On a morning in April, Lessie Benningfield Randle, 109, and Viola Fletcher, 110, arrived with immutable resolve at the chambers of the Oklahoma Supreme Court. They were there to appeal the dismissal of their reparations lawsuit against the city of Tulsa and others they allege were involved in the Tulsa Race Massacre, a racist and violent campaign waged in 1921 upon Black residents of Tulsa’s prosperous Greenwood community, which had been affectionately dubbed Black Wall Street. Randle and Fletcher are the sole living survivors of the massacre. They are also the most recent plaintiffs in the century-long effort to obtain compensation for victims. More than 100 massacre-related cases before theirs have been dismissed, allowed to lapse or didn’t even make it to court.
Winning this case has always been a long shot, but that doesn’t mean the outcome of the April hearing is unimportant. (The Supreme Court of Oklahoma could take months to issue a decision.) If their attorney Damario Solomon-Simmons successfully appeals the dismissal, the case will return to the district court and then proceed to the discovery phase.
During discovery, Solomon-Simmons can gather evidence from the defense by requesting depositions and public documents from the city and entering them into the legal record. Vitally, this would allow him to argue his case based on the facts of what actually happened during the massacre — because this phase would mine for the facts to enter them into the legal record. Outside the courtroom, valiant work has been done to uncover a fuller picture of the events and their aftermath, such as a 2001 report issued by the state commission, books authored by journalists and historians — including Mary E. Jones Parrish, who wrote the 1923 “Events of the Tulsa Disaster,” which ostensibly started the work to catalog the horror — and a recent excavation of mass graves by archaeologists. None of these facts, however, has been entered into the public record by legal mandate or used successfully to advance legal cases.
Randle and Fletcher have been harboring memories of the massacre for more than a century, but only since 2020, when they filed the lawsuit, have their stories been heard by the public. “I will never forget the violence of the White mob when we left our home,” Fletcher stated to Congress in 2021. “I still see Black men being shot, Black bodies lying in the street. I still smell smoke and see fire. I still see Black businesses being burned. I still hear airplanes flying overhead. I hear the screams.” She was 6 years old.
Her memories offer a personal glimpse into the 35 blocks known as Black Wall Street burning at the hands of White Tulsans. More than 150 local businesses were destroyed, an estimated 9,000 Black people left homeless and some 300 Black people killed — only an estimate that appears to rise as excavators find more mass graves. These bare facts are known. But this trial, if pushed to discovery, stands to inscribe a fuller picture of culpability in the legal record.
For Randle and Fletcher’s case, Solomon-Simmons has drawn strategic inspiration from a legal battle concerning the opioid crisis. In 2019, pharmaceutical and medical technologies giant Johnson & Johnson was found guilty of violating an Oklahoma “public nuisance law” for promoting and selling opioids and was ordered to pay the state $572 million. The prosecution argued that Johnson & Johnson created an ongoing interruption to public health by overselling drugs that caused deleterious effects, including fatal overdoses. It was a novel application of a law that had typically been leveraged against companies responsible for noise and air pollution or for using lead paint.
The ruling was overturned by the Oklahoma Supreme Court just two years later. In the interim, however, when Solomon-Simmons filed his reparations case, he adopted the public nuisance strategy. It may breathe life into the effort to secure reparations for Greenwood residents.
Most of the previous reparations cases were stymied by Oklahoma’s two-year statute of limitations. For example, a civil rights attorney and professor named Suzette Malveaux filed a case 21 years ago to provide redress for Otis Clark, Olivia Hooker and other now-deceased survivors of the massacre. She worked with prominent teammates, including Harvard Law School professor Charles Ogletree Jr. and Johnnie Cochran Jr. They argued that a conspiracy of silence stopped the survivors from filing cases in the two years following the massacre. Essentially, the threat that the massacre would recur, stultifying what would otherwise have been attempts to redress the harm earlier. Their claims were dismissed.
Claiming “public nuisance” offers a new legal approach. If Solomon-Simmons can demonstrate that the massacre initiated ongoing harm, kicking off a chain reaction of mistreatment of his clients that persists to the present day, that could be used to dispense the statute of limitations concerns and allow the case to proceed to discovery.
Why is the discovery phase of a trial so critical? As Solomon-Simmons argued in April before the court, “We are at the pleading stage. We have a lot of testimony and facts, which shows why we need discovery in this case.” During discovery, he’ll be able to request that the defendants — including the city of Tulsa, the Chamber of Commerce and the Oklahoma Military Commission — produce government documents and depose people who can speak most directly to the harm endured by Black Tulsans. Even more impactful than fact-finding is the opportunity to calculate the cumulative effects of the harm. Why, for example, is the average life expectancy of a resident of north Tulsa, where Black Wall Street was located, 11 years short of the city’s average? Solomon-Simmons might be able to draw a more direct line between the harm caused then, the enduring harm for decades thereafter and the effects of the harm still felt today.
For Randle and Fletcher, the discovery process offers public exposure and a road map for reckoning. Tulsa has cultivated and perpetuated a silence around the massacre for more than 100 years. The city didn’t officially recognize the anniversary until 1996, 75 years after the massacre. Former Mayor Susan Savage offered a public apology in 2000 — the first mayor to do so. Oklahoma schools are still not mandated to include the massacre in history curricula. In 2021, The Oklahoman found that 83% of Oklahomans had never learned about Black Wall Street or the massacre in school. The duty of keeping a record of the grievances done to those killed in the massacre, the survivors and their descendants has fallen to plucky historians like Scott Ellsworth, who in 1982 published “Death in a Promised Land,” the first book to knit together the history of the massacre; the community members who built the Greenwood Cultural Center in the 1990s; the nonprofit Greenwood Rising History Center; and Justice for Greenwood, an organization that records oral history and genealogy.
These are valiant efforts, but much about how the massacre was executed and subsequently hidden remains to be known. By what machinations did the city actively enable or passively allow the massacre? How did the city and state pretend nothing ever happened? Alva Niles, the head of the chamber of commerce in 1921, declared that he and other leaders would “punish those guilty of bringing the disgrace and disaster to this city.” How did the guilty escape that promised punishment? A century later, there are still gaps in the narrative, losses to be tallied, graves to be unearthed. Solomon-Simmons’ case, if it continues, may open a door to some answers.
The historical record is captured through bits and fragments of documents and living memories of witnesses like Fletcher and Randle. One effect of the courts dismissing case after case through the decades has been that the stories of the massacre’s survivors have atrophied in public awareness. Solomon-Simmons is making a last-ditch effort to ensure their stories persist. As Solomon-Simmons told CNN in April, “There is no going to the United States Supreme Court. There is no going to the federal court system. This is it.”
This article first appeared on The Emancipator and is republished here under a Creative Commons license.