New Zealand Law Society - A big story to tell: US lawyers, judges and civil rights

A big story to tell: US lawyers, judges and civil rights

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A burnt out bus after Freedom Riders were attacked
The wreckage of a burnt out bus, the aftermath of an attack on Freedom Riders.

A lawyer is either a social engineer or a parasite; that’s what Thurgood Marshall, the first black person to serve on the Supreme Court of the United States, was told as a student.

He got the message from another leading black jurist, Charles Hamilton Houston, who was dean of the Howard University Law School in Washington DC when Marshall was a graduate student there in the 1930s.

The school was dedicated to producing “social engineers.” It had been chartered by Congress in 1869 to educate black students, and Houston defined a social engineer as “ a highly skilled, perceptive, sensitive lawyer who [understands] the Constitution of the United States and [knows] how to explore its uses in the solving of problems of local communities and in bettering conditions of the underprivileged citizens.”

Before becoming a teacher and academic, Houston initiated many civil rights cases, and when he died in 1950, aged 54, Marshall took over what was to become one of the most famous, Brown v Board of Education of Topeka 347 US 483 (1954).

In that case the US Supreme Court ruled that separate educational facilities for white and coloured children were inherently unequal and therefore unconstitutional.

Another judge, Juanita Kidd Stout, who became a Justice of the Supreme Court of Pennsylvania, said in a documentary about the Brown case that “when Houston attacked the ‘separate but equal’ theory his real thought behind it was that ‘All right, if you want it separate but equal, I will make it so expensive for it to be separate that you will have to abandon your separateness.’ And so that was the reason he started demanding equalisation of salaries for teachers, equal facilities in the schools and all of that.”

For example, in Missouri ex rel. Gaines v Canada 305 US 337 (1938), Houston argued that it was unconstitutional for Missouri to exclude blacks from the state’s university law school because there was no comparable facility for blacks in the state. This violated the Equal Protection Clause of the 14th Amendment by giving whites, but not blacks, the ability to attend law school within the state.

Marshall and the civil rights cause

Thurgood Marshall was one of the students who did field work for Houston on the Brown case in the southern states. Originally from Baltimore Maryland, the son of a railway porter and a teacher, his parents instilled in him an appreciation for the Constitution and the rule of law. He devoted most of his career as a lawyer to the civil rights cause.

As he grew up, the Marshall family debated current events after dinner. Marshall said that although his father never told him to become a lawyer, he “turned me into one. He did it by teaching me to argue, by challenging my logic on every point, by making me prove every statement I made.” (Howard Ball, A Defiant Life: Thurgood Marshall and the Persistence of Racism in America (1998)).

Some of thelarge crowd of marchers ere gathered to present a ptition supporting black voting rights at the Capitol building in 1965
Marching protesters, Dexter Avenue, Montgomery, Alabama, 1965. On this day, a petition was presented at the Capitol building, in support of black voting rights.

Appearing on behalf of the National Association for the Advancement of Colored People (NAACP) in Murray v Pearson 169 Md 478 (1936) he pioneered an argument he and other black lawyers repeated many times. Donald Murray was an outstanding black student denied entry to the University of Maryland Law School because of its segregationist policy.

Marshall argued this violated the “separate but equal” doctrine of Plessy v Ferguson 163 US 537 (1896) because the state did not provide a comparable educational opportunity at a state-run black institution.

The Maryland Court of Appeals agreed, saying ”compliance with the Constitution cannot be deferred at the will of the state. Whatever system is adopted for legal education must furnish equality of treatment.”

Marshall joined the national office of the NAACP in 1940. He founded and headed the NAACP Legal Defense and Education Fund and won 29 of the 32 cases he argued before the Supreme Court.

Later, President Kennedy appointed him Solicitor General of the United States and he won 14 of the 19 cases he took on behalf of the government.

US Supreme Court appointment

In June 1967 President Lyndon Johnson nominated him for the Supreme Court saying it was “the right thing to do, the right time to do it, the right man and the right place.” He was the 96th person to hold the position, and the first African American.

Marshall once bluntly described his legal philosophy as: “You do what you think is right and let the law catch up”, a statement which his conservative detractors argued was a sign he embraced judicial activism.

Marshall’s statement was cited when Elena Kagan, a current Associate Justice was before the Senate during her confirmation hearing in 2010. She had clerked for Marshall at the Supreme Court, and GOP Senators queried her record of political involvement, labelling her a liberal activist. Her response was that: “If you confirm me, you’ll get Justice Kagan, you won’t get Justice Marshall.”

Marshall occupies a rarefied place in American history. Many African-Americans “think of Thurgood Marshall as being an even more important figure than the Rev. Martin Luther King Jr”, says David Bositis, an expert on African-American voters and politicians at the Joint Centre for Political and Economic Studies in Washington.

Judge Frank M Johnson

Another judge with an uncommonly large and direct influence on the course of events during the civil rights era is Frank M Johnson Jnr who was a US District Court Judge from the Middle District of Alabama and the US Courts of Appeals for the Fifth Circuit and later for the Eleventh Circuit between 1955 and 1999.

In 1956 Johnson ruled in favour of Rosa Parkes, striking down the segregated seating on the city buses in Montgomery, Alabama. In 1961 and 1962, he ordered the de-segregation of bus depots and the airport.

And in 1961, he was the judge who ordered the KKK and Montgomery police to stop beating the Freedom Riders who were trying to integrate interstate bus travel but had been attacked and the buses bombed.

In March 1965, Judge Johnson overturned a ban on the Selma to Montgomery marchers put in place by segregationist Governor George Wallace who said the march was contrary to public safety.

The marchers marched and were savagely attacked by police and state troopers on what became known as “Bloody Sunday”.

Johnson imposed a ban but in a secret deal with Martin Luther King allowed the marchers to come to, but not to cross, the Edmund Petus Bridge leading into Montgomery.

King led his people to the bridge, said a prayer for the injured of the previous Sunday and then turned around and returned to Selma. This was known as “Turnaround Tuesday” and caused much controversy within the civil rights movement with King widely denounced for his covert deal making.

A few days later, after discussions with President Johnson’s representatives, Judge Johnson lifted his ban and a third march took place, under the protection of Federal Marshalls and the National Guard. This went peacefully to the steps of the Capitol building in Montgomery where the now 25,000 marchers presented their petition supporting voting rights for black citizens.

Johnson died in 1999 and the Frank M Johnson Building which houses the Federal Courts in Birmingham, Alabama commemorates him.

Fred David Gray

Fred David Gray, now 88, was a black lawyer, activist and preacher in Alabama over six decades.

His historical marker on the main street of Montgomery, Alabama down the street from the Capitol Building and close to Martin Luther King’s church says, “forced by segregation to leave Alabama to attend law school he vowed to return and ‘destroy everything segregated I could’. He won cases that desegregated transport, education, housing, law enforcement, public accommodation and government.”

In his early days Fred David Gray defended first Claudette Colvin and then Rosa Parkes who (separately) faced charges of disorderly conduct for refusing to sit in the black section of the segregated buses in Montgomery, Alabama.

He also successfully defended Martin Luther King who was facing charges of tax evasion in 1960, winning the case before an all-white jury.

In total, lawsuits filed by Gray helped desegregate more than 100 local school systems, as well as all public colleges and universities in his home state.

In 1956 he won the Montgomery Bus Boycott case in the US Supreme Court (Browder v Gayle 352 U.S. 903 (1956) which ordered an end to segregation after a boycott lasting 380 days.

Another Supreme Court case (Gomillion v Lightfoot 364 US 339 (1960)) ended gerrymandering in electoral boundaries and established “one man, one vote” in the state.

Gray also represented the 623 victims of the Tuskegee syphilis study. From 1932 to 1972, the US Public Health Service conducted a study on uninformed black subjects from Macon County in Alabama of the effects of not treating syphilis even though penicillin was available and known to be effective.

It was seen at the time as a major breach of medical ethics. The subjects were not informed that they were part of a study and many of them (and their families) suffered and died from the disease.

Gray didn’t expose the scandal but he did win the compensation for the survivors and their families and an eventually an apology from President Clinton. He still lives in Montgomery.

John Bishop recently visited cities in the southern United States at his own expense as part of a lifelong interest in the civil rights movement.

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