“These are challenging times—times of paradox and contradiction.” —Ted Shaw
Black lawyers are doing better than they ever have, but compared to what? That’s the central question. Today, black practitioners have more freedom in a desegregated America, but less choices. Jim Crow1 is still alive to fight, but he’s slicker than the blatant signs of black-and-white documentaries. The rising black legal stars today include corporate attorneys; Thurgood Marshall is the name of the Baltimore, Md. airport now. And relative to the 1970s, today’s higher-but-could-be-much-better numbers show that black lawyers will play a pivotal role in the present as well as the future.
“These are challenging times—times of paradox and contradiction,” declares Ted Shaw, director-counsel and president of the NAACP Legal Defense and Educational Fund, Inc. (LDF). Black lawyers are in abundance compared to past decades, but challenges remain in and out of the civil rights movement’s ever-changing arena. For example, top black practitioners such as Theodore V. Wells, Jr., a partner of the New York-based Paul, Weiss, Rifkind, Wharton & Garrison firm, Shaw mentioned, are accepted as masters of their craft. “Everybody wants him, whether it’s Corporate America or [former vice presidential aide I. Lewis] Scooter Libby,” Shaw notes, but the glass ceiling still shows a reflection of blacks in blue suits, waiting to display their full potential.
There are still progressive legal activists and mavericks, and fights to be fought and won. In June 2006, the U.S. Supreme Court ruled that employees still had federal protection to complain about discrimination on the job without any kind of retaliation,2 a victory for the Lawyers Committee for Civil Rights Under Law and other groups. In October 2006, the LDF filed amicus briefs in two education cases that, as of this writing, are in front of the U.S. Supreme Court—Parents Involved In Community Schools v. Seattle School District No. 13 and Meredith and McFarland v. Jefferson County Board of Education.4 Both cases, heard by the Court on Dec. 4, 2006, will determine to what extent a public school board can consider race as part of a voluntary desegregation plan to place a student in a public school without violating the U.S. Constitution. To the civil rights legal community, it is just another chapter in the book of Brown v. Board of Education.5
Today, black lawyers are still fighting for their own opportunities and imposing their own restrictions. They are now representing, in a sense, new clients: themselves.
When We Were Colored: Jim Crow Law
Once upon a time, that choice wasn’t an option. In the world of the Jim Crow Negro, attorneys knew not only where they stood, but where they could not stand. Plessy v. Ferguson was the law of the land. Their universe was constricted, confined by race and geography. It made them angry. It made them determined. It made them powerful.
The NAACP, the civil rights organization created to protect blacks from racist violence, to advocate for the right to vote, and to end segregation, had learned how to effectively channel its anger into action. In 1935, it officially founded its legal department and named Charles Hamilton Houston to run it. Houston was accustomed to being a pioneer; he was the first Negro member of The Harvard Law Review, decades before U.S. Senator Barack Obama (D-ILL.) was even alive to think about becoming editor of the prestigious journal.
Houston and the NAACP decided on their legal strategy: If they could prove that America’s schools were separate but unequal, they could extract the nails that held the beam of American segregation in place. But they had to build the cases to take to the Supreme Court. So they did, town by town, case by case.
Houston did not limit his fight to just the courtroom. Understanding the power of mass communications, he shot a silent black-and-white film6 in segregated South Carolina during the 1930s, showing the world of the Negro in those stark colors: rural Negro communities in the Great Depression attempting to create (ultimately inferior) schools almost out of thin air using spare wood and faith, while schools in white communities received the most money and the best resources, since whites controlled the tax dollars.
Thurgood Marshall, Charles Houston, and Donald Gaines Murray prepare a desegregation case against the University of Maryland in 1935.
Image: © CORBIS
Houston died at the age of 54 in 1950. The team of Negro practitioners that had slowly gathered around him—Constance Baker Motley was one of the more notable members—kept going. So did Houston’s chief protégé, Thurgood Marshall, who eventually enlisted the help of scholars Kenneth Clark and John Hope Franklin in key areas to document and argue the long-term damage of segregation. The two-pronged result four years later was both Brown v. Board of Education and Marshall’s name beginning to enter every American history book published for the next 50 years. The modern-day civil rights movement had officially begun, and a black lawyer had taken the first hill. Black law students around the country, like Eleanor Holmes and Marian Wright, took the torch; they would later use their acquired legal skills with the American Civil Liberties Union and the Southern Christian Leadership Conference, respectively.
Even in the after glow of Marshall’s triumph, many black lawyers had a difficult time as the 1960s kicked into gear, explains John Crump, executive director of the National Bar Association (NBA). Walter Washington, the first elected mayor of the District of Columbia, worked at the post office by day and practiced law by night, Crump recalls. In many cities, black lawyers waited tables during the evening. Crump says, half-jokingly, that many married schoolteachers because the latter had steady incomes and health insurance.
Individual Achievement, Individual Restrictions
Delivering a guest sermon at Howard University’s Andrew Rankin Memorial Chapel on April 23, 2006, the philosopher and theologian Cornel West discussed how interesting it was that Black America feels optimistic about its future. West said that what blacks really meant was that their individual lives—for example, their successful attainment of personal and professional goals—were going great, while the rest of Black America was getting worse.
The numbers bear this out, as found in a study conducted by Harvard University, The Washington Post, and the Henry J. Kaiser Family Foundation in 2006. Eight in 10 of the 1,328 black men surveyed responded that they were satisfied with their lives, with six in 10 saying it was a “good time” to be an African American male. Match those responses against the dismal statistics of black men in prison or the dwindling numbers entering elite law schools, and these responses are paradoxical.
In December 2006, the U.S. Justice Department released new numbers on the former, estimating that one of every 13 black men from the ages of 25 to 29—8.1 percent—was behind bars.7 In addition, the American Bar Association (ABA) reported in February 2006 that between 1995 and 2005 the number of blacks applying to law school fell behind eight percent and black enrollment in law school dropped by two percent.8
Measured against the number and scope of today’s black lawyer achievers, progress surely has been made. But, undoubtedly, there is a long, long way to go.
According to Crump, the U.S. Census estimated that there were 4,000 black lawyers in 1970; in 1980, about 15,700; in 1990, 24,700, and, according to estimates from the end of 2005, now 44,800. However, he admits that this was just a drop in the bucket of 1.1 million practitioners in America’s total population.9
The historic lack of black wealth has led to an individual problem that Crump says today’s attorneys collectively share: paying back that $75,000 average law school student loan package. “I always say that you get the notice for your loan repayment before you get notice of your graduation… If you get behind, you get in big trouble,” he comments. Crump emphasized that it really concerns him that so many African American lawyers do not get the opportunities to act on their priorities because they are bogged down in debt.
But if their priorities are competing in the global marketplace, black lawyers do have real opportunities to broaden their horizons and do more than just make ends meet. At least Robert J. Grey Jr., a partner in the Richmond, Va., office of Hunton & Williams, thinks so. From his personal prism, it is no longer minorities asking whites for access; it is all about everyone using needed skills to help make the world run. “Gone is the idea of a white tablecloth and a white salt-and-pepper shaker,” he declares. “We are now woven into the tablecloth; not on top of it, but in it.”
Grey, a former ABA president, elaborates about African American history. He called the 1950s (thanks to Marshall, Motley, and others) the decade of desegregation, and the 1960s the decade of integration. Affirmative action was the 1970s keyword, while the buzzword for the Ronald Reagan era was diversity. The 1990s brought the multi-syllabled multiculturalism. The 00s? Just “us.” Grey argues that the evolution of American society and world capitalism has now created a new playing field—one in which blacks stop asking others to play the game and instead become determined to learn how they can all can play together to win. Grey has been playing for 30 years, and his world is far from restricted; his colleagues are now mayors, U.S. senators, and world business leaders. “We have to distinguish ourselves among our [white] peers,” he explains.
Time for New Thoughts
New definitions need to be created, and old paradigms discarded or altered, for these new times. Crump, for instance, points out that what historically has been called “civil rights law” is really labor and employment law now, as befits the evolution of blatant, public racism of the mid-20th century to the more “subtle forms of discrimination” in today’s workplace. He emphasized that there are plenty of roles for everyone—individual lawyers fighting for individual clients, and black civil rights legal organizations like LDF fighting those with deep pockets who threaten to nearly drown a potential plaintiff in paper.
Barbara Arnwine, executive director of the Lawyers’ Committee for Civil Rights Under Law, has been around long enough to see the change over at least two decades, and the ones she views are positive. Black lawyers are no longer automatically tagged as materialistic, and the NBA is no longer viewed by some as just a social club for partying, she says. “The NBA remains a strong force in advancing the concerns of the African American community.” Like Shaw, most—not all—of the black attorneys Arnwine sees are socially conscious individuals who do pro bono work, like those who recently fought for the protection of the vote in Katrina-ravaged New Orleans. “It has been a fascinating time to see how many African American lawyers have taken on the issues of affirmative action and election protection, while leading the way for even more African Americans to become involved in the law.” Although she believes too many black lawyers are quieter in the boardrooms than they need to be, she is pleased to see so many fighters.
Howard Law School Dean Kurt Schmoke agreed. Howard’s Civil Rights Law Clinic has a history of merging theory and practice to the benefit of the dispossessed and disadvantaged. For instance, it filed amicus curiae for both Parents v. Seattle and Meredith v. Jefferson. “This place has a tradition going back to Charles Hamilton Houston and that has to continue… We’re still producing leaders today,” says Schmoke.
But to produce them, according to Dr. Michael Lomax, president and chief executive officer of the United Negro College Fund (UNCF), blacks will have to make sure that future generations of aspiring minority attorneys do not have doors closed on them. UNCF schools graduate 35 percent of all African American attorneys, yet low LSAT and SAT scores remain a challenge. Lomax describes the duo as “gatekeeper tests”—written assessments that do not determine success in college and/or law school when students from all races and backgrounds are given an equal chance to show their individual credentials. “I think the tests are useful, but they’ve been given too much weight.”
So the mirror image is ultimately fuzzy. Black attorneys will continue to fight on all fronts—economic, political, and social. They will continue to work for themselves, civil rights organizations, and Corporate America. They will fight on all sides of an issue, and potentially represent all parties in a dispute. As Shaw explains: “This is not the 1960s. It’s not even the 1990s.” It is a new day, with the old one referenced less and less, but there is still a lot of work to do.
All interviewees agreed that black lawyers will have to struggle on all fronts—corporate, civil rights, profit, and nonprofit, to continue to represent both their profession and their people. The fight for inclusion continues, but it’s an old and new fight: old, to desegregate America; new, to take their proper place in the world’s suites. DB
Dr. Todd Steven Burroughs is an independent researcher/scholar based in Hyattsville, Md. A professional journalist since 1985, he has written for many established magazines. Burroughs served as an editor, contributing columnist, and national correspondent for the NNPA News Service (nnpa.org; BlackPressUSA.com). He is one of four primary authors of the book Civil Rights Chronicle.
- Plessy v. Ferguson 163 U.S. 537 (1896). The U.S. Supreme Court decision that legally sanctioned Jim Crow. The court ruled that railroad cars could be segregated by race if the facilities were equal and did not, therefore, violate the Fourteenth Amendment. Jim Crow was constitutionally sanctioned for half a century. But the facilities—particularly schools—were almost always unequal.
- Burlington Northern & Santa Fe Railway Company v. White 548 U.S. _; 126 S. Ct. 2405; 2006 WL 1698953.
- Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., No. 1, No. 01-35450, United States Court of Appeals for the Ninth Circuit, 377 F.3d 949; 2004.
- Meredith and McFarland v. Jefferson County Board of Education, No. 04-5897, United States Court of Appeals for the Sixth Circuit, 05a0309p.06; 416 F.3d 513; 2005.
- See Brown v. Board of Education, 347 U.S. 483 (1954). That decision, which found that “separate but equal” schools for whites and blacks was unconstitutional because they were separate but unequal, overturned the legal basis for Jim Crow established in Plessy v. Ferguson 163 U.S. 537 (1896).
- The film is called “A Study of Educational Inequities in South Carolina: A Visual Presentation by the National Association for the Advancement of Colored People.” To see the public domain film, click here.
- Kasie Hunt, “7M Behind Bars, on Probation or Parole,” Associated Press, Nov. 29, 2006.
- See Koppel, Nathan, “Fewer Blacks Enter Law School, Prompting Plan For Monitoring,” The Wall Street Journal, Feb. 14, 2006, Section B, p. 6.
- These estimated numbers are Crump’s averaged-out statistics of the number of black lawyers from the U.S. Bureau of the Census, 1970 Census of Population; 1980 Census of Population and 1990 Census of Population. The 44,800 number also comes from the Census; click here. The 1.1 million figure is confirmed by the “Lawyer Demographics” page of the American Bar Association.
From the January/February 2007 issue of Diversity & The Bar®