The Court and the Black Community

By Julius L. Chambers

Vol. 11, No. 6, 1989, pp. 8-13

EDITORS' NOTE: The following essay is an edited version of a talk presented November 15, 1989, as the second lecture in the Grace Towns Hamilton Lecture Series, sponsored by the African-American And African Studies programs at Emory University in honor of retired Georgia State Rep. Grace Towns Hamilton. Southern Changes expresses its appreciation to Prof. Delores P. Aldridge, AAAS chair and organizer of the Hamilton Lecture Series.

THIS IS A MOMENT in which I think we ought to pause and ask what have we been able to accomplish through the use of the law in improving black empowerment in this society. What kind of problems do we face today and tomorrow in advancing this objective? What role can each of us play in facing this challenge?

As most of you know, the Legal Defense Fund was organized in 1939 as an arm of the NAACP. The objective then was to set up an entity that could receive tax-exempt status and carry on the legal efforts of what was at that time a fledgling civil rights organization. There was a question whether law could be used as a means for empowering black people in this society. But, in fact there was not really much choice.

We had appealed to Congress, but Congress from the early to mid-twentieth century was dominated by Southerners. There was an interest in preserving a segregated society, because it allowed even low-income whites to say that they were at a higher status than other Americans, particularly black Americans.

In that era there was no opportunity to use the executive branch. President Roosevelt was telling the civil rights community that he could not do anything because he needed the votes of the Southern senators and representatives to advance his economic goals and war efforts. Even in the face of the rising number of blacks who were lynched, President Roosevelt was telling the civil rights community that the executive branch of government had no power to provide protection.

The only avenue that offered some means for black empowerment was through the courts and the law. There was a basis for that because the Reconstruction Congress had provided, through amendments to the Constitution, that all citizens in the United States were entitled to equal protection and due process of law--rather amorphous terms, but that same Congress directed the federal courts to decide what those terms meant.

Could the courts be used to evolve interpretations of the Constitution that would provide protection for minority Americans? The Supreme Court had already held with regard to due process and equal protection that the Constitution permitted a racially segregated--in the Court's terms, "equal"--society.

Here, we pause to think about the rigidly segregated American society we faced in that period. Black people were relegated to second-class status. Schools, jobs, housing, voting, indeed all aspects of life were about like what we know of South Africa today. In fact it was worse, because South Africa tells us that it has made some changes. For black Americans in that time there was little opportunity for advancement. There was very little value placed on their lives because of the practice of white Americans--particularly white Southern Americans--of taking the life of any black person who threatened the existing arrangement.

Devising Strategies for Change

In the 1930s a group of lawyers got together and talked about strategies for effecting changes in the Court's interpretation of the equal protection and due process clauses. We think of Charles Houston as the architect and of Thurgood Marshall and Bill Hastie and others as lieutenants who implemented or carried out those strategies.

The effort was to convince the Supreme Court that the equal protection clause and the due process clause imposed a responsibility on the part of the federal government to insure that all citizens would be treated equally. Segregating people by race was not treating people equally. The federal government must insure that no state or federal practices were condoned which would force the separation of people solely on the basis of race or color.

Today we do not think of that as a particularly tall order. But in the '30s it was considered a very difficult, perhaps impossible, mission. The strategies included picking away at how the courts interpreted the equal protection and due

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process clauses until the ultimate issue was presented.

We ultimately achieved the goal in Brown v. Board of Education with the Court holding that the equal protection clause prohibits a state or the federal government from segregating people solely on the basis of race or color. Although Brown was a case involving education it was soon applied to other aspects of our lives such as voting, housing, and employment.

When Brown was decided in 1954, I remember how it was received in my community in North Carolina, how many people thought that the court had suddenly written an end to segregation and the pervasive racism that we knew. How we hoped that American society would quickly adhere to that decision and would proceed to implement practices that would eliminate segregation in the schools as well as discrimination in all other aspects of our lives. We were made aware quickly that the immediate implementation of that decision was not to be had. It was going to continue to be a long and difficult process.

We had achieved a major goal in convincing the U.S. Supreme Court to interpret the equal protection clause differently. Growing out of that decision we have seen some major changes in our society. But that decision left many problems unsolved. Just as we employed a number of strategies to achieve a decision like Brown, we would have to employ strategies to affect the courts' determination of what Brown really meant.

A Continuation of Old Problems

So today we are continuing to face problems that reflect the ills of our society. For example, when the Court holds that no state may implement policies that segregate people on the basis of race or color, what does it mean by state or state action? What does the Court mean by intentional segregation or discrimination? If a practice disproportionately affects a particular group or an individual even though not "intentionally" discriminatory, do such practices violate the equal protection clause? Does the clause apply to blacks only? Does it apply to whites? Does it apply to religious groups? To the poor? Are there still possibilities for further evolving principles under the equal protection clause that would provide such protection?

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Does the equal protection clause impose an affirmative obligation on the part of the federal government and on the part of the states to insure that all citizens or that all people within the country are accorded equal protection of the law? Do affirmative action plans that are designed to remedy past discrimination violate the equal protection clause because of discrimination against white Americans?

Does the equal protection clause or the Fourteenth Amendment or our concept of federalism prohibit the federal government from reaching private practices of discrimination?

Finally, how are these questions relevant to black empowerment today and for the future?

An issue that now limits the effectiveness of equal protection is whether it limits the ability of courts or the legislatures to implement affirmative action or minority set-aside programs. Do such programs unconstitutionally discriminate against non-minorities?

Last term our U.S. Supreme Court imposed almost impossible standards governing the use of race-based remedies. That decision, coming out of Richmond, has some major implications for the South as well as the nation. Richmond, a city that is approximately 50 percent black and 50 percent white, had major problems in insuring that black people would be able to enjoy benefits under city contracts. So, like the federal government, it proceeded to implement a minority set-aside program designed to insure that 30 percent of city contracts would go to minorities. Just as the City of Atlanta has attempted to do to insure that minorities would be able to participate in city contracts. Those plans were race-based because they were designed and specifically provided for blacks to participate in city contracts.

Does the use of race in those plans violate the constitutional rights of white Americans? In the City of Richmond case Justice [Sandra Day] O'Connor said yes, unless Richmond (or any other city) demonstrates that the plans were designed to provide remedies for specific victims or identified victims of discrimination. If that is to be the test we will get very few benefits from minority set-aside programs or affirmative action programs.

The Court said that Richmond will have to come forward with very stringent standards of proof that minorities had been deprived of benefits that were accorded by the cities and the states. What it did was to impose cost requirements such that Atlanta, for instance, now is spending over $500,000 trying to comply with this new requirement by demonstrating that slavery once existed and discrimination was once practiced in the United States.

What Happens If...?

And Richmond is not limited to set-aside programs or to affirmative action programs. What happens in Louisiana if LSU or Southern University, pursuant to state directives, increase the college admission requirements and those increased requirements disproportionately exclude black students? Can LSU or Southern implement an affirmative action plan that will address this impact or would such efforts violate the Constitution?

What happens when the University of Mississippi, in providing increased opportunities for minorities or the State of Mississippi with similar objectives, decides that black colleges can no longer be maintained? If it proceeded to desegregate by closing black colleges, would such prac-

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tices violate the Constitution? What happens in the University of Mississippi or the University of Alabama if black students insisted on an African-American or an African studies program? Would singling out race in those instances violate the Constitution? What happens when the NCAA decides to increase requirements for students to participate in intercollegiate sports? Does Proposition 42 or Proposition 48 violate the Constitution?

As presently interpreted each of these questions arguably would be answered against the interests of those who would ensure equal or effective black participation. The majority of the present Supreme Court could easily hold that race-based or set-aside programs pose an insurmountable problem under the Constitution. We would have a problem then of trying to develop effective remedies that would insure fair and equal protection of minorities. Although we have Brown v. Board of Education we would have new barriers that would perpetuate the same kind of practices we were trying to address before Brown.

To Reach Private Discrimination

There is a further problem that is left open by Brown: whether Brown limits discrimination by private entities.

Why is private discrimination important? Private discrimination affects in increasing importance what happens in employment, housing, health care, education. Private education plays a vital and pervasive role in our society today. Not only is there a question of the reach of the Fourteenth Amendment, there is also the question of the ability of Congress to act under the Fourteenth Amendment to reach private conduct and practice.

Did Congress overreach by enacting Title II of the Civil Rights Act of 1964 prohibiting discrimination in places of public accommodation? Did Congress overact in 1964 when it enacted Title VII? If one looks at six of the decisions of the Supreme Court the past term interpreting Title VII of the Civil Rights Act of 1964 one begins to see a Court questioning how far Congress can reach in trying to protect individuals against private discrimination.

In 1971 the U.S. Supreme Court decided Griggs v. Duke Power Co. that applied Title VII of the Civil Rights Act of 1964. The Court held that if an employer uses a practice which disproportionately affects blacks or minorities there is a burden of proof that the employer will have to meet in demonstrating that the use of that practice was necessary for the successful operation of the business or was necessary to determine one's ability to perform the job successfully. The burden of proof was on the employer. This year the U.S. Supreme Court held that it did not really mean what it said in 1971; rather it left the burden of proof of discrimination with the victim.

What the court in effect did was to change the cost for an individual litigating such a case in federal district court from $5,000 in 1987 to over $100,000 in 1989.

The Court also decided a case this term interpreting the

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1866 Civil Rights Act which was designed to prohibit public and private discrimination. The Court said that the 1866 statute only prohibited an employer from refusing to hire. Once the person was hired the employer could do what it wanted. A black person can now be hired, harassed, called names, and his or her life made unbearable with no legal protection under the Act.

But the present Court went further, holding that the 1866 Act not only provided no protection after one was hired but the act itself was of limited use in challenging practices by state or local governments.

In short, the U.S. Supreme Court in interpreting statutes that Congress had enacted to provide protection against private discrimination has proceeded to limit the reach of those statutes.

Extending Protection to the Poor

There is another issue that affects us today with regard to how the Supreme Court has interpreted the equal protection and due process clauses. It has held that those clauses provide no protection against discrimination by a state against individuals because of their economic status. If Georgia decides to discriminate against people today because they are poor, the poor may have no constitutional protection. The effects of these holdings are shown in public education where, for example, Harlem schools, primarily black, receive less dollars per student than schools in east Manhattan, primarily white. In Hartford, Connecticut, where concentrations of poor blacks and Hispanics are surrounded by higher income suburban white areas, several studies have found that it is impossible to insure an equal educational opportunity for poor children--white or black--if these children are concentrated-segregated--in one school by economic status. At present, this kind of discrimination, based on economic status, does not violate the Constitution.

In Alexandria, Virginia, the city in developing its housing practices provides no protection, or very limited protection, for poor people who cannot afford middle and upper income housing. In Boston, blacks have been run out of the city as whites, deciding to move back in, have converted housing from low income to middle and upper income. Again, there is no protection for the poor. In Mississippi, black people are having difficulty in getting health care because the state provides limited protection for the poor.

[The Legal Defense Fund thinks] that there must be efforts to insure that poor people are trained and employed. We along with other groups are pressing the federal government when it gives out its contracts to Boeing or McDonnell Douglas to make these companies set aside a certain percentage of their contracts for training and employment in those facilities.

Is it possible to evolve principles today that would convince the Court that like race and, recently, gender, the poor are in need of protection under the Constitution?

Can we today, as in the 1930s, map strategies to convince a U.S. Supreme Court to extend protection to minority Americans and now to others who are disadvantaged and who have no protection under the Constitution?

It is the mission of the Legal Defense Fund to pursue just that kind of effort. We believe that it is possible to use the courts, even in the 1990s, to achieve that kind of goal. We also believe that whatever interpretation is reached by the Court and whatever empowerment is won will

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come about through a collection of efforts and not just litigation alone.

David Garrow has written that he believes that the great advances in civil rights were achieved almost exclusively by demonstrations and public protests. I believe that demonstrations and political efforts will go only so far. It was important in 1954 to have a standard set by the Court that would enable those who were engaged in demonstrations and those who were involved in the political process to help in effecting change.

As we look at the possibility of further interpretations of the Constitution we have to engage those same factors in effecting the kinds of changes we would like. We are now drafting a bill that will address all of the decisions of the Supreme Court in civil rights in 1989. That bill will reverse the present Court in interpreting Title VII of the Civil Rights Act of 1964 and in interpreting the 1866 Civil Rights Act that I have referred to. We are also drafting a bill that would reverse what the court has done in interpreting the Fourteenth Amendment in Richmond with the minority set-aside programs.

Using the Political Process

Whether Congress enacts those bills will depend on what you and I do in using the political process for advancing and enhancing minority empowerment. If we do not convince the Congress to act we will have even fewer resources for effecting change in the future. The U.S. Supreme Court today is a much different court than it was in 1954. But we also know that we have more resources to turn to in the 1990s than we had in the 1930s and the 1940s. We have state courts and state legislatures. We have a U.S. Congress that is much more responsive than the Congress of the 1930s and the 1940s. We have black mayors and now a black governor. We have black legislators. It is extremely important that we turn to them. We have the right to vote. It is important that we use it.

One of the things that I think we ought to all appreciate is that there have been shifts in population since the 1980s and, according to a recent report by the Southern Regional Council that describes the potential impact of these shifts, perhaps as many as thirty to fifty congresspeople who today are sympathetic to causes of minorities and women may be lost from Congress in the 1990s and replaced by more conservative congresspeople. It is incumbent that we try to work to limit the impact of those population shifts and insure that people are elected to office who believe in the type of agenda that we are talking about.

Here I might add that a number of organizations like the Legal Defense Fund and the Lawyer's Committee, the ACLU, the Mexican-American Legal Defense Fund, the Voting Rights Project of the SRC--just to name a few--are gearing up now to provide assistance in litigation if redistricting plans are devised following the 1990 census that unfairly dilute the voting strength of minorities. There are political efforts underway to deal with that issue and there are organizations capable of providing legal protection.

Facing the Dangers of the '90s

Over the years all of us have been involved in the struggle to effect change and to empower black Americans to improve their opportunities in this society. We have made some progress. In the '90s we face a much graver danger than we were trying to address in the 1930s. A danger in terms of complacency. A danger in terms of people believing that they have done enough to help the disadvantaged.

But there is reason for optimism. I was never so impressed as in the past three months getting about the country to talk to people about the need for reversing what the Court has done. In my opinion there is a groundswell of reaction not only in the black community but across racial lines.

As we attempt to make progress toward a better society for all Americans, the caution I would raise is this: we cannot limit that effort to race alone. We cannot ignore the plight of the poor. We cannot ignore the conditions of gays and lesbians. We cannot ignore the plight of the elderly. All across the country we have to accommodate a diversity of groups. We are going to have a multicultural world in the coming years. We must expand the reach of equal protection to make sure that it is inclusive of all groups who seek equal participation in society.

A former president of the Southern Regional Council and one of the country's foremost civil rights attorneys, Julius Chambers has served since 1984 as director-counsel of the NAACP Legal Defense and Educational Fund in New Fork. Chambers's work in the Charlotte, North Carolina, school desegregation case is considered at length in Frye Gaillard's The Dream Long Deferred (Chapel Hill: Univ. of North Carolina Press, 1988). Readers may also want to look at Chambers's "The Collapse of Enforcement" in Southern Changes for March/April of 1985.