9
Robert L. Carter’s Northern Campaign
Cuyahoga means “crooked river.” It comes from an Iroquois dialect that was spoken along the slow-flowing switchbacks that now divide the city of Cleveland before emptying into Lake Erie. Between 1868 and 1969 the waterway caught fire no fewer than thirteen times, and in the 1960s, it became a sort of cause célèbre for being one of the most polluted rivers in America, with the stretch between Cleveland and Akron completely devoid of fish.
In addition to its fame as dead water, the Cuyahoga is probably best known for serving as the dividing line between the white and the black areas of town in what is still one of the nation’s most segregated cities.
In 1960 almost none of Cleveland’s black population lived in the suburbs. Around 98 percent of the city’s black population was concentrated in ghettos east of the Cuyahoga River.
The schools were terrible. Unqualified teachers were employed to work in them, and they were so overcrowded on the black side of town that there was a waiting list for kindergarten. Those lucky enough to get a spot for their children found the schools in the black neighborhoods so overenrolled that they were on half-day sessions. So kids were going to school in shifts, which put a strain on families where often both parents had to punch a work clock.
Across the river, white flight was already a reality, with white families having left in large numbers for the rapidly forming suburbs around the city. As a result schools on the west side of town were underenrolled.
To reduce the overcrowding, some black kids were bused to the white side of town, where they were completely segregated within the white schools. They ate separately, were taught separately, and were allowed to go to the bathroom only once a day. The busing angered both whites and blacks. Whites didn’t like black kids being shipped into their neighborhood schools, and blacks didn’t like their kids being completely segregated in those schools. As tensions flared in the city, the board of education decided to build new schools on the east side of the Cuyahoga and return the black students to those buildings when they were completed. The end result would obviously harden the patterns of segregation and freeze them in place. The school board justified what it was doing based on a rule of thumb known as the neighborhood school plan, used almost universally in U.S. cities, which placed kids in schools near their homes, but it ignored the rule whenever it suited its purposes.
The Congress of Racial Equality (CORE), a newly emerging civil rights organization, had played a big role in shaping a response to Cleveland’s schools. Working with a local group called the United Freedom Movement (UFM), which the local NAACP helped form in 1963, CORE played a leading role in opposing the board’s plan. When the board of education announced its intention to quickly build new schools on the east side, CORE and UFM organized demonstrations at the proposed sites. Then, on April 7, 1964, the Reverend Bruce W. Klunder, a white Presbyterian minister who headed the local CORE chapter, was killed by a bulldozer.
I had been aware of the deaths of civil rights workers in the South and the vicious attacks inflicted on the Freedom Riders, but this one was different. It was in the North, and much closer to home. Klunder and I were the same age, but unlike me he was on the front lines of civil rights activism, while until then I had been working the seams of the Movement from the safety of Freedom House in New York City. Around the time of Klunder’s death, the NAACP began a lawsuit in federal court to stop the board of education from further segregating the Cleveland schools. The case was called Craggett v. Board of Education of Cleveland City. The lead plaintiff was a student named Charles Craggett. Bob and local NAACP lawyers sought a preliminary injunction to stop the school construction until the court could hold a full trial to determine the legality of the board’s plan, which the NAACP argued violated the Constitution. After a hearing Judge Girard Kalbfleisch ruled that the board’s building program would not cause prohibited public school segregation under the Supreme Court’s Brown ruling, and denied an injunction. Carter and the local NAACP attorneys immediately decided to appeal. And that meant another major project for our office.
* * *
That’s where I came into the picture. Maria and Barbara, who normally drafted the important briefs, had more work than they could handle, and Bob was constantly on the road. There was everything from boycotts, the constant drumroll of demonstration arrests, school cases, and labor-related cases. A fairly pure form of chaos existed in the NAACP legal office, as there were only so many hours in the day or night to get the work done. That’s the reason it wasn’t entirely a shock when Bob told me that, despite my inexperience, I would be putting together the appeal of the Craggett case. Still, this would be my first assignment on a key school case involving Bob’s Northern campaign strategy.
As with most of the work I did as assistant counsel, it just kind of happened. Bob told me what he needed, talked me through the case, handed me an accordion file bursting with court papers, transcripts, and exhibits, and, on his way to the next thing, said something about me having ten days to get the brief done.
I must have looked stunned.
“Don’t worry,” he said. “Barbara and Maria will help if you run into any problems.”
I doubt that changed the look on my face.
Barbara was working with Bob at the time preparing for trial in a school segregation case against the Springfield, Massachusetts, public school board, so she was completely up to date on the case law I would need to know for the appeal. She told me to read Bob’s latest Supreme Court win in the Prince Edward County, Virginia, school case along with two other cases: a Long Island, New York, district court win and Bell v. School City of Gary, the Indiana case that was lost at trial and on appeal before the U.S. Court of Appeals for the Seventh Circuit on October 31, 1963. After reading those decisions, I reread the 1954 Brown v. Board of Education decision as well as the very weak Supreme Court follow-up decision in 1955, which was called Brown II. That second decision provided instructions to the federal trial courts about how Brown should be applied, signaling that the NAACP’s work would not be easy, as the justices only required school boards to desegregate with “all deliberate speed” and instructed judges to be respectful of the problems that Southern school boards faced. Translated into lay language, the Court said, No rush. Barbara was a big help. I was filled with doubt. Although I didn’t fully understand the scope of Bob’s goal with the Northern campaign, I understood that he wanted to expand Brown to the North.
Bob told me to press the concept that segregation no matter what its cause resulted in damage to a child’s self-esteem that was unlikely ever to be undone. This formulation came directly from Chief Justice Warren’s original Brown opinion, and Bob, who had seen the need for the underpinning psychological evidence in that case, wanted the courts to adopt that concept in the North. Under his approach, it didn’t matter whether a school board intended to segregate its children by race, and it didn’t matter if there were a few white children enrolled at a black school or a few black children in white schools. What should matter, he argued, was the harm done to black children by segregation. In short, Bob wanted to move away from having to prove that school boards intended to segregate children. Given the number of school systems in the country, having to prove intent would require endless litigation that could go either way depending on whom the judges believed. The goal was to create a broader standard for integration that could be applied quickly and effectively anywhere in the country.
When I read the Prince Edward County decision, however, I found nothing to support Bob’s theory. Prince Edward County was wedded to the Jim Crow laws that required school segregation. Its school board had tried to avoid integration by shutting down the county’s public schools and offering to pay parents to send their kids to so-called private schools, which would segregate black and white children by creating racially separate schools. Intent, or de jure segregation, was obvious by the very nature of the plan, and the Supreme Court decision made
clear that that was the key ingredient. By contrast, in Bell v. School City of Gary, the Indiana federal appeals court unequivocally found that unintentional, or de facto, segregation caused by a neighborhood-school plan did not violate the Constitution. While the Cleveland case was in the sixth circuit of the federal court system, the Bell decision was in the seventh, so it would not bind the sixth-circuit judges. But that court could look to the Bell decision for guidance, and there were judges from Kentucky as well as Ohio and Michigan who sat on the sixth circuit. So depending on which judges heard our case, and their mind-sets, it could follow the lead of the seventh circuit and uphold Judge Kalbfleisch’s decision. As I worked to outline our Cleveland brief, it seemed to me that intent would be crucial, but Bob wanted me to argue only the impact of segregation and the psychological result. I turned to Barbara and Maria, and they agreed we should include an intent argument. So I wrote a draft for Bob’s review that contained both his theory—with its goal of expanding Brown to include impact as a determining factor—as well as an argument based on the intent to keep children as segregated as possible.
The next thing I knew Bob stuck his head out of his office.
“Now, Lewis,” he semiscolded, “that’s not what I wanted. You should be arguing only our theory that it is the effect of segregation that counts, not the intent of school officials. If we argue intent, we’ll be fighting Northern school segregation one school-district boundary line after another. It’ll be another hundred years before we get those schools integrated. Effect is the only way to make Brown work.”
“Barbara and Maria agreed that we needed to take both approaches in order to have a chance at winning,” I countered.
The three of us marched into Bob’s office to thrash out the issue. Finally Bob agreed that I could include an intentional-segregation argument in the brief as long as it was secondary to his effect theory.
“Thank God,” Barbara sighed as we left Bob’s office. “Springfield’s school board changed the school lines so white children can transfer out of heavily Negro schools, and I was worried Bob wouldn’t want to put that into evidence. But without that evidence I think we could lose the case. Bob’s theory is the only way we are ever to achieve integration on a nationwide basis, but our clients want us to win, and so do I.”
I did, too.
I was a newcomer to the civil rights activism that was happening everywhere, and here I was working with one of the country’s most renowned civil rights lawyers. I understood what Bob was trying to do, but my perspective was much narrower.
As I look back now, I see the conflict between trying to win individual cases versus Bob’s focus on finding more reliable ways to win cases by breaking through at a more basic and easier-to-prove level, using impact, or the effect of a practice, rather than its intent. Bob’s point of view was informed by years of working on civil rights cases. He had gone through struggles before considering the benefits of taking an expansive approach versus a narrower one.
Before the 1954 Brown decision, Bob’s approach to ending Southern school segregation was to engage in a frontal attack. There were critics in the civil rights community, however, who thought he was being too aggressive. They wanted to avoid an all-out attack, advocating instead for the enforcement of the Supreme Court’s “separate but equal” doctrine in Plessy v. Ferguson, which in theory required Southern school boards to provide the same quality of education to blacks and whites. Bob’s critics argued that it would cost hundreds of millions of dollars to provide separate schools that were really equal for black kids, and that would create a huge financial incentive to end segregation. Critics also worried that a frontal assault would lose based on the Plessy case. But Bob won over the NAACP’s chief lawyer and decision maker, Thurgood Marshall, and prevailed. Now he was trying to attempt a different kind of big-picture attack up North.
Bob’s whole approach to the law was strategy first. He constantly looked for remedies that would cut through the morass of racism and bring about real change or at least make change possible somewhere down the line, with the addition of supporting case law. That was also the impetus for Gaynor v. Rockefeller, the employment case I was working on at this time, and it was the idea behind his NLRB cases in the South, which fought against mirror black and white unions for the same trades in the same company, in which blacks got only the most menial jobs. To state it in its starkest terms, Bob was unwilling to sacrifice another generation of black kids if he could help it. To avoid that he was always trying to get precedent-setting cases before the Supreme Court. That was the goal. Push through, expand, and win at the highest level.
A few years into my work at the NAACP, I asked Bob about his strategy. I remember the frown that torqued his face.
“If we win, we make some progress,” he told me in no uncertain terms. “And if we lose, we’ve lost nothing. Our children are in terrible schools, so if we lose we are where we started out. We’ll come back and try again.”
Being white, I’d been given something to ponder.
But in the Cleveland case I was very focused on the appeal issues, and nervous. Our case seemed strong. The public schools fell neatly to one side or the other of Cuyahoga’s crooked color line, which divided the city.
Public school segregation in Cleveland was nearly total, and the few aberrations from the rule were just that: out of the ordinary. When CORE and UFM first started pushing back against the horrible school conditions on the east side of Cleveland, the school board agreed to bus children from the overcrowded black schools into underutilized white schools. Once there, however, those bused kids were kept so totally separated that invisible walls might have been keeping blacks and whites apart. CORE and UFM had done a good job pushing until the NAACP could get a legal foothold. Ongoing pressure resulted in some concessions from the school board, which announced that the children from both sides of town would be having nonclassroom-related activities together. On the white side of town that was a powder keg that exploded immediately. Within a week the board assured the white community that it would stop transporting students into their schools as soon as possible. All this was part of the hearing record from which I drew the facts for our appeal.
To carry out its promise, the school board, as I saw it, helped our case by speeding up the school construction program on sites that were unfit for schools, which occasioned more opposition from CORE and UFM. Because the city was doing everything in reaction to the warring factions on either side of the Cuyahoga, building sites were picked hastily—in fact, so quickly and with so little thought that the city planning commission recommended against construction at many of the specified locations because they either couldn’t accommodate the proposed buildings and playgrounds, or the traffic patterns in the area were too dangerous for foot traffic. The board, however, ignored the planning commission and began the process of awarding construction contracts, which is when CORE and UFM members started to protest at the sites, and Rev. Klunder was crushed under the treads of a bulldozer.
When coupled with the city’s neighborhood-school-district policy, the sites chosen ensured that the new schools would keep black kids on the east side of the river, and Cleveland’s schools segregated. Beyond the slightest doubt the board’s intent became obvious when the local NAACP unearthed a plan to zone one of the newly built schools, which was in a white residential area, so that its students would all come from outside the “neighborhood,” a coded way of saying that the new school would be for black kids and the local neighborhood school would remain white. We can’t lose, I thought.
Judge Kalbfleisch didn’t understand, or had chosen not to understand, what all of the clamor was about. From his perspective the board was trying to build new schools, which would benefit the Negro community, and the NAACP lawyers for some reason that was more or less indecipherable to him had decided that it was a good idea to stop progress. In the judge’s mind a new school was clear evidence of equal treatment. Viewing Bob and his colleagues as obstructionists, K
albfleisch wrote: “The members of a school board are elected to office. It is inherent in the democratic process that a body politic is subjected to pressures. To infer an unconstitutional design when that body exercises its discretion in accord with law requires substantial evidence. The most this Court will infer from the facts is that the board desired to end transportation classes as soon as possible for the reason its general policy was to maintain neighborhood schools—a concept which has been declared constitutional.”
In our appeal brief my job was to pull all the facts together and argue that the court should stop construction until after the NAACP received a full trial. Worried, I asked Bob how a trial would help if the judge had already made up his mind.
“Kalbfleisch might say something in the ruling that could help us later on,” he replied. “He’s old, too. He could be retired before the trial. Don’t worry about him. Anything can happen.”
After that group meeting in Bob’s office about my first draft, I worked around the clock with Barbara’s and Maria’s help revising the fifty-page brief and then whisked it down to our printer, making final changes on the hot-metal galleys at the shop. Magically the booklet appeared, smelling of new ink. My name was right under Bob’s on the cover.
About a month later we flew to Cincinnati, where the appeals court held its sessions. At the courthouse our attorneys from Cleveland surrounded Bob and congratulated him on our brief. I sat at the counsel table under the eyes of the three judges when Bob rose to argue. Even though I didn’t have a speaking part, my heart was pounding.
Not more than a minute went by before one of the judges chastised Bob, and it was my fault. The Supreme Court had overturned one of the cases that I cited for legal authority about the standard for reversing a preliminary injunction decision. The point it spoke to was procedural and relatively minor, but it had been my job to make sure that everything in our brief was still good law, and it was plain as day that I had failed in this fundamental task. There was my boss being forced to apologize for my mistake. He gave me just the slightest downward glance and continued his argument. I turned crimson.
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