By Rahsaan Hall, Director of the Racial Justice Program at the ACLU of Massachusetts
This is the third in a series of blogs for Black History Month 2020, covering the ACLU's 100 years of racial justice advocacy.
For Black people in America, where we live and where our children learn have been freedoms that we had to fight for. These were not fundamental freedoms the framers (some of whom were slave owners) granted to Black people, First Nation people or women through the United States Constitution. These freedoms were realized over time through litigation, legislation and the will of the people to fight for principles embodied in the Constitution, even if the framers could not imagine them for the descendants of the very people they owned.
The racist beliefs that justified the institutions of slavery and Jim Crow were woven into the tapestry of America. Even the Reconstruction Amendments that were intended to undo the “badges and incidents of slavery” could not overcome white Americans’ deeply held belief in Black inferiority. From the post-reconstruction-era black codes that criminalized Black people, to the laws disenfranchising Black voters and the legal fiction of “separate but equal,” white supremacy was the loom that attempted to frame the lives of Black people in this country.
Although the ACLU’s early litigation was not explicitly “racial justice” litigation, there were a few landmark cases that attempted to undo racial injustice. Using the equal protection clause of the Fourteenth Amendment to the United States Constitution, the ACLU filed amicus—or “friend of the court”—briefs that would help unravel the government’s role in maintaining legal segregation.
In 1947, the ACLU filed an amicus brief in Shelley v. Kraemer, a matter before the United States Supreme Court. At issue were several cases involving racially restrictive covenants connected to the purchase, sale or transference of property. These covenants prohibited the property owners from allowing Black people to purchase or occupy the property.
In many instances, the restrictive covenants granted interest in the transfer of property to abutting property owners. In other words, neighbors could challenge the sale of a property to a Black family. These covenants prohibited Black people from purchasing homes in certain neighborhoods and, in concert with the practice of redlining, were major drivers of the segregated living patterns we still see today.
In Shelley, the lower courts enforced these restrictive covenants and ruled that they did not violate the equal protection clause of the Fourteenth Amendment because they were considered private, rather than state action. In its brief before the Supreme Court, the ACLU argued the narrow issue of the lower court enforcement of the restrictive covenant being tantamount to state action. In 1948 the court agreed, stating, “[t]he framers of the Fourteenth Amendment regarded equality in property rights as ‘an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.’”
Six years later, the ACLU, along with several other organizations, would file an amicus brief in the landmark desegregation case, Brown v. Board of Education. This collection of cases before the Supreme Court challenged the injustice of segregated educational facilities for Black Children. Despite the government’s attestations of equal facilities and resources, Black children were forced to walk great distances to attend “colored schools,” and in many instances walked past closer and better resourced white schools.
In its brief, the ACLU argued that the state-sponsored segregated schooling facilities violated the equal protection clause and disadvantaged Black children. Urging the court to abandon segregation in schooling, the brief asserted, “[t]hat which is unequal in fact cannot be equal in law and, therefore, segregation and equality cannot co-exist in public education.” The court would ultimately rule segregation in public education unconstitutional and concluded, “in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs… by reason of the segregation complained of, [are] deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”
Even in the face of these historic decisions that drastically changed race relations in the country, there were still significant obstacles to overcome. The elimination of restrictive housing covenants did not prevent private acts of discrimination, nor did it prevent the government endorsed practice of redlining. It was not until the President Lyndon Johnson signed the Fair Housing Act of 1968 would the practices slowly begin to change. Yet in 2020 many American cities are still deeply segregated by race and instances of discriminatory housing practices persist.
Although dejure segregation in education was outlawed, it would take another Supreme Court case, Brown II, to encourage districts to integrate “with all deliberate speed.” However, integration would not arrive in Boston public schools until 1974, and like many other school districts throughout the country, efforts at integration were met with a cacophony of resistance and, in many instances, violence. Even today, there are school districts that are more segregated than in the immediate aftermath of desegregation. Even in 2020—with a $23 billion disparity in funding between schools that serve mostly Black children and largely white districts—the court’s conclusion still holds true that separate is inherently unequal.
We can never disengage from the struggle for racial justice in America. Even the loftiest of our foundational ideals can never fully escape the unspoken truths of our nation’s history. The unexamined beliefs about racial hierarchy has been the fabric of our lives. In order for everyone to cloak themselves in the imperfect garment of democracy, the ACLU will continue to litigate, legislate, and advocate for equal protection of the laws.
Date
Friday, February 21, 2020 - 3:45pm
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U.S. Marshals escort young Ruby Bridges, the first African American student to desegregate the all-white William Frantz Elementary School in Louisiana, 1960
By Rahsaan Hall, Director of the Racial Justice Program at the ACLU of Massachusetts
This is the second in a series of blogs for Black History Month 2020, covering the ACLU's 100 years of racial justice advocacy.
Since the ratification of the 15th Amendment in 1870, America has been embroiled in a tug-of-war to truly live into its promise of being a representative democracy. It took the presence of federal troops to ensure that Black people were able to vote in the reconstruction south, but as soon as those troops were removed, Blacks in the south witnessed the rise of black codes that criminalized Black people’s actions, and lynching as forms of social control. These regressive laws and murderous acts of brutality were accompanied by southern legislators and municipal officials introducing restrictions on Black citizens’ right to vote.
Despite the nation currently celebrating one hundred years of women’s suffrage, Black women — who were critical to the movement — were excluded from reaping the benefits of the hard fought franchise. The reality is that all women did not have the right to vote until the Voting Rights Act of 1965 (VRA) was passed. Even in the aftermath of this landmark piece of legislation — the crown jewel of the civil rights movement — the act and the principles it stands for have consistently been under attack.
The ACLU’s advocacy for this most fundamental of rights came into prominence within the last two decades. Recently, the ACLU defeated Kansas Secretary of State Kris Kobach in his effort to introduce a discriminatory proof-of-citizenship law that would have disenfranchised tens of thousands of voters, including many Black voters. The ACLU also challenged four Georgia counties’ failure to provide sufficient polling resources in the state’s most populous areas that included high concentrations of Black voters, resulting in long lines and unprocessed absentee ballots on Election Day. But the work didn’t begin just within the last twenty years.
As early as 1964, the ACLU was involved in the landmark case Reynolds v. Sims, which solidified the concept of “one person one vote.” Although the case was not specifically brought on behalf of Black plaintiffs, the precedent established apportionment standards that would help make state legislative districts more representative. This was particularly important for state redistricting plans in districts that had higher concentrations of Black voters. This ruling alone, however, would not protect Black voters from disenfranchisement.
When the VRA was enacted in 1965, it pulled the country another step closer to fully realizing the promise of representation. The VRA prohibited state and local governments from enacting laws or engaging in practices that discriminated against people of color, and was later amended to protect certain language minorities. The VRA also included a coverage formula identifying certain states that, given their history of voter disenfranchisement, were required to seek preclearance before making any changes to voting plans or practices. The VRA was initially authorized for five years but was reauthorized again in 1970, 1975, 1982, and most recently in 2006 for 25 years. During the congressional hearing for the most recent reauthorization in 2006, the ACLU submitted a report detailing 293 cases that the organization brought or participated in across 31 states since June 1982.
One of those cases was Miller v. Johnson. In 1991, pursuant to the VRA, Georgia and eight other initial states had to seek pre-clearance for any changes to voting plans or procedures. This was supposed to ensure that the states did not deny or abridge citizens' rights to vote based on race. In Miller, the ACLU defended the Georgia General Assembly’s preclearance effort to develop a reapportionment plan that satisfied the Department of Justice’s (DOJ) desire to increase majority Black districts from two to three. The DOJ had previously rejected two redistricting plans and instead cleared a plan that was based on reapportionments developed by the ACLU for the Georgia General Assembly’s Black Caucus called the “max-black” plan.
The Georgia General Assembly created the districts, and in the subsequent election Georgia voters elected three Black legislators. White voters from one of the districts sued on the grounds that the districts were drawn with race being the only determining factor, in violation of their equal protection rights. Unfortunately, the Supreme Court agreed and found the districts to be unconstitutional. In a cruel and continuous irony, advocates are forced to used supposedly race-neutral remedies to achieve racially just outcomes — an impossible task, and a dilemma that animates the constant push and pull of this intractable tug-of-war.
The ACLU has also strained to pull the courts closer to the promise of representative democracy in one of the most significant voting rights cases of our times: Shelby v. Holder. In Holder, Shelby County, Alabama challenged the “coverage formula” and the preclearance requirement of the VRA. The ACLU intervened in the case on behalf of the Alabama State Conference of the NAACP and several African-American residents of Shelby County whose voting rights were directly impacted by the county’s challenge. In June of 2013 the Supreme Court, in a decision that continues to impact us today, gutted the VRA by invalidating the coverage formula, rendering the preclearance requirement impotent.
If this nation is ever to fully realize its promise of being a representative democracy, it must honor the 15th Amendment, the initial effort to enfranchise the victims of America’s original sins of genocide and slavery. It is true that the tug-of-war between freedom and repression has been long and arduous, but the ACLU is honored to be among those who will continue to heave toward liberty for as long as it is necessary.
By Rahsaan Hall, Director of the Racial Justice Program at the ACLU of Massachusetts
This is the first in a series of blogs for Black History Month 2020, covering the ACLU's 100 years of racial justice advocacy.
Since its inception in 1915, Black History Month has been an opportunity to celebrate the achievements of Black people throughout the country. It is a time for everyone in America to recognize the contributions that Black people have made to this nation. It is also an opportunity to confront America’s dark history of oppression and injustice. In so doing it creates an opportunity for some people to recognize that the injustices of yesterday are not merely echoes of a distant past but the soundtrack of our contemporary existence.
For this Black History Month—in our centennial year—we will explore some of the ACLU’s advocacy on behalf of Black people over the last century. We’ll look at different cases we’ve litigated as a way to examine the injustices that created the need for the ACLU’s advocacy, and the resonance these issues continue to have today. Our local and national advocacy on due process, equal protection and fair trial claims show that the indignities of injustice that the ACLU fought back then have not disappeared—instead they are persistent.
The mere fact that there are more Black people under some form of correctional control now than were enslaved in 1850 makes it hard to deny that there is an undisturbed thread that runs through this nation’s history from slavery through mass incarceration. America’s history of racism didn’t end with the abolition of slavery; it continued through Jim Crow and manifests in what we now know as the criminal legal system. From emancipation to the post reconstruction era and up through convict leasing, the use of the criminal legal system and lynching as forms of social control crippled many Black communities. The theft of human capital from Black communities has persisted through the War on Crime and the War on Drugs, mass incarceration, and policing killings.
Some of the ACLU’s current racial justice work—both local and national—focuses on confronting racism within the criminal legal system. In addition to pushing for legislative reforms, there has been an effort to undo the impacts of a system scaffolded by structural racism and the legacy of white supremacy. This advocacy recalls some of the ACLU’s early advocacy and commitment to the constitutional demands of due process and equal protection of the laws.
The constitutional protections that seemed to evade Black existence in America came into full view when nine Black youth were charged with raping two white women in 1931. Later known as the Scottsboro Boys, Charlie Weems, Ozie Powell, Clarence Norris, Olen Montgomery, Willie Roberson, Haywood Patterson, Andrew (Andy) Wright, Leroy (Roy) Wright and Eugene Williams—ranging in age from 12 to 19—were tried, convicted, and (except one) sentenced to death within 12 days of arrest for the rape of Ruby Bates and Victoria Price. Despite the lack of physical evidence corroborating the allegations, the conflicting testimony of the women, and a subsequent recantation of one of the women, the young men were still convicted by an all-white jury and sentenced to be executed by the electric chair.
The initial defense team was comprised of two inept local lawyers who had little to no experience on capital cases and questionable experience as litigators. After they were convicted, the ACLU was part of the litigation team that defended the Scottsboro Boys during the appeal and subsequent retrials. Taking several appeals in state and federal court, the defense team ultimately won by arguing successfully that the Fourteenth Amendment’s due process clause was applicable to the states. The Supreme Court eventually ruled, in Powell v. Alabama, that due process prohibited a state from sentencing someone to death without ensuring that the defendant had adequate representation at trial.
Subsequent appeals by other Scottsboro Boys, Patterson v. Alabama and Norris v. Alabama, further established that the Sixth Amendment’s guarantee of a right to a fair trial and the Fourteenth Amendment’s equal protection clause prohibits the systematic exclusion of Black jurors. It would be another three decades before the ACLU litigated the landmark case Gideon v. Wainwright, which would establish the right to counsel that we’ve come to appreciate today. Even though the Scottsboro boys were ultimately acquitted, the duration of their confinement and the trauma of facing death for a crime they did not commit severely disrupted their lives.
Despite the distance from this horrific era of injustice, we cannot be lulled into a false sense of resolution by believing that things like this no longer happen. A passing glance at data that shows the racial disparities in wrongful convictions or the disparities in death sentences for people accused of killing or raping white victims are persistent strands dangling from the uninterrupted thread. Whether it’s challenging wrongful convictions achieved through misconduct or advocating for access to counsel, we must continue to dismantle the system of oppression that disproportionately disrupts Black communities under the guise of public safety but offers little in terms of healing and restoration.
Date
Tuesday, February 4, 2020 - 2:45pm
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The Scottsboro Boys
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Justice for the Scottsboro Boys: The ACLU and the fight for Black civil rights
