By David H. Gibbs, Visiting Leadership Fellow, University of Tennessee College of Law
I believe that racial justice is and has been the most challenge facing America. Since the beginning of American society, African Americans and other individuals of color have been denied their inalienable rights, fundamental freedoms and have suffered oppression and violence. The roots of racial injustice are beyond the scope of this short piece. Suffice it to say that racism has lived in the hearts and minds of many Americans and has been deeply rooted in the structures of our society.
These are some thoughts about our history and our shared destiny.
Over 150 years after the civil war, more than half a century since the Civil Rights Act of 1965, and twelve years after the election of the first African American president, we are still struggling with the legacy of injustice, institutional racism, economic discrimination, violence, and white supremacy.
Talking about racism is uncomfortable. And it should be. We know that it is wrong and must realize that our discomfort is not the problem—it is the centuries of suffering from injustice.
Yet, what does this have to do with me? My ancestors did not own slaves and lived in Eastern Europe, where they were denied rights and freedoms and subject to discrimination and violence.
The answer is simply stated in the Pledge of Allegiance: that we are one nation, indivisible and, as Martin Luther King, Jr. said,
“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”
For me this concept begins with the teachings of Genesis that each of us is made in the image of the Creator; that we are of the same family descended from Adam and Eve; and that we are our brother’s and sister’s keeper. As Franklin Roosevelt is reported to have said to Joe Louis before a boxing match with the so-called “Aryan superman,” Max Schmeling, “Joe, you are a credit to your race—the human race.”
It is in the foundation of our political compact in the Declaration of Independence, which represents both the promise and contradiction of America.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
While many founders were aware of the contradiction between slavery and this vision, it is unclear whether they even considered women’s exclusion from participation in the new government. These inalienable rights on which American society is based were recognized—not created by – the Declaration or the Constitution.
The ending of slavery, which was accomplished by force of arms at the cost of over 800,000 lives, was codified by the 13th Amendment during the Lincoln presidency. When after the war, African Americans were denied their fundamental rights and subjected to horrific violence, it was quickly understood that without the right to vote and equal protection of the law, African Americans would not enjoy the blessings of liberty and would be reduced to a state close to slavery. During the Grant administration, progress was made by the deployment of federal troops, the suppression of the Klu Klux Klan, and the 14th and 15th Amendments.
Tragically, after Grant’s presidency, federal troops were withdrawn from the South, and African – Americans were subject to a dark period of oppression and violence, which left the promises of the Declaration of Independence and the 13th, 14th, and 15th amendments unfulfilled. Nor was the rest of the country free from racism that limited their enjoyment of their fundamental rights, economic progress, and left them subject to violence.
After the defeat of Nazi Germany and its doctrine of Aryan racial superiority, the majority of Americans knew that it was time for racial progress in America. Fortunately, Martin Luther King, Jr. and others’ leadership, as well as the courage of so many African Americans who withstood violence, water hoses, police dogs, arrests, and bombings led us forward.
Yet, the truth is that we have never had a true reckoning of racism in our country, let alone taken actions necessary to repair the damage done. We have no peace and reconciliation commission like other countries. We are often content addressing only the surface with platitudes that prejudice is wrong, and we have not looked deeper into our history and present-day institutions and practices that perpetuate racial injustice in schools, policing, prisons and so many aspects of our country.
One of my heroes is George Washington, who was troubled by slavery and had a troubling role as a slaveholder. When I visited the magnificent estate he designed at Mount Vernon, I struggled because every building, like many in our nation’s capital, was built by slaves.
We know that racism did not end with slavery, the passage of the Civil Rights Act of 1965, or the election of Barack Obama. At the end of the Civil War, African Americans owned less than one percent of the country’s wealth, and in 2019 African Americans owned less than two percent, even though they are over 13% of the population. This was not an accident or bad luck but often the result of overt, institutional, and legal discrimination, especially in government programs. (For an overview see https://www.washingtonpost.com/outlook/2019/06/19/why-racial-wealth-gap-persists-more-than-years-after-emancipation/ by Calvin Schermerhorn,). For example, while there were over 76,000 GI mortgages provided in the New York/Northern New Jersey area, African Americans GI’s received less than one-hundred and only a handful received GI mortgages in Alabama and Georgia.
White supremacy remains a dangerous problem. When Americans travel to Europe, we do not see monuments to Hitler, Goering, and Himmler. Our soldiers do not serve in Fort Hitler, Fort Goering, or Fort Himmler. Yet we see monuments erected and military bases named after men who committed treason and believed in white supremacy. This is not just the distant past. In 2000, the year the first African American was elected the mayor of Selma, Alabama, a statue of Nathan Bedford Forest was erected. Forest was a traitor and a war criminal who executed captured soldiers because they were African American. He was never punished or rebuked by the confederacy or its generals for these murders. He was a terrorist who helped founded the Klu Klux Klan and was its first grand wizard.
We must also be honest and recognize that the American legal system, which gave us Brown v. Board Education, Justice Thorogood Marshal, and other champions of justice, has been a tool for oppression, just as the German legal system was used against Jews and others. In fact, Nazi legal scholars studied the Jim Crow laws in developing their inhuman legal system. Unfortunately, our legal history includes Dred Scott v. Sanford, Plessy v. Ferguson, Korematsu v. U.S., and, most recently, Shelby County v. Holder, which effectively ended the Voting Rights Act’s protections for people of color. After the decision, states of former confederacy and others adopted laws with the intent and effect to limit the right to vote to people of color.
The legal education community must be honest, as well.
• At how many law schools do black and other students of color pay more than white students and why do they fail the bar at much higher rates?
• How many law school faculties still fail to include a representative number of individuals of color fifty-five years after the passage of the Civil Rights Act of 1965?
• At how many law schools are status, tenure, power, and compensation concentrated disproportionately with white males?
Do students and society have a right to know the answers and why change has been so slow?
We must not be silent or complacent. As was said during the sixties, “you are either the part of the solution or part of the problem—there is no neutral ground.
We must wake up, listen, and learn from those who have suffered from racial injustice and look honestly at ourselves and our organizations to ensure we do not perpetuate racial injustice.
Also, good leadership sometimes requires good followership—if there is such a word. We must support the voices and leadership of those who experienced racial injustice and can point the way forward.
Finally, we must truly embrace the concept that we are one nation, one people of many peoples and cultures, and that our destinies are bound together. At a conference about two years ago, I heard speaker after speaker describe how racial injustice and economic disparities were growing in major cities and how the traditional remedies were not working. After hearing that the election of officials of color, Black capitalism, government programs, and new laws were not solving these problems, I asked one of the speakers what should be done. She said while all of these actions were positive, until people saw the members of racial minorities as their country men and women, equally entitled to participate in our society, progress would be limited.
I am an optimist and believe that we can and must act now to fulfill the promise of America and achieve racial justice. As the Hillel said,
If I am not for me, who will be for me?
And if I am for myself alone, what am I?
And if not now, then when?