Seven years Bob’s junior, Jack Greenberg, who was white, had played a much lesser role in the NAACP’s legal battles and was not nearly as creative. Despite that, Marshall handpicked Greenberg as his successor at the LDF and steered Carter over to the NAACP as its general counsel.
Maria explained the various theories as to why that happened. One involved a personal conflict between the two men. Another had to do with fund-raising. LDF was a tax-exempt organization, and some thought a white person could raise more money from wealthy whites.
“Others thought that Bob would challenge Marshall’s status as ‘Mr. Civil Rights,’” Maria told me. Also, some people theorized that it would help Marshall climb the white judicial ladder if he placed a white rather than a black at the helm of the LDF.
Bob, however, had refused to be sidetracked into an administrative job that would be responsible for internal NAACP matters and leave civil rights litigation to the LDF. Instead he developed an aggressive legal agenda for the NAACP, which involved attacking segregation in the North, where it was not based on Jim Crow legal codes but instead on more subtle, less overt forms of racism. In essence Bob believed that in the long run, the South would slowly adopt the Northern forms of racism, and blacks would still find their children trapped in segregated schools and housing, and limited in their job opportunities. By contrast the LDF effort was almost entirely focused on the South, bringing lawsuits against school boards and other public authorities that openly refused to obey Supreme Court rulings prohibiting segregation.
Under Bob’s careful direction, the NAACP legal office was working on a number of challenges to segregation in Northern public schools, where officials claimed that if any racial segregation existed it was the unintentional result of real estate ownership and housing patterns. Bob was convinced that Northern school administrators intentionally used school-district boundaries to segregate black children, but he thought it was a fool’s errand to argue about geography. To do so, he believed, would push the NAACP into the trap of trying to prove intentional segregation in thousands of heavily segregated school districts. To make that challenge even more difficult, most schools had at least some black children attending with whites.
Bob believed that if he pushed the Brown decision to its logical conclusion, the courts should rule that public school boards could not maintain predominantly black schools and predominantly white schools in the same district because black children would suffer the same type of psychological harm they suffered in Jim Crow schools, which was just as unconstitutional as total segregation. It was the effect of the actual segregation that resulted, no matter the cause, rather than the intent of public officials, that was the focus of his cases. Those targeted in this Northern campaign, as I will call it, countered that the NAACP was engaged in social engineering, and that its attempts to balance the races would require racial quotas, something that never crossed the minds of the Supreme Court justices when they decided Brown.
By the time I arrived at Freedom House in 1963, the opening round of this struggle to desegregate the Northern schools had been fought and lost in Gary, Indiana. The decision of George Beamer, the federal judge who heard Bell v. School City of Gary, Indiana, was that there was nothing illegal about the school segregation that existed. The kinds of segregation caused by housing patterns and the neighborhood-school plan, which placed children in schools near their homes, wasn’t a violation of the Constitution, he ruled. It constituted de facto, or unintentional, segregation, not de jure, or officially created, segregation.
Therefore Brown didn’t apply, Judge Beamer concluded. On behalf of the black children and their parents, Bob, appealed, and on October 31, 1963, the U.S. Court of Appeals for the Seventh Circuit upheld Beamer’s ruling.
Bob didn’t seem to be particularly fazed by the defeat. He had hoped the Northern judges would accept his legal concept, but was confident that the Supreme Court, which had unanimously decided Brown, would understand his argument and look beyond those Latin phrases, de facto and de jure, to the word that followed them both: “segregation.” To test his theory Bob requested that the Supreme Court review the Gary decision. At the same time Bob, Barbara, and Maria were engaged in a series of cases aimed at closed-shop unions. Their claim was that the National Labor Relations Board (NLRB) had the authority to force segregated local unions supplying labor to the same employer, with the white unions controlling all the higher-paying jobs, to integrate. In 1963 the NLRB agreed, but its ruling was under attack in the federal courts, which had the final say. But segregated local unions were only a small part of the problem. In the building trades, for example, the unions that controlled the jobs through collective-bargaining agreements were all-white. The same was true in many other industries where there were no black unions to integrate and whites-only unions controlled all the work.
To hasten the process of opening up these jobs, Bob decided to take on the liberal establishment that had made a habit of talking out of both sides of its mouth, courting the unions for votes while engaging in lip service about supporting black equality. Disregarding the combined political power of both the construction unions and the politicians who had voted for and supported massive public construction contracts, Bob had decided to take the David and Goliath route. The NAACP legal staff, on behalf of Lloyd Gaynor, sued the governor of New York, Nelson Rockefeller (the same man who, eight years later, ordered the Attica attack), as well as the city of New York and its mayor, Robert F. Wagner, for authorizing multi-million-dollar projects. In one fell swoop Bob had figured out a way to open up virtually all the trades, since the state and city contracts involved everything from heavy-equipment operators to welders and iron and sheet-metal workers to electricians, carpenters, plumbers, and pipe fitters. It was a daring move. If the onus fell on public officials to ensure equal rights in the workplace, at least on public projects, all the local unions and contractors that otherwise would have had to be dragged one by one before administrative agencies or courts would be brought to heel at the same time. The case was called Gaynor v. Rockefeller, and Bob had commenced it just as I had started to volunteer at the NAACP.
Even without Gaynor, which by itself was a huge undertaking, the NAACP’s legal staff was already overwhelmed. The Northern school cases were moving forward, the NLRB test cases were still unresolved in the federal courts, and the various boycott and demonstration cases arising in the South came in over the transom nonstop.
I remember the worried look on Maria’s face as she surveyed the papers on her desk. Barbara Morris was more vocal.
“This has to be a joke,” she groused as new mountains of cases materialized on her desk. She directed the comment at Bob’s office, but it was empty. “If he’s got a plan, I’d sure like to hear about it. Maybe it’s a secret, but there’s a whole lot of late-night work sitting here waiting to get done and not a whole lot of hands to do it.”
Barbara had a point: The pressure was mounting.
Pressure, however, was second nature to me. It was the theater all over again: The show had to go on. But there was so much more at stake. There was a thrill associated with being needed, appreciated, and useful. The more time I spent at Freedom House, the more the fog of those feelings I had regarding the unfairness of American race relations lifted. I felt the pieces of my life coming together. I only wanted to be down there helping out. Part of it, I sensed was payback for Bill and Lorraina, who had given me so much time, caring, and love and had gotten so little in return. But another part was something more. I was creating an identity outside the mold of my family. I was already straddling two tribes, one wealthy Jewish and the other working-class Irish, in my marriage. Now I was touching the outer borders of a third. I could still be a Warner grandchild and yet be free from some of its inherent restraints. Yet there was fear, too. I was in over my head, and if I made a mistake my well-meaning efforts could cause more harm than good in an arena where the stakes were so high. I can handle it, I kept telling myself. This is what happ
ens when you become a grown-up. It’s what life’s all about.
Every day there was a project waiting for me. Soon I was working on Gaynor as well as the Southern demonstration cases. A few other volunteers showed up from time to time to pick up legal papers and drop off drafts. Like me, they were almost always white and Jewish. Some, like Sandy Katz and Anne Franklin, were very good. But I was the only one who was beginning to think of the NAACP office as a second home.
One day Maria asked me why I was volunteering so much of my time. I made up the answer. I told her that I came from a wealthy family and had been taught that I should give back to society.
“Noblesse oblige,” she said, with an odd smile.
* * *
In my parents’ eyes, my volunteer work at the NAACP raised questions. I was the second son, who had tried his hand in New York theater, had not gone to a top law school, married an actress, had a child, and was not a great example of responsibility in action. So when a job at a law firm finally came along, engineered through my father’s contacts, I felt I had to take it. But I was determined to continue volunteering for the NAACP. Fortunately my employer, Abe Pomerantz, was left-leaning, and he liked the idea of me spending time as a volunteer at the NAACP. So he agreed I could work at Freedom House one day a week.
I liked Pomerantz. He espoused socialist views while simultaneously charging big fees to those who could afford them. He had made his name and his money suing directors of large corporations for lining their pockets at the expense of their shareholders, as well as representing some rich clients who wanted a bigger piece of the action. It was interesting stuff, but I suffered through one deadly research assignment after another. Pomerantz had also defended Valentin Gubitchev, the Soviet diplomat accused of bribing a Department of Justice employee named Judith Coplon to obtain state secrets. It was one of the major communist witch-hunt cases of the McCarthy era, but that case was long over by the time I was hired.
I had been trying to think of an apt excuse to escape the confines of Abe’s law firm, Pomerantz Levy Haudek & Block, so I could get back to the law library and work on my NAACP cases, when I heard the news that President Kennedy had been assassinated. I was horrified. For all of Kennedy’s equivocations, he had called upon all of us, and especially those of us who were young, privileged, and educated like him, to work for the betterment of the nation. Kennedy’s death moved me deeply. I felt as if something in me was going to die if I ignored his request to find a way to express my love of country through good work. And that way was right in front of me. Soon I found myself slipping off more and more to the library or to Freedom House.
The more time I spent at the NAACP, the more I wondered how Bob and Barbara viewed the white people who worked there. Besides Maria and me, there were the white volunteer lawyers who made occasional appearances at Freedom House. Sometimes I worried that Bob and Barbara merely tolerated us as helpful hands, even though there was plenty of evidence to the contrary. In my experience whites had always lorded it over blacks. Also there was Jack Greenberg, who had usurped Bob at the LDF. Put the two things together, and that seemed like reason enough for them to be on their guard.
Outwardly we all got along. Bob was the boss and leader I mostly saw at meetings. He called me “What Name,” but it wasn’t a race thing. He called a lot of people that.
I was mostly silent at the NAACP staff meetings that I was invited to attend, but when I had something useful to add, or when Maria put in a good word, Bob always acknowledged me. I felt that Barbara could go either way in terms of how she actually felt about us white interlopers, but despite my misgivings she always treated me well. At some point it became clear that whatever my racial insecurities were, they were infinitely more manageable than the ever-expanding apathy that I felt for the dire solemnities of a day job where my main objective was to facilitate the pursuit of wealth by our already-rich clients as well as large fees for the partners.
In contrast to the deadly seriousness of the Pomerantz firm, I liked going to the NAACP office. The staffers were appreciative and told me so. I could flit in and out, have ideas, make suggestions, do legal research, draft legal papers, and be generally clever—all of which appealed to me. Also, there was always humor in the air—maybe gallows humor—but still, it was not all work and no play. But there was a weightlessness to it all because I wasn’t truly responsible for anything.
I was still a volunteer when the Gaynor appeal was decided. Although a couple of the judges had given Bob a tough time at the oral argument, I thought we were going to win. After all, Harold Stevens was one of the five judges at the appellate court; he was black, and our case seemed strong.
When I read the opinion I remember thinking the conclusion must be a mistake. The beginning sounded as if Judge Stevens agreed with our argument. “The racial policies of exclusion by some of the defendant unions,” he wrote, “are of so long duration and so widely known that the courts might, if they so elected, take judicial notice of the fact.” That seemed to mean the NAACP would be spared the burden of proving what was beyond any question true.
Stevens also recognized that “unions exercise a virtual monopoly of skilled crafts in the construction industry and their policies effectively bar [all blacks] from employment.…” Again, that is what we said.
Stevens added that the court had to presume that both Rockefeller and Wagner “know that [the antidiscrimination] laws are not self-executing and depend for their effectiveness upon the sincerity and depth of conviction of public enforcement officials.” Another great finding. Then the bottom fell out.
Judge Stevens had two reasons to explain his adverse ruling: “Courts will not presume that such officials will fail or refuse to perform the duties of their office,” he declared, as if that negated all he had written before.
Second, Stevens ruled that we should have joined the contractors who were doing the work on the state and city projects. Even if the contractors were necessary, however, the judge ignored the fact that the standard rule of law for not joining a party (like those ancillary contractors) in a multiparty case is to give the plaintiffs the chance to add them. After we had all read Stevens’s decision, I joined Maria and Barbara in Bob’s office, where we talked about the next move. Quickly everyone agreed we should appeal to New York’s highest court, the court of appeals. The decision made no sense, and to start all over again and name the contractors would create endless delay. I was hoping Bob would explain why Stevens ruled against the NAACP, but I held back, afraid of asking him to bad-mouth another black man, as in my world I had heard Jews saying bad things about other Jews in private, but not before “mixed” company. In my family, for example, we were more careful about what we said when we were with non-Jews. Also, we rarely talked about why my parents changed our name from Siegel to Steel. Of course there was a family precedent, since Warner had somehow emerged from either Wonsal or Wonskolaser, and many other Jews had also anglicized their names.
We became the Steels when I was five, during World War II, after we moved to Crail Farm, which Major had purchased because he feared New York City might get attacked by the Germans. Although my dad never explained why our names changed, my mother came up with the explanation that they did not want people to think we were Germans. True or not, I never believed that was the reason.
So, without Bob’s input, I figured maybe Stevens was afraid that if he voted to keep our suit alive, he and other blacks struggling to have a voice would be marginalized even more than they already were, just as many Jewish leaders had been reluctant to press Franklin Roosevelt to take whatever action our armed forces could have carried out to stop or at least impede the Holocaust.
After our meeting I tried asking Barbara about Judge Stevens. She waved off my question and said he’d been a judge for so long he’d forgotten what the real world was like. “Don’t be worried about it,” she added. But I did worry. It would take me many years to internalize how difficult it was for one individual to stand up to group
thinking, and why it was so important that there be a critical mass of minority representation in any situation where the group thinking of the majority could effectively bring about self-censorship, whether it was one black kid in an all-white class or one black jurist on an all-white court.
7
Getting My Feet Wet
The letter informing me that I had passed the New York bar examination came in the fall of 1963. The admissions ceremony took place in the same courtroom where Harold Stevens and his fellow appellate judges had ruled against the NAACP in Gaynor.
The courthouse was on Twenty-Fifth Street overlooking Madison Square Park, which was gray and pruned back for winter. Once again five judges sat on the raised platform behind the beautifully hand-carved bench. The inductees were virtually all white and male. We sat in plush chairs under the domed ceiling, with the faces of famous judges set in stained glass peering down, literally, from on high. With the robes and shafts of morning light, it felt almost like a religious ceremony. There was a similar feeling of quiet and reflection. I had earned the right to be there. I was delighted, and I felt a mixture of pride and humility.
The stories I had heard while volunteering at Freedom House about the many ways racism had become hard-wired into our jurisprudence system, however, flickered through my mind. I now had some understanding about how hard it was to show judges where the law failed when it came to black citizens. I could see from my volunteer work at the NAACP how the smallest gains required Herculean strength, but somehow the stony reality of that knowledge dissolved in this setting. The feel in that ornate courtroom was informed by pride—both personal and patriotic. I had earned the right to be a part of this world. Quickly, however, the reality that I was beginning to see at the NAACP took over. As I glanced up at the judges on the ceiling, there in the glass dome was Roger Taney, a former chief justice of the United States Supreme Court. It had to be him, I thought, the Dred Scott judge; there couldn’t be two Roger Taneys.
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