Lanier v. President & Fellows of Harvard Coll.

• Decision Date: 23 June 2022
• Docket Number: SJC-13138
• Parties: Tamara LANIER v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE & others.
• Court: Appeals Court of Massachusetts

490 Mass. 37

191 N.E.3d 1063

Tamara LANIER

v.PRESIDENT AND FELLOWS OF HARVARD COLLEGE & others.¹

SJC-13138

Appeals Court of Massachusetts, Middlesex.

Argued November 1, 2021.

Decided June 23, 2022.

The following submitted briefs for amici curiae:

Joshua D. Koskoff, of Connecticut, & Ben Crump, of Florida (Carey B. Reilly & Preston Tisdale, of Connecticut, & Talley L. Kaleko & Jennifer L.W. Seymore, of Florida, also present), for the plaintiff.

Anton Metlitsky, of New York (Victoria L. Steinberg also present), for the defendants.

John Roddy & Elizabeth Ryan, Boston, for Eamon Moore Whalen & others, Jarrett Martin Drake, Ariella Aïsha Azoulay, Cornelia Bewersdorf, Dan Hicks & another, and Meredith McKinney & another.

Robert J. Ambrogi & Peter J. Caruso for Massachusetts Newspaper Publishers Association & another.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

KAFKER, J.

In 1850, the Harvard professor Louis Agassiz arranged to have daguerreotypes made of Renty Taylor and Delia Taylor, who were enslaved on a plantation in South Carolina.² Renty was ordered to disrobe. His daughter, Delia, was stripped naked to the waist. Their images were then captured in four daguerreotypes. These daguerreotypes were later used by Agassiz in an academic publication to support polygenism, a pseudoscientific racist theory for which Agassiz, a prominent scientist, was a vocal proponent.

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),³ seeking relief for emotional distress and other injuries, as well as restitution of the daguerreotypes to her. A judge of the Superior Court granted Harvard's motion to dismiss, determining that each of the claims Lanier raised failed as a matter of law and that the facts as alleged in her second amended complaint did not plausibly suggest an entitlement to relief.

Because we conclude that the alleged facts, taken as true, plausibly support claims for negligent and indeed reckless infliction of emotional distress, we vacate the dismissal of the plaintiff's claim for negligent infliction of emotional distress and remand the case to the Superior Court to allow the plaintiff to amend her complaint to incorporate allegations of reckless infliction of emotional distress. The dismissal of Lanier's other claims, however, we affirm.⁴

Background. We summarize the factual allegations in the plaintiff's complaint, supplemented by information drawn from the undisputed documents referenced in that complaint. For the purposes of reviewing a motion to dismiss, we accept all factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Shaw's Supermkts., Inc. v. Melendez, 488 Mass. 338, 339, 173 N.E.3d 356 (2021).

1. Louis Agassiz, polygenism, and the daguerreotypes of Renty and Delia Taylor. Harvard is a private educational institution founded in Cambridge in 1636. Louis Agassiz was a Swiss natural scientist whose primary area of study was comparative zoology. Employed by Harvard from 1847 until his death in 1873, Agassiz was also a proponent of polygenism, the pseudoscientific theory that racial groups lack a common biological origin and thus are fundamentally and categorically distinct. Consistent with his belief in polygenism, Agassiz delivered lectures in Boston and South Carolina asserting that Black and white people have separate origins. 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.

In 1850, three years after joining the Harvard faculty, 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 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 daguerreotypes were sent to Agassiz, who used them to support the polygenist conclusions he proposed in an academic article entitled "The Diversity of Origin of the Human Races." It appears that in 1936, the daguerreotypes were transferred to the holdings of the Peabody Museum of Archaeology and Ethnology (Peabody Museum), where they remained in obscurity. In 1976, the daguerreotypes were discovered in a wooden cabinet in a corner of the Peabody Museum's attic 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. Rather, it simply claimed the daguerreotypes as its property. The discovery itself attracted national media attention, as the daguerreotypes were believed to be the "earliest known photographs of American slaves."⁵

2. The plaintiff's family history, her contacts with Harvard, and Harvard's use of the daguerreotypes. The plaintiff's mother, Mattye Thompson, often told the story of their family, which began with a man named Renty Taylor, also known as Papa Renty or "the Black African." Papa Renty was an indomitable man who defied slavery's tyranny by teaching himself and others to read and by conducting secret Bible readings and study on the plantation where he was enslaved. As a reminder to never forget the family history that began with Renty Taylor, Mattye Thompson repeatedly told her children and grandchildren, "Always remember we're Taylors, not Thompsons."

In 2010, as Thompson was nearing the end of her life, she implored her children to document their family history. After Thompson's death, the plaintiff set out to fulfill her wish, searching online resources and libraries and archives in South Carolina and speaking to anyone who might have information about their ancestors. Based on this research, Lanier concluded that she is the direct lineal descendant of Renty Taylor.

During her research, Lanier learned about the daguerreotypes of Renty and Delia Taylor at Harvard. In March 2011,⁶ she wrote to Drew Gilpin Faust, the president of Harvard University at the time,⁷ and stated that she had "historical and [United States] Census information" that "confirm[ed]" that two of the individuals depicted in the daguerreotypes were her ancestors. Lanier asked "to learn more about the slave daguerreotypes and how they have [been] or will be used," and for "a formal review of [her] documentation" to verify that Renty and Delia Taylor were indeed her ancestors.

In her response, Faust thanked the plaintiff for sharing her story. She noted that the plaintiff had been in touch with staff members at the Peabody Museum and had been given the opportunity to view the daguerreotypes. Faust also 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 Harvard never contacted Lanier about any ongoing or future projects involving the daguerreotypes, nor did it contact her regarding the verification of her lineage and connection to the daguerreotypes.

In March 2014, Lanier's hometown newspaper, the Norwich Bulletin, published an article about the daguerreotypes and the plaintiff's research into her family connection with Renty and Delia. Both Lanier and a Peabody Museum staff member were interviewed about the plaintiff's connection to the daguerreotypes. In the Norwich Bulletin article, the director of external relations for the Peabody Museum was quoted as saying of Lanier: "She's given us nothing that directly connects her ancestor to the person in our photograph."

In 2017, Renty Taylor's image from one of the daguerreotypes at issue was used on the cover of the thirtieth anniversary edition of "From Site to Sight," a volume on anthropology and photography published and marketed by Harvard University Press. Harvard also used the image at a national academic conference it hosted on universities’ historical connections with slavery in March of that year. At the conference, which the plaintiff attended with her own daughters, Renty's image was projected on a large screen onstage and was also featured on the front cover of the conference program, 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,’ " in "flagrant disregard for [her] repeated attempts to share Renty's story and restore a measure of the humanity that Agassiz [had] stripped from him."

Prompted by these events, Lanier sent...