Creating Alliances and Community: It's too Soon to Celebrate
Honorable Sylvia R. Cooks(*)
Some months have passed since I appeared as Keynote Speaker at the First Annual Northeastern People of Color Legal Scholarship Conference held at Western New England College School of Law. The lapse of time has only served to sharpen my thoughts on why it is so very important that we continue to meet and participate in the struggle to free the American dream. For those unfamiliar with it, they need only close their eyes and imagine a land where freedom and liberty are not contradictions; where hope and prosperity run side by side; where wealth and poverty are not measures of human worth; where color and culture denote diversity not success; where equality and discrimination are not related; where race, sex, and ethnicity are not entrance codes at the doorstep of opportunity. For those who have shared the dream, they know it is the same dream that awoke Dred Scott and Homer Plessy; it is the dream envisioned by Dr. Martin Luther King; it is the dream that Justice Thurgood Marshall never forgot; it is the dream that excites our souls and forces us to rise; it is the great American dream.
At the first conference, I found myself in the company of students, lawyers, professors, and others from diverse backgrounds, separated by individual experiences, but all deeply committed to preserving this dream. As I focused on the audience, I saw some of America's brightest minds; their individual success, if not yet achieved, was but a yardstick away. Yet, they were all seated in earnest attention and passionately concerned with a dream they knew well. Why then were they so moved to join and begin a dialogue on issues so emotionally sensitive and divisive that even the esteemed members of the United States Supreme Court for more than a century have tried to avoid them or have approached them with much consternation? The answer was simple. They were there because experience has taught, as I have learned, that this great dream will become but a fading memory unless, in the words of the famed poet Langston Hughes, it is saved for all.(1)
When the United States Supreme Court decided Plessy v. Ferguson(2) in May l896, eight Justices with all their might except one, claimed and held captive the great American dream that emerged from the Civil War, standing firm and protected by the Constitution of this nation. For anyone then who genuinely believed that the dream was colorblind, the Plessy majority's reasoning, seconded only by that voiced in the Dred Scott decision,(3) turned the dream into a nightmare of hopelessness and despair for millions, which lasted more than half a century. The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution contained but hollow expressions for many who knew little of their protections. The words liberty, equality, justice, and freedom were foreign terms to those in a land where signs stood as daily monuments of hate, and constant reminders that they were not only "colored" but second-class citizens living in America. We have come a long way--no one can deny--but it is still too soon to celebrate.
Those who were not born yet or who did not participate in the wrongs of yesteryears have been offended by such dialogue or remembrance of America's dark history. Many judges and modern legal commentators have focused on the past only to insist that race-conscious remedies to correct the lingering evils of prejudice violate the Fourteenth Amendment. They resist such remedies, referring to them as punitive or resulting in reverse discrimination. Echoing the great words of Justice Harlan's dissent inPlessy,(4) Justices O'Connor, Scalia, and Thomas have relied on the theory of a colorblind Constitution to justify adopting the strict scrutiny test in evaluating benign racial classifications used in fashioning remedies for past discrimination. Until recently, the "benign" use of race was upheld by the Supreme Court as constitutionally permissible to remedy the effect of past discrimination and to promote diversity in educational institutions, the employment market, and the political arena.
Often, I have wondered what caused this shift in thinking on the highest court of this nation. Although the Supreme Court in United States v. Carolene Products Co.(5) announced it had an obligation to protect "discrete and insular" minorities, the Court's decisions have not always provided sanctuary for these groups. In Dred Scott the Court upheld the institution of slavery. When the Civil War rifled a fatal shot at this decision and amendments to the Constitution buried it, the Supreme Court in a line of cases exhumed it. In The Slaughter-House Cases,(6) the Court adopted narrow constructions of the amendments; in The Civil Rights Cases(7) it invalidated the first major Reconstruction legislation(8) by limiting the breadth of the amendments and holding unconstitutional most of the legislation passed by Congress to foster equality in America. Jim Crowism was the predictable result of the Court's invalidation of the Civil Rights Act of 1866. Jim Crow laws perpetuated such economic and social disadvantages for black Americans that it honestly cannot be argued that they have not impacted the progress of this group today. In Plessy v. Ferguson, which stamped as constitutional separate and often unequal public facilities,(9) the Supreme Court proclaimed segregation official in America. Continuing to react to this country's aggression against minorities, in Korematsu v. United States,(10) the Court permitted internment of Japanese-American citizens during World War II. Could it be as Oliver Wendell Holmes once wrote:
The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.(11)
If experience is the life of the law, then perhaps the troubled times in America's history have a great deal more to do with the experiences of Justices presiding on the nation's highest court than the Fourteenth Amendment or any of the lofty principles found in the Constitution. I note the observations of Justice Holmes not to criticize any Justice on the Court, nor to assign evil motive to the Court's decisions. We cannot expect members of the Court, who have not visited many of our homes, communities, schools, workplaces, corporate offices, or local courtrooms, to intuitively know that the rights of the poor, women, minorities, and the powerless are still in jeopardy. As minority members of the legal community, we have heard the voices of the disempowered, disenfranchised, disadvantaged citizens of this country. As minorities, most of us have personally experienced racial prejudice or discrimination; we have seen the proof that merits or qualifications actually have little to do with hiring, promotion, or voting practices in many areas of this country.
I am forty-five years old. I was not born a slave nor born during Reconstruction. My knowledge of the Jim Crow era comes from history books and the stories told by my ancestors. But, in my lifetime I have seen and known racial segregation and invidious discrimination. We cannot expect members of the Court to know what we have witnessed unless we record the individual pages of our experiences as proof that color still matters in America. The following pages of my life are excerpted from the Keynote Speech that I delivered at the First Conference:
I begin first by sharing with you a very painful period in my legal career. It was a time I should have expected, anticipated, or knew with almost certainty was sure to occur. The pain I experienced resulted not from the realizations I eventually was forced to face--that I was a black female living in America. Rather the anxiety I felt, the hurt I endured, the tears I could not stop, did not come from this reality at all. My pain came from not knowing the limitations that my friends placed on my aspirations. These friends were the ones I shared my deepest feelings and thoughts with, and they with me. These were the friends who I roomed with in college, stayed with in law school; regularly visited as we continued after graduation to share the American dream and nurture families. These were the friends I spent hours with discussing the real spirit and purpose of the civil rights movement. They were the friends who assured me, time and time again, they did not see color and cautioned me not to blame them for the ills of the past. They were the friends I worked for, appeared before, and vacationed with. They were the friends who wrote the letters of recommendation that served me well in gaining admission to law school, becoming the first minority student to clerk for the Louisiana Supreme Court and the first minority assistant district attorney in my home area. They were the friends who slept in my home, and I theirs. They were the friends who I called for every important occasion in my life in sadness or merriment. They were the friends who I thought knew me, trusted me, and I them. But, you see, the world we lived in then, we shared alone. I want you to know I still love and visit my friends today and they visit me, but I know the world we created in those youthful years is not the world we share today. What caused me to feel the pain I felt then was not that I thought my friends had deliberately deceived or lied to me. You see, I know then as I know now the limitations they placed on me were not created by their own ingenuity or desire to enslave me again--they were not even born when these limitations were first conceived and put in place, and neither was I. Their faults lie in a willingness to accept the realities of color, and mine from not remembering that color still matters in America.
Yes, I, like many in my generation, was born at a time in 1951 when Brown v. Board of Education(12) was not written, and the struggle was a reality. I saw in my childhood the separate water fountain signs. I lived in a segregated rural area. I attended a segregated elementary school. I lived in a single parent household. I felt the embarrassment of standing outside the bus station instead of inside like the other folks. I saw my mama return home every evening, tired and exhausted, after working all day in the sugarcane fields for barely enough money to feed us.
I, along with two others, attended an integrated high school in 1965 as the first African Americans, ten years after the Brown(13) Court ended with all deliberate speed the "separate but equal" Plessy doctrine. I was a freedom-of-choice child--the one who was required to fill out a form and explain in my own words why I dared to upset the "status quo." I heard the cheers of my classmates when Dr. Martin Luther King was shot in Memphis, and Robert Kennedy was gunned down in California. Earlier, I witnessed the tears of my mama when John F. Kennedy was assassinated in Dallas, Texas. I suffered the hurt of casting the only vote for Shirley Chisholm in my class' mock presidential election in 1968.
I entered LSU in l969, only five years after enactment of the l964 Civil Rights Act and four years after adoption of the l965 Voting Rights Act. I was eager to learn about the struggles of those who had gone before--and learn I did. I discovered that my past experiences as a child growing up in America were shared by the multitude of African Americans, the poor, the disadvantaged, other people of color, women, and the powerless. I read about the rich heritage and culture of people of color around the world, and particularly in America. I studied with interest and sadness the atrocities of slavery, the Civil War, and the holocaust; the brutality of "Jim Crowism and the Klan;" the struggles of Sojourner Truth, Harriet Tubman, Frederick Douglass, Susan B. Anthony, W.E. B. Du Bois, Mahatma Gandhi, Malcolm X, Golda Meir, Mary McLeod Bethune, Roy Wilkins, Rosa Parks, Dr. Martin Luther King, Whitney Young, William Henry Hastie, Thurgood Marshall, and the countless others who joined the ranks of the Freedom Riders and demonstrators. I learned how Schwerner, Goodman, Chaney, and Medgar Evers met their untimely deaths for justice. I saw the pictures capturing the cruelty of Bull Connors, the anger of George Wallace, and the rage on the faces of many Americans across this great nation with signs in hand bearing the words "white only, segregation now, segregation forever." I, joined by many of my LSU friends, engaged in free speech debates with David Duke, then a student and grand wizard of the Klu Klux Klan; and, in more recent years, a member of the Louisiana House of Representatives and a candidate for Governor, who carried in the first primary nearly 60% of the white votes in my state.(14)
I enrolled at LSU's Law School in l973. Yes, I took every course on constitutional law; I studied the thoughts of Thomas Jefferson, Alexander Hamilton, and James Madison recorded in the annals of this nation's history, and the contributions they made to the words embodied in the American Constitution--that great evolving document that we too have relied on in insisting that "all god's children are created equal." I read the scholarly pronouncements of those who dared interpret its meaning, including such distinguished jurists as John Marshall, John M. Harlan, Oliver Wendell Holmes, Jr., Louis D. Brandeis, Benjamin N. Cardozo, Hugo L. Black, and Felix Frankfurter. As a member of LSU's Law Review, I shared my thoughts on the legal issues of the day with great confidence that I knew how to fix any problem in the system. I engaged my professors in rather "steamy debates" about the "hot topics" of the era, from the propriety of this country's involvement in the Vietnam War, to the rights of women to make crucial choices in their lives. My friends, as well, were all ears, and they were eager to hear my profound declarations on the state of this nation's affairs. You see I, like them, was relishing in the glory of my own success and dreaming of participating in that great American experience carved out and guaranteed to those who worked hard, who excelled educationally, and who earned the right to demand inclusion based on the "merit points" they accumulated through their journey to prosperity. I just knew that I was about to "cash-in" on the promises made to all Americans in that great document long written and obligating all to abide by its terms. Surely, no reasonable legal scholar would disagree, after the death of Dred Scott v. Sandford and Plessy v. Ferguson, and the birth of Brown v. Board of Education, added to the countless other opinions existing at the time, that I, too, was entitled to participate fully in the American dream. No one would dare to seriously argue against the soundness of Justice Harlan's dissent in Plessy that "[o]ur Constitution is color-blind."(15)
No obstacles were too great or insurmountable for me to climb. No barriers existed that were large enough to defer my dream. You see, I was a member of the generation shielded by the l964 Civil Rights Act and armed with the right to express my opinion at the ballot box. So, I neatly filed in the recesses of my mind the knowledge I had acquired about the struggle of those who had gone before. Their sacrifices etched in memory, I embraced my "new world" convinced "we had overcome." After all, I was the first minority student to clerk for the Louisiana Supreme Court, and my stay there was enjoyable, though the pleasure I experienced was occasionally interrupted by brief comments from my colleagues and the "older judges" that caused me to wonder what world they were living in.
When I returned to my home area, I was "full of myself" as the saying goes. I knew the law; I understood the Constitution. Even Clarence Thomas would not have stirred a response from me when he said that it's time for us to stop "`bitch[ing] . . . moan[ing] . . . and whin[ing].'"(16) Every door was open and every dream was attainable. I worked hard; I earned every "merit" point my friends earned and more. I invested my time in public service, becoming the first black assistant district attorney in my area. I joined all the right committees and gave my talents to the community freely. I was praised by the judges, my friends, community leaders, and even the disadvantaged, the poor, and the powerless with whom I took the time to listen or lend a hand when possible. Some said that I was not like other blacks; others said that I was an example of what minorities could become if they worked hard at it; and still, many said my good fortune came from my willingness to take advantage of the opportunities available in this country.
One of my friends, the godmother of my oldest son, called me one day in l978 and said "Syl, I had a hearing this morning and I am upset." Midway through my attempt to grasp the gist of her discontent, and the unflattering words that she used often to describe the person who aroused her anger, she announced to me her intent to run against the judge, who she complained could not find his way to the restroom without the help of the women working for him. I laughed a lot that day--we laughed together. When the next day came, I woke that morning feeling pretty certain that my friend had calmed down and changed her mind--wrong! We talked a lot the first few days following her announcement about her being a woman, the only woman, to run for judge in the State. But, to us that just did not matter--after all, in our world "nothing was impossible." I remember telling my "boss," who himself had challenged the system by running against the former district attorney and winning, that my friend was running for judge. It took him a while to stop laughing; but, when I finally convinced him that my friend was not playing, he stopped laughing long enough to give me a message for her. Tell her, he said, "she has a lot of courage, and I will give her a contribution, but that's all I can do because she's not going to win." When I challenged him to a bet, he said, "I'll bet my Rolex on it and to even the odds, you can work for her because she is going to need all the women and blacks in town." Well, guess what, I accepted the bet--after all I didn't have a Rolex to lose. My friend made history on election night. She became the first female elected to the bench in the State's history. The district attorney--well, what can I say--I am still waiting for that Rolex, but he's not laughing anymore.
In l983, when I decided to run for judge, just like my friend a few years before, I called her expecting to hear that "old familiar" sound of laughter. But this time only silence came. "Syl," she said, "are you sure you want to do that?" "Sure," I said. I remember feeling a little knot in my stomach as I attempted to convince my friend that my intent was just as sincere and real as hers in l978. I could not understand why she was not laughing. After all, she was a woman and she won.
In the days that followed, I called all my friends and I heard the same silence. That knot in my stomach, well it never went away; but I know now why my friends were not laughing. They accepted what I had forgotten: in America "color" still mattered.
I had forgotten what James Baldwin wrote twenty-one years earlier, in a letter to his nephew on the eve of this nation's celebration of the 100th anniversary of the Emancipation Proclamation. He wrote that:
This is your home, my friend, do not be driven from it; great men have done great things here, and will again, and we can make America what America must become. . . . [But y]ou know, and I know, that the country is celebrating one hundred years of freedom one hundred years too soon.(17)
Like Baldwin's nephew, I did not forget that I was a black person living in America and my friends were all good people, but my friends knew what I had forgotten--the time had not yet come for us to celebrate my victory.
It has been thirteen years since I first decided to run for judge, five years since I was elected--I wish I could stand here today and tell you, the next generation, that it's time for you to celebrate, but I know it's still too soon. I wish I could say that you will never feel the pain I suffered, know the hurt I endured, the agony I experienced, or the tears that I shed, but I can't, and you will if you are a minority living in America.
I know the United State Supreme Court's majority has reminded us lately that "[o]ur Constitution is color-blind," and I do not quarrel with them on this issue. But I cannot agree, as they found in City of Richmond v. J. A. Croson, Co.(18) and Adarand Constructors, Inc. v. Pena,(19) that this great document forbids governmental implementation of "affirmative" programs designed only to "open the door of opportunity" and carry out its tenet that no person should be judged by gender, ethnicity or color, but by the measure of competency that he or she offers. I cannot agree with the Court's findings in Shaw v. Reno(20) and Miller v. Johnson(21) that it does violence to this great document's "Equal Protection Clause" and the right therein guaranteed to white Americans to require that they not ignore what they know to be so--that "race" still matters in America's political arena. I cannot agree that this clause, as found by the Supreme Court in Bakke(22) and Weber,(23) protects white Americans against "reverse discrimination," but offers no protection to minorities, as determined recently by the Fifth Circuit in Hopwood v. Texas,(24) to remedy past discrimination in admission practices that excluded them from many of our nation's institutions of higher learning. I cannot agree that "diversity" in a Nation founded by people, different in religion, status, wealth, gender, and ethnicity is no longer desirable or offends the tenets of our Constitution. The time has not come for us to forget or celebrate. In the words of Justice Marshall, the great protector of diversity in America:
Look around. Can't you see the tensions in Watts? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?
We cannot play ostrich. Democracy cannot flourish amid fear. Liberty cannot bloom amid hate. Justice cannot take root amid rage. . . . We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust. We must dissent from a government that has left its young without jobs, education, or hope. We must dissent from the poverty of vision and the absence of moral leadership. We must dissent because America can do better, because America has no choice but to do better.
Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side.(25)
I have touched the hearts of my friends and they have touched mine. We know America must do better. My experiences are not isolated or remembrances of events gone past. I am the mother of three children, who range in ages from seventeen to eleven. Their experiences are not that much different from many minority children living in America. Despite my individual accomplishments, I have not been able to immunize them against the sickness of racism and prejudice. While I share their pain, I cannot ease it nor explain to them why the Constitution, though colorblind, offers little protection against the evils they confront daily. But I have said to them:
We have come a long way children; it is a little too soon to celebrate though; we still have a long way to go; the struggle is never easy and I know it is painful; but remember, do not forget those who have sacrificed their lives for you; contribute you must to their efforts and you will save the dream for all Americans to share.
* Appellate Judge, Louisiana Court of Appeal for the Third Circuit; University of Virginia School of Law, Graduate Program for Judges; Keynote Speaker at the First Annual Northeastern People of Color Legal Scholarship Conference, held at Western New England College School of Law, on October 18, 1996.
1. LANGSTON HUGHES, DREAM OF FREEDOM, IN GOOD MORNING REVOLUTION: UNCOLLECTED WRITINGS OF SOCIAL PROTEST 170 (Faith Berry ed., 1992). He wrote:
There's a dream in the land
With its back against the wall.
By muddled names and strange
Sometimes the dream is called
There are those who claim
This dream for theirs alone--
A sin for which, we know,
They must atone.
Unless shared in common
Like sunlight and like air,
The Dream will die for lack
of substance anywhere.
The dream knows no frontier or tongue,
The dream no class or race.
The dream cannot be kept secure
In any one locked place.
This dream today embattled,
With its back against the wall
To save the dream for one
It must be saved for All.
Id.
3. Scott v. Sandford, 60 U.S. (19 How.) 393 (l857).
4. See Plessy, 163 U.S. at 559 (Harlan, J., dissenting).
5. 304 U.S. 144, 153 n.4 (l938).
6. 83 U.S. (16 Wall.) 36, 67-74 (1873). See generally GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 483-85 (4th ed. 1992) (discussing The Slaughter-House Cases).
7. 109 U.S. 3 (1883). See generally STONE ET AL., supra note 6, at 485-88 (discussing The Civil Rights Cases).
8. See Civil Rights Cases, 109 U.S. at 13. The United States Supreme Court's narrow interpretations in subsequent cases allowed racism to thrive in America. In United States v. Harris, 106 U.S. 629 (1882), the Court held that the Klu Klux Klan Act of 1871 did not permit prosecution of white lynch mobs, because the Fourteenth Amendment did not reach private conduct. See id. at 638. In United States v. Cruikshank, 92 U.S. 542 (1875), the Court held that the criminal conspiracy provisions of the Enforcement Act of 1870 did not permit prosecution for lynching blacks who were not engaged in acts associated with petitioning the federal government as required by the Fourteenth Amendment. See id. at 222. Again, in United States v. Reese, 92 U.S. 214 (1875), the Court held that criminal prosecution under the Enforcement Act of 1870, against election officials for refusing to permit blacks to vote, could not be maintained because the Act was not expressly limited to a racially-motivated election inference as required by the Fifteenth Amendment. See id. at 220-21; see also Stone et al., supra note 6, at 483-85 (discussing the limiting effect of Supreme Court Reconstruction decisions on Reconstruction statutes and amendments).
9. See Plessy, 163 U.S. at 550-51.
11. OLIVER WENDELL HOLMES, THE COMMON LAW 1 (Mark DeWolfe Howe ed., Harvard Univ. Press 1963) (1881).
13. Brown v. Board of Educ. II, 349 U.S. 294, 301 (1955).
14. See Peter Applebome, Duke May Seem to Be Wallace '91, But Both Times and the Risks Differ, N.Y. TIMES, Nov. 25, 1991, at A14.
15. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
16. Juan Williams, EEOC Chairman Blasts Black Leaders, Wash. Post, Oct. 25, 1984, at A7 (quoting then EEOC Chairman Clarence Thomas).
17. JAMES BALDWIN, The Fire Next Time, in THE PRICE OF THE TICKET 336, 336 (l985).
20. 509 U.S. 630 (1993). See generally Pamela S. Karlan, All Over the Map: The Supreme Court's Voting Rights Trilogy, 1993 Sup. Ct. Rev. 245, 277-87 (criticizing the Supreme Court's decision in Shaw v. Reno).
21. 115 S. Ct. 2475 (1995). See generally Pamela S. Karlan, Our Separatism? Voting Rights as an American Nationalities Policy, 1995 U. Chi. Legal F. 83-109; Pamela S. Karlan, Still Hazy After All These Years: Voting Rights in the Post-Shaw Era, 26 CUMB. L. REV., 287-311 (1995).
22. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 407 (1977) (Blackmun, J., for a plurality).
23. United Steel Workers of Am. v. Weber, 443 U.S. 193, 208 (1979).
24. 78 F.3d 932 (5th Cir.), cert. denied, 116 S. Ct. 2581 (1996).
25. CARL T. ROWAN, DREAM MAKERS, DREAM BREAKERS: THE WORLD OF JUSTICE THURGOOD MARSHALL 454 (1993) (omission in original).