Fighting for Civil Rights in the Courts

As a part of our monthlong series on civil rights, our roundtable guests discuss how the U.S. court system brought about social change. Guests include Wade Henderson, president and CEO of the Leadership Conference on Civil Rights; University of Maryland law professor Sherrilyn Ifill; and Ted Shaw, president of the NAACP Legal Defense and Educational Fund.

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FARAI CHIDEYA, host:

This is NEWS & NOTES. I'm Farai Chideya.

Historically, civil rights were fought for on the streets and won in the courts. Lawyer Thurgood Marshall led the hard legal battle for equal education. Four years after his victory in the landmark Brown V Board case, Marshall addressed the U.S. Supreme Court.

(Soundbite of Thurgood Marshall's speech)

Mr. THURGOOD MARSHALL (Civil Rights Lawyer): Education is not the teaching of three R's. Education is teaching of the overall citizenship, to learn to live together with fellow citizens and above all, to learn to obey the law. And therefore, I'm not worried about the Negro children at these states. I worry about the white children in Little Rock who are told as young people that the way to get your rights is to violate the law and defy the lawful authorities. I'm worried about their future. I don't worry about those Negro kids' future. They've been struggling with democracy long enough. They know about it.

CHIDEYA: Marshall and others used a lot of spark, major social breakthroughs for black Americans. But is today's legal system restricting ways of promoting racial equality? Today, as part of our month-long series, we discuss how the U.S. courts affect civil rights. Joining me now, Wade Henderson, he's the President and CEO of the Leadership Conference on Civil Rights. We're also speaking with the University of Maryland law professor Sherrilyn Ifill and Ted Shaw. He's the president of the NAACP Legal Defense and Education Fund. Thanks all of you for coming on.

Mr. WADE HENDERSON (President & CEO, Leadership Conference on Civil Rights): thank you.

Professor SHERRILYN IFILL (University of Maryland): Thanks for having me.

Mr. TED SHAW (President, NCAAP Legal Defense and Education Fund): Thank you.

CHIDEYA: So Ted, how would you say - what created the relationship between the civil rights movement and the courts?

Mr. SHAW: Well, I think that the courts in the era of Thurgood Marshall and Brown versus Board of Education opened up a new paradigm and there was a symbiotic relationship between activism and lawyering. And it wasn't always a relationship without tension. But when Brown was won, Brown really split American history into a kind of a B.C. and an A.D. for African-Americans and indeed, for the country. And so it set up this paradigm for social change through the courts at the same time that activists where marching in the streets and you had the Montgomery Bus Boycott and Martin Luther King and others.

So those two things worked hand in hand even if at some time there where tension with one another. Martin Luther King was saying I'm going to break this injunction. Thurgood Marshall was saying, no, you can't do that. He said your job is to get me out of jail and not to tell me what to do. And that's the relationship that worked. So a lot of people, a whole generation of lawyers went into the profession because they saw law as a way of achieving social change.

CHIDEYA: Sherrilyn, would you say that the courts in the '50s and '6os were friendly to civil rights or acquiescent, or how would you describe that relationship?

Prof. IFILL: Well, I think the courts are part of the larger society. They were moving along the rest of society. And I think that's important for people to remember that the gains that were made in the courts, you know, happen in a period of time in which other things are happening in the country as well. And as Ted Shaw has just said, there was activism happening on the streets. And so there are social and political forces that are happening at the same time. And courts can work in tandem with that.

And so it's not necessarily that courts are doing it alone or out there by themselves, but they reflect what's happening in the larger society. And judges are aware of what's happening. They're drawn from that larger society and movements can put pressure on court.

And so, you know, to say the courts were friendly, there were many courts that were not friendly particularly state courts in the South. The federal courts increasingly became more and more friendly and increasingly became educated. I mean, that clip you just aired of Thurgood Marshall, you know, there was a tremendous role that civil rights lawyers played in educating judges who came, really, from very rarified very segregated circumstances as many of our judges still do today. And so, lawyers were educating them about what was happening in the country and about what needed to happen in order to fulfill the promise of the constitution.

CHIDEYA: Wade, not everybody of course, was happy with decisions like Brown v Board. Some folks call it activist court, sewing sympathies to the plaintiffs. Now, first all, is that a fair criticism? And secondly, how does that reflect on the debates about what the Supreme Court in particular should be doing today?

Mr. HENDERSON: Well, I think, Farai, it's an exaggerated criticism. If one puts in context the strategy adopted by civil rights advocates and scholars supporting our view many years before Brown was decided, the NAACP founded in 1909 had, as its two principal efforts, achieving voting rights for African-Americans because the organization knew that the power to vote was the power to make decisions that affect your lives. And using public education as the foundation predicates for advancing the constitutional right of citizenship to a quality public education recognizing the importance of education plate as a transformative lever in American society.

I think the strategy that was pursued by Thurgood Marshall, by Charles Hamilton Houston and by other legal scholars in the early part of the 20th century, ultimately lead to courts inevitably, to the decision that was handed down in Brown. And certainly, without that long record of accomplishment, Brown would not had been possible. So I do think it's important to note that this was not something that happened in a vacuum. That it reflected a conscious effort on the part of the civil rights legal theorists for the kinds of advancement, systematic advancement, that would be necessarily to bring about that change.

When you compare the courts if that time, however, to the courts of today, the federal courts of today, there is a big difference. President Eisenhower, 50 years ago, signed the First Modern Civil Rights Act, the 1957 Civil Rights Act. He is remembered in many ways as being relatively modest with respect to civil rights games. But in reality, he did something very important. He appointed judges to the federal bench who had integrity, who had a generous view of the constitution and who apply those principle in specific instances that helped to advance the interest that we now today believe to be black rights.

And I think, when you look at the comparison between the appointments of the Eisenhower period and the appointments of President Bush's justices to the court or his federal appointments to the federal bench, you see a real marked contrast between a president like Eisenhower who wanted to elevate the integrity of the courts and a president like George Bush who seeks to debase and manipulate the integrity of the courts by appointing people who he believes will move the court dramatically to the right.

CHIDEYA: In case you're just tuning in, I want to reintroduce the folks and the topics. This is NPR's NEWS & NOTES. I'm Farai Chideya.

We are talking about the courts and civil rights. Just heard from Wade Henderson, president and CEO of the Leadership Conference on Civil Rights. We've also got Sherrilyn Ifill at the University of Maryland law professor, Ted Shaw, president of the NAACP Legal Defense and Education Fund.

Now, Sherrilyn, would you agree with Wade that the Bush administration has debased - very strong word - the courts as it applies to civil rights?

Prof. IFILL: Well, I wouldn't - I'm not sure I would use the word debase the courts. I would certainly say that the actions of President Bush have, I think, debased the appearance of the court in the minds of the public. And that is that, you know, for a nation that's run on the rule of law, it's so important that the public have a sense of integrity that the court stand apart from political manipulation. And so, regardless of the conduct of judges on the bench, I think that the concerted effort of the executive to appoint justices of a particular viewpoint sets in the mind of the public the idea that the court does not stand the part.

And I think that is debasing over all to the sense of democracy, which really relies on the idea of this independent court. So I don't think it's the quality of the court has been debased or diminished, but I do think that, you know, a concerted long-term effort to politically influence the court in the way that I think many of these appointments, you know, or efforts to appoint judges to the court have reflected, I think, and some of the rhetoric about judges and activist judges and so forth, is quite damaging to our sense of democracy and quite damaging to the important role that the court plays, I think, in standing apart from merely reflecting the political wins but being able to be a place where you can come and have the justices be educated and the justices can reflect on the promises of the constitution, of laws and statutes that are passed by Congress, and can issue decisions without the public feeling that merely by knowing who appointed the judge or the justice, or merely by knowing the political party of the judge or the justice, or merely by knowing what society or organization approved of the appointment of the judge or justice will know the outcome of the case. That seems to me is very, very damaging to our system of democracy and to the perception of the court.

CHIDEYA: Ted, are you effective? And what I mean by that is that you're the president of the NAACP Legal Defense and Education Fund. Presumably, you want certain outcomes, as the organization always had in cases of civil rights, cases about school desegregation, what laws and methods can be used. Can you do your job in this environment or do you have to find new ways to do your job? Are you successful at this point with your mission?

Mr. SHAW: Well, we must do our job in this environment. This is the environment in which we find ourselves. It may not be the environment I would have chosen, but this is my watch. This is our watch. Now having said that, what has happened is that the ultra conservatives, the far right, they've stolen our playbook. They've stolen the rhetoric. They've stood fact in history on their heads.

They've taken the mantle of color-blindness and turned it into a weapon against all efforts to do anything about racial inequality on a voluntary basis. And the courts have been carefully stacked with people who have a certain point of view over many years. The issue for us these days is not whether we're going to be in court because we have to be, if only because our adversaries are in court trying to dismantle so much of what we accomplished over so many years. And we have to play defense.

You know, I say all the time that the question is not whether we want to play offense. We want to play it at every chance we get. But it's like football. You can't play offense unless you have the ball. And yet when you're on defense, you still have to be out there on the field. We have to be fighting the Michigan case, which is a defensive battle, to preserve diversity opportunities. We had to fight in the Seattle and Louisville school cases, even though we didn't get the result that we wanted in its entirety. But we were fighting to preserve voluntary integration methods.

CHIDEYA: But, Ted, let me jump in, those cases didn't quite turn out, I'm presuming, the way you wanted to. Are you coming up…

Mr. SHAW: Well, Michigan did. Michigan did. We won in Michigan.

CHIDEYA: It was sort of qualified, you know, this can continue in these certain circumstances, which is better than what happens from civil rights point of view in terms of the desegregation methods. But is there anything - do you have a brass ring right now that you're going for that would be a new legal standard, a new legal strategy, anything like that?

Mr. SHAW: Well, very quickly, we did win Michigan. And what we won in Michigan was exactly what we have for the 25 years before Michigan. But that's a longer conversation. Louisville and Seattle, that was a lost, but we didn't lose everything there. Brass rings. You know, I believe that this country has always wanted to turn away from the issue of race. And we haven't been able to yet. We haven't found our way to do that. Clearly, we have to move toward other methods of addressing these problems.

So you asked earlier whether the courts are effective or whether we can be effective. Well, we have to continue to work in to courts. We also have to work in the political arenas. But, you know, I also think we have to look at the issue of economic inequality, even though, that's not a complete substitute for racial inequality. And at the same time, we have to continue to push back against these folks who would try to make all voluntary efforts to anything but racial inequality illegal.

Is there any magic bullet? I don't know that there is one. This is a long hard trouble. It always has been. And I think it always will be. But it's not one that's going to go away.

Mr. HENDERSON: But, Farai, I think that…

CHIDEYA: Go ahead, Wade.

Mr. HENDERSON: This is Wade again. I think that Ted's point, which is that the work that the NAACP Legal Defense and Educational Fund and other legal defense funds like that do is critically important. And they're doing what they are supposed to do. And they're doing a tremendously effective job in the federal courts.

But the difficulty that we face now is that we no longer have a federal court system that is quite as open to examining the impact of race in the 21st century as their predecessors were in the last half, perhaps, of the 20th century. At the same time, however, the political strength of the African-American community and the progressive community generally, has grown substantially.

And what we lack in our ability, perhaps, to win some cases in the federal courts today is to some degree, not all set entirely, but certainly, the impact is minimized by virtue of the political strength that has emerged within our own communities. We have to tap and organized that strength more effectively than we've done and we have to harness the power that is already in place in our community. If we do that effectively and if we coordinate our strategy, I think we can still make substantial gains in the 21st century equal to what was done in the last year…

Prof. IFILL: Well…

Mr. SHAW: And if I might add, we are only - we're still a five-four court even after all of these appointments, it's a five-four court on all these issues of race and the political winds will shift. All we want is justices who will be open-minded.

CHIDEYA: Let me get Sherrilyn in here. What about the whole brass ring thing, whatever else you're going to say as well?

Prof. IFILL: Well, I was going to say that if Ted Shaw (unintelligible) was the brass ring is on the radio, I will kill him. I'm sure he would not reveal that even if I would, Farai.

(Soundbite of laughter)

CHIDEYA: So it's just a strategy not to say what's next?

Prof. IFILL: No, I guess what I wanted to say, Farai, was that, you know, people forget that, you know, Brown didn't - as Wade Henderson said, Brown didn't just appear one day. And, you know, rest assured and be aware that there are many people I know in the academy that work with civil rights organizations and civil rights lawyers - there are independent lawyers. There are activists. There are those working in the political arena - in concert, to really talk about what those next steps are and to develop strategies.

And we are developing it, implementing strategies. And, you know, the court is that, suddenly, you know, it's appeared in Brown suddenly to be sympathetic. It had been a long road for Charles Hamilton Houston and for Thurgood Marshall and for civil rights litigation. You know, there was a case in 1911 called (unintelligible) versus Harrison, which the Supreme Court acknowledged that there was ranked voting discrimination happening in the state of Alabama and just said, you know, we can't do anything about it.

You know, so the lawyers didn't sit down and they continued to litigate cases -some they won, some they lost. They were pushing a rock up a hill until the conditions were right in which they could effect change. And I think that's the period we're in now. The courts are not sympathetic in the way that they were in the late '50s and early '60s. And so now, we're pulling together all the different strength that makes civil right strategies work until the conditions are right to make the kinds of advances that we need to make.

But this period is just as important as the period when we're having tremendous success. And I think people need to understand that because we're not winning all the time in the courts, it doesn't mean that tremendous progress is not being made. This is the groundwork that's being laid right now and that's what had to happen before 1954.

CHIDEYA: Sherrilyn, Wade and Ted, we have to end it there. Thank you so much.

Mr. HENDERSON: Thank you.

Mr. SHAW: Thank you.

Prof. IFILL: Thank you.

CHIDEYA: We've been speaking with Wade Henderson, president and CEO of the Leadership Conference on Civil Rights, who joined us at our NPR headquarters in Washington, D.C. Also spoke with University of Maryland law professor Sherrilyn Ifill. And Ted Shaw, president of the NAACP Legal Defense and Education Fund. He spoke with us from our NPR studios in New York.

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