“You’re clouding and obscuring the issues,” he replied, but added reluctantly, “I’m not going to dismiss your case.”
We got our trial a few months later, in June. By then we had put together an exhibit book containing a short history of the Negro “voluntary” schools, including a chronology of when the black children were transferred into other schools and their racial compositions, two of which were still all-black. Our exhibits featured maps of the variously odd-shaped school-district boundary lines as well as the system’s most suspicious bus routes, as well as comparisons between black and white schools.
Following up on what Barbara had told me was a weakness in Judge Sweeney’s Springfield decision—that there was no proof of government involvement in the city’s housing segregation, we also focused on that issue. That led us to develop evidence that the Cincinnati officials responsible for public housing had segregated their projects, which was then reflected in the racial composition of the public schools.
“Everyone knows how cities get segregated,” Bob had grumbled when I told him about our new evidence. “You won’t be proving anything everyone doesn’t already know.”
“If everyone knows how cities get segregated,” I replied, “white people sure spend a lot of time denying it.”
“You do like getting in the last word, don’t you?” Bob said, before giving us the go-ahead.
Like the Springfield trial, Deal lasted five days. Norris and I hammered away at school board members, trying to get them to admit that segregation was part of the system’s history and that its legacy had carried over into the present era, but they denied having anything more than rudimentary knowledge about how their system operated. That was left to the administrators, they said. Even Calvin Conliffe, the board’s recently appointed sole black member, hid behind that wall of feigned ignorance.
When I called Assistant Superintendent John Shreve, the administrator who was responsible for the actual districting of schools, I asked Judge Peck for permission to cross-examine him as an adverse witness. Unless my request was granted, I faced the prospect of having Peck block me from challenging anything Shreve might say under an arcane doctrine that a lawyer must accept whatever his own witness testifies to as the truth. But the judge stopped me cold.
“I take no offense at being called idealistic, if you care to do that,” he lectured me. “But I have enough idealism to be absolutely convinced, until the contrary is shown, that public servants are just exactly what is connoted by that term. They are serving the public, not an individual master.”
I questioned Shreve anyway, determined to show Peck how wrong he was.
“Be careful,” Bob warned me.
Using board documents Shreve could hardly dispute, I examined him about the factors he considered when deciding where to locate new schools and how to district them, and got him to admit he considered “community homogeneity” a “plus factor” when locating new schools.
“Isn’t race a part of community homogeneity?” I pressed Shreve.
“Racial similarities are not, in and of themselves,” he hedged.
Frustrated, I retreated. Bob gave me an encouraging look when I sat down.
“You did fine,” he whispered. “But you have to learn to quit when you are ahead.”
Switching to safer ground, I had Philip Rothman explain his charts, which showed that the children in the 80 percent or more black schools actually lost some of their learning ability as measured by standardized IQ tests as they progressed through the grades. By comparison the children in the 80 percent or more white schools gained IQ points.
”Children have equivalent basic ability to learn regardless of their race,” Rothman testified. He explained that black children were damaged by segregation in two ways: It caused them to develop negative self-images and it led administrators and teachers to stereotype them as being unable to succeed.
Rothman also presented charts showing how the predominantly black schools were short-changed in terms of teachers, programs, and facilities. He discussed what a “neighborhood school” was in a racially divided city like Cincinnati, where the term could be used to mean anything the administrators wanted. Some school districts extended for miles and had odd shapes, while others were small and compact, he pointed out. Some schools were located in the middle of their districts, while others were perched on a border. In Cincinnati, Rothman concluded, neighborhood-school planning subverted the ideal of the public school as a melting pot for American democracy that brought together children from all strata of society, from all ethnic groups, to induct them into the American way of life. Early-childhood experiences and socioeconomic class as well as race played important roles in pupil performance, Rothman readily agreed when Beirne cross-examined him. But racial isolation, he reiterated, contributed significantly.
Lee Rainwater was up next. He was a nationally recognized expert in human development from Washington University in St. Louis who presented still more testimony on the effect of segregation on learning.
Our next witness was Joseph Murray. Our object was to show how government contributed to the creation of ghettos. Murray worked for Cincinnati’s Department of Urban Development and was in charge of the relocation services provided to families displaced by government action. Subpoenaed, he was uncomfortable as he sat in the witness chair and admitted that his department used race to decide where people went.
“There are certain areas,” he said, “in which Negroes are not accepted.”
Robert Coates, the deputy executive director of the Ohio Civil Rights Commission, followed Murray. His agency documented housing discrimination in Cincinnati, as well as other cities, and had issued a report that detailed the private and municipal measures used to create segregated neighborhoods. When I tried to put that report into evidence, Judge Peck immediately sustained Beirne’s objection, cutting me off. Earlier Peck had also rejected a memorandum Muldrow had unearthed in the board of education files that proved school officials had reviewed reports from a private research organization that pinpointed where blacks lived and what type of housing they occupied. In my view that memo went hand in glove with Shreve’s admission that the school administrators had favored “community homogeneity” when determining the boundaries of particular “neighborhood” school districts. Peck, however, was letting us know that the city’s complicity in Cincinnati’s housing segregation wasn’t going to figure in this case, no matter what evidence we put before him.
Hitting a dead end, Norris called some of the black schoolchildren’s parents, among them Jacqueline Stonom, who told Peck about her child’s experience at a predominantly white school where the black children were kept completely separate, as had taken place in Cleveland. She also told the judge about confronting the school superintendent, Wendell Pierce, who admitted that her child had been segregated and brushed her aside.
Impatient, Judge Peck interrupted Stonom’s testimony, obviously discounting her, which made her all the more vehement.
Seeing that exchange, I was seething. I had watched white people, sometimes the very white people who had raised me, and later myself, close our eyes to the needs of black people. I had sensed how painful it was for Lorraina Rutherford to be separated from her children while she lived with us.
If I were black, I would have believed Stonom, I thought, shocking myself by how quickly my own doubts about her honesty vanished, and how sure I had suddenly become that the color of our skin had such a profound effect on what we saw and heard as well as what we believed.
After Jacqueline Stonom left the stand, her head held high and her eyes flashing defiance, we finished our presentation. Immediately Beirne asked Judge Peck to dismiss our case, arguing that we had not proved that the board was guilty of intentional segregation.
Peck said he would decide Beirne’s motion after the board presented its factual witnesses, but before it had to present its experts. The signal was plain: In Peck’s mind, motive was the key.
To s
atisfy Judge Peck, Beirne called a few board members and administrators, who all hewed to the line that each school’s racial composition was a reflection of the city’s housing patterns, over which they had no control. Superintendent Pierce joined the chorus as the board’s last witness.
When it was time to prove that Cincinnati-style segregation was harmful to black children, Bob took over the cross-examination.
Pierce agreed with Bob that segregation in the South was damaging to black children because it conveyed a societal judgment that blacks were inferior. But things were different in Cincinnati, he maintained.
“Have you read the reports available that say the effect is similar to the South?” Bob asked.
“No,” Pierce responded. “My assistants may have, but I don’t believe the experts have reached a generally accepted view.”
“So how do you explain a totally black school where all the kids live in a totally black housing project? Does that resemble the South?” Bob asked.
“Not a great situation,” Pierce replied, “but the children had many contacts with white administrators and teachers.” Then he added, beginning to sound defensive, “Now, I am not saying in my statement, Mr. Carter, that there are not things that should be improved in terms of the treatment of the Negro, you understand that,” he said. “I feel very strongly in terms of employment, housing, all these other aspects. I am saying, though, that I think there is a marked difference between a Southern approach to this, societally speaking, and Cincinnati.”
Norris and I could see that Pierce was getting a little weary. Keep asking questions so that he will have to come back tomorrow, we urged Bob. Half an hour later, the judge adjourned court.
The next morning Pierce was asserting that the Cincinnati schools were not harming black children. “All kinds of people are Negroes,” he explained, “just as you have all kinds of whites.
“In other words,” Pierce continued, “the idea that every school that has a predominance of Negroes, that they are depressed, that they feel they are not getting an education, you know, that this is a horrible place—this is not true. Mr. Carter. At least from my experience going to the schools.”
It was a good answer, but Bob wasn’t through with him.
“Don’t standardized tests demonstrate underachievement in those schools?” he asked.
“But Mr. Carter, the reason for that, as I have stated many times, is related to the heredity, the out-of-school environment, and we are attempting to compensate for that,” Pierce answered.
“I see,” Bob replied, barely concealing the undertone of menace in his voice. “What do you think heredity has to do with it?”
“Well,” Pierce replied, “you are born with certain potentials.”
Bob closed in on the racial insult, asking if heredity was the reason black children underperformed on the standardized tests.
“I am not saying that,” Pierce said, but he had gone too far and could not pull back entirely. “I say it is just one factor in it.”
“Well, that would be a factor?” Bob asked, staring at the superintendent.
“Yes, one factor,” Pierce replied.
The contest was over. Released from the witness stand, Pierce retreated to the back of the courtroom, having just demonstrated as far as I was concerned that the attitudes of school officials in Cincinnati mirrored those in the South.
The trial, at least for now, was over. Judge Peck had to decide if he was going to dismiss the case, or ask the Cincinnati Board of Education to defend its position with expert testimony.
Flying back to New York, I was euphoric. It seemed a sure thing.
“Peck had to comprehend the significance of Pierce’s heredity remark,” I enthused to Bob. “Put that together with John Shreve’s admission that homogeneity was a positive factor in school districting, and it couldn’t be more clear.”
“Don’t be ridiculous,” Bob replied. “That judge didn’t understand a thing.”
11
NAACP Battles
Our second child, Brian, was born in 1965. His birth was a bright spot in what, workwise, was a very hard year. It started with a big NAACP loss. New York’s highest court—the court of appeals—decided against us in Gaynor v. Rockefeller.
Bob’s objective in Gaynor was to make the highest public officials responsible for the institutional exclusion of black workers by the all-white “father and son” unions and their hiring halls that was the norm on construction projects built under their auspices. After Judge Stevens had ruled against us in the appellate division, everyone had pitched in to write what we all felt was a compelling brief to the New York court of appeals.
That court announced its decision in early 1965. Stanley Fuld wrote the opinion for all seven judges. It was a slap in the face. All our arguments were rejected in cold, hard prose. The plaintiffs couldn’t sue jointly as a class, Fuld wrote, and Rockefeller, Wagner, and their contracting public officials had not acquiesced to union membership practices. The decision contained not an ounce of understanding of the problem the NAACP was attempting to confront. Instead it referred our clients—and anyone who had a similar complaint—to the New York State Commission for Human Rights, a severely underfunded, weak-kneed agency that took years to decide even the smallest case. In other words, there was no remedy. Salt in the wound was the fact that Rockefeller appointed the human rights commissioners the court had ruled should decide such matters.
I was furious about the outcome. As I saw it, the court had rendered a purely political decision. We had sued two of the most powerful politicians, Rockefeller, a Republican, and Wagner, a Democrat. Both claimed to be liberals when it came to race. Without any allies, not one of the seven judges wrote a dissent. Complain to someone else, Judge Fuld told us. In lockstep, the other judges had agreed.
“Oh well, what did you expect?” Barbara had said, dismissively.
”How could they do it?” I fumed.
“Well, they did it,” Barbara replied, “and they meant it.” She chuckled at my naïveté, as if white folks couldn’t possibly understand. At least that’s the way I heard her.
* * *
When I joined the NAACP it was at least in part because of Bill and Lorraina. They had given me love and warm affection, and I desperately wanted to do something for them—repay them for their kindness to me, for all the nights Lorraina spent away from Duby and Sister Baby, and for what Bill had to do to make his life bearable. I wanted to make up for the slights Bill experienced serving my grandfather, with his asking Bill to agree that Negroes were satisfied with the way things were.
I needed victories to make that right, not defeats. I wanted to be there for Bill the way he’d been there for me.
But losses, rather than victories, were my lot, at least in my first few years at the NAACP. And there had been a lot of them. We lost the Cleveland school case in 1964. Then that same year we lost the Springfield school case in the First Circuit Court of Appeals. Also, as Bob predicted on the return flight from Cincinnati, Judge Peck dismissed my first school desegregation case as trial counsel.
The Gaynor loss was also huge. Not only was Stanley Fuld no longer a giant of the law in my eyes, Judge Stevens didn’t seem so fainthearted. The lone black judge in that appellate division, he probably knew better than anyone that our case was preordained to fail. The state courts were not going to hold this governor and this mayor responsible for union practices, even if they knowingly ignored the state’s human rights law, and the equal protection clauses of the federal and state constitutions. Stevens also was the only judge who discussed both the discrimination practices of the unions and the open acceptance of those practices by the public officials involved, while warning us that certain defeat awaited us. In his own way Stevens was implicitly saying that justice could be blind in the most negative of ways. And that was something I was just beginning to learn, but something that Bob and Barbara knew only too well.
Coming from one of the country’s most highly respec
ted courts, the unanimous Gaynor decision seriously undermined the idea that the NAACP was going to open up the public construction industry to black workers. Right or wrong, however, I remember still believing that I could reach the Stanley Fulds of the world and make them listen to me. I vowed to keep on fighting to prove myself not only to Bob, but to Bill Rutherford as well.
At the same time the loss parted the curtains on something I needed to understand. The entire struggle in which we were engaged meant something different to Bob. The heavy demarcation lines between white and black were reality he faced all his life. He knew he would have to face racism one way or another in the courts, in the streets where taxis passed him by, or almost anywhere that whites ignored or threatened him and treated him as a lesser person. Such losses were part of what it meant to be a black person in America, and a burning reason to keep on fighting. To him losses were part of the struggle. I didn’t expect losses. I wanted something to take back to Bill, something to free me from feeling that I had taken part in a great wrong. I wanted to win.
* * *
The civil rights movement was not the ideal place for a young lawyer who measured success by wins, especially as the mood of white and black America alike turned bitterly angry following the passage of the Civil Rights Act of 1964. After its passage President Lyndon B. Johnson promised a War on Poverty, but to the blacks trapped in their ghettos, that was just more empty words. An ascendant militancy decried the lack of change, as moderates like Roy Wilkins kept hoping for incremental progress.
The schools, North and South, were still segregated. Most blacks living in cities, and especially the poor, were squeezed into white-owned, high-rent buildings, many of which were falling apart and never maintained. To escape the summer heat, people camped out on stoops and even in the streets. Across the nation police watched blacks suspiciously when they ventured out of the ghettos. Virtually all the cops were white, and they were quick to arrest blacks for whatever crimes came to mind. Black-on-white crimes led to coerced confessions and beatings. The sentences were more severe, including many more death-penalty convictions. Black incarceration rates were on the rise. Black unemployment was double the rate among whites, and when blacks did find work, it was in generally poorly paid menial jobs. There were so few black lawyers in the United States that Bob half seriously said he knew almost all of them. Black doctors were few and far between. The plumbers, pipe fitters, carpenters, electricians, and all the other craft-union men were white, and it was just a fact of life that their apprenticeship programs were closed to blacks.
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