Race as identity caricature: a local legal history lesson in the salience of intraracial conflict.

• Author: Brown-Nagin, Tomiko

INTRODUCTION

In a seminal article published in The Yale Law Journal during the late 1970s, Professor Derrick Bell offered a stinging critique of the country's premier public interest law firm. (1) Bell critiqued conflicts that developed between attorneys for the NAACP Legal Defense Fund (LDF) and clients whom they represented in the Detroit, (2) Atlanta, (3) and Boston (4) school desegregation class actions. He concluded that in all three cases the lawyer-client conflict stemmed from a common source: LDF's failure to reconsider its policy of pursuing racial-balance orders as the sole remedy for de jure segregation of public schools after it became apparent that such orders no longer were politically or legally viable. LDF attorneys were remiss, Bell claimed, in rigidly adhering to the notion that Brown v. Board of Education (5) required racially balanced schools even after it had become clear that not only recalcitrant whites but also sympathetic federal judges and-most importantly--their own clients rejected desegregation as the sole remedy for educational inequality. (6) Bell viewed this rigidity as a function of an ethical tension inherent in LDF's attempts to serve two groups whose interests and objectives diverged: on the one hand were LDF's clients--who suffered the quotidian disadvantages of desegregation, including busing across long distances to schools whose educational merit was often questionable; on the other were LDF's constituents--financial contributors who unfailingly supported the goal of achieving an integrated society. (7)

Though it is a point elided by commentators who emphasize his racial polemics, Bell did not view the "two masters" his article identified solely in terms of race. Serving Two Masters was premised on a war between classes--the rich versus the poor--as well as on the paradigmatic battle of black versus white. More specifically, Bell's article counterposed poor (black) clients against wealthy (mostly white) constituents. In his view, wealthy whites (and a few middle-class black leaders who followed white contributors' lead) were overly influential in LDF's decision making about appropriate remedies in the school desegregation cases. (8) To resolve this dilemma, Bell suggested that public interest lawyers who represented plaintiffs in school desegregation cases should exercise a great deal of deference to their clients' remedial preferences. In particular, he argued that clients, rather than outsider constituencies, should determine whether integration was an appropriate remedy for educational discrimination. (9)

This Article challenges Bell's conclusions in important ways while taking seriously, as an analytical matter, the questions of whether and how class conflict affects litigation in race discrimination cases. Most legal commentators who have discussed the constitutional issues presented by America's continuing dilemma of race have either overlooked class as an analytical factor or invoked its salience while failing to demonstrate empirically its relevance. Yet the question of how economic disadvantage affects, indeed orders, social relations is an issue that for years has animated scholars in disciplines outside of the law. (10)

In addressing this question here, I use a particular kind of legal history--locally based "sociolegal" history. This approach to legal history combines an analysis of developments in litigation with a detailed discussion of the social dynamics in a single locality in order to highlight nuances overlooked in nationally oriented, case-law-driven legal history. In particular, this methodology uncovers the effect of intraracial, class-based conflict on two fascinating, yet unheralded, civil rights class actions involving the desegregation of Atlanta schools: Calhoun v. Cook and Armour v. Nix. (11) In analyzing the social, political, and economic circumstances surrounding the Atlanta desegregation cases, I seek to demonstrate how locally based sociolegal history can help us more fully understand the human and structural factors that animate the success or failure of legal campaigns against inequality. Specifically, I show that Brown's meaning and practical impact in local jurisdictions did not result only from the actions and opinions of heroic civil rights lawyers and whites--whether judges, lawyers, politicians, or violent resisters to equality--as much legal commentary has implied. Integrating the social history of client-communities into the legal history of the Atlanta school desegregation cases demonstrates that the ideological perspectives and social circumstances of local African Americans (12) influenced the path that Brown took in various communities as well. Brown's putative beneficiaries were not, then, passive recipients of legal strategy and court judgments.

The Atlanta narrative demonstrates, in particular, the social agency of black middle-class decision makers who rejected the integration-oriented remedy favored by LDF over the objections of a group of working-class and poor plaintiff class members. The Calhoun and Armour plaintiff classes were split into multiple opposing camps based on their divergent remedial preferences. Some, including a contingent of working-class and poor plaintiffs, favored using busing as a tool for achieving meaningful pupil integration. Others favored improved schools but did not express a strong or informed opinion about what kind of court order would achieve this goal. Still others, a small group of middle-class black leaders who were supported by local white elites, demanded black administrative control of the school system and a remedy that minimized pupil integration. I argue here that the perspective of this last group, the biracial elite, prevailed in the courts largely because presiding judges did not meaningfully address the reality that poor blacks had interests distinguishable from those of the middle-class blacks who were the self-proclaimed leaders of the entire African American community. The Atlanta narrative thus reveals the relevance of intraracial social dynamics, particularly class dynamics, to effective public interest lawyering and to effective remedies for constitutional violations.

The remainder of this Article is divided into four parts. Part I explores how and why the legal literature that considers the issue of school desegregation generally omits discussions of intraracial, class-based conflict. I demonstrate that by privileging white resistance and doctrinal concepts, legal scholars have offered an incomplete analysis of the factors that undermined civil rights lawyers' efforts to implement Brown and, by analogy, the problems that beset other efforts to reform society through law.

In Part II, I offer empirical support for the claim that scholarship on Brown's implementation is incomplete because it fails to consider intraracial dynamics. I analyze the legal and political maneuvering that led to the settlement of the Atlanta school desegregation cases in a manner that a vocal contingent of working-class and poor plaintiffs found inadequate. I draw upon transcript testimony of hearings held by the federal district court to entertain objections to the settlement as well as other evidence to demonstrate that socioeconomic class was a factor salient in lawyers', politicos', and nonlawyers' deliberations about the settlement. Class consciousness and class interests influenced the substantive provisions of the settlement, the extent to which and manner in which the proposed settlement was discussed by lawyers and clients, and clients' perceptions of the settlement's efficacy. A further point here is that the law--its norms, rules, and procedures--was constitutive in decision makers' ability to attain a remedy that favored the preferences of the black middle-class leadership and delegitimized the concerns of the black working poor.

In Part III, I discuss the normative implications of the historical analysis offered in the previous sections of the Article. These implications relate to scholarly assessments of the significance of Brown v. Board of Education and Swann v. Charlotte-Mecklenburg Board of Education, (13) the utility of the sameness norm relied on to settle disputes in equal protection jurisprudence, and the power of empirically based social history to inform the continuing debate about whether significant social reform can be achieved through law. I conclude by challenging scholars, public interest lawyers, and courts to account for the multidimensionality of plaintiffs in civil rights actions when considering, litigating, and adjudicating their constitutional claims.

1. AGAINST EXCEPTIONALISM IN LEGAL UNDERSTANDINGS OF RACE

   One of the most provocative concepts in labor history is "American exceptionalism," the notion that class consciousness was relatively undeveloped among the working classes in the United States when compared to the working classes of Europe. (14) American labor historians have worked assiduously over the years to correct the exceptionalism misconception. Through research projects focused both on activities within trade unions and without, these historians have uncovered a history of working-class culture and consciousness among Americans, including vibrant stories of workers organizing collectively to demand safer workplaces, more competitive wages, and union representation. (15) Much of this scholarship explores the class consciousness of African American workers, women, and others not traditionally perceived as legitimate wage earners. (16) The persuasive power of these works lies in their painstakingly detailed descriptions of associations, habits, behaviors, and acts of protest that elucidate the experiences of the working classes--their cultures, communities, beliefs, and organizations.

   I propose that a variant of the "exceptionalism" idea functions within the legal literature addressing race-related equal protection jurisprudence...