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Mythologies of Racism

FEAR, LOATHING, AND MYTH I: THE JAPANESE INTERNMENT AND MANIPULATED FEAR

IN THE UNITED STATES LEGAL system, mythologies based on race have been persistent and endemic. In early 1942, under an executive order signed by President Roosevelt, more than 120,000 Japanese Americans in the western part of the United States were rounded up and placed in prison camps.⁸ Almost two-thirds of those imprisoned were American citizens. The justification for this action was that some Japanese Americans might possibly help the Japanese war effort by such things as signaling submarines. In Korematsu v. United States, the six Supreme Court justices who voted to uphold the internment justified this mass incarceration as a wartime measure, adding:

The judgment that exclusion of the whole group was, for the same reason, a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin.

Justice Frank Murphy, in dissent, called it what it was:

This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power,” and falls into the ugly abyss of racism.

Justice Jackson, who was later to be a prosecutor at the Nuremberg trials, noted:

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that he is not law-abiding and well disposed.

How could six smart, well-educated people subscribe to the mythologies that motivated the internment? They had seen the Nazi rise to power. Indeed, the majority opinion testily rejects a claim that the internment centers were “concentration camps.” Their law library—and some of their earlier decisions—contained many eloquent testaments to the way that racism and xenophobia can mislead decision-makers.

Mythologies are resilient. They do not easily yield to arguments based on generalities about fairness, tolerance, and justice. We advocates for victims of mythological thinking about racism, sexism, xenophobia, and political repression can do our job only if we truly, deeply see our clients and their concerns as they really are and not as we imagine them to be or, worse yet, as the state would have us see them. We insist that what the law “does” or is about to do must be justified by lawful, logical, relevant evidence, and that legal standards be precise and intelligible.

Once we see our clients as they are, we must confront and challenge the false picture that the state wants to paint. This can be a challenge because those who uphold the mythology have no compunction about hiding the truth. In the internment cases, Solicitor General Fahy, representing the government, suppressed two important pieces of evidence: one was an official intelligence report showing that mass internment was not necessary and that legitimate goals could be achieved by individually considering cases of alleged disloyalty. The other was a document casting doubt on claims that Japanese-Americans had aided the Japanese war effort. Based on racial stereotypes and false evidence, six justices accepted the idea that sinister motives lurked in the minds and hearts of countless Japanese Americans, and that the road from those hidden motives to wholesale sabotage was short and swift.

The mythologies that justify a leap from perceived danger to repression are with us always. We recall Auden’s words: “I smell blood and an era of prominent madmen.”

Here is a story that John Henry Faulk told. John Henry was a comic genius, a populist philosopher, and a worthy citizen. He had survived the blacklist.⁹ One evening in Austin, Texas, in the 1980s, he was on the dais with the director of the FBI. The director spoke of the great social dangers against which the power of government was protecting us. John Henry stood and (as I recall it) said:

Well, that was a fine speech. A lot of people don’t know that I myself was in law enforcement. I was a United States Marshal. I was ten years old. My territory was along the banks of Lake Austin, and I patrolled it with my deputy, Johnny Wilson. Now as it happens, the Faulk henhouse was in our territory, and we regularly patrolled it. One day, we went into the henhouse. There were no eggs in the nest boxes. So we thought maybe the hens had got up on the high shelf to lay. Johnny got up on tiptoe and ran his hand up on that shelf. And wouldn’t you know it, there was a chicken snake up there. Johnny screamed “Chicken snake!” and we turned to run. But the henhouse door had swung shut and latched, so we broke it down and escaped into the yard. The noise brought my mother running. “What are you boys doing?” “Mrs. Faulk,” Johnny cried, “there’s a chicken snake in there!” “Well, Johnny, don’t you know that a chicken snake can’t hurt you?” “Yes, ma’am,” Johnny said, “but it can scare you so much you’ll hurt yourself!”

FEAR, LOATHING, AND MYTH II: “SEPARATE BUT EQUAL” AND THE LAND WHERE SUPREME COURT JUSTICES DWELL

I have been reading with pleasure the work of Paul Beatty, whose novel The Sellout won the Man Booker Prize for 2016. The Sellout, and his earlier novel, The White Boy Shuffle, illuminate many mythologies about race. His anthology of humor, Hokum, is also a gem. I also like Charles Mackay’s 1841 book, Extraordinary Popular Delusions and the Madness of Crowds. Though the book deals with “popular” and not “governmental” delusions, it describes historic events that may serve as a warning for these times. The book’s epigraph speaks broadly of “delusions of the human spirit” (délires de l’esprit humain).

The Sellout deals with racial segregation in the schools, from Beatty’s challenging perspective. After reading it, I was impelled to revisit the course of judicial decision that led to Brown v. Board of Education in 1954.

Most people know about Plessy v. Ferguson.¹⁰ Homer Plessy bought a train ticket in Louisiana and took a seat in the “whites-only” car. He refused to move to the “colored” car. He was arrested and charged with violating a Louisiana statute, the Separate Car Act, which mandated racial segregation on railroads. The Supreme Court held, over Justice Harlan’s dissent, that racial separation was permissible in public accommodations, assuming that the accommodations for each race were substantially equal. Justice Brown, for the majority, wrote:

Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.

And this:

If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.… We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Thus, seven justices, each of whom had to know that since 1872 Southern states had enacted a comprehensive system of Jim Crow laws as a means of denying African Americans equal treatment, declared the African Americans’ sense that this might be invidious discrimination to be a myth that “the colored race” might unwisely indulge. These justices also knew or should have known of the KKK, lynchings, and all the other phenomena of white rule.

To justify these views, the Court cited cases upholding racial segregation in schools, public accommodation, and transportation. No matter that many of these cases described practices that antedated the Civil War. By the time Plessy was decided, the Court had already trivialized the Fourteenth Amendment and in so doing ignored the lesson that the War Between the States ought to have taught.¹¹ As Paul Beatty has suggested, some folks think “antebellum” is a cranky old white lady.

The mythology of separate equality, set out in Plessy, persisted. In 1941, in Railroad Commission of Texas v. Pullman Co.,¹² the Supreme Court refused to confront it. The Texas Railroad Commission enacted a regulation providing that sleeping cars on trains running through Texas, and therefore indisputably operating in interstate commerce, must have a conductor in charge of the sleeping cars and not a porter. All train conductors where white, and almost all sleeping car porters were African-American. The railroad, the Pullman Company, and the Brotherhood of Sleeping Car Porters sued, alleging that the regulation violated the Fourteenth Amendment equal protection clause.

Note the alliance of plaintiffs here, where the notoriously anti-union Pullman Company and the at least mildly antiunion railroad joined an African American labor organization in bringing the lawsuit. We see the same kinds of alliances in, for example, challenges to gender discrimination: corporate employers know that recruitment and retention of qualified workers is harmed when the state permits or mandates discrimination based on sexual orientation, gender, race, or ethnicity.

The lawsuit did not require reexamination of “separate but equal.” Here was a state law that, based on race, forbade private employers to choose employees who would perform certain functions.

Shamefully, the unanimous Supreme Court ducked the issue. Its rationale survives as something called “Pullman abstention,” and many if not most books that discuss it do not pause to remark just how tawdry was the reasoning that gave rise to this principle. Justice Frankfurter justified the Court’s refusal to decide:

The complaint of the Pullman porters undoubtedly tendered a substantial constitutional issue. It is more than substantial. It touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.

Thus, white Texas bureaucrats were allowed to override not only the Fourteenth Amendment equal protection clause but also the judgment of the Pullman Company and the railroad, two entities that would be most aware of the social and economic consequences of having porters staff the sleeping cars.

The mythology here was that the Supreme Court’s assertedly delicate role as constitutional arbiter must be played cautiously, deferentially, and remote from grim realities such as racism. In shirking its constitutional responsibility, the Court also turned its back on earlier decisions that, in the process of upholding racial discrimination, had invalidated state laws that overrode private transportation companies’ decisions to discriminate. Yes, the Court had already been down this road. Only when the path beckoned toward recognizing the constitutional right did it call a halt.

The candid admission that the Court was backing away from its duty is even more surprising because Justice Frankfurter wrote the opinion. He had, as a Harvard professor, co-authored a scathing study of ethnic discrimination and injustice in the Sacco and Vanzetti case.¹³ In a later decision, West Virginia State Board of Education v. Barnette,¹⁴ he began his dissenting opinion by saying that he “belongs to the most vilified and persecuted minority in history.” In Watts v. Indiana,¹⁵ he wrote: “There comes a point where this Court should not be ignorant as judges of what we know as men.” Among the things he knew as a man was that he worked in one of the most racially segregated cities in the United States.

Here is some of the background against which the Pullman case was decided—or not decided. In 1869, the Reconstruction legislature of Louisiana passed a statute forbidding racial discrimination in transportation within the state. The case arose because a steamboat company plying the Mississippi River had separate accommodations for white and African American passengers. The statute applied even to the intrastate portion of interstate journeys.

In Hall v. DeCuir,¹⁶ the Supreme Court held the statute unconstitutional because it interfered with the business of federally regulated interstate transportation. The Court noted that Congress had not seen fit to forbid racial segregation, and therefore the transportation companies were free to discriminate if they wished to do so. The Court held:

1. State legislation that interferes with an interstate carrier’s conduct of its own business violates the commerce clause. (Note that in Pullman, that is exactly what Texas was doing.)

2. The transportation company is constitutionally protected when it adopts “reasonable rules and regulations,” including those based on race. This holding was based on deference to the transportation company’s judgment about the social consequences of white and non-white passengers sharing cabins on board.

In Pullman, the Court could have cited Hall, and said that Texas had to stand down. But it chose instead to first see the real issue—racism—and then to refuse to address it.

THE LAST GASP OF “SEPARATE BUT EQUAL”

In Sweatt v. Painter,¹⁷ the Supreme Court held, unanimously, that a makeshift “Texas Law School for Negroes” did not provide equal, though separate, legal education.

Heman Sweatt applied to enter the University of Texas School of Law in 1946. He was denied admission because the Texas state constitution mandated segregated public education. No law school in Texas admitted African Americans. The NAACP, whose lawyers included Robert Carter and Thurgood Marshall, sued in state court. At the state’s request, the court continued the case for six months. The state then established the “School of Law of the Texas State University for Negroes” and claimed that it was substantially equal to the UT Law School.

By the time the case reached the Supreme Court, in 1950, the civil rights movement had been active for decades. The NAACP was founded in 1909; the struggle against racism had begun earlier than that. More recently, President Truman had desegregated the armed forces. The state’s Supreme Court brief¹⁸ was written as though none of these things had happened. It was as though written on the inside walls of the lawyers’ minds. It was a voluntary petition in intellectual bankruptcy, repeating the mythology of racial separation. The brief relied on cases denying equal protection to aliens, and approvingly cited the Japanese internment cases. Concluding, the state argued:

The foregoing cases argue themselves. They demonstrate that this Court has uniformly held that the states may furnish education to their white and Negro citizens at separate institutions so long as substantially equal facilities are offered both groups. Petitioner has cited no case to the contrary.

The state assembled a litany of opinions about segregation. Sweatt’s lawyers had combed the sociological and political literature of the past decade. Their 123-page brief¹⁹ adumbrated the ideas that were to be presented and would carry the day in Brown v. Board of Education.

The state’s brief quoted Charles W. Eliot, who was president of Harvard College from 1869 to 1909. Eliot had spoken approvingly of segregated higher education in the American South:

Perhaps if there were as many Negroes here as there, we might think it better for them to be in separate schools. At present Harvard has about 5,000 white students and about 30 of the colored race. The latter are hidden in the great mass and are not noticeable. If they were equal in numbers or in a majority, we might deem a separation necessary.

Sort of like rice pudding, I suppose. A few raisins do not dominate, nor destroy the essential white rice character of the pudding. Too many raisins, and there is a risk that they will take over. Better they should be removed into a raisin pudding. You might leave a few raisins, to serve the white rice and remind it of its dominance.

The state should have done what good lawyers do: check out their witness. On several subjects, Eliot was out of step with all reasoned opinion.²⁰ He opposed having a college football team and tried to abolish football, baseball, basketball, and hockey at Harvard. Rowing and tennis were, he thought, clean sports. As for baseball, Eliot remarked:

Well, this year I’m told the team did well because one pitcher had a fine curve ball. I understand that a curve ball is thrown with a deliberate attempt to deceive. Surely this is not an ability we should want to foster at Harvard.

Eliot spoke about race in Atlanta in 1909. The New York Times reported his views at the time: “The negro cannot be expected to be ready for all phases of civilization, when he is a few decades removed from the time when he first began to enjoy civilization as a free man. After 500 or 1,000 years we may expect more substantial growth.” Dr. Eliot had forgotten that the “civilization” that African Americans had joined was the very one that had maintained the very uncivilized institution of slavery.

Turning to the evidence at trial, the state quoted the testimony of Charles T. McCormick. He was dean of UT Law School from 1940 to 1949, and was nominally dean of the segregated law school. The Law School for Negroes had four professors, who were faculty members of UT Law School and who taught part-time at the segregated school. It had a couple of classrooms and a small library in downtown Austin. As Sweatt’s brief pointed out:

The law school of the University of Texas had a moot court, legal aid clinic, law review, a chapter of Order of the Coif, and a scholarship fund. None of these were present or possible in the proposed Negro law school, and Charles T. McCormick, dean of the two law schools, testified that he did not consider these to be factors material to a legal education but rather that they were “extraneous matters.”

McCormick’s views were echoed by D. A. Simmons, a prominent Texas lawyer who had been chairman of the American Judicature Society and president of the American Bar Association. The Supreme Court’s unanimous opinion penetrated the myth:

Moreover, although the law is a highly learned profession, we are well aware that it is an intensely practical one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned. The law school to which Texas is willing to admit petitioner excludes from its student body members of the racial groups which number 85% of the population of the State and include most of the lawyers, witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School.

The Court ordered Mr. Sweatt admitted to the University of Texas Law School.

Looking back at the history and record of the Sweatt case, one is struck by how transparent were some of the justifications offered to keep Mr. Sweatt out of the University of Texas Law School. Charles T. McCormick could not possibly have believed that a law review, Order of the Coif, and moot court were extraneous to modern legal education. McCormick was one of the most eminent United States experts on the law of evidence, that is, the rules by which matters are decided using rational, probative proof.

THE PERSISTENCE OF RACIST MYTHOLOGIES

The myths on which segregation was based had, by 1950, become transparent, but not to everyone. School districts responded to the 1954 decision in Brown v. Board of Education by refusing to desegregate unless and until a drawn-out lawsuit resulted in a final judgment requiring them to do so. So there was litigation in hundreds of school districts. The Brown decision, and Chief Justice Warren, were denounced, even in the pages of the American Bar Association Journal. In a 1956 Journal article, two prominent lawyers decried “the commingling of the white and colored races” and the effect this might have on “white children and their parents.”²¹

Thus, when the mythology of “separate but equal” was exposed, the political and social forces that supported racism did not run up a white (what other color could it be?) flag of surrender. Other mythological constructs were brought into play. The American South’s myth of a gracious past overlay the reality of its brutal present.

Mythologies can be exposed in courtrooms, where a more or less orderly procedure allows reliable evidence to be heard and nonsense rejected. Such proceedings help us understand the world. The point, however—as somebody said—is to change it.

Racist mythologies appear in different guises. They are shape-shifters. We can spot them by their results and by examining the motivations of those who put them forward. Some expressions are obvious. In 2014, a fourth-grade teacher at a private school in Wisconsin gave her students a homework assignment: “Give 3 ‘good’ reasons for slavery and 3 bad reasons. Make notes and then put them into COMPLETE SENTENCES on a separate sheet to prepare for presenting an argument.”²²

Of late, racist mythologies are called out with coded words that have acquired the name “dog whistles.” Here are some examples:

• “PRIVATE PROPERTY”: Impatient with the pace of change, students in Greensboro, North Carolina. held a lunch counter sit-in on February 1, 1960. From this beginning, a direct-action movement spread across the nation. The owners of restaurants, lunch counters, hotels, trains, and buses invoked property rights.

• “FREE ASSOCIATION”: Employers mobilized white employees with slogans claiming that African-American workers would steal their jobs. Racist rhetoric was used to resist campaigns for union organization. Entrenched leadership in the craft unions sought to exclude African Americans from union membership.

• “MISSISSIPPI FREEDOM SUMMER”: Freedom Summer 1964 was a dramatic chapter in the movement for civil rights. Thousands of civil rights adherents came to Mississippi to work on the denial of voting rights and other institutional forms of racism. Racists fought back. The toll included three murdered civil rights workers, many more workers injured, 250 arrests, thirteen black churches burned to the ground, two dozen other church buildings bombed or burned. At the Democratic National Convention, the struggle played out between the Mississippi Freedom Democratic Party and the “regular,” segregationist Mississippi Democratic Party. On national television, we witnessed white liberals failing to meet the challenge of busting the mythology that the “regular” Mississippi Democrats could possibly “represent” Mississippi.

• “NEIGHBORHOOD SCHOOLS”: Faced with a Constitution-based ruling that segregation was unlawful, the white power structure, in the North and South of the United States, adopted a policy that students should attend the schools closest to their homes—neighborhood schools. This slogan was itself a mythological cover for racism. Residential housing was segregated, and not simply as the result of income disparity and personal choice. Richard Rothstein’s brilliant book, The Color of Law: A Forgotten History of How Our Government Segregated America, documents how local, state, and national government policies enforced and reinforced housing segregation, with the active connivance of lending institutions. When the mythology of neighborhood schools was challenged, the power structure decried the use of busing to create integrated schools.

• “RACISM IS OVER”: Reactionary judges and politicians proclaim that the days of racism are over, and that taking race into account is a form of invidious discrimination—against whites. Fortunately, other judges express a view that reflects the history and text of the Thirteenth, Fourteenth, and Fifteenth amendments. Rejecting a challenge to affirmative action at the University of Texas, the Supreme Court majority, in an opinion by Justice Anthony Kennedy, returned to the principles the Court has expressed in Sweatt v. Painter:

A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” [Quoting Sweatt.] Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

• “STAND YOUR GROUND”: In the common law of England, which was largely imported into the United States in the 1700s, a person faced with potential deadly force had a duty to retreat if possible and avoid a confrontation.²³ Within the last two decades, almost every American state has enacted one version or another of a “stand your ground” rule, by which use of deadly force is justified whenever a person honestly apprehends fatal danger. The ostensibly neutral rule of the law is therefore that killing another human being is justified based on a rational perception of danger. In practice, “stand your ground” has been disproportionately invoked to justify white violence against people of color.

• “TO PROTECT AND SERVE”: By now, the mythology of a police presence that, without racial bias, serves and protects all persons has been exposed. In 2017, in the United States, nearly 1,000 people were shot and killed by police officers. More than 50 percent of those killed were non-white. CNN reported in 2016 that black men are three times more likely to die from police shootings than are white men. Yet prosecutions of police officers are relatively rare, because prosecutors offer up ostensibly race-neutral excuses for police conduct. In 2014, NBC reported that being killed by a police officer was the second most prevalent form of homicide in Utah during the previous five years. The police killings were, again, disproportionately of persons of color.

• “WE ARE HONORING HISTORY”: Statues of Confederate leaders are in public spaces throughout the American South. A huge bas-relief carving of Robert E. Lee, Stonewall Jackson, and Jefferson Davis, at Stone Mountain Park in Georgia, is one of the most famous of these.²⁴ Most of the Confederate monuments have a decisively ugly history. They were not erected when memories of the Civil War were fresh. They were put up as part of the white supremacist populist wave of the early twentieth century. Many of them were erected with the support of the Ku Klux Klan. Stone Mountain’s connection to the Klan is particularly odious and extensive; it was the site of many significant Klan rallies in the years since the memorial was carved. The movement to take down the so-called Civil War statues is not designed to erase history but to reclaim and demythologize it.