Black and White: Equality and the Law

THE OPEN MIND
Host: Richard D. Heffner
Guest: Jack Greenberg
Title: “Black & White: Equality and the Law”
VTR: 8/8/84

I’m Richard Heffner, your host on THE OPEN MIND. Oliver Wendell Holmes once wrote that “the life of the law has not been logic, it has been experience”. And my guest today, recently retired Director Counsel of the NAACP Legal Defense and Educational Fund, Jack Greenberg, has been a uniquely large part of this nation’s civil rights experience, having served the legal defense fund for three and a half decades. Well, as he returns to Columbia Law School to teach civil rights law and to develop a program in international human rights, one could analyze with jack Greenberg a whole list of key issues. In general, how goes the civil rights movement today? Where does the Supreme Court stand? What, today, not yesterday but today, can be, should e the role of whites in the movement? Why does there seem to be such a split now between some black and some Jews, their former best friends, on the question of affirmative action? And, I mention it last, but i would like to deal with it first – in light of the long-time push for affirmative action and the need for public understanding of this issue, did it ever make sense to press the idea that this nation should be, could be, color blind? And that really, Mr. Greenberg, is the question that I’d like to start with today. Was there something misleading about the notion of color-blindness?

Greenberg: No. I don’t think there is anything misleading about it. I think that is ultimately our goal, at least in the public life. People obviously will have family and traditional and sentimental preferences in their private lives. That, I think, is the ultimate goal. But I think in order to achieve that goal we have to be color conscious and will have to be for some time to come.

Heffner: But didn’t that pose a problem in terms of public understanding? The, on the one hand, yes, color blindness; and on the other hand, no?

Greenberg: Well, it obviously has posed a problem because it has been a source of controversy. There’s no question about it. But nevertheless, I think one has to e color conscious in order ultimately to achieve a publicly color-blind society.

Heffner: And yet your friends and colleagues and many people have said that your legal efforts – and they’ve been noble efforts, and they’ve been such largely successful efforts – at ending color considerations in terms of the consideration of one human being by another or one human being by government, that that now has been set aside by a demand for affirmative action that focuses so totally on recognizing one person’s blackness, another person’s whiteness.

Greenberg: Well, I don’t think it focuses so totally. I mean, after all, affirmative action, while very important, is nevertheless only one part of the entire civil rights effort. That effort includes what I would say today is the major part. Political participation. I think we see in this election for the first time the potential of something approaching full minority political participation in at least the national and local political process. It includes an end to discrimination that is color consciousness, which discriminates against disadvantaged minorities in housing and employment and education and so forth. And includes at the same time what some would say is paradoxical but I would say is essentially supportive: a consciousness of color so that people who in the past have been disadvantaged can fully participate and take advantage of the principles which now require an end to discrimination.

Heffner: I know that I understand what you’ve just said, and I know that I agree with you in large part. Why is it, how is it that so many persons who have been concerned with rights in the past in many different areas cannot, will not, do not accept this approach to affirmative action?

Greenberg: Well, certainly there are persons who don’t accept it, but I don’t know that it’s so many persons who have been concerned with rights in the past. Some persons who have been concerned with rights in the past. Well, I think what you have to take in account is what it was they were concerned with. I mean, there are rights and rights. People in the past who have, now are opposed to affirmative action believed that there should be no overt impediments to full participation. In other words, there shouldn’t be a law which says blacks can’t eat at a lunch counter or can’t vote. They were opposed to those, those obstacles. At the same time, those persons were not committed to what i would call a full equality. In other words, they say, “Lift the barriers, and then everyone, you know, is on his or her own”. Others who were opposed to the barriers and impediments of racial discrimination at that time went beyond the mere opposition to the barrier, but said the barrier should be lifted as a step towards bringing about a greater measure of equality. And so there were two different kinds of persons at that early stage: those who have persisted in now supporting affirmative action are one group and those who said, “Look, we lifted the barriers and the devil with it, you’re on your own” are yet another group. So, there’s two…at that early, at that early stage, no one really differentiated between the two groups because they were all supporting a single effort. But then in the mid 60s as the civil rights law came into being it was necessary to make some discriminations, in yet another sense of that word, among the two groups.

Heffner: I remember when John Kennedy – the night that Ned Gabers was assassinated in June 1963, shortly, some months before the president himself was assassinated, said, “We must take this battle off of the streets, out of the streets and into the courts and indeed the halls of Congress”. When the battle went into the courts, and you played such a large role there, and of course it had been there sometime before in the Brown Vs. Board of Education decision, isn’t that, isn’t that the area which the confusion existed to the greatest extent? You were in the courts. While you’re in the courts you are not going to recognize color. But you’re talking now about taking the question from the courts to the Congress. Making political decisions. And here is where there are at least some people who were your former supporters who part company with you.

Greenberg: Well, that’s, that’s only partly correct. Te, the courts did recognize race. The courts in a whole variety of cases recognized race as an appropriate remedy that is taking affirmative action on the basis of race, goals, timetables, and those who want to be pejorative about it calling it quotas. The courts recognized those types of remedies and endorsed them and implemented them. No question about it. And when others employed those remedies and they were attacked in the courts, the courts have generally, though not always, upheld those kinds of remedies. So it’s proper in the court, and indeed the Congress. Not long ago the Congress adopted a law saying ten percent of all government contracting business for certain highway construction must go to minority controlled firms. So the Congress has recognized it also. That doesn’t mean there aren’t a lot of people against it.

Heffner: Do you anticipate that at the level of the Supreme Court of the United States there will continue to be that kind of support for this motion?

Greenberg: Well there have been about a half-dozen major cases in the Supreme Court involving affirmative action. And in all of those cases the court has walked a very narrow line. But in walking that narrow line it has generally been supportive with one exception, and that exception is the most recent case involving Memphis firefighters in which the court said that in a layoff situation, in order to preserve the affirmative action gains that minorities have made in the past, you may not disproportionately lay off whites to save the jobs of blacks. And of course that’s, in an emotional sense, the toughest case.

Heffner: Why do you say, “In an emotional sense the toughest case”?

Greenberg: Well, because logically speaking if you can give a job to a black rather than to a white in order to achieve some compensation for an injustice of various sorts that has occurred in the past, the logic would seem to lead you to the result that when you’re retrenching you should preserve the gains you made. But it’s awfully hard to tell somebody…it’s one thing to say, “Look, we don’t have a job for you, and, but there may be anther next week or somewhere else”, and it’s another to say, “You’re fired because of race”. And there are legal reasons for that, but i think that gut issue played an important role in the decision in the case.

Heffner If you make an assumption that the, as MR. Dooley did a long time ago, that the Supreme Court follows the election returns, do you think that, on the case that you are referring to here, that the court’s decision reflected basically what the election returns are and may well be even more so in the near future?

Greenberg: Well, yes and no. You know? I mean, what Mr. Dooley said has an element of truth in it, but I think it’s a little crude. Because I can tell you, for example, the courts did more school integration after the election of Richard Nixon than any time in history. So it doesn’t only work that way.

Heffner: All right. How do you think it will work now?

Greenberg: Well I don’t know. I mean, the Congress is there. The congress, certainly at least the House of Representatives, and I think to an increasing extent in the next election, however it comes out, the Senate will be pro-egalitarian. Just by that I mean they will want to do something to make racial minorities more equal to the rest of the population. And that involves affirmative action. Not all and any affirmative action, but I think it will support affirmative action.

Heffner: What do you mean, “more equal”?

Greenberg: Well equality can be gauged according to a variety of standards. Certainly in terms of outcomes, in terms of criteria. To make it more possible for people who previously had been on the outs, who had been excluded, to have jobs, to have status, power, prestige, which in the past for a variety of reasons, both legal and societal, they have been excluded from.

Heffner: Do you think you can, that we as a society can make up for the unrequited toil and the centuries of that, and the centuries of discrimination with the approval of the majority of the American people?

Greenberg: Well yes, I think we can. I don’t think it’s a straight line. I don’t think it’s even. I don’t think it’s at a steady pace. But I think it has happened. It’s certain. I mean, if you just look at the history of America, let us say, since the 30s, that’s what’s been going on. I think it will continue to go on.

Heffner: You do think it will continue to go on. You don’t think there is a backward step now, or backward steps being taken or that we’ve reached a point at which those who argue in the other direction will find greater and greater support?

Greenberg: Well, it’s complex. There are a lot of things going on at once. But to me the most conspicuous factor in the entire civil rights scene is for the first time the emergence of the black electorate. The black congressional caucus which now numbers in the twenties will, I think in the not too far distant future, number in the thirties. That’s a force to be reckoned with. And they’re pretty much of one mind when it comes to civil rights. The, the courts, for want of a better term, have on some issues I think received a little bit, but many others have stayed pretty steady.

Heffner: What indication — and it sounds as if I’m baiting you, and I don’t mean to –

Greenberg: No, no, no.

Heffner: — I’m trying to grapple with this question.

Greenberg: Uh hum.

Heffner: as you retire from your NAACP Legal Defense Fund position, after all these years – not talking about the courts now, not even talking about the administration, not about the Congress, but in terms of public opinion – do you, are you sanguine, not just in terms of the general proposition that we make progress slowly and we move a little and we move a little and we move a little, but in terms of what you sense about the majority of white Americans today that the notion of affirmative action for instance is accepted or rejected?

Greenberg: Well you know, whether one is sanguine or not is more or as much a function of one’s personality as it is of the objective scene. And so I’m sanguine, but I don’t’ know what that tells you. But I am. And I am because as I say, the public opinion and the law and developments in society express themselves in various ways. And sometimes you may be winning court decisions, and sometimes you or we may be winning in Congress. To me it’s important, for example, that as a result of things that have happened up until now, blacks who have graduated from high school are now enrolling in college in the same proportions as whites. That, I think, tells an awful lot. That in part is a function of affirmative action. It’s important to me that blacks are beginning to vote in – nobody’s quite pinned the proportions down at this point, and you hear a lot of figures and statistics – but certainly very much more heavily than in the past. And that’s got to translate itself into how society’s going to address these problems. At the same time, one sees, well, a conservativism in some aspects of American life, but that’s got to be seen as part of all these things that are going on at once.

Heffner: What going on at once? You mean all the steps forward, and you see the step backward in that context?

Greenberg: I think…I see all the steps forward. I see that, when you read public opinion polls, again, you get involved in sort of semantic quibbles. But a public opinion poll, the Harris Poll, for example, which says that, “Do you favor affirmative action so long as it doesn’t’ involve rigid quotas”? And you get overwhelming numbers of whites saying yes. You could put that question a little pejoratively and you would get no’s. But I think that’s a fair way of putting the question, because rigid quotas are rarely a remedy that anybody’s tried to impose.

Heffner: Back then to affirmative action and to that question. Do you really think that that is the keystone of the civil rights movement at this point?

Greenberg: No. I think the keystone of the civil rights movement at this point is political participation.

Heffner: Okay, I knew you had said that to me at the beginning, and I’d like to go back to that again now. How important was the Jackson movement, the Jesse Jackson movement before the Democratic convention?

Greenberg: Well, I think extraordinarily important. He managed to be there at the right time, and to have the qualities of personality that could get those people out to vote. Stir people up, get them excited, get them interested. People don’t generally respond to the kind of exhortation I’m capable of. But they do to Jesse Jackson.

Heffner: You say, “not to the kind of exhortation that you’re capable of”. I don’t know whether you’re talking about your forensic abilities, but if you were talking about the color of your skin, if you were talking about this question of the white man playing such a leadership role in the civil rights movement, how do you evaluate the concern about that that has been expressed over the past few years?

Greenberg: Well, I’ll answer your question, certainly, but I was not talking about the color of my skin, I was talking about what I consider the sort of emotionally pallid quality of my argument.

Heffner: Okay.

Greenberg: It may go over very well with the court, but I don’t really turn large audiences on. That’s what I was talking about.

Heffner: Okay. I really knew that, but I wanted to bring it to the…

Greenberg: How do I, how do I, how do i…well, the civil rights movement to me is an interracial movement with interracial goals. The NAACP when it was founded in 1909 or 1911 had, well, maybe as many whites as blacks on its board, and its, until a few years ago when it turned virtually all black, one of its top officers always had been white, its president or its chairman and so forth. The Legal Defense Fund for which I worked, well, I was the white executive director and always had a black president and chairman, and now that it has a black executive director has a white president. It quite consciously and correctly views itself as an interracial organization advancing goals of racial equality. So I view the participation of a person as not only natural, but perhaps even essential.

Heffner: But you know i, I began a moment ago in asking you the question about Jesse Jackson. And you responded as I rather felt you would, that this had been an enormously important movement. That here was a symbol in the person of Jesse Jackson of the political power that the black community could have and indeed is beginning to have.

Greenberg: Uh hum.

Heffner: But wasn’t it the pride felt by blacks in the leadership of the black, and doesn’t that relate to this question of the appropriateness of a white director counsel of the NAACP Legal Defense Fund?

Greenberg: Well, what you say is true, but misleading. I…

Heffner: I have been known to be true but misleading before.

Greenberg: In that it certainly doesn’t…the fact that people took pride in Jesse Jackson as a black leader is entirely appropriate. There never had been a black leader on that, operating on that scale nationally. And it was quite correct to take pride in that, but to take pride in that does not exclude the appropriateness of white and indeed interracial leadership in what ultimately has to be an interracial movement for racial equality.

Heffner: You talked about the beginnings of the NAACP.

Greenberg: Yes.

Heffner: And you talked about the role that whites played then.

Greenberg: Uh hum.

Heffner: We’re talking about, as you suggested, an evolving situation. Do you think it is just as appropriate today as it was in 1909 for this, there to be this commingling of black and white to the extent that there was then…

Greenberg: Well certainly, certainly. I think it would be tragic if the movement for racial equality became a self-segregated movement.

Heffner: I’m not really talking about segregation, I’m talking about leadership.

Greenberg: It would be tragic if the leadership…if, if whites were told they couldn’t participate in an effort like that, or indeed conversely.

Heffner: What’s your guess as to what will happen now in the civil rights movement in terms of leadership role played by people like yourself?

Greenberg: Well, I would hope that the, you know, the, the legal staff of the Legal Defense Fund is almost half white. Those lawyers participate along with their black colleagues on such a level of parity that if you would go into a meeting and say to anyone there, “How many, quick, tell me how many blacks and how many whites are in the room”, nobody’d be able to answer you. They just don’t’ think in terms of, there’s no race consciousness there. And I would just hope, I mean, the president of the fund is now white. I would hope there would always be whites in the leadership of the organization. I expect there will be.

Heffner: But you know, in terms of affirmative action, compensatory action, I remember when you and Sirgid Boshouli and your colleagues were working on the Brown v. Board of Education case. And Kenneth Clark ‘s research demonstrating what black children felt about themselves within the context of a segregated educational system seemed to point in the direction of pride evolving gout of the primary leadership and the dominant role, not of whites but of blacks, and I wonder whether that doesn’t point the way to a greater willingness to, indeed, embracing the notion that black leadership of civil rights groups has something more positive to say about it than the fact that we, it is a white problem as well as a black problem.

Greenberg: Well, if you were to ask me, “Should there always be a white leader of all of the civil rights organizations”? I would of course say, “No”. But if you ask me, “Should there not be white leadership as well as black leadership as leadership changes and evolves in the various organizations”? I would say there should be both.

Heffner: Why has there been such a division in recent years between some blacks and some Jews?

Greenberg: Well, I’ve expressed myself on that, I must say, and I’ve stirred up a bit of hostility among some Jewish organizations because of my views on the subject, but I, but i adhere to my views. And that is I think that, quite mistakenly, a few of the major national Jewish organizations have perceived affirmative action as a threat to Jews. I think it isn’t and hasn’t’ been, and indeed the only threat there has been the really concentrated, vigorous, strident attack on affirmative action that those few organizations have made which has reinfuriated the black community. Because I think you have to recognize that most blacks who have achieved anything in recent years either have at some point owed some aspect of that to affirmative action or might, or know people who have, and they resent it as upon a, as an attack upon themselves almost the way that many Jews resent an attack upon themselves almost the way that many Jews resent an attack upon Israel. And it evokes the same reaction.

Heffner: How do, how do we deal with this problem? It’s obviously not just a problem in communication.

Greenberg: Well, I think it is, it is in part a problem in communication because I think if those Jewish organizations understood what they were doing to themselves they – and I, there is some reason to believe that some of them have receded from that position because they’re come to understand it – they wouldn’t be fueling that fire.

Heffner: What do you mean “Doing it to themselves”?

Greenberg: Well by this, I think, totally unwarranted, ill-conceived, unjustified attack on affirmative action they have stirred up hostility among many, many persons in the black community against themselves.

Heffner: Can you feel any compassion for that position? Can you understand it at all? Can you see the rationale?

Greenberg: Well, I see what they offer as their rationale, but I think it’s totally misconceived. I am really not aware of any harm inflicted upon the Jewish community or individual Jews by affirmative action. I mean it, it might have happened in some cases, I don’t know. But it certainly is not either in concept or in execution an anti-Jewish or anti-Semitic type of effort.

Heffner: You say, “misconceived”. Does this mean that you feel that it, it’s simply a mistake, it’s an error in judgment, or is it something different?

Greenberg: Well, I think…no, I think it’s an error in judgment. I, I really think that’s what it amounts to. I think that people, you know, there were quotas in Russia and Poland and there’s quotas here and if that’s a quota and it’s bad then this is a quota and it’s bad, and I think people have just run off with, you know…and I think there probably are cases. There’s the amusing episode that I, that I like to tell about of a relative who attacked me because she said that her son didn’t get into Harvard because some black got in in his place and I was therefore responsible for it. Well, her son is now a physician, and he hasn’t suffered by that.

Heffner: Do you think others have suffered?

Greenberg: Well look, admission to schools and getting jobs is always a matter of allocation. And it’s conceivable if one person gets a job, another doesn’t. But I don’t’ think it’s anything aimed at Jews.

Heffner: Well not aimed. I don’t think that.

Greenberg: Well I don’t think anything has a disparate impact on Jews.

Heffner: But you see, that’s why I ask whether you can feel some compassion for this.

Greenberg: I feel compassion for people who feel that. I feel that, you know, they’re they’re mistaken]

Heffner: You think there is no justification.

Greenberg: You think there is no justification.

Greenberg: Well, there’s some justification for anything. I think there is no meaningful justification, no substantial, no significant justification.

Heffner: What do you see happening in this split between the two groups?

Greenberg: Well, I’ve seen some of the Jewish organizations as they’ve seen the damage they’ve done either abandoning that position. I would hope they all would make an effort to reconcile the differences.

Heffner: Do you think that the recent primary campaigns and the recent preconvention campaigns and the recent preconvention campaigns with Farrakhan’s comments and other elements have gone to better or worsen the situation?

Greenberg: Well, Farrakhan, is, you know, an outrage and to be despised. I don’t take him seriously. I think many people do. Many people have been excited and frightened by him. I’m not. But I think that is, that has tended to hurt the situation. Yeah, sure.

Heffner: Do you think that the conflict is lessening now?

Greenberg: Well, I just don’t know. I mean, I have no way of knowing. Conceivably it is. But I just don’t know.

Heffner: In 20 seconds left, your retirement from the Legal Defense Fund, going to Columbia to teach law again, you must be the optimist, and you said before that that was part of your character, is that correct?

Greenberg: That’s right.

Heffner: And you see, at least sailing ahead if not smooth sailing?

Greenberg: Sailing. I see sailing ahead personally, if that’s what you’re talking about. And I see sailing ahead in terms of the things that i believe in, yes.

Heffner: Jack Greenberg, thank you so much for joining me today on The Open Mind.

Greenberg: I’ve enjoyed it.

Heffner: Thanks. And thanks, too, to you in the audience. I hope you’ll join us again next time. Meanwhile, as another old friend used to say, “Good night and good luck.”

Continuing production of this series has generously been made possible by grants from: The Rosalind P Walter Foundation; the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; the Richard Lounsbery Foundation; Mr. Lawrence A Wein; and the New York Times Company Foundation.