Commencement Address

by

Nathaniel R. Jones, General Counsel, NAACP   

Syracuse University School of Law

June 3, 1972

I am pleased to come to Syracuse and address this graduating class for two reasons. First, it gives me an opportunity to publicly pay tribute to my dear friends, Dean Anderson and his lovely wife, Jean. I have always regarded the Dean as a remarkable man. He is undoubtedly one of the most intellectually honest men it has been my fortune to meet.

In the days before civil rights became fashionable, and when it did not have the glamour and the respectability that it later came to enjoy, Dean Anderson was in the vanguard. In Youngstown, Ohio, in the forties and fifties, Dean Anderson was busy shaping strategy, filing lawsuits and agitating for an end to racial discrimination. He did this, I know, out of his deep sense of justice. Negroes in Youngstown have come to exercise their civil rights with greater freedom as a result of Dean Anderson's activities. In all of this, he was steadfastly supported by his wife, who shared his courage and convictions.

The second reason I am pleased to come to you today is tosay “thank you” for sending to the NAACP a dedicated, hard-working, brilliant young lawyer, Jimmy. Meyerson. He is an invaluable member of the NAACP legal staff who is engaged in a multitude of significant litigation. We owe to Dean Anderson and this law school a debt of gratitude for steering Jimmy Meyerson to us.  The commitment and contributions of these two lawyers to the advancement of civil rights and the law should serve as a model for each of you.

Now that our nation is on the brink of a major constitutional crises, precipitated, I must add, by the Executive Branch of the Federal government, I feel duty-bound on this occasion to discuss civil rights from a historical perspective.

That crisis, to put it simply, grows out of the desire of the Executive Branch to compel the Legislative Branch to invade the province of the Judicial Branch with respect to interpreting the Fourteenth Amendment and fashioning remedies for the violation thereof.

The way this crisis is met will largely determine whether America returns to the days of Dred Scott, when it was held that Black people had no rights that whites were bound to respect, or we move ahead to preserve and protect the Constitution of the United States. You can play a critical role, as lawyers, in the resolution of this serious crisis.

Let us begin with Plessy vs. Ferguson, decided in 1896. The Supreme Court held in that case that it was constitutionally permissible to separate people by race in interstate travel so long as equal facilities were provided. This, of course, was clearly a myth. Justice Henry B. Brown, who authored the majority opinion for the Supreme Court, insisted that it was fallacious for Blacks to argue that segregation stamped them with a badge of inferiority. “If this be so,” he said, “it is not by reason of anything found in the law but solely because the colored race choose to put that construction upon it.”

Negroes were not unmindful that a dissenting member of the Court, Justice John Marshall Harlan of Kentucky, made a prediction which proved self-fulfilling. He warned his colleagues on the Court, and the entire nation that the Plessy decision:

will, in time, prove to be quite as pernicious as the decision by this tribunal in the Dred Scott case...for... in view of the Constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens. There is no caste here. Our Constitution is color blind... the thin disguise of equal accommodations will not mislead anyone, or atone for the wrong this day done."

True to Mr. Justice Harlan's prophecy, whites were not mis-led. They recognized it as a license to manipulate, control and contain blacks. In doing so, whites went to ridiculous lengths. States hastened to segregate the deaf, dumb, and the blind by color; white nurses were forbidden to treat Negro males; South Carolina forbade Negro: and white cotton workers to even look out of the. same windows; Florida required Negro textbooks to be segregated in warehouses; and Atlanta provided Jim Crow bibles for Negro witnesses in courtrooms; hospitals, libraries, drinking fountains and cemeteries were segregated.

Furthermore, Mississippi began the process of disfranchising Negro voters by legislation and intimidation. Negroes were also excluded from jobs and mass injustice confronted them all over the South. Known lynchings exceeded one hundred a year. Indeed, history and events have proven that decision by the Supreme Court in Plessy vs Ferguson to be as "pernicious," as Justice Harlan predicted.

The battle to reverse focused largely on the area of public education, courts and the law were central to the Plessy campaign and thus are worthy of our attention as we examine the current constitutional crises.

Although the idea of a free public education was conceived during Reconstruction by black legislators, after Plessy vs Ferguson, the states, which at first totally denied educational opportunities to blacks, went through the motions of providing separate~but-equal education. As is true in all other such attempts, there was separation but no equality. Gradually, the courts began to set standards of equality. In the famous case of Gaines vs University of Missouri, we can see the beginnings of judicial discomfort with the separate-but-equal myth, which ultimately led to the 1954 Brown decision.

Lloyd Gaines was a Negro who had been refused admission to the law school of the State of Missouri solely because of race. Asserting that this refusal constituted a denial by the State of the equal protection clause of the Fourteenth Amendment, Mr. Gaines brought an action in 1938 to compel the university to admit him. The registrar urged him to accept a scholarship to a law school outside of the State, at least until such a time as a Negro law school could be established within the State of Missouri. He was offered free tuition through a scholarship if he would leave the State to attend a law school. Gaines argued that Missouri could not in this manner avoid its obligation under the Constitution. The Missouri Supreme Court dismissed both Mr. Gaines! argument and his petition. However, the NAACP pursued the matter to the Supreme Court of the

United States and there the decision was reversed on the ground that the State of Missouri was required to provide equal facilities for Negroes within the State. In the absence of such separate-but-equal facilities it was required to admit him to the existing University of Missouri Law School.

Some ten years later, in 1948, Ada Lois Sipuel, a Negro, was denied admission to the law school of the University of Oklahoma. NAACP attorneys filed a petition in the Oklahoma courts requesting an order directing her admission. The petition was denied on the grounds that the Gaines! decision did not require a State with segregation laws to admit a Negro to its white schools. Furthermore, the Oklahoma court maintained that there was no obligation upon the State to set up a separate school unless the Negroes desiring a legal education should first request one. Naturally, the Supreme Court of Oklahoma affirmed that decision. However, the Supreme Court of the United States ruled that Oklahoma was required to provide Negroes with equal educational opportunities contemporaneously with the providing of such facilities to white persons. That same year - in fact, one month later — the court went a step further and ruled in another case, that while waiting for a Negro law school to be established, the State had to admit a Negro to the existing law school or it could not enroll any students in its white schools.

| shall not precisely trace the entire litigation obstacle course that had to be run in order to reverse the rule of Plessy, except to indicate that the Brown decision of 1954, was anything but a sudden departure from Plessy. The Gaines, Sipueland McLaurin cases were fought through the courts and each new decision made it increasingly apparent that it was impossible for a State to meet the test of equality with facilities that were separate. Yet the tenacity of the doc- trine continued to cause considerable national stress. The rule that was laid down in Plessy was unquestionably a powerful force in creating the nation's policy of segregation.

After the historic Brown decision in 1954, the Supreme Court, by way of remedy, ordered the dismantling of dual school systems with "all deliberate speed.'' As you know, massive resistance and schemes of evasion were concocted to avoid compliance. There was nullification and interposition. Some governors, literally and figuratively, stood in the doors of schoolhouse: to block the entrance of black children. In other ways, they thwarted federal court orders directed towards the desegregation of public schools on the elementary as well as college levels.

There were many federal court judges who refused to move forward resolutely out of uncertainty as to what was meant by the phrase "all deliberate speed." Nonetheless, the pressure was maintained against school systems until the United States Supreme Court, some eighteen years later, scrapped that "all deliberate speed" phrase and in its place is calling for the immediate elimination of all "racially identifiable schools."

The 1954 Brown decision has language which many in the North have either failed to note, or which they thought had application only to those States of the old Confederacy. En- titled to emphasis and reiteration are these words from a unanimous court in 1954:

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other intangible factors may be equal, deprive the children of the minority group of equal educational opportunities?

We believe that it does.

We conclude that in the field of public education the doctrine of 'separate~but~equal' has no place. Separate educational facilities are inherently unequal.

The South has moved to dismantle its dual school system. Through various devices, including busing, Southern dual school systems are being converted into single or unitary systems and they are removing the labels of "black” and "white" from schools.

Meanwhile, in the North and West, racial segregation has been on the increase. As the South's economy became more industrialized, farm employment dwindled. Blacks accelerated their migration from the rural South to the urban centers where they were led to believe job opportunities were more plentiful.

Patterns of segregation existing in these Northern urban areas have locked black people into segregated communities with all of the negative consequences.

In Northern states, it has been necessary to initiate lawsuits to bring school districts within those jurisdictions into compliance with the Constitution. It has long been argued that the racial separation that exists. in these schools in northern cities is the result of happenstance. Within the last two years, however, our lawyers have demonstrated to courts that housing segregation and school segregation are not accidental. Rather, they grow out of an interdependent combination of public and private discriminatory actions.

It is unconstitutional, the courts are now saying, for school boards to arrange attendance zones in such a fashion as to reproduce in schools the prevalent pattern of housing segregation. To do so is to endorse with the power of the State, the product of private racism.

This being so, the courts see a clear duty to do what the boards of education, for political reasons, find it difficult to do, i.e. convert the racially identifiable schools from "black" - "white” into just plain schools. A school board majority tried in Detroit and its members were recalled. A school board majority tried in in Kalamazoo and its actions were rescinded by a subsequent board majority. The same occurred in Denver and Dayton.

In meeting its duty to intervene and "eliminate from the schools all vestiges of State imposed segregation," the courts are drawing upon the vast arsenal of equity power they inherently hold. This includes the raising of revenue, redrawing of attendance lines and busing.

Busing is a tool that has provoked much debate. In fact, a new political movement has been formed around the issue of busing, led by the President of the United States.

He had introduced legislation in the Congress calling for a moratorium on busing in school desegregation cases. In tandem with that he proposed 2.5 billion for the purpose of upgrading ghetto schools. Other members of Congress have also proposed an assortment of constitutional amendments. Recently, the House-Senate Conference Committee approved the Higher Edu- cation Act that has an anti-busing rider on it.

All of these maneuvers are simply attempts to use the law to do what the Dred Scott and Plessy vs Ferguson decisions did - i.e. segregate and contain America's Negro population. In attaching an anti~busing amendment to the Higher Education Act, anti-black forces are trying to bribe the white academic community, including Syracuse University, into silence. Frankly, I trust that neither this institution nor you as individuals will consider the education of little black children to be expendible by yielding to such a scheme.

People must surely know that busing of pupils is not a new phenomenon. Certainly, those public officials who are either running for cover on the busing issue, or those who are exploiting it for political gain, must know that 20 million school children are bused to school every day; less than 2% of the 40% of children who are bused to school is related to desegregation; that no court has ordered busing for "racial balance."

In our view, busing is a phony issue. It isa modern day euphemism for ugly epithets. Most blacks are convinced of this because the real furor arises when it is suggested that white children should share some of the burdens by being bused into heretofor black schools.

The implication of their opposition is clearly an admission that black children have been relegated to inferior public education in this country.

Another tool that is available to judges in appropriate cases, as I have indicated, is consolidation of city schools with suburban districts.

This is known as the metropolitan remedy. Cases seeking that kind of relief are pending in Detroit, Richmond, Indianapolis, Dayton, and Grand Rapids. In the famous Richmond school case, it was held that there shall be consolidation of the city schools with two adjoining. county systems, thereby creating a new metropolitan district. The same may be ordered in the Detroit case.

Metropolitan school desegregation is, on one hand, a brand-new idea, and on the other a return to first principles. It is a return to first principles in that courts are declaring, once again, that it is the State which has the primary responsibility for public education. The Fourteenth Amendment of the Federal Constitution runs to the State. It is reasonably settled constitutional law, as you know, that a State may not avoid any of its constitutional obligations by creating local districts of government. Local school boards, for purposes of the Fourteenth Amendment, are State agencies. Thus, in shaping remedies for school desegregation, courts may require State and local boards to redraw school district lines even if it means crossing political boundaries.

The courts have held that in fixing school boundary lines, physical demarcations such as highways and rivers are insufficient basis for creating school boundaries if the effect will be to keep schools segregated. This being so, political boundaries within a State that don't coincide with tangible obstacles and are unrelated to any administrative or educational needs, are not sacrosanct and may be crossed to eliminate segregation in schools.

What is eluding many in this busing furor is a simple fact: That once it has been established that a school system is segregated through State action, Federal courts may use their power of equity to dismantle the duality — in a way that will be effective.

In a broader context, Americans must bear in mind that law must remain central to the solution of problems. Law provides the framework within which society can hammer out solutions through the establishment of ground rules.

A look at the effect that the Voting Rights Act of 1965 has had on the political landscape of the South is most instructive. The removal of crude racial epithets from political campaigns and a sharing of local political power in the deep South can be attributed to the registration and inclusion. of three million new black voters in the political process. This is going to inevitably lead to a further increase of the 880 black elected public officials in that region.

Due to the Civil Rights Act of 1964, the stranglehold that craft unions have held over the fate of black workers is releasing, although much too slowly. Furthermore, pressures are continuing to be applied against recalcitrant employers who insist upon, sometimes blatantly, but more often than not, subtly, discriminating against racial minorities. The ground rules for these assaults are spelled out in Title VII of the 1964 Act. Where we find teak Inadequate, we lobby for strengthening amendments, just as was done in the current session of Congress, resulting in the inclusion of State and local government within the orbit of the law. Consequently, minorities can now use the federal machinery to obtain compliance from local police departments and State agencies who have stubbornly discriminated in hiring off blacks.

I could go on and cite the use which has been made of the open housing section of the 1968 Civil Rights Act.

All of these laws have proven to be highly useful tools. In order for minorities to utilize these tools; as opposed to nonlegal methods, they will have to believe in the integrity of law as an instrument of social change. To the extent that political opportunists tamper with the law and contaminate the judicial system for political advantage, the faith of racial minorities. in law and the Constitution will be further diminished. There is a fear that if foes of civil rights succeed in undermining the power of courts to fashion remedies for violations of the Constitution in school cases, the effects will spread to other vital areas such as jobs, housing. and voting rights.

My plea to you is to firmly resist the present attempts being made to nullify the Fourteenth Amendment and undermine the integrity: of the courts.

Beyond that, you must carry with you the kind of social consciousness and awareness exemplified by Dean Anderson and Jimmy Meyerson. Infuse starch into the spines of older lawyers with whom you associate by reminding them of the sanctity of the Constitution and of the rights it guarantees. No legal fee or prospective partnership is worth your soul.

Unless this is done, the drift toward two societies will accelerate and this country most assuredly will stand side by side with South Africa in the hell hole of apartheid.

The way to avert such a catastrophic course is to be mindful of the words of the brilliant writer, James Baldwin, who warned:

"The moment we cease to hold to each other,

“The moment we break faith with one another,

The sea engulfs us and the light goes out."

If Americans can rediscover such ageless values as faith and trust, perhaps the lights will not go out. As lawyers, you have a duty to bring sanity and clarity to confused and emotional issues.

In the process, my friends, you will be performing the highest and most noble duty of an American, - that of helping this nation to save its own soul.