
          The Court and the Black Community
          By Chambers, Julius L.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 

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?

          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-

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 

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 

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.
          
        