Harold A. Mcdougall

excerpted Wrom: SWZIDREXCAXZOWCONEUQZAAFXISHJEXXIMQZUI Practitioners: Race, Racism and American Law (4th Ed.) By Derrick A. Bell, Jr, 46 Howard Law Journal 1-48, 31-44 (Fall 2002) (192 Footnotes)

Here again, Bell's book is very useful to a person who is training practitioners. The book is a virtual encyclopedia of all the ways in which the struggle against racism in the United States has failed. The most cogent analyses, of course, are provided in the arena of civil rights litigation.

Oddly, only one of my students seemed to share Bell's pessimism, though they all agreed with his analysis. That student, quoted at the beginning of this review, has decided to return home to the South. He wants to work on saving what little black-owned land is left in the rural areas, looking to economic, rather than legal or political solutions. The rest of the students just seemed energized. In fact, they argued with me when I commented on how depressing some of the material was. They indicated that this was the "real deal" and they were not depressed at all. They were just more eager to fight back, and wanted to meet as many lawyers who were doing that as they could. (Oh, the power of youth!)

The following are reflections on Bell's key chapters.

A. The Quest for Effective Schools

What seems--to an older reader like myself--as Professor Bell's gloominess may well be grounded in his background and experience as a litigator for school desegregation. It is hard to think of an area in which civil rights hopes were higher, and the opposition more resistant, than in the struggle to provide African American children with "effective schools."

Of course, we are operating against a background in which it was a crime to teach slaves to read. As late as the twentieth century, white policymakers believed that people of African descent should be educated only to serve the white population. Bell follows a line of cases from that period to Brown v. Board of Education. In this progression, courts at all levels made rulings so disingenuous as to leave a credible impression that an "instrumental" approach to maintaining inferior education for blacks was being pursued. These cases essentially held that "separate but equal" did not really mean "equal."

Yet, Brown raised hopes high. The Court's declaration that school desegregation was unconstitutional lit the flame of the Civil Rights Movement. The Movement burned on, even though it became clear, as Bell proves abundantly, that the Court didn't really mean segregation was unconstitutional. With such high hopes being dashed so soundly and so cruelly, is gloominess and pessimism an inappropriate response?

At the same time, movements to create black-run "neighborhood schools" were stopped in court, as in the famous "IS 201" controversy in the Ocean Hill- Brownsville neighborhood of Brooklyn, New York, which pitted black parents against white teachers. (The courts sided with the teachers.) Most recently, the Court has reached out in a search-and-destroy mission targeting "affirmative action" wherever it can find it, especially in education. "Instrumental" looks like a fairly accurate description of the Court's approach to civil rights. One only need cite Bush v. Gore in answer to the claim that the Supreme Court doesn't behave in an instrumental fashion.

Surely then, in this arena it is not wildly off the mark to say we face not a mildly befuddled setof people, but a knowing, implacable--one might even say vicious--enemy. After all, this is the future of our children about which we speak. However, our response should be that we have lost many battles, not that "resistance is futile." The latter is the position of a person who has no fight left in them. It would be hard to say that of Professor Bell.

B. Property Barriers And Fair Housing Laws

Perhaps, the next most difficult civil rights struggle for mainstream African Americans has been housing. As Professor Bell points out, the failure to solve this problem articulates closely with the difficulties of securing effective schools. Because of the country's "neighborhood school" tradition, housing choices become school choices.

Housing choices, as Bell points out, are also separately laden with surrogate meanings, even for people who do not have children. As the real estate agents boast, "location, location, and location" marks our choice of home and neighborhood as symbols of our status, of who and what we are. Access to well-financed and well-managed schools, paid for with local property taxes, add to the mix. Federal, state, and local governments have become involved in housing segregation in some ways that are pretty egregious, and the courts have occasionally slapped their wrists for it.

Even though "integration maintenance" is apparently out of the question, we have in the housing arena some weapons that are not available in the fight for effective schools. Section 1982, based on the Civil Rights Act of 1866, and the Fair Hous- ing Act of 1968, has its underpinnings in the Thirteenth Amend- ment. This is the Civil War Amendment that is least suscep- tible of enervation. Slavery is over, as well as its badges and inci- dents. This has made the housing area not as gloomy as educa- tion, says Bell. Unfortunately, there is no "Fair Education Act." Still, it is hard to monitor the situation without the use of test-ers.

C. Discrimination in the Administration of Justice

Now, we move out of the civil rights mainstream and into the lives of African Americans who find themselves arrested or accused of breaking the law. Here, we have another implacable enemy. In recent years, police action has become more and more hostile to the black community. Police officers, in some cases, seem to be taking on the "slave catcher" role played by the Klan's predecessors in the old South--a mark of the increasing exportation to the country at large of Southern methods of managing race relations.

Bell's chapter, in fact, begins with the laws that were passed just after the Civil War to reduce acts of white violence against blacks in the South. These statutes, as history informs us, provided very little protection for black people. As Bell chronicles, the United States Supreme Court and lower courts acted to narrow the scope of black protection seemingly wherever possible. There is little doubt that the courts, like the federal government as a whole, were engaged in a project of compromise with the South once the issue of secession was over. It was not until the Civil Rights Movement, one hundred years later, that these statutes saw "action," in the first instance to prosecute the perpetrators of crimes against whites who had joined blacks in the movement. Even here, federal prosecutions were few, and Bell looks right again.

In modern times, as mentioned above, the principal source of racist violence against blacks nationally has been the police. Successful criminal prosecutions of the police are almost unheard of. Virtually any pretextual explanation for police brutality has been accepted by the courts or by all-white, or virtually all-white, juries. Civil remedies under Section 1983 have been quite limited as well, except in the most extreme cases which usually involve videotaped evidence or a police confession. Where civil liability is found, the municipality's deep pockets are typically off-limits.

Where private conspiracies actionable under 42 U.S.C. § 1985(3) are involved, the courts have read in a "state action" requirement for relief, even though no such intent was evident in the statute's legislative history. In general, the judicial response to racist violence perpetrated against blacks is "listless, procedural, and unresponsive."

On the other hand, the state's zealous prosecution of blacks accused of any crime, but in particular one involving a white victim, has been vigorously supported by the courts. The incidence of black arrest, arraignment, detention without parole, conviction, harsh sentencing (the death penalty in particular) and denial of parole is, in every instance, massively higher than the incidence for white accused. Black prisoners are even segregated from whites while in prison, upheld by court reasoning which has a peculiar and chilling similarity to Plessy v. Ferguson.

Civil suits to protect what limited affirmative rights courts have been willing to grant black citizens have been discouraged by a series of cases limiting attorney's fees and upholding far-ranging application of Rule 11 of the Federal Rules of Civil Procedure ("Rule 11") (which sanctions "frivolous" lawsuits). In cases where blacks are the criminal defendants, they are rarely tried by a "jury of their peers," as blacks, discouraged from registering to vote, are grossly underrepresented on the jury rolls. When they make it to the voir dire, blacks are typically eliminated by peremptory challenge, a practice that has been generally upheld by the courts even when deployed in an obviously racist fashion.

D. Public Facilities: Symbols of Subordination

In the Civil Rights Planning class, we followed Bell's section on criminal justice with his section on public facilities. I expanded the scope to include "public space." While the massive protests of the 1960s and the Civil Rights Act of 1964 did much to break down de jure segregation of public space, de facto segregation, just as in schools and housing, has continued to trouble America's use of public spaces.

The case of six black secret service agents assigned to President Clinton's detail being denied service at an Annapolis Denny's restaurant was a cause célèbre, the type of high-profile instance which seems to be required before any response is given. More typically service is not directly refused, but black patrons wait interminably for "their turn."

In retail establishments that permit their consumer to move about, pick and choose, black shoppers are often followed, or even harassed, as in recently litigated cases involving "shopping while black." Where service is finally granted, it is often on inferior terms to the service provided to whites. A dramatic example that Bell points out is the higher prices blacks usually pay at car dealerships, for mortgage credit, and for housing. The use of testers, where courts reluctantly permit it, draws these portraits indelibly.

Consumers locked into black low-income neighborhoods, of course, are gouged for the most basic necessities. Comparison shopping at chain food stores provides evidence that low prices for white suburban shoppers are subsidized by high prices for inner-city dwellers with fewer market alternatives.

Even more disturbing is contribution of public officials to the de facto segregation of public space. The police--state, municipal, airport, transit, you name it--have increasingly begun to treat black citizens going about ordinary business as "suspects." The actions of white mobs harassing and beating blacks who dared ride buses that were not properly segregated have, thus, been replaced by transit police of all stripes who apprehend citizens "flying while black," or indeed, using any form of public transportation "while black."

Klan and other terrorist activity limiting black citizens' freedom of movement has been replaced with the egregious "moving while black" patterns, described above, which in some cases, go to the extreme of "walking while black." That state officials are the perpetrators now, rather than private citizens, and that the pattern is nationwide, rather than restricted to the South, is cause for alarm. The spate of racial profiling which has followed the terrorist attacks of September 11, 2001 can only make matters worse.

E. Voting Rights and Democratic Domination

What is the obvious response to the kind of deprivations perpetrated against black people by schools, realtors, and public officials? Vote out public officials who participate in, or who do too little to stave off, racist actions. Indeed, some critics of Bell's approach have scolded him for paying too much attention to litigation and court activity, and not enough to lobbying for gains in the legislature, administrative structures, and with executives at all levels. Certainly, these strategies, when properly executed, can be employed to involve a broader base of the black community than is engaged with litigation. Unfortunately, too many of our legislative advocates carry on their business in elite headquarters with little, or no, contact or information with the community at large.

Even more important though, for Bell, is the fact that our political influence is limited not just by our smaller number of votes. Rather, there has been a successful, longstanding campaign to disempower even those votes we have. This is an old battleground, but old techniques of disenfranchising us have given way to new ones.

The franchise, extended to black citizens by the Fifteenth Amendment after the Civil War, was rapidly curtailed by surviving "rebel" forces in the South. Within a generation, they had a powerful accomplice--a North bent on reuniting with the South to engage in an extensive project of nation building, industrialization, and imperialism. Despite a few victories (the white primary, the grandfather clause), black citizens remained disfranchised in the South for nearly a century until the passage of the Voting Rights Act of 1965.

That legislation, not even forty years old, has been rapidly dilutedby the courts, the United States Supreme Court in particular. There have been some truly astounding decisions. The most memorable, in my mind, is Justice Sandra Day O'Connor's opinion in Shaw v. Reno, denouncing black-majority districts as "political apartheid." Apartheid is a very strong word, and it is most interesting that a Lexis and Westlaw search shows that the Court has rarely used it to describe segregation that benefits whites, even de jure segregation. In those cases, the courts always used very polite language to describe apartheid, refusing even to call it "Jim Crow."

Finally, speaking of astounding decisions, we have again the case of Bush v. Gore, not yet included in Professor Bell's casebook, which must be considered a voting rights case as well as a case resolving a contested election. The case had been decided only months before the course was given, so the students had ample time to reflect.

First, the historical parallels to the end of the First Reconstruction, which we had just studied, were startling. The extraordinarily close elections of both 1876 and 2000 were settled by contested votes from Florida. Those contested votes came from black voters who were intimidated and harassed at the polls. Even more important were the modern-day revelations provided by the case. For many commentators, their doubts that the United States Supreme Court is a politicized institution, behaving in an instrumental fashion, were removed by this case.

It seems that the instrumental fashion in which the Court has limited, if not reversed civil rights gains, was a clear warning that it was capable of trammeling on the rights of the majority as well. In this regard, the ill fortune of the African American community was like the fate of a canary placed in a mineshaft to warn miners of the escape of deadly gas.

F. The Limited Strategy of Fair Employment Laws

In the face of political disempowerment, the Booker T. Washington tradition held that work remained as a vector of social change. Not so, says Bell. He begins this chapter by questioning the popular view that blacks are generally better off economically than they were before the civil rights movement. While some blacks have climbed from the working class into the middle class, many more have fallen from the working class into poverty. Taking as a given the wealth disparity between blacks and whites, Bell focuses his attention on income and employment differentials to paint an even more dismal picture. Even today, he asserts, unskilled white males earn more than black college graduates.

The employment discrimination of which Bell complains has many faces. Preferences in hiring and firing, with black workers "last in, first out," and preferences in promotion and differentials in pay are common patterns and practices. Structural factors also come into play, however, because residential segregation tethers blacks to urban ghettos while employment opportunities expand in the suburbs.

The upshot is that blacks are particularly vulnerable to swings in the economy, making progress only during periods of rapid economic expansion such as World War I, World War II, and the post-World War II "long wave" of economic growth. These gains are typically eroded during periods of economic decline, the "long wave" gains being no exception.

This overall pattern has been exacerbated by recent, conservative judicial opinions upholding mandatory arbitration agreements, limiting the evidentiary possibilities of proving disparate treatment at the workplace, and expanding employer defenses. At the same time, affirmative action in employment and contracting has been under steady attack, with cases such as Wards Cove Packing Co. v. Atonio, Adarand Constructors v. Pena and City of Richmond v. J.A. Croson standing out.

To add insult to injury, the Equal Employment Opportunity Commission, to which most Fair Employment law has been referred for enforcement, was hobbled under the Reagan-Bush administration. It was somewhat redeemed during Clinton's administration, but is surely up for compromise during Bush Jr.'s term. And, of course, there is always Rule 11, limiting even private attorney action--as was the case in Harris v. Marsh, where NAACP lawyers were fined for filing a "frivolous" employment discrimination lawsuit.

[a1]. Professor of Law, Howard University School of Law; B.A. magna cum laude, Harvard College, 1967; J.D., Yale Law School, 1971; Author, Black Baltimore: A New Theory of Community (1993).