This article was adapted from a recent speech given at the Poverty Law Conference of Golden Gate University School of Law by John Payton, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc.

The Editors

By John Payton

I.

John Payton

A year ago in the afterglow of the presidential election and inauguration, we heard the then-strange notion that we had somehow and quite suddenly become a “post-racial society.” Remember that? It was just everywhere.

Today feels a long way from January of 2009 and November of 2008. The excitement, the anticipation, the inclusion, the generosity of those moments have been replaced by recession–we need another word that is far more serious than recession–unemployment, distrust, disillusionment, and even fear.

We’re a very racially diverse democracy, but we’re nowhere near post-racial. That’s our reality today, and that’s been our reality from our beginning.

In recent years Americans have often compared themselves to Western European countries to see how they’ve been doing, and we conclude that we come up short. But those countries were once homogeneous, or perceived themselves as being homogenous, and that has enormous consequences. In a homogenous society, a person supports a system that offers a safety net to others because they can see themselves in the shoes of the others. The commonality of the word “we” is taken for granted.

“I realize when I say we’re a very racially diverse democracy, sometimes I say it in a way that makes it sound like a triumph; in fact, it’s a challenge.”

In our American terminology, racial diversity presents barriers to a sense of commonality. I realize when I say we’re a very racially diverse democracy, sometimes I say it in a way that makes it sound like a triumph; in fact, it’s a challenge. It’s not just a challenge on issues of race–it’s a greater challenge because in our society, race has always had a direct relationship to poverty, a direct relationship with alienated poverty.

This has meant race has hindered our ability or our willingness to see and address issues of class. Race has distorted our view of the reality of poverty. Ronald Reagan’s anecdote about welfare queens relied on that distortion. As did CNN’s caption during coverage of Hurricane Katrina that identified some desperate black people seeking food from a destroyed market as “looters.” Martin Luther King’s merging of the civil rights movement with the focus on poverty was met with the “War on Crime.” The face of crime is black men.

Every one of those images is false. And the reason they resonate is due to our history of race. Western Europe is now experiencing a new and similar distortion as it becomes more racially and ethnically diverse. Distrust and suspicion of otherness has compromised the underpinning of Europe’s social welfare systems.

We have at perhaps all times been more willing to talk about poverty than to talk about race. To put it another way, we talk about poverty sometimes to avoid talking about race. I want to talk about both.

We are a democracy. Democracy depends upon people being what I call “peers.” That doesn’t mean “equals;” it means people having equal respect for each other that is grounded in that sense of commonality I mentioned earlier. “We the people” are the first three words of the Constitution, and, for our democracy to be true, “we the people” has to include all of the people.

For much of our history, of course, black people were excluded from “we the people” explicitly, and the democracy that existed in the United States didn’t include black people in any way. Slaves, obviously; but free black people were also excluded. Chief Justice Taney in Dred Scott v. Sandford was talking about free black people, not slaves, when he said that they were inferior beings who had no rights that a white man was bound to respect. And if black people had no rights, they could invoke no power.

The Thirteenth Amendment ended slavery. The Fourteenth Amendment reversed the result in Dred Scott. Both were very significant. But neither addressed the issue of racial distrust and otherness. In fact, they may have exacerbated the racial distrust white Americans felt toward black Americans.

That’s one reason why the promises contained in the Fourteenth Amendment went unfulfilled. Reconstruction collapsed almost as soon as it had begun. Supreme Court justices who  had fought for the Union eviscerated the core of the Fourteenth Amendment and the newly formed Progressive movement turned against racial justice and any concept of equality. “Separate but equal”—the phrase from Plessy v. Ferguson — , but it was false when it was invented, and it never reflected reality. The more accurate phrase would be “separate and degradingly unequal.”

But starting in the early twentieth century, the small trickle of black lawyers began toi change that. Because lawyers are an empowered profession. We can file lawsuits, we can serve discovery, we can issue subpoenas, we can compel answers under oath. And when those things are not complied with, we can seek sanctions from a court, and the court has quite unusual powers to actually make that come about. We can invoke the judicial power of the state. We can confront justice.

Yes, for many years most black lawyers struggled with marginal practices. But some were spectacular and could not be marginalized. They, along with some spectacular white lawyers, primarily at the Legal Defense Fund, used the law in collaboration with social science to confront the world of racial segregation and oppression.

The cases they litigated weren’t about vindicating any existing rights. Black people had no rights. Those cases were about creating new rights. And of course this required much more than precedence. There were no precedents – because the law had turned its back on racial justice. The cases leading up to and including Brown could not have been more different. They used social science and a concept of justice that challenged legislative power. Racially oppressive segregation was the law, not just the custom. The Brown cases used social science and a concept of justice to create rights, and to protect those rights from state power, as the Fourteenth Amendment intended.

These cases fueled a new sense of racial justice and equality; and the steady establishment of rights in those cases brought about the power to assert those rights because they declared that justice and equality are not the same thing as the rule of law. No one fighting oppression is for some abstract rule of law, because it’s not the rule of law that deserves respect—it’s the rule of just law.

The civil rights movement, the 1964 Civil Rights Act, the 1965 Voting Rights Act, the 1968 Fair Housing Act and their vigorous enforcement all were consequences of that new sense of racial justice and equality. These rights are critical to being able to function as peers in our society. They are fundamental political and human rights. And we have made enormous progress and enormous gains as a democracy because of the establishment and protection of those rights.

So: Are we a post-racial society?

Here’s how you’d go about answering the question. Do we still have issues of race, do we have racial disparity? You would look at education, you’d look at housing, you’d look at jobs, you’d look at the criminal justice system, you’d look at voting and political participation. So let’s take a look.

How are we doing on education? Well, Public education throughout the country is in complete collapse. When Brown was decided in 1954, it produced a consequence that had not been anticipated: the dramatic white flight from the inner cities. Before Brown, there was no city in the United States that was majority black — not Atlanta, not Washington, DC, not Detroit, which was 90 percent white. The change in housing patterns has had devastating consequences for the tax base, for jobs, for the spread of residential segregation.

Two years ago, a study by America’s Promise Alliance, Colin’s Powell’s organization, found that over half of the black kids are failed by their schools and do not graduate from high school. In some cities, it’s two thirds of the kids.

Those kids who are failed by the public education system are literally “acquired” by the criminal justice system. Some may have been engaged in a criminal activity, but most weren’t. They got stopped, they got picked up, they pled out because that was the quickest way to get out of the lockup. And now they have a record. When you have a record, that’s the end of it. The point of no return. No skills, no education, criminal record . . . oblivion.

For the generation of black people born from 1965 to 1969–the parents of some of you here, and some of you here today–black men who did not finish high school by the time they were 35–58.9 percent will have been in prison. Stunning! \

The racial element in the categories of housing and employment can be just as easily seen.

II.

Charles Hamilton Houston

These realities have consequences for democracy. They can lead to the moral underpinning of our ability to see each other people as peers. If you don’t see each other as peers, it’s catastrophic for the aspirations of democracy.

The only obvious exception to the grim accounting I’ve listed is political participation. There, we have great participation in elections. We have people who run for office, and they get elected, and that’s a tremendous success story, no question about it. Those results are due, to a large extent, to the 1965 Voting Rights Act, the most significant piece of civil rights legislation we’ve ever had.

Last year at this time, the constitutionality of the Voting Rights Act was presented to the United States Supreme Court, and the issue was whether it should be struck down. The Legal Defense Fund argued the case, and the Supreme Court did not strike down the Voting Rights Act. But for that, I would be giving you a different answer to the political participation question.

So are we a post-racial society? Not yet.

But what about poverty? Well, Charles Houston, the architect of the Legal Defense Fund’s mission, who possessed one of the greatest legal minds of the 20th Century, and who was a mentor to Thurgood Marshall, said something in 1949, the year before he died, that we must continually keep in mind:

There come times when it is possible to forecast the results of a contest, a battle, a lawsuit, all before the final event has taken place. So far as our struggle for civil rights is concerned, the struggle for civil rights is won. What I am more concerned about is that the Negro shall not be content simply with demanding an equal share of the existing system. It seems to me that his historical challenge is to ensure that the system that shall survive in the United States of America shall be a system which guarantees justice and freedom for everyone.

Black people are disproportionately impoverished. They are very disproportionately characterized and categorized as being in persistent poverty. I said earlier that Americans are more comfortable talking about poverty than race. Now, here’s the other side. Because race is the elephant in the room in a discussion of poverty, I think sometimes we’re unwilling to have discussions about structural ways to eliminate the inexcusable poverty America tolerates.

I think it would help if we remembered that the rights that were created in connection with race were forged by aggressive lawyers, backed by political action. Today, poor people have programs, but few enforceable rights. Programs matter, but rights give you power, and power makes you a peer.

As I noted earlier, lawyers are an empowered profession. There’s no other profession that can call on the power of the state to enforce the things that we do. In asserting rights, and in fashioning new rights, we the lawyers can call upon the state to vindicate those rights. That empowers our clients. LDF empowers black people and many other minority groups. But we also empower poor people. As far as we’ve come in the matter of race, we still face daunting challenges in education, employment, housing, health care, criminal justice, and so on that require structural change. But problems of poverty in these areas also require structural changes. Access to quality education should not correlate with wealth. Nor should access to justice.

Lawyers have special responsibilities because of our empowered status. It is more than standing for the rule of law, it’s standing for the rule of just law. Black and white. Latino, Asian-American, and Native American. Men and women. Straight and gay. Rich and poor. I believe all of us must play a role in transforming our society into the inclusive democracy it must become.