No time for trumpets: Title VII, equality, and the fin de siecle.

• Author: Jones, D. Marvin
• Position: Visions of Equality: The Future of Title VII

I grew up in the East Baltimore of the 1950s. My father was a steelworker at Bethlehem Steel. Bag lunch in hand. he would leave our row house late at night on his way to the Sparrow's Point Plant. He worked from eleven to seven - when he could get work - loading trains with iron ore.

My mother did hair." She worked in the cramped confines of our kitchen, straightening and styling curlers rattling, two hours per customer, for a fee of two dollars and twenty-five cents each.

She was very industrious.

My grandparents on both sides were farmers in rural Virginia. My great-great grandparents were slaves.

We were called "Negroes" then, and as Negroes we lived behind a kind of wall - not a physical wall, but a wall of deeply understood limitations on what we could aspire to, what work we could get, what constituted achievement. The wall ran high and long across the vale of history and surrounded not only my family but my totally Negro neighborhood as well. The wall, as a pattern of economic and social relations, replicated itself across the United States of my youth. The meaning of being a Negro in the 1950s, an era in which Jim Crow and overt segregation held sway, was that one had to live behind the wall. Behind the wall my mother and father, my cousins and uncles, worked as janitors and stevedores and maids and hairdressers and garbage men and steelworkers. We picked the cotton, washed the floors, cooked food in restaurants in which we could not be served, made the beds, cut the grass, and sold watermelon from horse-driven carts.

The psychological reality of the time is perhaps best chronicled by the popular culture it produced. I remember shows like Tarzan, Jack Benny, and Amos 'n' Andy portraying the Negro variously as a native, as a childlike butler, or as a con man long on ambition but short on talent, trying to bilk his friends. These depictions of Negroes of the 1950s, in the explicit way in which they walled Negroes out of any sense of human dignity, mirrored perfectly the explicit way we Negroes were walled out of the larger economy and society in those bad old days. From behind the wall I would call my parents to the living room whenever a miracle would happen, as they did from time to time - when a Negro would be shown, not as a native with a spear or a con man or a servant, but in a respectable job, perhaps as a high school teacher. These respectable jobs did exist for Negroes, but they were in Negro schools or hospitals. We could be respectable, after a fashion, but we had to stay behind the wall.

The wall in effect divided true respectability and its imitation. Respectability always had a white face. The principals of the schools I went to - all of which were predominantly Negro - were white; the policemen were white; the mayor and the lawyers and the executives I saw downtown were white. Whites ran the banks and did the hiring at the restaurants, at Bethlehem Steel, at the taxi cab company, at City Hall. Whites presided over the courts; they were the foremen at the plant. The boss was white; the insurance man was white.

The world of the 1950s, along with the stark and demeaning patterns of de jure segregation in employment, has passed away. Since then, I have struggled to wrest my identity from the clutches of Tarzan and of Amos and Andy. I am now a professor of law at a southern law school. I have moved from the inner city of East Baltimore to the suburbs of Miami amidst palm trees, Olympic-size pools, and glitzy sports cars - and I am no longer called a Negro. My friends include blacks who are lawyers, doctors, members of legislatures, and members of university faculty. One legacy of the past is progress, at least for the talented tenth. But somehow I do not think this is yet a time for trumpets.

Ironically, the people I see who cut the lawn, who pick up the trash, who wield jackhammers to fix up the streets, are still almost always black. The law firms, the doctors' offices, the hospitals, the judges' chambers, the faculty lounges at most major law schools, the corporate boardrooms, the U.S. Senate, and the affluent areas of town are still overwhelmingly white. For me the worlds of the 1950s and of the 1990s are not distinct but seem to interpenetrate one another. The wall is less visible. But the wall is still there. And they said unto him: We have dreamed a dream and there is no interpreter of it.(1)

Equality is the precept in whose name America has chartered itself. Since Jefferson's famous aphorism, "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"(12) the idea of equality has rung down the corridors of history as a clarion call to national unity and resolve. In the midst of the Civil War, Lincoln invoked equality as an exhortation to a renewed sense of national identity in his Gettysburg Address: "[O]ur fathers brought forth upon this continent a new nation ... dedicated to the proposition that all men are created equal.113 In the twentieth century in the speech of former President Lyndon Johnson, equality reverberated as a summons to rededication to national ideals: This was the first nation in the history of the world to be founded with a purpose. The great phrases of that purpose still sound in every American Heart . . . 'All men are created equal ......."(4) In the legitimating myth(5) reposing in the Declaration of Independence and in the narratives of three presidents, equality has been the moral equivalent of the holy grail: it is the object of our sacred quest, and this quest has defined and ennobled us. Equality and our professed search for it in each era renews that era as a time of beginning, a time shot through with an emancipatory, revolutionary spirit.(6) Equality has given us both our sense of who we are and our sense of the spirit of the age.

But prior to 1964, equality for black(7) Americans was only a dream. This was particularly true in the realm of employment.8 It was a dream word that reposed deep in the realm of the moral imagination, inspiring itinerant preachers, civil rights marchers, presidents at moments of national crisis, and progressive whites, but yet only a word - one whose truth had never been realized within the lived experience of black Americans. But dreams still have the power of prophecy. Words still have power to create worlds.9 It was this mere dream that had the power to unite a coalition of blacks and northern liberals into a social and political movement beginning after the end of the Second World War.(10)

The movement was extraparliamentary in form and consisted of protest marches, sit-ins, freedom rides, freedom walks, and economic boycotts." As an extraparliamentary expression, the movement confronted American politics as the cogito confronts the self: the marchers and sit-in protesters stood outside regular political processes, outside the legality of the era of segregation, accepting arrests and officially sanctioned brutality. This was in order to compel Americans to stand in their consciences outside the political process to see themselves and the sheer violence of segregation. This operated at a discursive level: it deployed the story of origins, told by Jefferson, Lincoln, and Johnson in tandem, with a utopian vision of America as it could be - an America risen from the darkness of the past. Equality was the suspension bridge between the golden era of revolution and a hoped-for, progressive future, to whose reality the marches were witness. It premised the reality of segregation as an obstacle on the suspension bridge between America and its destiny, between America and the spirit of its ideals. Through this process of using equality as a conceptual bridge to reimagination of national identity, the moral universe itself could be reconfigured. Racism in public life, formerly as quotidian and as American as apple pie, became the "American dilemma."(12) This American dilemma became both social diagnosis and anthem of a new America trying to be born. The new America resonated with the impulse of the Enlightenment to celebrate individuality over race - modernity itself over the primitivism of the segregated past.

Arrayed against the forces of change through the civil rights movement was the structure of law and the interlocking institutions that maintained segregation. Moreover, behind that structure, deeper and stronger than segregationist laws, stood an ideological'3 structure of assumptions about the naturalness of excluding blacks.

Against notions of equality as a legitimating ideal was posed the freedom of the individual to associate and the freedom of the property owner to use his property, and particularly his workplace, as he chose. Against the claims of modernity was posed the serenity and order of the past with its bright lines demarcating the boundaries of public and private. Questions of the employer's decisions fit squarely in the private sphere.(14) Within these social precincts of American life, the segregation of blacks in employment was natural, or at least inevitable.

Title VII of the Civil Rights Act of 19641(15) represents the political resolution of a historic conflict. Through Title VII, passed after perhaps the longest legislative debate in history,(16) the dream became law. Through Title VII the word equality had become in a sense flesh, or at least official policy. This new federal policy heralded and served as an emblem of a new era, perhaps a second Reconstruction, in American law.

There was consensus that the wall of segregation must come down, that discrimination was illegal and had no place in the marketplace. The trouble was that the statute defined neither discrimination nor its animating ideal, equality. While equality or equal opportunity had gone from gossamer ideal to concrete rule of law, the nature and scope of this equality "rule" remained cloaked behind the veil of indeterminacy.

In the early...