Change-agents: beating back the dark caste of the law.

Author:Fair, Bryan K.
Position:Fred Gray Civil Rights Symposium

It was a personal honor to speak at the Fred Gray Civil Rights Symposium. I was privileged to share the panel with two outstanding lawyers, Judge Theodore McKee, Chief Judge of the United States Court of Appeals for the 3rd Circuit and Ted Shaw, a professor of law at Columbia School of Law and former Director General of the NAACP LDF. (1) I am grateful to my friends at Thomas Goode Jones School of Law and the members of the Faulkner Law Review for this opportunity to share these remarks.

First, Mr. Gray is one of my heroes and he is worthy of your recognition through this important annual Symposium. Part I of this essay is my tribute to Mr. Gray. I acknowledge the significant progress made through the herculean efforts of legal giants and change-agents like Mr. Gray, but also note that equality and justice remain elusive to most Americans, including most Alabamians. I think Mr. Gray would agree that the state and nation must address enormous economic disparities and widespread discrimination still gripping so many. The tremendous need for courageous and determined change-agents has not past.

Second, I want to discuss two deeply troubling undercurrents of American law. One is the Supreme Court's remarkable jurisprudence of White Supremacy, what I shall call the "Dark Caste of the Law." The other related theme is the Court's war over the legacy of Brown v. Board of Education. (2) In Part II, I discuss each concern, explaining why we must not let the Court, led by Chief Justice Roberts and Justice Thomas, impose a revisionist understanding of Brown, which was the Court's unanimous declaration against the inherent racial inequality advanced by segregated schools. (3) As I explain, there is some light in the words of Justice Kennedy in his opinion in Parents Involved in Community Schools (PICS). (4)


My topic is "The Right to be Visible," which I define as the right to belong to the nation and be treated as an equal citizen with equal status under law. (5) Every American must enjoy equal citizenship and those who have been systematically denied it must be made whole by a full remedy for the constitutional violation. Lawyers and other change-agents must undertake this important project, fashioning whole remedies for Americans who have suffered under the dark caste of the law.

I have titled this essay Beating Back the Dark Caste of the Law to denote my sense that the nation has failed to honor this equal citizenship principle from its inception, and millions of Americans are still suffering the social, civil, political, and economic consequences for our national failure. The United States is a weaker and poorer nation than it could be because some Americans have believed and still believe they are superior to others and entitled to more benefits and advantages than others. They have used the law to enshrine their advantages and the disadvantage of others. This great sin has poisoned human relations in the U.S., and it is difficult to be optimistic that the nation can overcome the deep chasms caused by extant discrimination.

Contrary to American myths, the law has not provided shelter for all Americans. It has a dark caste! Here, I am reminded of the prophetic words of Reverend Martin Neimoller, the German cleric who was sent to prison for his defiance against Nazism. He wrote:

In Germany, first they came for the Communists and I was not a Communist, so I did nothing; then they came for the Jews and I didn't speak because I wasn't a Jew; then they came for the trade unionists and I stood silent, and then they came for the Catholics, but I was a Protestant, and then, finally, they came for me and there was no one left to stand up. (6) Fred Gray decided to devote his life to fighting against segregation. The nation is better because of his lifetime commitment to fighting the scourge of segregation--wherever he found it.

Gray was born into a society that did not value his humanity and that relegated all people like him to multiple forms of castes. He and other African Americans were invisible to the command of equal justice under law. He grew to abhor laws that protected discrimination and segregation. Mr. Gray stood up, over and over, using his enormous legal talent to advance the equal citizenship principle and to challenge the misuse and abuse of law. The question is: Will more of us follow his glorious example as we face new obstacles to equality for all?

In preparation for this presentation, I considered trying to explain the harms the Supreme Court caused in its opinions in Dred Scott v. Sanford (7) and Plessy v. Ferguson, (8) decisions which instantiated racism into the Court's equality jurisprudence. I shall return to those cases later. I also considered that what might be most valuable is retracing the road from Plessy to Brown v. Board and the noble service of the exemplary change agents, Charles Houston and Thurgood Marshall, and their many colleagues within and outside the NAACP LDF, to undo the separate but equal principle and challenge segregation itself. I decided that by recalling part of Mr. Gray's majestic story, I could cover some of the same issues as they existed in Alabama.

For background, I revisited my personal copy of Gray's tome, Bus Ride to Justice, (9) one of the finest books on the Civil Rights Movement generally, and the struggle for equality and justice in Alabama specifically. It is an honest and candid book, revealing Mr. Gray's emergence into one of the great lawyers in our history. Gray modestly gives ample credit to many others who helped him kill Jim Crow in Alabama. If you have not read Mr. Gray's book, you have missed a classic and I encourage you to read it as soon as possible. If you are currently in law school, it will inspire you and enhance your legal and moral education.

What can one say about the inimitable, the incomparable Mr. Gray? One can say he came from humble beginnings. The laws of his state and nation were against him, his parents, and other African Americans because of the color of their skin. (10) His father, Abraham Gray, was a carpenter, but he died when Gray was only two. (11) His mother, Nancy Jones Gray Arms, lived until 1992; she was 98! (12) She worked as a domestic, particularly a cook, in several homes of white families around Montgomery. (13) He is the youngest of five. (14) They lived in a shotgun house, in Washington Park, with no running water, no inside sanitation, and no paved streets. (15) Under the dark caste of the law, they were denied equality of opportunity solely because of their racial classification. (16) They were deprived of basic necessities of life, of education, of employment, of fair wages, of political power, and excluded from the traditional paths to...

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