Remarks of Nathaniel R. Jones

Mountain State Bar Association, Inc.

Eleventh Annual Banquet

Charleston, West Virginia

Saturday, June 4, 1983

A question being pondered all across this nation is whether Blacks are now experiencing 1980's version of "take-back time." Whereas take-back first occurred after the Hayes-Tilden deal in 1877 and Plessy v. Ferguson in 1896, there are signs that the new version is camouflaged in the garb of budget balancing, deregulation and states rights.

There is now raging in the nation a debate on whether the federal government should continue to play its traditional role in shaping social policy and enforcing rights. For instance, in a widely-publicized speech to the Council of Chief State School Officers and the National Association of State Boards of Education in Washington, the Secretary of the Department of Education proposed "a new relationship" under which states would assume a greater responsibility for enforcement of civil rights. He added, "We ought to try to get the federal government, to the extent we can, out of the monitoring and enforcement business."

This call is consistent with the administration's espousal of what it calls "a new concept of federalism" which would "restore to states and local governments the power that properly belongs to them." How similar are these words to those used in the Mountain State Bar Association, Inc. 2. Hayes-Tilden compromise. What also may seem to be of considerable significance is the timing of these policy and budget pronouncements, coming as they do when there are pending before the Congress over 30 pieces of legislation aimed at significantly diluting the jurisdiction of the federal courts.

And, in a speech presented to the Federal Legal Council, as well as in an article in the ABA Journal, the Attorney General of the United States joined in this campaign. Accusing the federal judiciary of "constitutionally dubious and unwise intrusions upon the legislative domain," William French Smith has vowed to throw the full weight of the Justice Department behind the efforts to curb the power of the federal courts. Mr. Smith appears particularly distressed by the courts' use of equitable devices to remedy constitutional violations. He argues that the federal courts have distorted the meaning of the Equal Protection Clause by mandating counterproductive remedies such as busing. He asserts that the judges have ranged "far beyond their abilities" in asserting control over schools, prisons and other institutions.

In his much-publicized speech, the Attorney General has, in so many words, outlined his plan to rein in the courts and to deprive them of the independence that has been theirs since their inception. At one point in his address, Mr. Smith remarked: Mountain State Bar Association, Inc. 3. We believe that the groundswell of the conservatism evidenced by the 1980 election makes this an especially appropriate time to urge upon the courts more principled bases that would diminish judicial activism.

Has this not been urged before? Has this not actually occurred before? Is this not what happened when the Black Codes were enacted in the South in the 1870s and the Hayes-Tilden deal resulted in a pull-out of federal troops in 1877? Is this not what occurred in 1896 when the Supreme Court construed the Equal Protection Clause of the Fourteenth Amendment to permit racial segregation? Why now, Blacks are asking, at a time when the enforcement policies are yielding results in terms of more Blacks being admitted to schools, getting better jobs, and other opportunities?

The Attorney General for Civil Rights has followed through on these promises. The Justice Department has advised the Department of Education that colleges and universities should no longer investigate civil rights complaints unless the department or section of the institution receiving federal aid, such as the student financial aid office, is accused. And then the focus of the inquiry should be limited to that office.

In addition to the above directive, there is a proposed rule now under consideration in the executive branch that will redefine student loans as a form of governmental Mountain State Bar Association, Inc. 4. "insurance" rather than "financial aid." You are entitled to ask what this would do to the scope of government enforcement authority.

The department has either recently intervened or sought to intervene in several critical civil rights cases in order to influence the direction of remedies. The reason offered in justification is that the remedies were counterproductive and not working. In the employment discrimination cases, it is contended that remedies that involve quotas are immoral, because they take race into account. With regard to school desegregation cases, the Department is trying to knock out busing as a remedy, even though the Supreme Court has specifically sanctioned the use of busing as a legitimate tool of remedy for school segregation.

The first take-back reached full flower following the Supreme Court decision in Plessy v. Ferguson in 1896. In that case the Supreme Court interpreted the Fourteenth Amendment's equal protection clause as permitting the separation of persons on the basis of color so long as the facilities to which they were relegated were equal to those afforded whites. It should be noted that Justice John Marshall Harlan wrote a prophetic dissenting opinion in that case. It was that dissenting opinion that declared the Constitution to be color blind. It stated that the Constitution recognized no color or classes and that America would regret the day it constitutionally sanctioned Mountain State Bar Association, Inc. 5. segregation. I will return to the color blind notion in a moment.

In the wake of that pronouncement by the highest court of the land, all institutions in America, North as well as South, rushed headlong into the adoption of policies and practices which put in place the principle of separate-but-equal.

It was the Brown v. Board of Education decision in 1954, won after repeated resort to the courts, that became the launching pad for attacks upon a broad range of barriers erected following Plessy v. Ferguson and which were being used to bar Blacks from opportunities. Various executive orders were issued by Presidents Franklin Roosevelt, Harry Truman, Dwight Eisenhower, John Kennedy and Lyndon Johnson. These orders were aimed at attempting to exercise leadership through executive authority.

This, of course, was of limited effect and it became increasingly evident that additional legislation was needed to get at the intractible residual aspects of segregation. One of the most dramatic ways adopted by civil rights advocates of highlighting the limitations of executive action occurred through the boycotts and the other direct action campaigns that were initiated following the Brown decision. We all know of the Montgomery bus boycott and we know of the freedom rides and sit-ins which pointed up the stigmatizing practices of racial segregation. They sensitized the nation to the need for change.

Thus, in 1964 the Civil Rights Act was enacted, to be followed by Mountain State Bar Association, Inc. 6. the Voting Rights Act of 1965 and in 1968 the Omnibus Civil Rights Act was passed with its equal housing provision. On top of all of these efforts came the various affirmative action programs which carried out the spirit of the statutory and executive enactments and reached out to envelop an even larger number of persons whose rights had been denied because of color.

A logical question to ask is whether these strategies and remedies worked. Was progress being made? The answer is simply, yes. All around us, it can be noted that the once excluded are now, in varying degrees, being included. Opportunities have expanded in education, jobs and housing. Further, in the ten years between 1969 and 1979, illiteracy among Blacks dropped from 3.6 percent to 1.6 percent and infant mortality among Blacks was cut in half from 21.8 per 1,000 births to 11.2.

In the area of professional education, the increased numbers of black law and medical students provide an additional answer to the question of whether progress was being made under these various programs and court decrees. Judge Leon Higginbotham, in his Sloan Commission Report, noted that until the 1950s it was unusual in any particular year for Harvard Law School to enroll more than four or five Blacks. The number enrolled now is over 200, approximately 13 percent. The total of black and minority law students in all of the nation's law schools is now in excess of 5,000.

In Mountain State Bar Association, Inc. 7. 1960 there were only 200 black medical students out of 8,000. In 1968 only 2.8 percent of all medical students were black, in 1978 the percentage was up to 6.0 percent, with Blacks numbering 3,587 out of a total of 60,039.

We need not limit our survey to education. In jobs-at various levels and of different kinds-construction, in factories and plants, in executive and sales positions, the same kinds of increases are evident. In such public service employment as policemen and firemen, the figures are striking. Let me cite a concrete example. In Boston, prior to affirmative action, and a court decree, the fire department had 1,983 firefighters of whom only 18 or 0.9 percent were black or Hispanic. There were 2,805 policemen, of whom 65 were Blacks or Hispanics, 2.3 percent. As of 1981, however, following the consent decree approved by the federal court, the fire department increased its black and Hispanic numbers to 224 out of 1,912, 11.7 percent. As for the police department, the minority officers rose from 65 to 248. There are comparable results to report all across the employment spectrum.

In spite of assertions to the contrary, civil rights enforcement by courts, administrative and voluntary actions has resulted in positive change in all aspects of American life.

Mountain State Bar Association, Inc. 8. Much of the activity to limit federal enforcement efforts goes unchallenged due to a misunderstanding that is widespread in the country as to the role that constitutional rights play in our lives. Basically, the nation suffers from a near terminal case of amnesia with regard to race. There are those who now wish to act as though there is a clean slate with no history of racism, slavery, segregation and discrimination. They wish to ignore the Civil War and the Reconstruction period. Further, they would deny that the Thirteenth, Fourteenth and Fifteenth Amendments as well as civil rights statutes, became law for the benefit of black Americans.

Those challenging the programs of affirmative action and court decrees with their requirements for goals and/or quotas do so on the basis that the law and government should now be color blind. They hark back to Justice Harlan's famous dissent in Plessy v. Ferguson in 1896. They now ask, is not the Constitution supposed to be color blind?

The point they miss, however, is the nearly one hundred years of history that have intervened since that dissent. We must remember that Justice Harlan's views were in a dissent because the majority of the Supreme Court rejected them. And the majority of America implicitly rejected them by adopting and deeply rooting into all of our institutions, the rationale of the majority-that Blacks were inferior and must be kept separate. That rationale was enforced by law upon all American institutions.

Mountain State Bar Association, Inc. 9. What the nation has been about since 1954 is the uprooting of the segregated and unequal condition Blacks were locked into by virtue of Plessy v. Ferguson.

This is where lawyers come in, those of you who have been blessed with an opportunity of advanced education, and who in the past have carried the burden of battle, and been guardians of the Constitution. You enjoy respect because of your achievements. You are looked to for direction and guidance by the wider populace.

Far too many Americans prefer to hear the lullaby of how nice things are now or were in the good ole days, than to face up to the hard facts of the real world. You and I know that the past was not that nice. And we must say so. American institutions have abused and denied opportunities to persons for reasons of race, class, religion and gender. Racism continues to infect numerous American institutions; the vestiges of the horrible past that was reinforced by law, lingers. Far too few persons are able to enjoy the benefit of legal services; while cutting food stamps for the hungry and welfare for the unemployed or unemployable may be popular politics, it is sorry social and national policy and will ultimately prove penny-wise and pound foolish; and finally, that by removing jurisdiction of federal courts to hear and decide cases involving racial discrimination and to undercut the vitality of affirmative action will inevitably lead to Mountain State Bar Association, Inc. 10. the undermining of the nation and affect other basic guarantees such as freedom of the press, religion, speech and assembly.

You are duty bound to help Americans understand the implications of the decisions they make with regard to the future of federal civil rights enforcement and affirmative action. There are two questions I want you to ask yourselves: is this nation sufficiently free of the influence of racism to become color blind? Will the chance of a black person, or a Hispanic, or native American or woman for equal education or job opportunities without discrimination be furthered by the federal government and the courts withdrawing enforcement of civil rights laws?

Your duty is to then ask these and other hard questions of others-over and over again-in order to get Americans to think about the decisions they are being called upon to make.

For those questions to be meaningfully answered, you must ask them and ask them over and over again. It was Henry David Thoreau who wrote: If a man does not keep pace with his companions, it is because he hears a different drummer.

What I am suggesting to you is that because of the discords that have been sounded on civil rights, many Americans-including some courts and governmental officials, are Mountain State Bar Association, Inc. 11. out of step with their obligations under the Constitution. I submit to you that it is your responsibility as lawyers to once again sound the correct note so our fellow Americans can once again get in step.