Tag Archives: Racial Matters

“A Colorblind Society Remains an Aspiration”

What I have to say this morning is, I hope, of interest…

I would like to speak today about an issue much discussed in recent months, in part because of cases which came to our Court from this Circuit last year. I refer to the Sheet Metal Workers case, in which our Court affirmed the excellent decision by Judge Pratt, and to the question of affirmative action. Much has been said lately about the scope of permissible remedies, both voluntary and mandatory, in cases of employment discrimination. The decisions of our Court in this past term suggest to me that there is still a basic agreement among a majority of the Justices that the commands of Title VII and the equal protection clause should be implemented, where necessary, through broad-based relief including the imposition of affirmative duties to eradicate the effects of past discrimination, But because statements in sharp opposition to the use of affirmative remedies have recently been heard with increasing frequency, I think it is appropriate to share with you some general thoughts about why affirmative action is necessary, and on the role which it plays in our law despite many people in high offices trying to explain away our decision. We will explain it.

I believe all of the participants in the current debate about affirmative action agree that the ultimate goal is the creation of a colorblind society. From this common premise, however, two very different conclusions have apparently been drawn: The first is that race-conscious remedies may not be used to eliminate the effects of past discrimination against Negroes and other minority groups in American society. This conclusion has been expanded into the proposition that courts and parties entering into consent decrees are limited to remedies, which provide relief to identified individual victims of discrimination only, But the second conclusion, which may be drawn from our common preference for a colorblind society, is that the vestiges of racial bias in America are so pernicious, and so difficult to remove, that we must take advantage of all the remedial measures at our disposal. The difference between these views may be accounted for, at least in part, by difference of opinion as to how close we presently are to the “colorblind society” about which everybody talks. I believe that, given the position from which America began, we still have a very long way to go. The Framers of our Constitution labored “In order to form a more perfect union, establish justice…and secure the blessings of the liberty.” These were beautiful words, but at the same time a Negro slave was but three-fifths of a man in the same Constitution. Negroes who, finding themselves purportedly the property of white men, attempted to secure the blessings of the liberty by voting with their feet and running away, were to be captured and returned to slavery pursuant to that same document.

The decisions of the Supreme Court in Prigg v. Pennsylvania and Ableman v. Booth demonstrated just how strong the assertion of federal power on behalf of the slaveholder could be. There was undeniable historical truth in Chief Justice Taney’s statement in Dred Scott that at the time of adoption of the Constitution Negroes “had for more than a century before been regarded as being of an inferior order, and altogether unfit to associate with the white race, either in social or political relations,” et cetera, et cetera, et cetera.

Our constitutional jurisprudence at that time rested upon this premise and it continued so for a century. So many have forgotten.?

Justice Harlan, as you remember, dissenting in Plessy v, Ferguson, gave the first expression to the judicial principle that our constitution is colorblind and neither knows nor tolerates classes among citizens. 5 If principle of race neutrality, our situation now, ninety years later, would be far different than it is. Affirmative action is an issue today precisely needed because our constitution was not colorblind in the sixty years which intervened between Plessy and Brown.

Obviously, I too believe in a colorblind society; but it has been and remains an aspiration. It is a goal toward which our society has progressed uncertainly, bearing as it does the enormous burden of incalculable injuries inflicted by race prejudice and other bigotry, which the law once sanctioned, and even encouraged. Not having attained our goal, we must face the simple fact that there are groups in every community, which are daily paying the cost of the history of American injustice. The argument against affirmative action is but an argument in favor of leaving that cost to lie where it falls. Our fundamental sense of fairness, particularly as it is embodied in the guarantee of equal protection under the la, requires us to make an effort to see that those costs are shared equitably while we continue to work for the eradication of the consequences of discrimination. Otherwise, we must admit to ourselves that so long as the lingering effects of inequality are with us, the burden will be borne by those who are least able to pay.

For this reason, the argument that equitable remedies should be restricted to redressing the grievances of individual victims of discrimination completely misses the point. The point is that our government has a compelling interest in dealing with all the harm caused by discrimination against racial and other minorities, not merely with the harm immediately occasioned when somebody is denied a job, or promotion, by reason of the color of his skin.

It has been argued that the use of affirmative race-conscious remedies inflicts an immediate harm on some, in the hope of ameliorating the more remote hard done to others. This, it is said, is as abhorrent as the original discrimination itself. Some have compared the use of such race-conscious remedies to using alcohol to get beyond alcoholism or drugs to overcome a drug addiction, or a few more cigarettes a day to break the smoking habit. I think the comparison is inappropriate and abhorrent. Affirmative action is not, as the analogies often imply, a symptom of lack of societal willpower; when judiciously employed, it is instead an instrument for sharing the burdens, which our history imposes upon all of us.

This is not to say, of course, that affirmative remedies such as the establishment of goals, timetables, and all of that, in hiring, in promotion, or for protection of recently hired minority workers from the disproportionate effects of layoffs, are always necessary or appropriate. Where there is no admission or proof of past discriminatory conduct, or where those individuals whose existing interests may be adversely affected by the remedy have not had an opportunity to participate, serious questions arise which must be carefully scrutinized in the courts. Like all classifications which condition governmental behavior upon considerations of race, affirmative remedies for employment discrimination must overcome the stringent presumption in favor of neutrality, which the equal protection clause embodies. To undertake such remedies except in furtherance of the most important of governmental purposes, and without substantial assurance that narrower alternatives would not achieve the goal, is wrong. But what the recent statements in opposition to affirmative action do not consider, in my judgment, is the fundamental importance of eradicating the consequences of discrimination which are so visible throughout our society, and the basic injustice which is done by imposing all the costs of those lingering consequences upon those how have traditionally been the victims.

In this connection, it is especially important to reflect upon the role which affirmative relief plays when embodied in the consent judgments, Last term, in Local 93, International Association of Firefighters v City of Cleveland, the Couth held that Title VII does not preclude the ordering of affirmative race-conscious relief in a consent decree entered in settlement of litigation brought under the Act. 7 Six justices agreed that the scope of remedy available in a consent decree under Title VII is at least as broad as that available in judgment after trial on the merits, and may include provisions for race-conscious relief. In my view, this holding is of great significance, We are all aware of the burden and expense which litigation, of whatever size and complexity, imposes on the litigant, Chief Judge Learned Hand surely did not exaggerate in saying that the citizen and death. 8 Where large-scale employment discrimination litigation is concerned, the effects are many times greater. The availability of broad voluntary remedies affords parties the opportunity to settle their differences without the expense and disruption necessitated by trial on the merits, and allows employers, public and private, to correct injustices without being compelled publicly to defend the indefensible. By encouraging parties to enter into such voluntary relief, the Court’s decision ensures great flexibility in the search for workable solutions to the problem of inequality in America.

And this, finally, I believe will be the most important function of affirmative action. The problem of discrimination and prejudice in America is too deep-rooted and too wide spread to be solved only in the courts, or only through the intervention of federal authority to convince the recalcitrant that justice cannot be indefinitely delayed.

Securing equality requires the attention, the energy, and the sense of justice possessed by all the well-intentioned citizens of this society. They need to be assured that the government, the law, and the courts stand behind their efforts to overcome the harm bequeathed to them by the past. They need to know that encouragement and support, not criticism and prohibition are available from those who are sworn to uphold the law. Courts must offer guidance, to the best of our ability, to the attempts by individuals and institutions to rectify the injustices of the past. We must labor to provide examples of solutions that may work, and approaches that may be tried. If we fail, then we delay or postpone altogether the era in which, for the first time, we may say with firm conviction that we have built a society in keeping with our fundamental belief that all people are created equal.

If any one of you is worried about what I mean by the goal of a democracy such as ours, I have often said, and I repeat here, that the goal of a true democracy such as ours, explained simply, is that any baby born in these United States, even if he is born to the blackest, most illiterate, most unprivileged Negro in Mississippi, is, merely by being born and drawing his first breath in this democracy, endowed with the exact same rights as a child born to a Rockefeller.

Of course it’s not true. Of course it never will be true. But I challenge anybody to tell me that it isn’t the type of goal we should try to get to as fast as we can.

Thank you.

Thurgood Marshall (8/15/87)

 

A TALE OF TWO MEN: THE DIFFERING VIEWS OF DONALD TRUMP AND GREG POPOVICH ON AMERICAN RACIAL MATTERS

I must tell you that I have always shied away from blanket statements that indict an entire race as being monolithic and therefore possessing some draconian view of African-Americans or racial matters. Life has taught me that there is a wide-range of experiences that goes into forming what we believe, what we “know”, and who we become as adults.

The above realizations serve as constant reminders that not only do I as an individual have an opportunity to choose what I will and will not believe, others have the same decisions to make in their lives. It is this reasoning that facilitates my understanding of the irreconcilable positions of President Donald Trump and San Antonio Spur basketball icon Greg Popovich.

I am certain that you have heard Donald Trump’s incoherent ramblings regarding Black History Month. The alluded to moment will go down in history as definitive proof that America’s new President knows absolutely nothing about Black America as he insinuated that the great Abolitionist Frederick Douglass, who died in 1895, was still in the land of the living. Despite the protestations of supporters, the Commander in Chief is indicative of what occurs when privileged Americans exist within a bubble that shields them from the many challenges and issues facing non-elite Americans.

Fortunately for this nation, there is a sizable population of whites whose experiences have led to a much more illuminated understanding of American racial dynamics. San Antonio Spurs coach Greg Popovich has repeatedly proven to possess a quite impressive understanding of American race relations. During a recent interview session, Popovich offered the following words of wisdom regarding America’s most significant social cancer.

But more than anything, I think if people take the time to think about it {racism}, I think it is our national sin. It always intrigues me when people come out with ‘I’m tired of talking about that’ or ‘Do we have to talk about race again?’ And the answer is, you’re damned right we do. Because it’s always there, and it’s systemic in the sense that when you talk about opportunity, it’s not about ‘Well, if you lace up your shoes and you work hard, then you can have the American Dream.’ That’s a bunch of hogwash.

If you were born white, you automatically have a monstrous advantage educationally, economically, culturally in this society and all the systemic roadblocks that exist, whether it’s in a judicial sense, or a neighborhood sense with laws, zoning, education — we have huge problems in that regard that are very complicated but take leadership, time, and real concern to try to solve. It’s a tough one because people don’t really want to face it.

In many ways, it is astounding that Trump and Popovich were raised in the same nation. However, it is this diversity in thought that provides definitive proof that all is not lost in regards to having honest discussions regarding American race relations or the securing of some level of racial justice. If only we were able to arrange for the development of more Greg Popovich’s the world would be a far more enlightened place.

At least it is something to hope for.

Dr. James Thomas Jones III

The Gospel According to Huey P. Newton: Why it is so Easy for Black America to Follow Umar Johnson

There is no doubt that one of the most peculiar developments within the so-called ‘conscious community’ has been the ascension of a host of leaders whose very embodiment betrays the leadership post that they have fought others to claim. Over the past forty years, we’ve witnessed the appearance of a series of charismatic leaders that would have in previous periods of our struggle been summarily dismissed before they ever mounted a stage and pretended to direct the fight for racial uplift.

Beyond using their charisma to captivate an audience via copious amounts of style without any substance, organizing skills, or vision regarding the complex issues hampering Black America, figures such as Jesse Jackson, Al Sharpton, and most recently Umar Johnson have proven to be “all sizzle, no steak.”

Considering the voluminous vitriolic hatred that I experience each time that I address black leadership, it is evident that there is a large segment of Negroes who have yet to raise their understanding of racial matters to even a pre-school level.

I long ago realized that when addressing the Black community it is not always what or how you say things, rather, our people for some wrong reason are greatly influenced by who is uttering the political analysis and social commentary that they would otherwise ignore. It is for that reason that I reached into my book, Creating Revolution as they Advance: A Historical Narrative of the Black Panther Party for Self-Defense and grasped the following quote from Black Panther Party co-founder Huey P. Newton. Maybe those who have issued emotionally-charged criticism of my position on Umar Johnson will listen if the same analysis emanates from the Panther leader.

From my perspective, the only reason that Black America continues to entertain charlatans such as Umar Johnson is that they consider the African-American Freedom Struggle to be little more than a vehicle that should entertain them. Absent sensational language, unrealistic assertions, and slick phraseology, the ‘conscious community’ is not particularly interested in anything being offered; even if the offering is a reasonable blueprint that holds the potential to solve many of the politico-economic issues facing the community today.

After his release from prison, a disappointed Huey P. Newton realized several things about the ‘conscious community’ that are still relevant today. During a speech, the Panther co-founder realized the following about the audience he was addressing.

As I talked, it seemed to me that the people were not really listening or even interested in what I had to say. Almost every sentence was greeted with loud applause, but the audience was more concerned with phrase-mongering than with ideological development…the people were not responding to my ideas, only to an image, and although I was very excited by all the energy and enthusiasm I saw there, I was also disturbed by the lack of serious analytical thought.

Anyone who has spent years studying and seeking to execute the plans that have been laid out by African-American intellectual giants will tell you that during the past forty years the ‘conscious community’ has devolved into a population “more concerned with phrase-mongering than with ideological development.”

Although many will dispute this fact, the core of the ‘conscious community’s current problems emanate from its hostility to intelligence and refusal to engage classic texts whose workable liberation plans lay dormant inside the cover of a book; watching Youtube videos are not a substitute for reading. It is the alluded to pervasive ignorance and conscious decisions to ‘not know,’ let alone formulate and execute a politico-economic plan that explains the rise of figures such as Umar Johnson.

The gaping holes in the logic and understanding of the current ‘conscious community’ that are attributable to their refusal to study classic texts are the pathway to the rise of an “all sizzle, no steak” charismatic leader such as Umar Johnson. Were the ‘conscious community’ less concerned with phraseology and more concerned with developing a real path to liberation, figures such as Umar Johnson would be irrelevant! However, as long as the ‘conscious community’ remains committed to being entertained by slick-talking leaders whose lack of character, self-control, and modesty guarantees boatloads of drama fit for a reality television show, Black America’s problems will worsen by the day.

I wonder how long the ‘conscious community’ will remain unconscious. Quite possibly the greatest barometer of the ‘conscious community’s’ decision to remain subordinate will be the popularity of Umar Johnson.

Dr. James Thomas Jones III

© Manhood, Race, and Culture, 2017

THE ERROR IN OUR WAYS: WHY HBCU’S HESITATION TO EMPHASIZE RACE HAMPERS THE RACE

I must tell you that one of the most enjoyable aspects of my professional life is that it provides opportunities to visit places and interact with people that I would most likely have never come across were I not a Professor. Let me be forthright and say that I absolutely love the alluded to opportunities as they provide me an opportunity to explore new places and hopefully learn something that I did not know when the day started.

I guess that you can say that even after earning four graduate degrees that I have been able to retain my intellectual curiosity. It is an aspect of my being that I pray that I never relinquish regardless of the circumstances.

I was recently gifted such an opportunity when an exciting project that I am heading called for me to make the trip to Waco, Texas, a location that I have always humorously mused was where blind Jesus appeared, of course, that is a humorous view of David Koresh, a glasses wearing figure who led a religious group in Waco by fashioning himself as Jesus Christ incarnate. I was called to Waco for a meeting on the Baylor University campus.

Anyone who knows me well realizes that everything that I do is not college 4only by design, but also for some purpose. Realizing that not only did I not want to risk getting caught in traffic/construction, but also feeling the need to take an individual walking tour of the Baylor University campus, I planned to arrive in Waco at least two hours prior to my 9:00 meeting.

Fortunately the travel to Baylor University went as smoothly as possible and with the benefit of the students being on the break, I was able to secure a convenient parking space and begin my walking tour of what I soon would deem a breathtaking campus. Baylor University’s physical facilities are in a word, breathtaking. Now that I reflect upon it, the more appropriate term for Baylor University is, historic.

The use of the word ‘historic’ is most certainly no indicator of a negative such as decaying facilities, rather an unbridled applause that indicates the positive manner in which literally every space, and I do mean every space, is used to inform you about Baylor University; even the concrete has information about the school and its traditions etched into them. Baylor’s impressive display of both its historic origins and those figures/organizations that made a notable impact upon it caused me to reflect upon the storied history of Historically Black Colleges and Universities.

In a ‘politically correct’ climate that implicitly harkens institutions to conform in a host of ways that begin with curricular offerings, it should not be surprising when those who administrate HBCU’s seek to mimic predominantly white institutions and de-emphasize Race.

What those who administrate HBCU’s fail to realize in their haste to be ‘politically correct’ and accommodating for non-Blacks attending their institution is that the issue of Race has been, will be, and should be emphasized as an integral part of their story. Failure to honor racial matters as a primary reason that HBCU’s were created is to not only be false to the past, but also dooms these colleges and universities to be false to their future.

One of the most maddening aspects of HBCU’s attempt to erase racial matters from its past and present is that predominantly white institutions, to their credit, do not attempt to hide their sordid racial past and actually highlight the Black firsts that occurred at their institution. For example, while touring Baylor University, I found large photos of the first Black professor, the first African-American football and basketball player, respectively, on display.

It is a university’s honesty regarding its past that simultaneously informs its students of the rich legacy that they inherit by walking its Collegesacred halls and provides them with crucial information that prods them toward becoming future contributors to this all important legacy as engaged alumni supporting the university community from whence they come in ways that include, but is in no way limited to, financial contributions. Hopefully, HBCU’s will make Race the very pivot that their creation and current existence emanates from, if for no other reason than that it is a crucial to not only the telling of their story, but also the uplift of the Race.

Lord knows that we need it.

Dr. James Thomas Jones III

© Manhood, Race and Culture, 2016