Legal Affairs

Jeff Feuquay, Associate Editor

Kids Know There Are People of Different Races and Heights

On my office wall is a framed Norman Rockwell print -- a small Black girl carrying her books, pencils and a ruler, hair tied with a white bow and wearing a sparkling white school dress, strides down the sidewalk beside a wall smeared with the word "nigger" among the other graffiti and stained with the dripping blotch of a thrown tomato. Two determined men in suits march before her, each wearing a badge and a yellow armband declaring them to be Deputy U.S. Marshals. A matching pair of marshals concludes the procession.

I bought the print as a reminder. As an attorney, I had heard so many tales of discrimination in which I could find no evidence of illegal acts. Too often, the discrimination complained of was an illusion created to protect the pride of the narrator, who had in reality been fired or demoted for very legitimate reasons. It was becoming too easy to forget that while some may claim bias to explain their own failings, for others discrimination remains a grim reality; it is alive and well.

We've been struggling with this for quite a while now. In 1883, the U.S. Supreme Court considered the case of Pace vs. State, 106 U.S. 583 (1883). It seems that in November 1881 "Tony Pace, a negro man, and Mary J. Cox, a white woman, were indicted under section 4189, in a circuit court of Alabama, for living together in a state of adultery or fornication, and were tried, convicted, and sentenced, each to two years' imprisonment in the state penitentiary." Id. at 583. That section of the Code of Alabama declared that "if any white person and any negro, or the descendant of any negro to the third generation, inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years." The couple's attorney argued that the law was "in conflict with the concluding clause of the first section of the fourteenth amendment of the constitution, which declares that no state shall 'deny to any person the equal protection of the laws.'" Id.

The high court disagreed and upheld the convictions, finding that section of Alabama law "applies the same punishment to both offenders, the white and the black. Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same." Id.

The outcome may surprise at first, but it foreshadows where we are today. That is, as the Pace Court noted, "the purpose of the clause of the amendment in question... was to prevent hostile and discriminating state legislation against any person or class of persons. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment." The Court also noted that Congress had affirmed this notion by its "re-enactment of the civil-rights act, after the adoption of the amendment, ... providing that all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, [and] shall be subject 'to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.'" Id. at 584-585.

Pace was decided 116 years ago, based on long-standing Constitutional principles. We continue to plod along. This article was written as the University of Oklahoma and Oklahoma State University were celebrating the 50th anniversary of the integration of their graduate schools. Oklahoma was not alone: just 41 years ago, the U.S. Supreme Court struggled with the case of N.A.A.C.P. vs. Alabama, 357 U.S. 449 (1958). Alabama alleged that the Association had opened a regional office and had organized various affiliates in Alabama; had recruited members and solicited contributions within the State; had given financial support and furnished legal assistance to Negro students seeking admission to the state university; and had supported a Negro boycott of the bus lines in Montgomery to compel the seating of passengers without regard to race -- all this without registering as a foreign (out of state) corporation and filing the related papers with the state of Alabama, something the non-profit NAACP thought they were not required to do. "The bill recited that the Association, by continuing to do business in Alabama without complying with the qualification statute, was '. . . causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama for which criminal prosecution and civil actions at law afford no adequate relief . . .' On the day the complaint was filed, the Circuit Court issued ex parte an order restraining the Association, [until litigation of the matter], from engaging in further activities within the State and forbidding it to take any steps to qualify itself to do business therein." Id. at 452-453.

The state court ordered the NAACP to produce a number of its records. In the end, the organization produced all but its membership list and was held in contempt of court therefore to the tune of $100,000. The Supreme Court said: "It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Assn. v. Douds, 339 U.S. 382, 402: 'A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.' Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." 357 U.S. at 462.

The NAACP had "made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members... exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure." Id at 462-463.

Space does not permit more, but it may be instructive for the reader to review the case of Railroad Trainmen vs. Howard, 343 U.S. 768 (1952) to understand a union's role in maintaining (or regaining) a segregated workplace.

So, where are we? Well, most of the folks I'm around seem ready for civilization to enjoy an inclusiveness heretofore unknown, but usually I'm around older folks who remain uncertain how to get there. However, school-age youngsters with whom I have spoken, who have friends, not just acquaintances, of other races, seem to have little difficulty in explaining to me the state of their world. With almost no exceptions, they describe race as a defining characteristic among their peers. But, as or more importantly, they seem to lump that characteristic in with height, gender, pep-club membership and so on - as one of the full panoply of factors, major to trivial, which define and describe a person. As in, "you know, she's that really tall white girl, with the short hair that cheers really loud at games and used to date Bobby." We may not have come as far as we like to believe and hope... but, we just may be getting close. It does not occur to these kids that advocating diversity or association with anyone still carries risks. Yet, what was the norm for eons will die no easy death -- and 1881 is really not that long ago. That said, my strong impression is that when the coming generation refines what the school kids of today have devised, we may yet pull this off. See you in court.

Jeff may be reached at P.O. Box 706, Perry, OK 73077-0706; Phone: (580) 336-4908; Fax (580) 336-5366; Net: jeff@feuquay.com. If there is a topic that you would like to see addressed in this column please let him know.