For their part, most whites thought they’d done enough. They were angered by the unrest. In the North many whites thought the fight had been about segregation in the South. They had done no harm, and were just hardworking people trying to keep their neighborhoods intact, and if that meant keeping blacks out, it was okay because they had their own neighborhoods.
Demonstrations spread in the North over schools, housing, and jobs. As blacks became more demanding, whites dug in. In this atmosphere almost anything could spark an explosion.
When violence broke out in black neighborhoods, the media tended to call it a “riot,” but those incidents were more like miniuprisings or rebellions. Blacks destroyed blocks of businesses and stores in their own neighborhoods—many white-owned, some not—leading to finger-pointing among whites, who saw such behavior as proof that segregation, or to give it another name, exclusion, was a good thing. The major racial explosions lasted days on end—from Newark to Detroit to the Watts section of Los Angeles—where thirty-four people died over a five-day stretch, and more than a thousand were injured. Hundreds of buildings and cars were set on fire and destroyed.
For the NAACP legal department, it was a hard few years. There were more demonstrations, and more cases filed when private businesses sued the NAACP for engaging in boycotts and picketing, and local police in more and more municipalities started arresting leaders to crush public demonstrations. In April 1966 we lost a case called Overstreet v. NAACP that threatened the organization’s very survival, when the Supreme Court decided five to four against reviewing a Georgia supreme court decision that had upheld a large damages award against our national office for its purported involvement in a boycott conducted against a local market. For years Southern courts had tried to come up with ways to threaten the NAACP, and Bob had beaten them back. But now we had lost, and the fear was that there would be dozens of copycat cases aimed at putting the NAACP out of business. But the NAACP received an influx of donations to help it weather the storm, and thankfully we were not inundated with new lawsuits.
The North had its fair share of demonstration cases too, and I was assigned to handle some of them. In Springfield, Massachusetts, a thousand activists had marched a mile and a half past a thousand National Guardsmen armed with bayonets, 250 state troopers, and all 360 members of the Springfield police department. I was the lead attorney in a court action to stop police interference with lawful demonstrations there, and to enjoin the criminal prosecutions of the leaders. We tried that case and lost despite the wild stories police told—or maybe it all hung on that one grinning police officer’s testimony that he couldn’t understand what the marchers were saying because they were speaking “African.” The testimony of our witnesses was clear, consistent, and credible. The city did not even call the mayor or the police chief; it did not matter. A year later I lost a similar demonstration-and-mass-arrest case in Hartford, Connecticut. In both cases we had presented witness after witness who testified that the marchers had been peaceful. In both cases the judges accepted whatever the cops said. In both the authorities eventually dismissed the criminal prosecutions. But in both the demonstrations had been broken.
In the South I was equally frustrated. I represented three student leaders at Bluefield State College, which is in the coal country of West Virginia. The college had been historically black but was being converted to a white college due to overcrowding at the state’s white institutions. The black president had been replaced with a white man. There were mass demonstrations and some property damage. Although there was no proof that our clients, who led the black protests, had caused the damage or advocated it, a federal judge upheld their expulsion. True, we won a demonstration case involving all-black South Carolina State College that same year. A year later, however, state police shot wildly into a crowd of demonstrators, killing three South Carolina State students and wounding twenty-eight others, in what became known as the Orangeburg Massacre.
On the school segregation front the Supreme Court declined to review the adverse decision of the court of appeals in the Cincinnati school case, which triggered another district-court-level review of a few outstanding questions relating to school boundary lines and bus routes. We were preparing to file more Northern campaign cases, but the picture there was certainly becoming bleaker.
* * *
Two years after Gaynor v. Rockefeller, in 1967, the Columbus branch of the NAACP propelled us into an almost identical case involving construction jobs at Ohio State University.
Bowing to NAACP pressure, Governor James A. Rhodes had signed a state executive order in 1966 that required contractors to include in their public construction bids an assurance that their workforces would not be closed to blacks. The next year Ohio officials called for bids on a new Ohio State University medical science building. It was a $12,800,000 construction project. The contractors refused to sign the assurances, so the state director of public works, Alfred Gienow, obtained a waiver. It was the same old story, an order with no enforcement.
I fielded the calls from the branch office in Columbus, and promised to talk about the situation with Bob, but the Gaynor decision had made us gun-shy. Also, I had enough on my plate without a reprise of that case. Kitty was pregnant with Patrick, and we had an exhausting caseload. Picking up on my ambivalence, the local NAACP branch filed a federal suit on its own, modeling it on Gaynor. The complaint named Governor Rhodes, Alfred Gienow, and John Gardner, who was President Johnson’s secretary of Health, Education, and Welfare. When the judge ordered a hearing for the following week, the local attorneys in Columbus asked us to send someone out to make the presentation in court.
David G. McConnell, a white science professor at the university and the chairman of the local NAACP branch’s labor and industry committee, had spent a long time developing contacts and creating a list of black candidates for admission to the unions of the all-white building trades. He found William Ethridge and Jerome Welch, who had been denied union membership application forms, and after they agreed to be plaintiffs in the suit, McConnell also brought two local attorneys on board.
William J. Davis and Irwin Barkin prepared the legal papers. Davis was a well-known local black lawyer with a reputation for speaking his mind, but he was a single practitioner and his time was limited. Barkin was much more accessible. He had a small law firm that worked on labor cases, and was already representing Ethridge in a snail-like Ohio Civil Rights Commission proceeding against a major electrical contractor and the local electrical workers’ union. But Barkin also represented unions in his practice, which made it impossible for him to be the lead attorney.
Worried about another loss, I talked to Bob about negotiating a settlement.
“If we look weak, we’ll never get anywhere,” Bob said. “The goal is to change the law, not open up a few jobs.”
“If I handle the negotiation right the judge might view us as the reasonable ones here.”
Carter was skeptical, but said it was my call.
“But remember,” he said as I left his office, “we’re not giving away the case.”
I flew to Columbus the weekend before the hearing. McConnell whisked me away to his university office so we could figure out what to do when we went before Judge Joseph P. Kinneary.
Although there were some troubling similarities to Gaynor—specifically that the plaintiffs never actually sought work at a job site—to my mind there was a bigger problem: Secretary Gardner was named because his agency had promised the university half the construction budget. Like many Johnson appointees, he had a pro-civil-rights reputation. But to sue a Democratic appointee distracted attention from the conduct of a Republican governor and his administrators, and was a bad move in front of a judge who owed his appointment to President Johnson.
McConnell was adamant about suing Secretary Gardner. As an NAACP attorney, I couldn’t drop him from the suit over McConnell’s objection, especially when black militants around the country were assailing Johnson for his escalation
of the Vietnam War while crippling black poverty persisted at home. So I decided that until we got into court it was McConnell’s show on that particular issue.
Judge Kinneary called all the attorneys into his chambers at the federal courthouse in Columbus’s main post office building at nine thirty on a chilly Monday morning in March. After William Davis introduced me, I suggested that Ohio voluntarily agree not to sign the construction contracts for two weeks to allow us time to negotiate a resolution. Receptive to that idea, Kinneary directed the state’s attorneys to consult with their clients and come back at one thirty. Breathing a sigh of relief, I now at least had time to talk to the people we had subpoenaed as witnesses, and get some idea about what I could expect them to say on the witness stand.
At one thirty, Ohio Assistant Attorney General William Hoiles reported that Mr. Gienow did not want anything to delay the project and did not feel that this was a matter for the federal courts. With that, Judge Kinneary ordered us to put on our case.
Halfway into my opening statement, the judge interrupted me: “Will you be seeking relief against Secretary Gardner?”
“If the state officials were ordered not to sign the construction contracts, there would be no reason for the federal officials to make money available for the project,” I replied, trying to thread a needle that kept the peace with both McConnell and Robert Draper, the U.S. attorney representing Gardner. Draper didn’t buy it, arguing that the court had no jurisdiction over the secretary and should dismiss the case against him.
Kinneary wanted to hear our evidence before he made up his mind, so he asked me to call our first witness.
I called William Ethridge. In his thirties, he had worked as an electrician for more than fourteen years at North American Aviation installing equipment, reading blueprints, and on all phases of the electrical work there. In addition he moonlighted for a local contractor doing commercial and residential wiring. He testified that he had tried to join the electrical union local in 1966 and 1967, but had not even been able to get an application. He had also been rejected for jobs that required union membership before, and he wanted to work on the medical building, which required union membership. The whole thing took ten minutes.
The brief cross-examinations mounted by Draper and Hoiles were aimed at establishing that Ethridge never tried to get hired. Given the loss in the Gaynor case, I was worried, so I recalled Ethridge.
“I have a family to support,” he said, “and I cannot continue to run all over the city and let my feelings be hurt by these same people every time.”
Next up was Jerome Welch, who operated heavy equipment. After a few preliminaries, Judge Kinneary exercised his prerogative to question the witnesses, asking him if he was able to operate the same equipment that the union workers would use.
“Similar,” Welch replied.
I held my breath waiting for the follow-up questions about how long it would take to learn how to operate the exact same equipment, but they didn’t come from the judge or Draper and Hoiles.
Two contractors, John Myers, a plumbing and pipe-fitting contractor, and J. Parker Garwick, the project’s general contractor, were next. When I asked Myers why he had refused to sign the assurance about hiring black workers he said the union hiring hall was all-white, so there was no way to make it happen. Similarly, Garwick testified that, other than laborers—by far the lowest-paid workers on the job—his workers had to come from a union hiring hall. Even so, he had provided the state his assurance that he would hire blacks.
“How can you comply with the assurance?” I asked Garwick.
“By asking the unions for Negroes,” he answered.
“And what would happen if none were sent?”
Garwick shrugged. “Well, I wouldn’t hire nonunion workers, because if I did, we wouldn’t have any other men on the job.”
Having gotten this far in less than an hour, I called Ellis Ross, the executive director of the Ohio Civil Rights Commission, to testify that Ohio officials knew blacks were excluded from most of the building trades. Ross was black, but he owed his job to Governor Rhodes.
“Watch out for him,” McConnell had warned me. “He’s dangerous.”
I had talked to Ross during the morning break. Despite the friendly facade, he managed to slip away from every hard question. I needed Ross, but didn’t want him to hurt me.
The Ohio Civil Rights Commission had surveyed the racial composition of the craft unions that supplied workers to Ohio State University.
“And what were the findings?” I asked.
“The result,” Ross replied, “was that in general there seemed to be an absence of Negroes.”
“And does ‘absence’ mean total lack of blacks?”
He agreed that it meant a total lack of blacks.
”If you conducted the same survey on the Ohio State campus today,” I pressed, “would the situation be the same?”
“It would.”
I didn’t want to push him any further.
McConnell thought my next witness might illustrate the uglier side of the union race problem. We had already established that the electric workers’ local was all-white, but Daniel Bricker, its business manager, was especially hated in the black community, and there was a good chance he’d shoot off his legendary mouth in front of the judge.
A puffy middle-aged man, Bricker was only too happy to say that he had given the state assurances he would provide them with black workers on the Ohio State project.
“How many Negroes do you have as members?” I asked.
“What do you classify as a Negro?” Bricker said, staring at me blankly.
Responding to the wise-guy act, Judge Kinneary pointed to some of our supporters in court: “The four gentlemen seated in that row are Negroes. That’s what the counsel means by a Negro. I think it is common knowledge what a Negro is,” he snapped.
“We don’t have any,” Bricker cheerfully admitted, before rejoining his snickering supporters.
I followed with Park Pixley of the Associated General Contractors of America, which negotiated collective-bargaining agreements between contractors and craft unions. He said contractors were allowed to hire nonunion workers if the union locals couldn’t supply them. That meant Ohio officials could enforce the requirement that contractors employ black workers, whether or not they were union members.
The day’s final witness was the director of public works, Alfred Gienow, who had obtained the compliance waiver. I asked him if the state knew there was discrimination among the unions.
“We made a head count at Ohio State and found something along that line, yes.”
Judge Kinneary took over. He asked Gienow what he would do about the absence of black workers on the project.
“Well, sir,” Gienow replied, “I am an engineer, not a lawyer.”
“But what would you do?” Kinneary asked.
“The state would void the contract.”
“Would you do that?” Kinneary demanded.
“Oh, certainly. That’s spelled out in the executive order,” Gienow replied.
My heart thumped with excitement. I knew for a fact that the state had never cancelled a contract for that reason and was ready to pounce, but Judge Kinneary waved me off.
“I am not going to permit any more questions of this witness,” Kinneary announced, and called us into chambers.
There he said he would hold another hearing in May where we would have to prove that our clients lacked adequate remedies against racial discrimination in the construction trades, under both Ohio law and the Civil Rights Act of 1964, and that there had been irreparable harm—the standard for issuing an injunction.
I listened, and worried that we were heading down the same dead-end road as in Gaynor v. Rockefeller. Then a hopeful sign came in the form of a promise, extracted by the judge, that no contracts would be awarded before the court’s decision in May. The more I thought about that, the more I focused on the good things we achieved that day, and I started
to believe that we actually had a shot at winning.
* * *
My face was distorted in the little jet window, beyond it the complete darkness of night.
In one afternoon I had somehow navigated the stories and evasions of eleven witnesses. As I thought about the case, it became clear how big a part good fortune and chance could play in the law’s development. Without William Ethridge and Jerome Welch coming forward, without the hard work of David McConnell and Bob’s tireless efforts and innovative theories about how to expand civil rights law, and without my contributions we would have no case. That word “we” resonated in my mind. It had taken all of us to get this far. It was my job to get us over the top, and this was my chance. I had wanted deliverance from the feeling that I was somehow separate and apart from real civil rights lawyers who changed the laws, and this was my opportunity. We could convince the judge. There had to be a way.
I said nothing of the day’s accomplishment to the man strapped in next to me. Having tried talking about my work on other flights, slowly working around to what I did after listening to my neighbor’s stories about his job, family, and traveling, I knew better. Most of the guys I met on those planes cared a lot more about safe neighborhoods, good schools, and secure jobs than they did about racial equality—if they cared about social issues at all. “Good luck with what you’re doing” was a common good-bye at the end of a flight, a hint of distaste in it.
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