Title VII of the civil rights act after 50 years: proceedings of the new york university 67th annual conference on labor

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VI. Out of the Shadows: The Challenges of Giving Meaning to Freedom and Equal Opportunity
Our training center also includes a photograph of Cesar Chavez, one of the founders of the United Farmworkers (UFW).113 Viewing this photo, I have flashbacks. As a child, my parents used to make me march with the UFW and boycott grapes sold by non-union farms. I hated every single minute of it. The tension, the chanting, the singing. . . I wanted to be at home with my books or baseball cards, anywhere but with the UFW and their omnipresent leader. I would ask my parents, “Why can’t we be normal . . . like the Brady Bunch?” My parents were patient, extremely patient. They would tell me, “mijo, you have an obligation to others who are not as fortunate, you have the obligation beyond yourself.” I would then roll my eyes and say the late-sixties early-seventies equivalent of “whatever!” Yet, I eventually learned the difference between hearing and listening – a valuable distinction to remember with kids of my own. My parents’ words echoed through the years and finally took hold.

Though Chavez may not have brought or advanced civil rights legislation per se, his photograph hangs in our training center as a reminder that the laws we enforce are only as powerful as their ability to protect the most vulnerable among us, the poorest of the poor, those living in the shadows. He can be seen in the context of the Magna Carta of Civil Rights as a symbol of the prohibitions against national origin discrimination,114 which has a legislative history as scant as the prohibition against sex discrimination, but not as fully and vigorously developed.115

Cesar Chavez broke his twenty-five day fast with Robert Kennedy at his side in 1968.116 Like Dr. King, Chavez was a disciple of nonviolence, spurred by Gandhi-like power through sacrifice.117 He began his first public fast in 1968, amidst the escalating grape boycotts in California and a waning belief in the strategy of nonviolence.118 He called a meeting of the union to announce his penitent fast, an effort to ground the organization in tenets of nonviolence.119

Dr. King noticed and admired Chavez. I recently discovered an amazing March 6, 1968, telegram from Martin Luther King to Cesar Chavez during the fast.120 It says: “My colleagues and I commend you for your bravery, salute you for your indefatigable work against poverty and injustice, and pray for your health and continuing service as one of the outstanding men in America.”121 This telegram bonded the men in their faith in nonviolence and quest for social justice for the most vulnerable in our society.122

Later that month, Dr. King would, against the counsel of his advisors, fly to Memphis in support of African-American sanitation workers on strike, fighting a way out of the shadows for better working conditions after two of the their colleagues were killed while eating lunch in the back of a garbage truck.123 The “I am a Man” strike, as it came to be known, turned violent and Dr. King despaired.124 He believed his ideals of nonviolent disobedience had been compromised. He vowed to return to Memphis in early April to get it right.125

On April 3, 1968, sick with the flu he addressed a packed crowd at the Masonic Temple, “I may not get there with you . . . but I want you to know, tonight . . . that we as a people will get to the Promised Land!”126

The following morning, Dr. Martin Luther King, Jr. was murdered on the balcony at the Lorraine Motel.127 At King’s funeral, Dr. Mays delivered the second eulogy, stating “[Dr. King] believed especially that he was sent to champion the cause of the man farthest down. He would probably say that, if death had to come, I’m sure there was no greater cause to die for than fighting to get a just wage for garbage collectors.”128

By the end of the 1980s, the generational conversation about equal opportunity soon turned to the rights of persons with disabilities to lead economically independent and productive lives.129 In this photo from a disability rights march in the eighties, the marchers carry a banner quoting Dr. King’s Letter from the Birmingham Jail, “Injustice everywhere is a Threat to Justice Everywhere.”130 This energy led to the passage of the Americans with Disabilities Act in 1990.131

In 2014, the broad purpose of the ADA, to achieve economic independence for persons with disabilities, converged with the EEOC’s longstanding efforts to ensure civil rights protections for the most vulnerable workers in an astonishing case in Iowa.132 In Atalissa, Iowa, an old school house was home to thirty-two intellectually disabled workers brought there by Hill Country Farms (a for-profit company located in Texas) to work in a turkey evisceration plant, until it was closed down by the state of Iowa for rodent infestation and decrepit conditions.133 While here, the men were denied access to medical care, dental care, locked in their rooms and subject to verbal, and sometimes physical abuse.134

When our Dallas Regional Attorney, Robert Canino learned about this situation from a parishioner at his church, he vowed to chase them to the ends of the Earth.135 First, he filed for summary judgment based on discriminatory wage disparities between the disabled workers and the non-disabled workers.136 We won.137 Next, he focused on the horrible employment and living conditions and tried the case on the basis on discrimination with respect to the terms and conditions of their employment before a federal jury in Davenport, Iowa. The jury came back with a verdict of $240 million, the largest won under the ADA, the largest won by the EEOC, and the second largest won under any federal anti-discrimination statute.138 However, under federal statutory caps, the verdict was reduced to about .67% of the jury’s verdict.139

Nonetheless, the jury’s verdict sent a powerful statement heard internationally that what happened to the men in Atalissa, should never occur in Muscatine County, the United States, or anywhere on this planet. This case received enormous attention from the human rights community worldwide.140 Even though the workers were American, they shared many characteristics with trafficking victims, such as extreme vulnerability and misplaced trust. Recently, the New York Times did an above the fold article on this case, called “Boys in the Bunkhouse,” asking what the people in Muscatine County knew and when did they know it.141 The article calls Robert Canino “the men’s last, best hope for justice,”142 and I believe the Commission has aspired and proved to be just that for the past fifty years.

The thirty-two men, whose stories we told, also stand on the shoulders of those young students marching for freedom and opportunity in Birmingham, Alabama.

VII. Final Thoughts

This is our legacy at the EEOC and we carry it with us from the intake room to the courtroom.143 To close, let me return to one of the mysteries of this story. This march to greater freedom and opportunity has been the product of countless anonymous patriots: teachers and students; veterans – like Medgar Evers; grandmothers and grandfathers; parents and children. It has been the product of Dr. King and Cesar Chavez, lionized as titans,144 their complexities and humanity frequently subordinated to a grander story of heroic self-sacrifice and moral focus. It is the product of Willie Griggs, Lily Ledbetter, Samantha Elauf, and countless unnamed others, who had the courage and endurance to stand up for great principles that opened doors for us all.145

And we remember the efforts of President Lyndon Johnson, who led the way for enactment of the Civil Rights Act, though historians have treated him much less reverentially. Indeed, he was a complex man, and perhaps the most Shakespearean of all of our presidents. He was sometimes mean, he was sometimes insecure, and in a very real way flawed.146 Growing up in South Texas, his father wanted him to be a great man, his mother wanted him to be a good man.147 In this imperfect man, perhaps we find the greatest lessons in this story for us all. That beneath the many complex foibles of a deeply flawed man, there is a transcendent sense of justice and humanity that can change the world. Why did he push so hard for the passage of the civil rights bill? Was he trying to emulate his hero Franklin Roosevelt in his historical impact? I do not know. Here is what he said though in 1965 when he signed the Voting Rights Act, the other great piece of civil rights legislation passed in the Sixties.

My first job after college was as a teacher in Cotulla, Texas, in a small Mexican-American school. Few of them could speak English and I couldn't speak much Spanish. My students were poor and they often came to class without breakfast and hungry. And they knew even in their youth the pain of prejudice. They never seemed to know why people disliked them, but they knew it was so because I saw it in their eyes. I often walked home late in the afternoon after the classes were finished wishing there was more that I could do. But all I knew was to teach them the little that I knew, hoping that I might help them against the hardships that lay ahead. And somehow you never forget what poverty and hatred can do when you see its scars on the hopeful face of a young child. I never thought then, in 1928, that I would be standing here in 1965. It never even occurred to me in my fondest dreams that I might have the chance to help the sons and daughters of those students, and to help people like them all over this country. But now I do have that chance. And I'll let you in on a secret— I mean to use it. And I hope that you will use it with me.148

Perhaps it is fitting that we close with Johnson, who struggled to summon his better angels to transcend his fallibility.  This has been the story of our country’s ongoing freedom march - sometimes rocky and sometimes violent - toward full opportunity and dignity for all.  Looking back over the past fifty years, everyone one of us who dares to dream stands on the shoulders of those young people in Birmingham and the previous generations who gave their time and sometimes their lives, to open hearts, minds, and opportunity.

 This story makes clear though that the progress has been inchoate at best: our benevolent self-interest in ensuring opportunities for ourselves or loved ones has impelled much forward movement, while creative empathy for those viewed as “other” has proven to be a more checkered catalyst. Consider the issue of race - the original catalyst for the Act. While progress in eradicating race discrimination is difficult to deny, redressing racial discrimination remains a persistent and central challenge of our times.

Thus, looking forward to our unfinished business over the next fifty years, it is necessary to remember whatever progress has been achieved was not inevitable, nor was it smooth and free from demoralizing setbacks, nor is it irrevocable. The Civil Rights Act (and the subsequent legislation it inspired) remains a bulwark. By expanding ideas of equality “as old as the scriptures and . . . as clear as the American Constitution”149 to the economic sphere, it enshrined them in the ideals of American civil society. This triggered an ongoing American and increasingly international conversation about the scope and substance of these fundamental human rights, which in my humble opinion, are as concretely and more consciously integral to our daily lives than even the Magna Carta itself!

** David Lopez is the General Counsel, Equal Employment Opportunity Commission. Andréa Amaya, a law student at Tulane University Law School, is currently a law intern at the Equal Employment Opportunity Commission. Although General Counsel Lopez prepared the presentation and wrote the original manuscript for this book chapter, Ms. Amaya’s work on this manuscript has been so thorough and helpful that, in the General Counsel’s views, she deserves recognition as a co-author. I would also like to extend may appreciation for the invaluable research of Bartholomew Sheard, Erin Welch, Nina Martinez, Catherine Stohler, Martha Kellogg, Noelle Yasso, and Jordan Harvey.

1 Archives 1964, Magna Carta of Rights NYTimes, Jul. 3, 1964, available at http://www.nytimes.com/1964/07/03/magna-carta-of-rights.html?_r=0. Perhaps ironically, in a final speech before voting on the civil rights bill, Sen. Robert Byrd had a different view than Wilkins as to how the Magna Carta related to the Civil Rights Act. Taylor Brach, Pillar of Fire 334 (1998). He read into the senate record the entirety of the Magna Carta of 1215 then employed that oft-invoked charter to argue that the civil rights bill “fatally undermined” fundamental liberties (e.g. property rights) endowed to America through the Anglo-Saxon tradition. Id.

2 Tom S. Purdum, An Idea Whose Time Has Come 318 (2014). See Bruce J. Dierenfield, Conservative Outrage: The Defeat in 1966 of Representative Howard W. Smith of Virginia, 89 The Virginia Magazine of History and Biography, no.2, 181, 181-82 (Apr. 1981) http://www.jstor.org/stable/4248479. Born in Fauquier County in 1883, Smith earned his law degree from the University of Virginia and rapidly experienced success in running for local offices including councilman of Alexandria, Commonwealth’s attorney for Alexandria and was a corporation and circuit court judge; additionally he was a successful banker and dairy farmer. Id. He retained the name “Judge Smith” when he ceased being a judge. Id. He was a member of the House of Representatives from 1930-1966, serving as Chairman of the Rules Committee from 1955. Id. In 1966, Smith was upset during the democratic primary elections by a young, extroverted and liberal lawyer, George C. Rawlings, Jr. in part due to the 1964 removal of the poll tax requirement by the Twenty-fourth Amendment, as well as1965 Voting Rights Act and congressional redistricting in Virginia, encouraging a strong African American turnout. Id. at 184-85. We shall hear more about Judge Smith infra notes 79-83 and accompanying text.

3 Interestingly, this year’s celebration of the 800th Anniversary of the Magna Carta provided an occasion to examine more closely the actual scope and import of this document. According to Harvard Professor of History, Jill Lepore, the Magna Carta of 1215 was a promise by King John of England to his rebelling barons that he would obey the law. Jill Lepore, The Rule of History, New Yorker, Apr. 20, 2015, available at http://www.newyorker.com/magazine/2015/04/20/the-rule-of-history. Notably, the next day the King requested the document be nullified and he died in infamy shortly thereafter. Id. Not until the eighteenth-century did the document acquire symbolic stature as a battle cry for “liberties granted to all men by nature” in America. Id. Lepore argues that the Magna Carta’s influence on the founding of America is “wildly overstated” and is not tracked by the Bill of Rights. Id. Rather, she believes this “very old charter, is on occasion taken out of the closet, dusted off, and put on display to answer a … generally political [and] often profound [need].” Id. According to University of Chicago Professor, Tom Ginsberg, the Magna Carta is more myth than real, but “the myth . . . seems to matter more than the reality.” Tom Ginsberg, Stop Revering the Magna Carta, NYTimes, June 14, 2015, available at http://www.nytimes.com/2015/06/15/opinion/stop-revering-magna-carta.html.

4 Looking back though, several scholars have noted that this movement has not been uniform but instead has been punctuated by periods of expansion followed by periods of stasis or retrenchments. Recently, Donald Tomaskovic-Devey testified to this observation stating that there were three critical periods of history in which the EEOC’s enforcement efforts have made powerful advances for protected classes, especially for African Americans and women. U.S. E.E.O.C., Written Testimony of Donald Tomaskovic-Devey, Professor of Sociology, University of Massachusetts, Amherst, EEOC at 50: Progress and Continuing Challenges in Eradicating Employment Discrimination, Jul. 1, 2015, available at http://www1.eeoc.gov//eeoc/meetings/7-1-15/devey.cfm?renderforprint=1. Professor Tomaskovic-Devey observed that 1960-72, 1972-80 and today, are periods of “regulatory uncertainty for corporations, produced by the expanding definition of discrimination, coupled by the real regulatory and legal threats to business as usual.” Id. See Philip A. Klinkner and Rogers M. Smith, Unsteady March: The Rise and Decline of Racial Equality in America 289 (2002) (offering the theory that civil rights advancements have not been continuous, and that perhaps we tell ourselves a story that racial equality is a fundamental American value). Political Scientists Phillip Klinkner and Rogers Smith noted that periods of war, particularly the Cold War, increased political motivation and international pressure to advance racial reforms. Id. The question raised on the fiftieth anniversary of the EEOC and the fifty-first anniversary of the Civil Rights Act, is whether the Act is an idiosyncratic, romantic Magna Carta ultimately endowed with a beautiful but largely impossible, (and historically unsteady pursuit of its) mission? Like the Magna Carta, do we turn to Civil Rights solely in times of political and profound need? We appear to invoke the rhetoric of Civil Rights at select moments inducing punctuated, rapid, and expansive anti-discrimination protections under Title VII. Alternatively, is the Civil Rights Act something more than a beautiful, mythical point of America pride? Should we celebrate the accomplishments of Title VII? Can we maintain hope by acknowledging all of the reform that has been achieved under incredibly adverse prospects, while simultaneously recognizing the largely overstated ideal of equality?

5 Purdum, supra note 2, at 318 (stating Smith was Chairman of the House of Representatives’ “all-powerful Rules Committee” and a “staunch segregationist” from Virginia).

6 The racial attitudes of the First President and the Confederate General have been the source of much scholarship and inquiry. See Erica Armstrong Dunbar, George Washington, Slave Catcher, NYTimes, Feb. 16, 2015, available at http://www.nytimes.com/2015/02/16/opinion/george-washington-slave-catcher.html?_r=0 (noting that Washington inherited his first ten slaves at age eleven. Although, upon his death, George Washington emancipated his slaves; Martha Washington left her slaves to her inheritors.); Ta-Nehisi Coates, Arlington, Bobby Lee, and the ‘Peculiar Institution,’ Atlantic, Aug. 13, 2010, available at http://www.theatlantic.com/national/archive/2010/08/arlington-bobby-lee-and-the-peculiar-institution/61428/ (reviewing Elizabeth Brown Pryor’s biography on Robert E. Lee which details Lee’s relationship to slavery as cutting more than one way, and arguing that a “dislike [of] the institution” of slavery is but the shallowest understanding of Lee’s views on slavery).

7 Like many part of the United States, the demographic profile of Virginia’s 8th District has changed dramatically since the days when it was represented by Congressman Smith. See Immigrants in Virginia’s 8th Congressional District, Commonwealth Institute for Fiscal Analysis, Apr. 2013, available at http://www.thecommonwealthinstitute.org/wp-content/uploads/2013/04/CD8Profile.pdf (27.2% are foreign-born, 37.9% originating from Latin America, 35.5% from Asia, 15.6% from Africa and 9.3% from Europe. See, e.g., Alexandria 2010 Census Data Profile City of Alexandria, Dept. of Planning and Zoning, Feb. 2012, available at https://alexandriava.gov/uploadedFiles/planning/info/StatisticsDemographics/Alex2010DataProfileWeb.pdf. In 2010, Alexandria City’s population was about 24% foreign-born, including naturalized, temporary migrants, lawful permanent residents, refugees and unauthorized migrants. Id. Like much of the entire Washington, D.C. metropolitan area, Arlington County has also seen a rapid increase in immigrants from all over the world. See Annual Report, Arlington Public Schools 3, Aug. 20, 2014, available at http://www.apsva.us/cms/lib2/VA01000586/Centricity/Domain/8/APS%20Progress%20Report.pdf (finding that “APS Students hail from 111 nations, speak 98 languages and are richly diverse”).

8 See generally Diane McWhorter, Carry Me Home (2001).

9 Letter from a Birmingham Jail, Stanford, Apr. 16, 1963, available at https://kinginstitute.stanford.edu/king-papers/documents/letter-birmingham-jail; Letter from a Birmingham Jail, University of Pennsylvania African Studies Center, Apr. 16, 1963, (full text) available at http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html. At the EEOC’s 50th Celebration, Commissioner Charlotte Burrows interviewed Willie King, a former EEOC employee and the transcriber of Dr. King’s Letter from a Birmingham Jail. U.S. E.E.O.C., Interview with Willie King, Celebration of the 50th Anniversary of the EEOC, Jul. 2, 2015, (author’s notes). She shared her story as a 21-year-old woman working for the SCLC. She described the difficulty of transcribing and typing Dr. King’s response on scraps of toilet paper and the margins of newspapers. Id. She also described how she threw out the scraps without any idea that one day they would be valuable artifacts of his perseverance. Id. See also Sylvia Carignan, A Colleague Remembers Dr. Martin Luther King Jr., Gazette, Jan. 15, 2013, available at http://www.gazette.net/article/20130115/NEWS/130119652/1022/a-colleague-remembers-dr-martin-luther-king-jr&template=gazette.

10 Brach, supra note 1, at 42.

11 Id. James Bevel had to talk King into employing the children using the logic that “if someone was old enough to belong to a church – to have made a decision of that importance to their life and soul – then they were old enough to fight for a cause of great importance to their life and soul.” Malcolm Gladwell, David and Goliath 187 (2013). King accepted children as young as six or seven to participate because under the tenets of Baptism, at school age, a child could join the church. Id.

12 Clay Risen, The Bill of the Century 44, 77 (2014). See also Diane McWhorter, Carry Me Home 376 (2001).

13 Risen, supra note 12, at 40.

14 Brach, supra note 1, at 47

15 Risen, supra note 12, at 77-78.

16 See Charles Moore, Demonstrators seek protection from the assault by firemen in Birmingham, Ala., in 1963 (photograph), in Week in Review, Charles Moore’s Civil Rights Photographs Week in Review, NYTimes, Mar. 21, 2010, available at http://www.nytimes.com/slideshow/2010/03/21/weekinreview/20100321-CHARLESMOORE-SS_index.html?_r=0. See also Gladwell, supra note 11 at 188-89 (arguing that the iconic photographs were not captured by happenstance, and the children photographed were not simply anonymous bystanders, rather the photograph was strategic and necessary to propel the civil rights movement forward). The photograph of three teenagers has been the subject of some controversy. At the NYU Conference and other speaking engagements, I previously identified the young woman as Carolyn McKinstry. McKinstry herself stated the photograph was taken of her during public interviews; Francis X. Donnelly, Detroiter Reclaims Moment in Civil Rights History, Detroit Press, May 2, 2013, available at http://www.detroitnews.com/article/20130502/METRO/305020375/1409/metro/Detroiter-reclaims-moment-civil-rights-history; Shelley Tougas et al., Birmingham 1963: How a Photograph Rallied Civil Rights Support 32 (2011). However, in 2013 McKinstry retracted an earlier claim that she was the young woman in the photograph after Mamie Chambers identified herself as the woman in the photo to The Detroit Press. In a statement from a now removed personal website McKinstry issued a gracious statement that she made a mistake and that the photograph is symbolic. Greg Garrison, Civil Rights Activist Carolyn McKinstry Drops Claim, AL.com (updated August 27, 201, 7:16 AM)

http://www.al.com/living/index.ssf/2013/08/civil_rights_activist_carolyn.html. Though, McKinstry is not the woman in the photo, she found her story in the photo as a child participant of the Birmingham Campaign and a survivor of the 16th Street church bombing. The photo itself is recognized as a symbol and “way in” for all Americans to discuss a difficult historical and contemporary theme – race discrimination. The photograph by Charles Moore is part of a larger celebrated body of iconic civil rights photos that continues to educate and recall a recent past we as a nation must learn from. The identities of the two young men have never been revealed, thus, illustrating the enormous contributions to the civil rights struggle by countless activists forgotten to history.

17 George Wallace served as district judge for five years, governor of Alabama for four terms, placed his wife in the governor position during which she passed away, and ran for president in 1968, 1972 and 1976. Howell Raines, George Wallace Segregation Symbol Dies at 79, NYTimes, Sept. 14, 1998, available at http://www.nytimes.com/1998/09/14/us/george-wallace-segregation-symbol-dies-at-79.html. His last presidential race ended promptly while shaking hands with supporters when Arthur Breemer, his second assassination attempt, shot Wallace three times leaving him paralyzed. Id. Wallace went on to serve as Alabama governor for two more terms. Id. His power was “built entirely on his promise to Alabama's white voting majority to continue the historic oppression of its disfranchised and largely impoverished black citizens,” thus his hatred seemed to be a vehicle to achieve his political aspirations, even more than a true belief. Id. In his later life he disavowed any racist tendencies, stating, “segregation wasn’t about hate” and even apologizing to some civil rights leaders. Id. Upon his death many felt that “[a]t the height of his powers, [he] denied moral responsibility for the violence in his state. And in his Bible-haunted state, many said a terrible judgment had been visited upon him.” Id. See also Leonard Pitts Jr., Did Wallace Truly Change His Racist Views?, Chicago Tribune, Sept. 22, 1999, http://articles.chicagotribune.com/1998-09-22/news/9809220030_1_george-wallace-bland-segregation-tomorrow (recounting a story of Joan Bland, a child during ‘Bloody Sunday,’ who encountered Wallace as an old man during a visit to the museum dedicated to the Voting Rights Campaign where she worked and questioning whether he truly could have a change of heart and turn away from his prior “policies of hatred”). See generally Rick Perlstein, Before the Storm (2009). See Photograph of Wallace in the Schoolhouse Door, in Debbie Elliott, Gov. George Wallace Blocks the Doorway to Foster Auditorium, NPR, June 11, 2003, available at http://www.npr.org/2003/06/11/1294680/wallace-in-the-schoolhouse-door. A witness and quiet activist, President John F. Kennedy induced Wallace, the South's most defiant segregationist, to capitulate, thus writing Kennedy’s legacy as a formidable ally in the civil rights movement. Debbie Elliott, Gov. George Wallace blocks the doorway to Foster Auditorium, NPR, June 11, 2003, available at http://www.npr.org/2003/06/11/1294680/wallace-in-the-schoolhouse-door.

18 James Reston, Kennedy’s Victory Won by Close Margin, NYTimes, Nov. 10, 1960, available at http://www.nytimes.com/learning/general/onthisday/big/1108.html (reporting that Kennedy “split the East Central States, winning Illinois by a whisker and Michigan, but lost Ohio and Indiana” and “had a plurality of 245,000 in the South, where he won everything except Florida, Oklahoma, Kentucky, Tennessee and Virginia”). Candace Allen, How John F. Kennedy’s Assassination Spurred the Drive for Racial Equality, Guardian, Nov. 19, 2013, available at http://www.theguardian.com/world/2013/nov/19/john-f-kennedy-assassination-racial-equality-jfk (finding that contrary to expectations and African American communities’ fears that their movement died with Kennedy, a president who appeared so promising for civil rights, rather, it is argued that “the most important thing [Kennedy] did for civil rights was die for them,” allowing LBJ’s ascent to the presidency and passage of the Civil Rights Act).

19 See The Kennedy’s and Civil Rights, PBS http://www.pbs.org/wgbh/americanexperience/features/general-article/kennedys-and-civil-rights/ (last visited Jul. 13, 2015). During the presidential campaign, Kennedy made a point of calling Mrs. King to offer his sympathy when Dr. King was arrested in Atlanta for a sit-in protest. Id. This act spurred the African American community to vote for Kennedy, winning for him crucial swing states. Id. Though, after entering office Kennedy was much more hesitant to take up the civil rights cause until circumstances forced him and his brother Robert Kennedy (the attorney general) to act. Id.

20 Risen, supra note 12 at 67.

21 Id. at 69. See Michael O’Donnell, How LBJ Saved the Civil Rights Act, Atlantic, Apr. 2014, available at http://www.theatlantic.com/magazine/archive/2014/04/what-the-hells-the-presidency-for/358630/.

22 See Medgar and Mrylie Evers Institute, http://www.eversinstitute.org/ (last visited Jul. 12, 2015).

23 Risen, supra note 12 at 69.

24 Id. at 103-05.

25 Id. at 104.

26 Id.

27 Id. at 103. David Matthews (CNN), Kennedy White House had Jitters Ahead of 1963 March on Washington, Atlantic Voice, available at http://theatlantavoice.com/news/2013/aug/28/kennedy-white-house-had-jitters-ahead-1963-march-w/?page=1 (recalling that the Kennedy administration was afraid if and when the march became violent it would prevent the recently introduced Civil Rights Act from passing) (last visited Jul. 26, 2015).

28 Risen, supra note 12, at 104.

29 Id. at 104-05. Behind the scenes, however, there was considerable unease and some fractiousness. Margalit Fox, Dorothy Height, Largely Unsung Giant of the Civil Rights Era, Dies at 98, NYTimes, Apr. 20, 2010, available at http://www.nytimes.com/2010/04/21/us/21height.html (last visited Jul. 26, 2015). All the speakers the day of the March were men. Id. Dorothy Height, a central organizer of the March and a “prize winning orator herself,” was not invited to make a speech. Id. The day of the March she “sat on the platform an arm’s length from Dr. King as he delivered his epochal ‘I Have a Dream’ speech.” Id. See also Wash. Post, Transcript: John Lewis on the March on Washington, Wash. Post, Aug. 22, 2013, available at http://www.washingtonpost.com/lifestyle/style/transcript-john-lewis-on-the-march-on-washington/2013/08/22/f6ee9968-0a8d-11e3-8974-f97ab3b3c677_story.html (recounting how John Lewis was asked to edit the revolutionary tone of his March on Washington speech to focus on the idea of “unity”) (last visited Jul. 26, 2015); Michael Eric Dyson, I May Not Get There with You: The True Martin Luther King, Jr., 15 (2000) (arguing that King’s iconic status is a conservative appropriation and that King’s iconic speeches are radical messages for societal change).

30 Claude Sitton, Birmingham Bomb Kills 4 Negro Girls in Church; Riots Flare; 2 Boys Slain, NYTimes, Sept. 16, 1963, available at http://www.nytimes.com/learning/general/onthisday/big/0915.html.

See Spike Lee, Four Little Girls (1997). See also Brach, supra note 1 at 137-138; Andrew Cohen, The Speech that Shocked Birmingham the Day After the Church Bombing, Atlantic, Sept. 13, 2013, available at http://www.theatlantic.com/national/archive/2013/09/the-speech-that-shocked-birmingham-the-day-after-the-church-bombing/279565/. The recent murders of nine black individuals during worship has been analyzed alongside the Birmingham church bombing and, at least one writer pointed out, that violence inside of a church is especially egregious where historically, for African American Christians, sanctuary carried a double meaning—the “spiritual aims of worship were paired with the distinctly secular necessity of a place in which not just common faith but common humanity could be taken for granted.” Jelani Cobb, Murders in Charleston, New Yorker, June 18, 2015, available at http://www.newyorker.com/news/news-desk/church-shooting-charleston-south-carolina. It has also been argued that while there are some signs that America is better-handling violent hate crimes by white supremacists, it is not widespread, comparing Birmingham Church bombing, church burnings across the south during the 1990’s and most recently the church shooting in South Carolina. See David A. Graham, How Much Has Changed Since the Birmingham Bombing?, Atlantic, June 18, 2015, available at http://www.theatlantic.com/politics/archive/2015/06/historical-background-charleston-shooting/396242/. At the time of the Birmingham church bombing George Wallace offered a $5,000 reward for the arrest of the criminal actors. Id. However, it was not until 1977, over ten years later that Robert Chambliss was convicted, and not until 2002, nearly 40 years later that the last four suspects were convicted. Id. The case was closed without prosecution in 1965 and later discovered that “some essential evidence gathered by the FBI had been ordered sealed by [J. Edgar] Hoover himself.” Id.

31 Risen, supra note 12, at 112.

32 Kennedy is Killed by Sniper as He Rides in Car in Dallas, NYTimes, Nov. 23, 1963, available at http://www.nytimes.com/john-f-kennedy-assassination-coverage/89977680.html.

33 Purdum, supra note 2, at 160.

34 Id. at 158-59.

35 See id. at 151.

36 Id. at 6.

37 Id. at 6-7.

38 Risen, supra note 12, at 112, 188.

39 Id. at 217-19.

40 See Robert A. Caro, Master of the Senate: The Years of Lyndon Johnson 451-52 (2003). See also Risen, supra note 12, at 4 (arguing that with regard to the Civil Rights Act of 1964 President Johnson was not playing the “master of the senate,” rather passage was a plural effort on the part of many congress members, e.g. William McCulloch, Everett Dirksen). One of the central debates during the 50th Anniversary centered on the importance of President Johnson to the passage of the Act. Many supporters of Johnson used the anniversary to highlight President Johnson’s strong commitment to the passage of civil rights legislation, in part to rehabilitate a legacy marked by the escalation of American involvement in Vietnam. See Don Gonyea, LBJ Legacy: Vietnam War Often Overshadows Civil Rights Feat, NPR (Apr. 9, 2014) http://www.npr.org/2014/04/09/300836769/civil-rights-act-anniversary-may-polish-lbj-s-image. In a speech at the LBJ Presidential Library, marking the 50th Anniversary of the Civil Rights Act, President Obama stated, “I have lived out the promise of LBJ’s efforts.” However, he resisted sanctifying Johnson, reflecting on the two-fold complexity of Johnson’s legacy, – “he understood that poverty and injustice are as inseparable as opportunity and justice are joined” and at the same time, he was a deeply ambitious and powerful politician. Transcript: Obama’s Remarks at LBJ Library Civil-Right Event, WSJ, Apr. 10, 2014, http://blogs.wsj.com/washwire/2014/04/10/transcripts-obamas-remarks-at-lbj-library-civil-rights-event/. See also Andrew Kragie, Lyndon Johnson on Civil Rights: Moral Leader or Political Follower? Duke Univ. (Apr. 2015) http://www.academia.edu/12158630/LBJ_on_Civil_Rights_Moral_Leader_or_Political_Follower. This debate on Johnson’s legacy played out again this past year in the controversy over the depiction of President Johnson in the movie Selma. The portrayal catalyzed many objections by former associates who vigorously defended Johnson’s central role in the passage of both the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Bill Moyers on Selma: Powerful But Flawed Portrayal of LBJ’s Civil Rights Record, In These Times, Jan. 15, 2015, available at http://inthesetimes.com/article/17537/bill_moyers_lbj_selma (stating in an interview that the film’s portrayal of Johnson’s relationship to Martin Luther King, Jr. and the Civil Rights demonstrations is “exaggerated and misleading”). See also Amy Davidson, Why “Selma” is More Than Fair to L.B.J., New Yorker, Jan. 22, 2015, available at http://www.newyorker.com/news/amy-davidson/selma-fair-l-b-j.

41 Robert Dallek, Lyndon B. Johnson: The Portrait of a President 87 (2005).

42 Id. See also Tom Wicker, Remembering the Johnson Treatment, NYTimes, May 9, 2002, available at http://www.nytimes.com/2002/05/09/opinion/remembering-the-johnson-treatment.html.

43 Purdum, supra note 2, at 7.

44 Jack Valenti, Lyndon Johnson: An Awesome Engine of a Man 39, in Lyndon Johnson Remembered (Thomas W. Cowger, Sherman Markman, eds., 2003).

45 See Brach, supra note 1, at 300.

46 Risen, supra note 12, at 217-19 (“it is likely the losing votes came from firebrands like Thurmond and Ervin, who opposed the bill with blind hatred and, more important, feared that any weakness on the bill would make them fodder for an attack from the segregationist right back home”).

47 In 1954 Thurmond won the Senate election as a write-in candidate – the only person to ever to do this. He resigned and won again, and he served until his death in 2003 at 100 years old. See U.S. Senate, Strom Thurmond: A Featured Biography, available at http://www.senate.gov/artandhistory/history/common/generic/Featured_Bio_Thurmond.htm (last visited Jul. 16, 2015). Perhaps serving as a bellwether for his entire region, Senator Thurmond switched his party affiliation from Democrat to Republican in 1964 and continued to represent South Carolina for a total of 48 years of service. See id. Senator Thurmond’s change in party affiliation represented a dramatic shift in party identity in the South, validating Senator Russell’s predictions with a fury. See Joseph Crespino, Strom Thurmond’s America (2012) (arguing that Thurmond has a twin legacy as a fierce segregationist and as the father of modern conservative politics, offering uncomfortable insight into race in conservative politics today, and not simply the history of political realignment). In 1964, all but two of the Southern Senators were Republican (John Tower (Texas) and Thurmond (South Carolina)). Purdum, supra note 2, at 306. See also Statistically Notable Votes, HR. 7152. PASSAGE, Govtrack.us https://www.govtrack.us/congress/votes/88-1964/s409 (last visited Jul. 20, 2015). Fifty years later, following the 2014 elections, the entire Southern Senate delegation was Republican. Also of note, on Senator Thurmond’s death, his fiery rhetoric about interracial relationships opened him up to charges of hypocrisy when it was revealed that he had a child as the result of a long-term relationship with an African-American assistant. See Crespino, supra. Cf. Lee Edwards, The Last Dixiecrat, WSJ, Aug. 31, 2012, 5:39 P.M. (book review of Joseph Crespino’s biography of Senator Strom Thurmond), available at http://www.wsj.com/articles/SB10000872396390444508504577595433195614946 (criticizing Professor Crespino, finding that Thurmond was neither “saint” nor “sinner,” evidenced by the fact that he was “no deadbeat dad.” Essie May Washington-Williams, his daughter, publicly acknowledged that Thurmond supported her by sending her to college and helping her son through medical school).

48 See Risen, supra note 12, at 217-19 (Thurmond, holding the Senate’s all-time filibuster record against the Civil Rights bill in 1957, stated in debate over the civil rights bill in 1964 that “[t]oday the Negro is almost a favored class of citizen in America”).

49 Today in Civil Liberties History, Filibuster Against 1964 Civil Rights Bill Begins, http://todayinclh.com/?event=anti-civil-rights-filibuster-begins (last visited Jul. 26, 2015).

50 Risen, supra note 12, at 221 (“Whatever his motive, over the next two weeks Dirksen worked assiduously to win over the twenty-five or so Republican votes he needed to deliver to guarantee cloture”).

51 Purdum, supra note 2, at 302.

52 See id. at 221.

53 Id. at 267, 299. See Risen, supra note 12, at 221.

54 Purdum, supra note 2, at 299-303 (observing the final tally was 71 to 29, four votes more than the required two-thirds [needed to pass the Civil Rights Act bill]”).

55 Id. at 312-13.
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