The NAACP’s Legal Legacy

Farai Chideya for The Takeaway: Today the NAACP wraps up its convention celebrating its 100th anniversary with events including a speech by President Obama. Many historians consider one event to be the pinnacle of the NAACP’s power. That’s the Supreme Court’s decision in Brown v. Board of Education. It was argued by NAACP Legal Defense Fund lawyer Thurgood Marshall. Now, that was before he himself became a Supreme Court justice. The ruling ended legal segregation in schools. The Legal Defense Fund was originally affiliated with the NAACP, but in 1957 it became a completely separate organization. As we prepare for tomorrow’s final Takeaway broadcast on this historic week, plus a special we’re doing tonight, we bring in Harvard Law Professor Lani Guinier to talk about the legal victories associated with the NAACP, and today’s struggles over civil rights. Professor, how are you?

Lani Guinier: I’m fine, thank you.

Farai Chideya: So, how would you characterize the legacy of the NAACP and the NAACP Legal Defense Fund?

Lani Guinier: I think you have to have a before and after. You mentioned that the two organizations split in 1957. And before 1957, there was essentially a litigation program that was tied to field work and a network of local community-based branches so that the lawyers were working very closely with the community. After 1957 when the two organizations split, and they didn’t split voluntarily, they were pressured to do so after the court case in Brown because the southern politicians who lost Brown pressured the IRS to investigate the tax status of the two organizations. Once they split, then LDF became an independent organization even though it was the NAACP Legal Defense Fund, and the lawyer played much more of a leadership role independent of the local branch network of the NAACP. As a result you had, in many ways, a diffusion of the energy and a preoccupation or an emphasis on litigation as the solution. And you can see even now that many of the cases that LDF brings, and it’s a terrific organization with a terrific group of lawyers, are cases in which there’s no one on the streets, no one in the courtroom backing up the lawyers, because the lawyers are bringing these cases now independently of the community.

Farai Chideya: So it sounds like you’re saying there’s no grassroots at this point even for cases like the 1999 class action suit on behalf of 350,000 minority and poor bus riders against Los Angeles. There’s not a grassroots movement behind something like that?

Lani Guinier: That actually was a case brought by the LDF LA branch, but the lawyer who was involved in that has left LDF and now works for something called the Advancement Project, which is trying to replicate the earlier approach of the NAACP and the LDF in terms of getting lawyers to work more intimately, more closely, with community based organizations. Connie Rice is the lawyer I’m talking about.

Farai Chideya: When you take a look at this historic split and perhaps go back in time to what happened between 1909 and 1957 when there was the NAACP and a building strategy of legal challenges, describe a little bit more about what the fusion of community and local interest and legal interest might be, how it worked.

Lani Guinier: The branches were often at the forefront of identifying people with particular complaints about, for example, the black teachers who were concerned that they were not getting paid as much as white teachers, the blacks in South Carolina who took a lot of the initiative and were concerned that their kids were not getting an education equal to the white kids, and in particular were concerned that the black kids had to walk to school and the white kids had buses. They were the energy, they were in many ways a driving force behind the lawyers who came in to shape a lawsuit that represented the interests or the issues that were being raised by the community members. What has happened since 1957, and it’s a gradual process and in many ways I may be overstating the distinction in order to make a point, but in many ways it’s now the lawyers who are determining where you bring the cases, not the clients.

John Hockenberry: In looking at the traditional history of civil rights in the United States, for so long the judiciary has been the challenge mechanism for the power structure and the power elites in the United States to try to give people their constitutionally guaranteed rights. With so much of the power elite now shifted, and you’ve got such a tremendously symbolic moment with Barack Obama speaking before the NAACP, does it in any way change the impulse of lawyers or activists within the NAACP movement or lawyers who are likely to do what the lawyers in the NAACP Defense Fund has done traditionally, to focus on the judiciary? Maybe it’s better to focus on the White House or the executive or moving into the actual mechanisms of power in Washington.

Lani Guinier: That’s a very interesting question. Lawyers, especially litigators, see their role as winning in court and they often, especially given the way we teach in law schools, they often focus on the court as the instrument of social change. I think what you’re pointing out is that there are other ways lawyers can play an important and powerful role, but outside of courts, working on legislative change, working on administrative change. When I was at LDF, the NAACP Legal Defense Fund, in the early 1980s, my first assignment was working on amendments to the Voting Rights act of 1965. We spent all of our time working in Congress, but even then in 1981-82 the LDF was part of a larger coalition that was based in Washington but had enormous grassroots support around the country. What I’m pointing out now, and this is in some ways a contrast between 1981-82 and 2009, is that even though you had a massive organized effort at the local level to elect Barack Obama, that was a political effort. You don’t have that same massive, organized, community-based focus to change the law or to even change legislation in Congress.

Farai Chideya: Professor, we want to thank you so much, and I want to point out that before you were a Harvard Law Professor, before you went to Yale Law School with former U.S. president Bill Clinton, before you got involved in civil rights, you were a 12-year-old watching on television as an attorney for the NAACP Legal Defense Fund helped James Meredith get into the all-white University of Mississippi. Thank you so much, Lani Guinier.