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Because Every Vote Counted (Part 3): more aptly titled “To Ensure Every Vote Counted” July 2, 2020

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[Surprise! This is an expanded version of two more events I mention during classes on July 2nd: the anniversary of the birth of Supreme Court Justice Thurgood Marshall and the passage of the Civil Rights Act of 1964. ]

“The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all…. Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”

 

– Supreme Court Justice Thurgood Marshall in the dissenting opinion on Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989)

 

Freedom. Liberty. Independence. We’ve already established that when Caesar Rodney cast his vote for independence, today in 1776, his vote did not extend freedom, liberty, or independence to all humans within his territory. But, that is not the end of today’s story. Exactly 132 years after Caesar Rodney’s famous ride to cast a vote for independence, a baby boy was born to a railroad porter named William and his wife Norma, a teacher. This son, a descendant of slaves on both sides, would spend his whole life working to extend those freedoms to all and today in 1964 (on his 56th birthday) he would receive a great “birthday present” in the form of the Civil Rights Act of 1964.

But, I’m getting ahead of myself.

Let’s go back to Baltimore, Maryland on July 2, 1908.

William and Norma Marshall named their son Thoroughgood, which he would later shorten it to Thurgood. The Marshalls were a Black family, the descendants of slaves. William and Norma taught their sons about the Constitution and the rule of law. William even took his sons to listen to court cases, which the Marshalls would then debate. Thurgood Marshall would later say that those early debates with his father turned him into a lawyer. But he wasn’t just any lawyer: he was the “winning-est” attorney in the history of the United States Supreme Court (SCOTUS), the first African-American United States Solicitor General, and the first African-American to Supreme Court Justice.

“If the Son shall make you free, ye shall be free indeed.”

 

The Gospel According to John  (8:36) and motto for Lincoln University (Oxford, Pennsylvania)

 

“Veritas et Utilitas (‘Truth and Service’)”

 

– motto for Howard University (Washington, D. C.)

 

“None of us got where we are solely by pulling ourselves up by our bootstraps. We got here because somebody – a parent, a teacher, an Ivy League crony or a few nuns – bent down and helped us pick up our boots.”

 

– Supreme Court Justice (and former NAACP chief counsel) Thurgood Marshall referencing his SCOTUS successor in a Newsweek interview (dated October 28, 1991)

 

By all accounts, Thurgood Marshall was an excellent student throughout high school (graduating third in his class), but started college as a bit of a prankster. He attended Lincoln University in Oxford, Pennsylvania (halfway between Philadelphia and Baltimore) and graduated cum laude with a Bachelor of Arts degree in American literature and philosophy. His peers included Langston Hughes and Cab Calloway, who would become internationally renowned artists. Thurgood Marshall would become just as celebrated as Hughes and Calloway, but rather than pursuing literature, he earned a law degree from Howard University School of Law, graduating first in his class, and proceeded to change the world.

During the Civil Rights Movement, he argued and won more cases (29 out of 32) before the country’s highest court than any other attorney. After an equally notable career as an appeals court judge – notable in part because Senators from the southern states held up his appointment, causing him to serve the first few months in recess, and also because once he was able to serve none of his cases were overturned – Thurgood Marshall served as United States Solicitor General (winning 14 out of 19 cases). He then returned to the Supreme Court – this time as its first African-American Justice; the first in 178 years.

Both of Thurgood Marshall’s alma maters (Lincoln University and Howard University) are historically black universities (HBCUs). It wasn’t as if he never considered attending a school that was not an HBCU; he didn’t have a choice – segregation prevented him from attending institutions of higher education like the University of Maryland School of Law. In what some might consider an interesting twist of fate, he would not only become known for arguing Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), a school segregation case he argued in his mid-forties, his first major victory working with the National Association for the Advancement of Colored People (NAACP) was also a school segregation case: against the University of Maryland School of Law. At the age of 26, Thurgood Marshall joined his mentor Charles Hamilton Houston in representing Donald Gaines Murray in Murray v. Pearson, 169 Md. 478, 182 A. 590 (1936). Murray had been denied acceptance to the University of Maryland because of his race. In both Murray v. Pearson and Brown v. Board, Thurgood Marshall challenged Plessy v. Ferguson, 3 U.S. 537 (1896), and the doctrine of “separate but equal.” He won both cases, but only the latter case completely overturned the legality of school segregation.

“What’s at stake here is more than the rights of my client. It’s the moral commitment stated in our country’s creed.”

 

– Thurgood Marshall, NAACP attorney for plaintiff in Murray v. Pearson, 169 Md. 478, 182 A. 590 (1936)

As I referenced before, the Civil Rights Act was signed into law today in 1964 by President Lyndon B. Johnson. It prohibited discrimination based on race, color, religion, sex, or national origin. It would also outlaw unequal application of voter registration requirements and racial segregation in schools, work environments, and public accommodations. It also expanded the definition of “all men” (as written in the second sentence of the “Declaration of Independence”) to include all people. Over the years, there would be several landmark cases that impacted the application of the Civil Rights Act of 1964. One of those cases was decided almost exactly 56 years later (on June 15, 2020), when SCOTUS upheld a portion of the Civil Rights Act (Title VII) as it relates to sexual orientation and gender identity. In a 6 -3 decision, the highest court in the country affirmed that it is unconstitutional for an employer to fire someone for being gay or transgender. Clarence Thomas, Thurgood Marshall’s successor in that he is the only other African-American to serve on the Supreme Court, was one of the 3 dissenters.

Thurgood Marshall believed the death penalty was unconstitutional (Furman v. Georgia, 408 U.S. 238 (1972)) and supported a woman’s right to choose (Roe v. Wade, 410 U.S. 113 (1973)). He is not only remembered as a champion of Civil Rights, his name and his work are often mentioned in the same breath as the names and efforts of Rev. Martin Luther King, Jr. and Malcolm X. The three men had different backgrounds and so worked in different ways, even in different spheres; and yet they had the same aim: to expand those “unalienable Rights” detailed in the “Declaration of Independence” and ratified by the Constitution of the United States of America.

A spirit of strong conviction (first 5 minutes only)

 

Electric… but not an Electrician

“Like many anniversary celebrations, the plan for 1987 takes particular events and holds them up as the source of all the very best that has followed. Patriotic feelings will surely swell, prompting proud proclamations of the wisdom, foresight, and sense of justice shared by the Framers and reflected in a written document now yellowed with age. This is unfortunate. Not the patriotism itself, but the tendency for the celebration to oversimplify, and overlook the many other events that have been instrumental to our achievements as a nation. The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the ‘more perfect Union’ it is said we now enjoy.

 

 

I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.

 

 – from speech given by Supreme Court Justice (and former NAACP chief counsel) Thurgood Marshall at The Annual Seminar of the San Francisco Patent and Trademark Law Association, Maui, Hawaii May 6, 1987

 

“And so we must be careful, when focusing on the events which took place in Philadelphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense of perspective. Otherwise, the odds are that for many Americans the bicentennial celebration will be little more than a blind pilgrimage to the shrine of the original document now stored in a vault in the National Archives. If we seek, instead, a sensitive understanding of the Constitution’s inherent defects, and its promising evolution through 200 years of history, the celebration of the “Miracle at Philadelphia” Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787 (Boston 1966), will, in my view, be a far more meaningful and humbling experience. We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.

 

Thus, in this bicentennial year, we may not all participate in the festivities with flag-waving fervor. Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled. I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.”

 

– conclusion to the speech given by Supreme Court Justice (and former NAACP chief counsel) Thurgood Marshall at The Annual Seminar of the San Francisco Patent and Trademark Law Association, Maui, Hawaii May 6, 1987

 

 

### MOKSHA • MUKTI ###

 

 

 

Being Brown May 17, 2020

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(“Ramadan Mubarak, Blessed Ramadan!” to anyone who is observing Ramadan. I typically talk about Ramadan at the end of the season, so keep your eyes open.)

“I stopped explaining myself when I realized other people only understand from their level of perception.”

– Anonymous

 

“…we lived in an integrated neighborhood and I had all of these playmates of different nationalities…. I just couldn’t understand what was happening because I was so sure that I was going to go to school with Mona and Guinevere, Wanda, and all of my playmates.”

 

– Linda Brown, quoted in a “Black/White and Brown” produced by KTWU Channel 11 (May 3, 2004)

 

For a long time, most of my life, I didn’t get it. How could I get it, as odd as it is to understand, it was outside of my experience.

I am related to some of the smartest people I know –and I know a lot of really smart people. My father has a PhD and taught doctors, his mother was a school teacher, my maternal great-grandmother and both grandmothers taught Sunday school, and my mother worked with doctors and lawyers – so I didn’t get why they made such a big deal about my grades or my education. I appreciated it when my parents arranged things so I could enroll in special programming (like “Research and Development”), but sometimes I kind of took it for granted. Going to a private school, for instance, was just what my brothers and I did sometimes. Granted, one of my brothers ended up in private school after my parents were informed he would be bused to a “Black school” as part of a desegregation plan in the 80’s (which I thought was beyond silly, but I didn’t spend too much time thinking about why the plan existed (in the mid-80’s!!!). I didn’t get it; it was outside of my experience.

My maternal grandfather owned bars in Houston, like the Sportsman, and supper clubs, like The Club Supreme, which was part of the “Chitlin’ Circuit” (venues owned and operated by and for African-American audiences during segregation). I grew up hearing about the great talents he booked and about people like Sammy Davis, Jr., Harry Belafonte, and the Supremes stopping by the house for dinner. Sometimes I would walk into Club Supreme, look down the dark and dusty ballroom to the stage at the back and imagine what it was like in its heyday. When I walked next door to the Sportsman, owners/editors of newspapers, bankers, and business owners seemed to not only know my name, but also my GPA. Sometimes I thought it was weird – especially when they would tell me they were holding a job for me when I graduated from college – but mostly I just thought part of being a grandfather was being proud of your grandchildren; I figured he must talk about me to his customers because that’s what grandfathers did. I didn’t get it; it was outside of my experience.

“I was kind of afraid at first. I didn’t talk about it very much, I guess, because I was afraid it would get back to someone who would make trouble.”

 

– Linda Brown, age 17, in a 1961 New York Times interview

In May 2004, I finally started to get it. It was the 50th Anniversary of Brown v. Board of Education of Topeka and as people were celebrating, remembering, and producing documentaries, I was doing the math. In doing the math, I finally really understood that Black people not being able to go to the school of their choice wasn’t part of some distant history lesson. It was part of living history – it was part of my family history. The teachers, administrators, farmers, businessmen and businesswomen, police officers, doctors, nurses, insurance agents, authors, truckers, military personnel, farmers, and preachers in my family successfully did what they did – not because they had the economic and educational advantages that they gave me, but in spite of not having what I took for granted. My parents grew up in the South, in the shadow of Brown v Board, in a state where the Attorney General actively worked to keep school segregation legal despite the U. S. Supreme Court’s landmark ruling. The people who worked behind the bar and sat on the barstools at my grandfather’s clubs knew me not because my Paw-Paw was some random grandfather proud of his random grandchildren, but because they all understood what I did not: my brothers, cousins, and I were symbols of progress and change. We were proof that the world – or at least our little corner of the world – was getting better, more equitable and more just.

When my grandfather died, people seemed to come out the woodwork. I kind of expected the elders. What I didn’t expect were the people my age, people who wanted to remember and celebrate a businessman in the community who had financially supported the education of young people in the community. They came to celebrate and remember, because they got it.

“None of us got where we are solely by pulling ourselves up by our bootstraps. We got here because somebody – a parent, a teacher, an Ivy League crony or a few nuns – bent down and helped us pick up our boots.”

 

– Supreme Court Justice (and former NAACP chief counsel) Thurgood Marshall referencing his SCOTUS successor in a Newsweek interview (dated October 28, 1991)

Linda Brown, the student at the center of Brown v Board, was actually part of three school segregation related lawsuits: the one SCOTUS ruled on today in 1954; Brown II in 1955; and a case filed by the adult Linda Brown in 1978 (Brown III), which was re-opened and appealed through the late 80’s / early 90’s. The first case, officially filed as “Oliver Brown, et al v Board of Education of Topeka, et al,” was a class action lawsuit filed by Thurgood Marshall, the NAACP’s chief counsel, for thirteen parents on behalf of 20 school-aged children. However, the case itself was a test case and symbolic of several cases across the country. The case in Kansas was selected by the NAACP as the pilot case, because it was considered more Midwestern than Southern, the Brown’s neighborhood was desegregated (but the local school was not), and Oliver Brown was selected as the named plaintiff because he was a man. (The idea being that a male plaintiff might be considered more seriously by the courts and the ruling might carry more national weight if inequality could be proven outside of the South.)

While the unanimous 1954 ruling is celebrated as a landmark victory, it was more symbolic than anything else. The Supreme Court first ruled that there was no such thing as “separate, but equal” – at least not as schools existed at that time. Then, in 1955, SCOTUS ordered states to desegregate “with all deliberate speed” – but, here again there was no timetable and the interpretation of the very poetic phrase was left not to the NAACP or the plaintiffs, but to the states.

“It’s disheartening that we are still fighting. But we are dealing with human beings. As long as we are, there will always be those who feel the races should be separate.”

 

 

– Linda Brown, in a 1994 New York Times article (around 40th anniversary)

Look around today and you will see the legacy of Brown v Board. There is some positive, some signs of progress; there is also some negative. Were Linda Brown still alive today, she could easily file another lawsuit…on behalf of her grandchildren or even her great-grandchildren. Part of the legacy of Brown v Board is living in the shadow of the Plessy v Ferguson concept of “separate but equal.” We can say it’s the shadow that makes us appreciate the light; but, at some point we need more light.

“I didn’t understand what was happening then, but it was clear that Brown versus Board of Education was a necessary victory. It might have been a little flame, but it served to set off a mighty flame. To me, the impact of Brown is best seen in the increasing numbers of black professionals today. These are the people that, after 1954, were able to have some degree of choice. This surely made a difference in their aspirations and their achievements.”

 

– Linda Brown, in a April 29, 2004 speech (marking the 50th anniversary) at Chautauqua Institution

 

Please join me for a 65-minute virtual yoga practice on Zoom today (Sunday, May 17th) at 2:30 PM, to celebrate progress, to remember those who made it possible, and to raise awareness so that we understand what is needed to move forward together. You can use the link from the “Class Schedules” calendar if you run into any problems checking into the class. Today’s playlist is available on YouTube and Spotify.

 

Linda Carol Brown

### NAMASTE ###