In honor of Fred Gray: making civil rights law from Rosa Parks to the twenty-first century.

• Author: Entin, Jonathan L.

INTRODUCTION

CONTENTS I. BACKGROUND II. SUPREME COURT CASES A. The Montgomery Bus Boycott: Gayle v. Browder B. Freedom of Association: NAACP v. Alabama ex rel. Patterson C. Racial Gerrymandering: Gomillion v. Lightfoot D. Constitutionalizing the Law of Defamation: New York Times Co. v. Sullivan III. OTHER CASES A. The Tuskegee Syphilis Litigation B. The Perjury Trial of Martin Luther King C. Sit-In Demonstrators D. Freedom Riders E. Desegregation of Public Education F. Voting Rights IV. THE SYMPOSIUM This issue of the Case Western Reserve Law Review focuses on the work of Fred Gray, one of the nation's preeminent civil rights lawyers and a 1954 graduate of our law school. Mr. Gray's many accolades include the American Bar Association's Thurgood Marshall Award, the Federal Bar Association's Sarah T. Hughes Award, Harvard Law School's Charles Hamilton Houston Medallion of Freedom, and numerous honorary degrees. He has served as president of the National Bar Association and was the first African-American president of the Alabama State Bar Association. In addition, he was one of the first two African Americans elected to the Alabama legislature since Reconstruction. This issue contains Articles that were presented at a symposium that took place in October 2016.

1. BACKGROUND

   Growing up in Montgomery, Alabama, Fred Gray expected to enter the ministry. To that end, he left his hometown to enroll in a church-related high school called the Nashville Christian Institute. (1) There he became a "boy preacher" who traveled around the country with the Institute's president on fund-raising and recruiting trips and served as a part-time minister for area congregations. (2) He returned to Montgomery and graduated in 1951 from what was then the Alabama State College for Negroes (now Alabama State University). While at Alabama State, Fred Gray decided to become a lawyer who would "use the law to 'destroy everything segregated [he] could find.'" (3)

   Because Alabama was rigidly segregated at the time, Mr. Gray had to attend law school elsewhere. The state, although unwilling to give him a legal education within its borders, had a program that would cover some of his expenses at an institution outside the South. These arrangements almost certainly were unlawful even in 1951. (4) More interested in becoming a lawyer than in being a litigant and convinced that the white power structure would prevent him from becoming a lawyer if he challenged the admissions rules, he enrolled at what then was called Western Reserve University in the fall of 1951. (5) After graduating in 1954, he returned home and was admitted to the Alabama bar. (6) Perhaps providentially for his goal of destroying everything segregated he could find, less than a month before he graduated the Supreme Court issued its ruling against school segregation in Brown v. Board of Education. (7)

2. SUPREME COURT CASES

   In his first ten years as a lawyer, Fred Gray played a significant role in four landmark Supreme Court cases. He also has handled numerous other civil rights cases for more than six decades. (8) Let us begin with the Supreme Court cases before turning to other civil rights issues.

   1. The Montgomery Bus Boycott: Gayle v. Browder (9)

      Fred Gray's remarkable legal career effectively began with the December 1, 1955, arrest of Rosa Parks for refusing to surrender her seat on a Montgomery bus to a white passenger. Mr. Gray, who had not yet reached his twenty-fifth birthday, represented her. (10) The arrest of Mrs. Parks led to a 382-day boycott of the buses. (11) That protest movement was coordinated by the newly created Montgomery Improvement Association. Mr. Gray was the lawyer for the MIA. (12) And the most visible leader of that organization was a previously unknown young minister named Martin Luther King, Jr. Mr. Gray was Dr. King's lawyer for several years until King moved to Atlanta. (13)

      While the Rosa Parks case wended its way through the Alabama court system, Fred Gray filed a separate lawsuit in federal court that directly challenged the constitutionality of the Montgomery ordinance and the Alabama statute that required segregation on the buses. (14) The named plaintiffs in Browder v. Gayle (15) included Claudette Colvin, whose arrest, earlier in 1955 for refusing to relinquish her seat nearly precipitated a mass protest. (16) Rosa Parks deliberately was omitted from the case in order to preempt any claim that the federal case represented a collateral attack on her state-court proceedings. (17) The Supreme Court, in November 1956, summarily affirmed a three-judge district court ruling that the ordinance was unconstitutional, a decision that vindicated the Montgomery bus boycott and helped to lead to the desegregation of the buses. (18)

   2. Freedom of Association: NAACP v. Alabama ex rel. Patterson (19)

      Meanwhile, many segregationists thought that the Montgomery bus boycott must have been fomented by outside agitators and subversives. Alabama Attorney General John Patterson, claiming that the NAACP was a foreign corporation that had not, qualified to do business in the state, demanded that the organization produce the names, addresses, and telephone numbers of all its Alabama members. (20) His theory was transparent if only implicit: the NAACP was behind the civil rights movement, helping African Americans gain admission to whites-only public universities such as the University of Alabama (21) and supporting the bus boycott as well as other efforts to undermine segregation. If only the NAACP could be shut, down, Alabama's otherwise contented Negroes would return to life as usual.

      Fred Gray was local counsel to the NAACP throughout the litigation over the state's effort to prevent it from operating in Alabama. When the organization refused to surrender its membership records, a state judge issued a contempt order and imposed a fine of [dollar]100,000. The dispute ultimately went to the Supreme Court, which ruled in NAACP v. Alabama ex rel. Patterson that the order to disclose the membership records violated the First, Amendment. The Court, reasoned that mandatory disclosure of membership information might deter individuals from joining or remaining in the organization for fear of physical or economic reprisal, particularly when the identity of the group's members had nothing to do with Alabama's purported interest in determining whether the NAACP was required to register to do business in the state. (22) This foundational case established important principles about freedom of association and laid the foundation for a series of later decisions that struck down other efforts to harass or outlaw the NAACP and other controversial groups. (23)

   3. Racial Gerrymandering: Gomillion v. Lightfoot (24)

      Even before the NAACP case reached the Supreme Court, segregationist politicians launched another attack on civil rights by redrawing the boundaries of Tuskegee, a city with an unusually large proportion of African-American professionals who worked at Tuskegee Institute (now Tuskegee University) and a large Veterans Administration hospital that served only black patients during the segregation era. (25) The gerrymandering law (26) transformed the shape of Tuskegee from a square to what Mr. Gray described as a "25-sided sea dragon" (27) and what the Supreme Court in Gomillion v. Lightfoot (28) described as "an uncouth twenty-eight-sided figure." (29) This cartographic sleight of hand removed all but four or five of the approximately 400 African-American voters from Tuskegee while leaving every single white voter within the city limits. (30)

      Mr. Gray filed Gomillion v. Lightfoot on behalf of many of the excluded voters, but the lawsuit faced a seemingly insurmountable obstacle in the form of the Supreme Court's 1946 decision in Colegrove v. Green, (31) which had rejected a challenge to the way a state had drawn its congressional districts as a nonjusticiable political question. So daunting was this obstacle that national NAACP general counsel Robert Carter, who worked with Gray on both Browder v. Gayle and NAA CP v. Alabama ex rei. Patterson, initially discouraged him from pursuing the Tuskegee case. (32) Gray eventually persuaded Carter that the lawsuit could succeed, and the two divided the oral argument in the Supreme Court. (33)

      At the very beginning of the Gomillion litigation, Mr. Gray obtained a map showing the Tuskegee city limits before and after passage of the gerrymandering law. He never got to use the map in the district court, which dismissed the case on the basis of Colegrove v. Green. (34) But he had the map mounted on an easel when he appeared in the Supreme Court. (35) Scarcely a minute into his argument, he was interrupted by Justice Frankfurter, a stickler for procedure and the author of the Colegrove opinion. Instead of a professorial scolding about jurisdictional technicalities, Frankfurter asked the twenty-nine-year-old lawyer to show him the location of Tuskegee Institute. When Gray pointed to the map showing that the Institute no longer was within the city limits, the justice was incredulous. (36) Indeed, Frankfurter wrote the opinion for a unanimous Court striking down the Tuskegee gerrymandering law. Unlike Colegrove, the Tuskegee case involved a complete denial of the right to vote and therefore did not involve a nonjusticiable political question. (37) As if to underscore the point, the Court reproduced Mr. Gray's map as an appendix to its opinion. (38)

      Mr. Gray believes that Gomillion v. Lightfoot was his "most important" case. (39) It was the Supreme Court's first racial gerrymandering decision, and it has become a leading precedent in the law of voting rights. It also has figured prominently in equal protection doctrine more generally, as Alabama's unsubtle effort to exclude African Americans from Tuskegee has become a leading example of how to infer discriminatory intent in constitutional cases. (40) Moreover, Gomillion v. Lightfoot...