Back in the office my mind settled on a particular phrase from the hearing: “the absence of Negroes.” It haunted me. Whites were used to the absence of Negroes. To us, blacks were almost always absent. They were absent from our neighborhoods and absent when we went to restaurants. They weren’t on planes. You hardly ever saw them in the theater. Most of the time they were absent from the movies and TV shows we watched, or they had bit parts that were absurdly stereotyped. There was an absence of Negroes in almost all the books we read, and the only appearances they made in the newspapers belonged to sports figures, entertainers, and criminals. Sure, they were in our homes as help, knew the details of our lives, but we avoided knowing about their cares and troubles, and once out of sight they were out of mind. Absence was the preferred status.
So it was a major moment when Judge Kinneary asked me to explain why the “absence of Negroes” mattered in this lawsuit. I got to work. It would be easy to prove that Ethridge and Welch had no remedy. The Ohio Civil Rights Commission had never placed a single black with a construction union, which meant that Ohio’s antidiscrimination laws provided no realistic remedy. The new federal civil rights laws had been in effect for two years, but there hadn’t been a single lawsuit against a construction trade union in Ohio that made it to trial. If Judge Kinneary stopped construction, the state officials could find a way to get blacks on the job.
The other issue raised by Kinneary was irreparable harm. While Ethridge and Welch would probably make more money on the Ohio State project, the difference in pay didn’t rise to the high standard required to prove irreparable harm, a legal concept used for centuries by judges to thwart litigants who wanted a court to force someone to do or refrain from doing this or that thing. And in this case, the object, at least initially, was to stop construction on a building that could lead to discoveries that would help thousands of people, black as well as white.
Then it occurred to me that thirteen years earlier, Thurgood Marshall and Bob Carter had used psychological testimony to convince the Supreme Court that school segregation taught black children they were inferior to whites, and that the damage inflicted in the process was unlikely ever to be undone—in other words: irreparable harm.
I tried it out on Bob.
“If a black child grows up walking by construction sites where every single worker is white, doesn’t that send the message they aren’t good enough to be construction workers—that they will never get a shot at a job like that, and doesn’t that amount to the same sort of psychological damage as in the Brown case?”
“Everyone knows that,” Bob said dismissively.
“Most white people don’t,” I replied. “Anyway, you could say the same thing about school segregation—everyone knew it hurt kids’ self-esteem—and yet that’s how you convinced the Supreme Court it had to do something about it.”
“I’m not so sure what most white people knew then,” Bob replied. “But it’s worth a try. Be careful not to overreach or take chances that will lose us credibility with the judge.”
I was ecstatic.
“And don’t expect me to come out there and bail you out,” he said, with a smile.
Suppressing the urge to hug him, I felt appreciated in a way that reminded me of Bill Rutherford. That thought, however, was immediately followed by another: Was it racist to equate the two men? Bob was supremely well educated, and I didn’t even know if Bill had graduated from high school. But like Bill, Bob hid his deepest pain from me just as I concealed my conflicted feelings from him, and both men had reason not to trust white people. Though it was unstated, Bob and I knew there was a lot roiling just below the surface of our relationship, even as he had begun to trust me. He sensed that something deep inside drove me to the work we were doing, and that it was something I had to do. Anyway, I thought, it was my feeling, connecting the two men, and for that matter a driving force in my passion for the work.
I needed one more thing to increase our chances of winning: permission to drop Secretary Gardner from the case. Bob quickly assented, and so did McConnell.
I started putting together a trial plan. I decided that Bill Davis should take a more active role. It was crucial that Kinneary feel that the case rose out of a need of the black community in Columbus, and not because some white lawyer from the NAACP’s national office in New York City thought it was a good opportunity to push a radical agenda. The more Davis participated in the hearing, the less likely that Judge Kinneary would be distracted by my role. In the days ahead McConnell, Bob, and I conferred about experts, pulling three into our case. I interviewed them and prepared their testimony over the phone.
At nine thirty in the morning on May 1, we entered the courtroom with our small group of supporters. Bill Davis made a brief opening statement and called our first expert, Walter Tarpley, the community relations director for the city of Columbus.
Tarpley set the stage for our other expert testimony, reciting evidence of all the available unemployed young black men available to do construction work.
Hoiles’s cross-examination tried to weaken Tarpley’s testimony. He asked:
“Does the Negro lad just graduated from college have at least an equal opportunity with the white college graduate of 1966 to gain employment in almost any field he wants?” Hoiles asked.
“He does,” Tarpley agreed. To me that answer was just plain wrong. I held my breath.
“What about Negro and white high school graduates,” Hoiles pressed.
“No,” Tarpley replied. “Family connections come into play at this level, placing Negroes at a disadvantage.”
“How ready are Negro young people to work in the construction trades?” Hoiles asked.
“It’s true many Negroes haven’t spent much time training for jobs they didn’t think they could get anyway,” Tarpley answered, but “there are many already working in the more marginal craft jobs, and they can enter the field quickly.”
Two professors from Ohio State University, Nason Hall, Jr., an urban sociologist, and Samuel Stellman, a consultant to the U.S. Office of Economic Opportunity, followed Tarpley. The testimony of both men established our psychological approach. They told the judge that black young men looking to enter the workforce knew the construction trades were closed to them and that had a heavy impact on them—that they lost hope, became hostile and even antisocial. Both also discussed the positive effect that the opening up of jobs would have in the black community, and how easily black workers could be trained.
Next I called Ohio Civil Rights Commission Director Ross to follow up on some questions I asked at the March hearing about discrimination among the craft unions.
Judge Kinneary quickly took over, however.
“Has a single individual ever gained admission to any craft union after having invoked the procedures of the Ohio Civil Rights Commission in the seven years you have worked for the agency?” he asked.
“Admission,” Ross repeated. “I would be forced to say no.”
As there had been about thirty cases involving racial discrimination brought against the craft unions, Judge Kinneary wanted to know what the results were.
“The object was to gain admission of qualified Negroes,” Kinneary said. “Now, how many have gained admission as a result of the processes of the Ohio Civil Rights Commission?”
“How many have actually been admitted to the craft unions,” Ross repeated.
“Yes,” the judge replied impatiently.
“I know of no one,” Ross answered.
“No one,” Judge Kinneary repeated.
“No sir.”
“What is the end result?” Judge Kinneary asked, after listening to a few minutes of evasive testimony. “Has your commission been effective? Has your commission been ineffective?”
“In the trades,” Ross admitted, “we have not been effective.”
While closing our case I placed into evidence the collective-bargaining agreements between the craft unions and the various contractors involved in
the Ohio State bidding process. They didn’t require workers to have any particular qualifications for particular jobs. The contracts also prohibited the unions from discriminating against workers who wanted to be referred out of the various hiring halls on the basis of race or union membership, allowing the contractors to hire nonunion workers if the craft unions couldn’t provide qualified workers, which we claimed meant an integrated workforce.
Hoiles opened his defense by referring to a state legislative bill that would declare void any hiring hall agreements with a union that could not offer an integrated workforce on job referrals for public projects.
“Mr. Hoiles,” the judge interrupted, “the court has gone along on the assumption that the state of Ohio does not want to practice—in any way, shape, or form—discrimination against any group. Am I correct in that?”
“You are,” Hoiles replied.
“So why doesn’t the state tell the contractors on the project to hire Negroes from other sources if they want to work on the project?”
Hoiles referred to a law requiring the state to accept the lowest bid, which prompted Judge Kinneary impatiently to direct Hoiles to call his witnesses. To my surprise he recalled Ellis Ross, who testified that, in a few cases before his commission, orders had been issued requiring minority complainants to be given admissions tests to craft unions, which accorded them equal treatment.
It was my turn to cross-examine.
“Many workers have never taken tests to gain admittance into the craft unions,” I said. “Isn’t it unfair to now require tests after the whites got in without them? In the father-son friends-and-family system that prevailed, didn’t newcomers get trained on the job?”
“They do,” Ross replied.
“So tell me, why should a Negro have to start a job and be able to perform it with no training when whites started out without training? Is that fair?”
“It is not fair to require that,” Ross acknowledged. Sensing that Ross was tired of hedging, I took the chance I had avoided in March.
“You have no doubt in your mind, do you, that there has been racial discrimination in the craft unions?”
“Well, I’m pretty sure there has been, and this is based on twenty-six years of experience in the employment field,” he replied.
”And you are pretty sure there has been in Columbus, Ohio, aren’t you?”
“Yes,” he agreed.
I had one last question—a little riskier.
“And you are pretty sure of the fact that no Negroes are in most of the craft unions in Columbus, Ohio, today based on those historic patterns of racial exclusion, aren’t you?”
“Yes.”
“If your commission got the electrical union to accept Mr. Ethridge under an agreement that didn’t force the union to change its practices, would you be eliminating discrimination in the union?” I pressed.
“No,” Ross acknowledged.
The judge picked up on the point, asking if that had happened on an individual person-by-person basis, and Ross said it had. Then he gave us a parting gift, adding, “It will probably take eons to complete the eradication of discrimination.”
During my closing argument Judge Kinneary asked if he could stop the state of Ohio from entering into construction contracts for the project until it had a plan that would enable qualified Negroes to obtain employment. I said he could, explaining why and how he could make that happen. The logical follow-up question, “How many is enough?” wasn’t asked. Perhaps the judge thought that when the number of blacks in a particular trade was zero, it was moot.
On May 17, the thirteenth anniversary of the Supreme Court’s Brown decision, Judge Kinneary issued his ruling. As McConnell read it to me, tears of joy welled up in my eyes. We had won, totally and completely. Ethridge and Welch were qualified. The craft unions had discriminated against black workers, and the state officials were well aware that that meant an all-white workforce. No other effective remedy was available to the plaintiffs, except the intervention of the federal court. Especially satisfying was Judge Kinneary’s finding on the psychological impact of workplace discrimination. “Discrimination in the area of employment stunts the educational and technical potential development of [Negroes] subject to such inequities,” he wrote. “Injuries of this kind,” he went on, “are not subject to any sort of monetary valuation.”
Bob Carter hugged me. As word spread, a spontaneous celebration began. The following day I was part of a press conference presided over by Roy Wilkins and Bob. They introduced me as the lawyer who had won the case. Wilkins, Carter, and Herbert Hill, the NAACP’s labor director, went on to announce a national campaign to duplicate and implement the decision across the entire country. Sitting at the press table with Bob, Wilkins, and Hill, the NAACP banner behind us, I finally had the win I wanted.
But staring out of my office window afterward, I became preoccupied by the air of unreality that prevailed during the press conference. A national campaign was wishful thinking. The NAACP barely had the staff and resources to handle the Columbus case, let alone mount a national effort. If openly imposed school segregation was still common thirteen years after the Supreme Court had condemned it, the decision of one district-court judge certainly was not going to bring about the collapse of black exclusion from the craft unions. I had begun to understand that civil rights lawyers were only effective when they were a part of a strong movement seeking change.
One other thing haunted me. For years American leaders had said the right words, but their deeds left blacks still struggling with exclusion, poverty, and the knowledge that they were barely tolerated by whites. They didn’t need Judge Kinneary to tell them that discrimination stunted their lives. By inserting that concept into the case, I may have helped the judge to understand the destructive force of discrimination, but did the words “stunts” and “potential development,” which I had helped to place in his mind, have a condescending ring? I wondered if that bothered Bob, and if he saw my victory as the price he had to pay for progress. I also wondered if my presence at the press table, a young white using the suffering of others to make his mark, was an affront on some level. The victory was Bob’s, not mine. It was his theory that I had developed and executed, and I did not want to be seen as another Jack Greenberg in waiting. Quickly, however, I put such thoughts out of my mind. I knew that wasn’t me. Sure, I wanted some glory. But Bob was both an intellectual giant and a leader. The achievement was his, just as the Brown victory was the product of black intellectual thought and lawyering that started with the great Charles Houston at Howard Law School and was passed along to Thurgood Marshall and Bob. While white lawyers helped, it was critical that both Bob’s black world and my white world understood who the leaders were.
I think Bob could see how much I struggled to see the world through his eyes. My feelings for him transcended race, and I believe that his feelings for me did as well. There was something that reached across the space between us. Race was a barrier that could be broken and would not impede whatever bond was forming between us. I had been unable to overcome the barrier between Bill and me, which is how I became “Mr. Lewis.” With Bob I was on my way.
12
Two Different Worlds
I volunteered at the NAACP a month after Janine was born and worked there until she was five. By that time, Brian and Patrick had come along.
The year before Janine went to kindergarten, Kitty and I had one of the very few conflicts we’ve had to weather as a couple. For me it was work-related. I wanted Janine at the local public school, and Kitty was adamantly opposed to the idea. Janine was going to private school, as far as Kitty was concerned, and that’s all there was to it. I understood why she wanted it that way, but nevertheless I disagreed with her. My work almost demanded that she go to an integrated public school, but considerations of that variety had no bearing on Kitty’s point of view on the matter. If you’ve been happily married with children for any amount of time, you can probably guess that the stronger co
nviction won out—which really says something about Kitty, and maybe about me as well.
While I was a civil rights attorney fighting to integrate northern public schools, Kitty was the daughter of a Pittsburgh cop. She grew up in a working-class Irish neighborhood. None of her fellow students from either the local public school or the Catholic high school she attended went to college. More than fifty years later, Kitty still reminds me about this smoldering recollection of her growing up.
“I took typing and home economics while you were reading Chaucer and Shakespeare in high school,” the argument began. “I was taking a secretarial course. And while you went to Harvard, I was singing ‘This Is My Beloved’ while Slapsy Maxie Rosenbloom was holding a microphone to the bowl as he flushed a toilet offstage. You can talk all you want, but our children are going to private schools. I won’t have your mother looking down her nose at our children the way she does at me.”
“Half the kids who went to Harvard went to public schools,” I replied, “and anyway if there are problems with the local public school, we can get involved and help make it better. Be a part of the change—”
“You won’t do it,” she said, cutting me off.
“I will.”
“Not with your work schedule. You won’t do it. I want our children to go to private school.”
By the time Janine reached kindergarten age, the die had been cast. She went to the Ethical Culture School a few blocks down from our apartment building. “Ethical,” as it was called by those who knew about the world of private schools in New York City, was known for being liberal and socially activist. It made an effort to have one or two black kids in each class. Beyond that, however, it was private and white and for the children of the ever-striving wealthy classes. I had surrendered, without much of a fight.
Our children all grew up well, mainly due to Kitty’s caring. Their private school education taught them that they are members of an elite stratum of society, and the fallacy that they earned their place in that world by their own hard work. Although my children never said such things (or, as far as I know, thought such things), some of their schoolmates believed that the kids they saw who didn’t make it out of the ghetto were lazy—and it was their fault that their possibilities seemed so rotten when the buses rolled through their neighborhoods on the way to Riverdale. While over the years our children have learned about the incredible difficulties of growing up in barely functional settings where young men dealt drugs or worked other hustles, always on one side or the other of prison’s revolving door, it was only in an intellectual way, and with very little of the firsthand experience they would have had at a public school, where empathy could flow out of friendships. But what’s done is done.
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