, no matter what form the opposition takes nor how far beyond the present circumstances. Award-winning poet Maya Angelou, now banned-book author, captures it best in her iconic poem, Still I Rise:

You may write me down in history

With your bitter, twisted lies,

You may trod me in the very dirt

But still, like dust, I'll rise.

Moses Lasky Professor of Law and Director of the Byron R. White Center for the Study of American Constitutional Law, University of Colorado Law School.