The University Record, February 1, 1999

Affirmative action programs must continue, Motley says

By Kerry Colligan

If you ask Constance Baker Motley what she recalls of Martin Luther King, she may tell you about working on marches, or visiting him in a rural Georgia jail cell, or speaking with him at churches throughout the South.

Undoubtedly, she will tell you of her 1963 trip to Birmingham, Ala. Just before graduation, Birmingham schools expelled 1,100 students for participating in a desegregation march. "The older people were tired of marching," Motley, senior judge for the Southern District of New York, told a standing-room-only audience at the Law School on Jan. 18. "They didn't want to march again, so somebody came up with the idea of getting kids to march because, you know, they never get tired."

Representing the students's parents, Motley argued the case before a local judge who lectured her "on how terrible it was that she had the kids marching on Saturday."

"He said to me, 'You got any children?' and I said 'Yeah.' He said, 'Why would you have those childrens marching?' and I said, 'We're not here to discuss that, really.'"

Motley's careful, but sharp tongue eventually got those students reinstated, a feat King appreciated, she said, because he could not have returned to Birmingham had the students been expelled. "We got him back in."

It seems Motley's past is littered with anecdotes of the civil rights movement's most prominent figures. As a law student at Columbia University, Motley was offered a clerkship in Thurgood Marshall's office. Upon graduation, she remained in his office, working for the National Association of Colored People (NAACP)'s Legal Defense Fund.

"I was on the ground floor of one of the major developments in American jurisprudence," she explained. "Among the things that I did in the 20 years that I stayed with the defense fund was to participate actively in what has come to be known as the civil rights movement," she said.

To understand what came out of the civil rights movement, where American society is today and where it is headed in the 21st century, she looked to the past, discussing a few of the major events in jurisprudence in the last 150 years.

In the 1857 Supreme Court case Dred Scott vs. Sandford, the Court "plainly established the young United States as a racist society," she began, in affirming that a Black slave could not become a U.S. citizen. After the Constitution was amended following the Civil War, that racism persisted.

"The overwhelming majority of whites refused to accept Africans as equals in American society. This was made clear by the Supreme Court justices who, in Plessy vs. Ferguson in 1896, gave their ringing endorsement to the concept of separate but equal, a southern state's policy, fashioned by racists, to circumvent the 14th amendment's unequivocal mandate of equality in American public life."

The civil rights movement produced a series of legislative actions designed to eliminate racial discrimination, she continued. "Essentially, Congress has provided a federal remedy of dealing with racial discrimination in privately owned places and public accommodation." While official racism had once again been barred, private racism, she said, remained largely unrestrained.

"All of these national and state legislative remedies not withstanding, attempts to eliminate governmental and private race discrimination meet their greatest resistance whenever they take the form of affirmative action programs.

"It is precisely because those who resist the full equality of African Americans do so disingenuously that we have failed as a society to get beyond racism at the end of the 20th century."

Motley stopped short of placing the blame squarely on those resisting equality. "The fact that all African Americans did not enter the middle class was, or should have been expected," she explained, "because this is a success-oriented society.

"The greatly expanded African American middle class in the second half of the 20th century is the best evidence, if not the only evidence that racism has diminished. In the next century, as in this one," she said, "private racism will decrease in direct proportion to the extent to which the status of African Americans as a whole is improved. For this reason, affirmative action programs, which are designed to remedy the crippling effects of past racial segregation, must continue."

Motley's lecture was sponsored by the Law School, and can be heard on the Law School Web site: www.law.umich.edu.