Legal Resistance

By: Sara Van Winkle

Source:

 Black Women in America, Second Edition

Legal Resistance

Black women in America have been uniquely oppressed. Not surprisingly, the form, substance, and successes of their methods of resistance to such oppression have been marked by a singularly complex history, a history which continues to unfold and has variously found black women's lives affected by the actions and attitudes of white men and black men, of white women, and of themselves. Cast in a tangled web of human experience, socioeconomic history, politics, and evolving cultural “norms” directing every conceivable aspect of life, it is a remarkable story, and the law lies at its very core. For the fundamental sociological truth is that law is both the embodiment and dynamic reflection of the prevailing and dominant social code. Law is about life. And, thus, the law as applied to and resisted by black women, is very much a part of their life stories.

The story of black women's oppression by and resistance to American law has its genesis in the legal status of black women as they were first brought by force from Africa in the early 1600s. Slavery as a formal, legal entity did not exist at the time in the Americas. However, slavery flourished in various forms with various names until it did indeed acquire formal status. One by one, the original thirteen colonies—Georgia being the lone exception—legalized the practice in the years between 1641 to 1717. Georgia actually enacted a law banning the importation and use of persons as slaves in 1735. But laws are formalistic shells, which do not necessarily affect life as it is lived, and so the Georgia ban on slavery was repealed in 1749. A mere year thereafter, Georgia followed its colonial neighbors, legalizing slavery. The legal status of black women in America could hardly have been derived from a bleaker place, and their oppression under slavery was both greater and more complex than that suffered by black men.

To further complicate the matter, the law, and black women's status within it, cannot be fully understood without reference to law within the shadow of the law, as various laws interact to create discriminatory effects. This phenomenon exists because of the interplay between laws that explicitly oppress persons, including black women, and those that appear on their face to have nothing whatsoever to do with them and the conduct of their lives.

The legal story of black women begins with enslaved people's designation as living property or chattel. Laws sprang up in the wake of slavery's legalization that were designed to enforce a social order that was fundamentally inconsistent with the nature of America's emerging political structure. The colonists had to conceive of laws to regulate behavior by and toward slaves. An elaborate and oppressive system of legal fictions was brought into being, chief among them the bright-line axiom that slaves simply were not, nor could they be, citizens.

From the mid-1600s to approximately 1800, literally hundreds of laws were enacted throughout all thirteen colonial territories in an attempt to define every nuance of a slave's status and life: where a slave could go, what a slave could do, how a slave could be treated. The volume and complexity of these regulations reflect both the inherent difficulty and the moral and intellectual dishonesty of stripping people of that which makes them human by means of nonparticipatory legislation.

Since the slaves brought to America were black, the “solution” was to build the assumption into the law that white people could not be slaves. In a bit of tidy semantics with fully intended legal ramifications, white persons could be indentured servants, but not slaves. An indentured servant was essentially a limited-term slave going by another moniker. Thus, the relative degrees of restrictiveness under the law that attached to slaves, indentured servants, and citizens formed the basic social order.

But the most salient and oppressive feature of this system of social constructs was that it was created by what was, under the norms of the day, democratic vote. Among the colonists, only white men could vote, a direct re-creation of one aspect of the culture from which the colonists came. The laws enacted by social contract by and among white men permitted a minority to control the lives and fates of the majority: black men and women, white women, Native American men and women, and, notably, a growing population of persons of mixed heritage. This majority population had no voice in the decisions that determined their status and rights, or, rather, the absolute lack of rights. And so the stage was set for the struggle to follow.

Forms of Legal Resistance

Three distinct threads emerge in the history of black women's resistance to oppression by legal means. First, there is the direct and purposeful invocation of legal processes by black women. Second, there is the “use” of the law by black women as a form of protest. Finally, there is cultural infiltration of the legal establishment, a thread that did not emerge until late in the nineteenth century.

Harriet Scott.  Around 1846 she and her husband, Dred Scott, who were slaves, undertook a legal struggle for emancipation on the ground that they had resided in free territory. The U.S. Supreme Court ruled against them, and this decision was a factor leading ultimately to the Civil War.

William Loren Katz Collection

view larger image

The first of these threads is actually formed by two strands inextricably twisted together. Black women actively pursued change and reform as prosecuting litigants—pressing for rights as varied and crucial to their humanity as the right to inherit property from their husbands, the right to vote, the right to receive parity in opportunity in everything from education to employment options and conditions to the day-to-day decencies of public accommodation. They also participated as voters, legislators, and lobbyists, having a direct voice and hand in shaping new laws and changing old ones. The actions of black women in this regard effected profound changes for themselves, and for black men, as well as for other victims of prejudice and racism.

The second thread involves breaking laws, rather than making them. Legal action took place as a direct result of black women's refusal to obey the harsh and unjust laws that oppressed them. Instead of going to the law in these cases, they acted in such a way that the law came to them, most notably in the direct-action strategies of the civil rights movement, but often before and after that era.

These forms of legal resistance shared a common complication, a difficulty germane most particularly to the plight of black women in America. It was widely observed that black women suffered from discrimination on the basis of race and discrimination on the basis of gender. But prejudice against black women is not one of simplistic additive effect: race plus gender equals twice the hardship. Rather, race is frequently multiplied by gender to create a discriminatory environment that is exponentially more difficult to understand and remedy, for “solutions” to prejudice against women help but do not address all patterns particular to black women any more than “solutions” to prejudice against black men solve all patterns of repression affecting black women. As a consequence, black women have been forced time and again to see that, while alliances are often demanded of them, they must often work for and by themselves.

Litigation in the Antebellum South

Direct and active reliance on the legal system and processes represents the oldest and most continuous thread in the history of black women's resistance to the law. It is difficult to know how many, much less catalog them all, but numerous black women sued for their freedom in the colonial, state, and federal courts in the period stretching from the mid-eighteenth to the mid-nineteenth centuries. In what is perhaps the earliest traceable example, Elizabeth Key, the daughter of a black enslaved woman and a free white father, initiated a suit for her freedom in the Virginia courts in 1655, advancing a series of sophisticated theories, chief among them that her station in life ought to be determined by that of her father. Key's cause was advanced not by her directly, but by her lawyer, a free white man, William Greensted, who later married her. Eventually, Key prevailed and was freed.

The Virginia legislature responded to this and similar cases in 1662 by closing the loophole, passing a law which decreed that a child's legal status would be determined by the mother's legal status. Victories in the courts by the oppressed led predictably to reactive legislation designed to reinstate the pre-litigation state of inequality.

Jenny Slew represents the tack that the disenfranchised and disempowered black woman took after 1662. Like Key, Slew was a biracial woman, but unlike Key's, her mother was white. In 1762, when she was forty-three years old, Slew was kidnapped from her home in Massachusetts and enslaved. She obtained counsel and sued her master for her freedom on the ground that her legal status followed that of her mother, who was white and therefore free. She lost at the trial level but ultimately prevailed on appeal.

Slew's master had fashioned a new argument to invoke the status quo. He argued that Slew had no right or standing to sue him, for she was married, and a married woman was universally treated under the law at the time as having no identity distinct from that of her husband. All legal rights collapsed into his person, and she ceased to exist as a legal person capable of possessing and pursuing rights on her own. Thus, ironically, Slew had more rights as a slave than as a married woman. However, Slew was a “spinster” at the time she brought suit, because although she had been married several times, each husband was an enslaved man. Massachusetts law, like the law everywhere in the colonies, did not confer legal legitimacy upon marriages in which one or both parties were slaves. Thus, the Superior Court determined that Slew was single and could sue, and that under the law of the time, her mother's race determined her legal status as a free woman.

In 1781, some sixteen years after Jenny Slew's victory and also in Massachusetts, Elizabeth Freeman, a black woman, brought suit for her freedom, together with a black male slave named Brom, invoking the newly minted Bill of Rights to the Massachusetts Constitution, adopted in 1780, which declared that all persons within its purview were free and equal. Freeman had been born into slavery and sold as an infant of six months, together with her sister, to a Massachusetts farmer and landowner, Colonel John Ashley. When she was nearly forty, Freeman, who was then known as Mum Bett, ran away from her master's house in a fury, after intervening and taking a blow from a fireplace-heated shovel intended for her sister by the mistress of the house. Colonel Ashley petitioned the courts for her return, and she resisted. She was joined in her resistance by Brom in the case known as Brom & Freeman v. Ashley, in what was the equivalent of a municipal court jurisdiction.

Freeman could neither read nor write, but was bright, spirited, and perceptive. She had listened to the talk of the well-to-do colonial landowners who were frequent guests in her master's house, discussing and debating the Bill of Rights in its formative stages. Displaying strategic shrewdness, she enlisted the assistance of Theodore Sedgewick, a lawyer with known antislavery sentiments. Freeman and Brom prevailed, to a jury no less, and Freeman lived out her life a free woman, as Sedgewick's valued housekeeper and a much-revered midwife and nurse. The arguments made by Sedgewick were later upheld in the Quock Walker case, which led ultimately to the formal abolition of slavery in Massachusetts. Notably, Freeman's family followed in her distinguished footsteps as freedom fighters and intellectuals. W. E. B. Du Bois was her great-grandson.

Black women were quick and persistent in pressing for further equities bearing on all aspects of life's operations. Lucy Terry Prince was such a woman. She wound up in the U.S. Supreme Court not only as a litigant but also as orator for her cause. The underlying issue was not her own legal status, but the status of land owned by her family. Terry had come to America as an infant, having been stolen and sold into slavery from her native Africa sometime around 1730. She was purchased by a childless couple in Massachusetts and continued in servitude until she was twenty years old. She married a free black man, Abijah Prince, who was prosperous and able to purchase her freedom. They moved to Vermont in the 1760s, where they farmed with their family of five children. A neighboring white farmer, Colonel Eli Bronson, attempted to steal, by annexation, some of the Terrys' land, and they brought suit. Lucy Terry was well equipped for this endeavor, having earned a reputation as a skillful orator in matters ranging from threats against her family by another neighboring white family to a petition to Williams College to admit one of her sons. She was unsuccessful in the latter cause, despite what was noted as “an earnest and eloquent speech of three hours.” Terry's claim against Colonel Bronson wound its way through the legal system to the U.S. Supreme Court, where she herself argued and won. One of her defeated opponents in that forum later became chief justice of the Vermont Supreme Court, and Samuel Chase Smith, the U.S. Chief Justice presiding over the argument, paid a lavish compliment to Prince, observing that her argument was far better than any he had heard from any Vermont lawyer.

The debate over slavery, laced as it was with moral, ethical, political, economic, practical, and religious elements, came to a North versus South divide when the Dred and Harriet Scott decision in the U.S. Supreme Court put the relative powers of the states and the federal government squarely on display. Ultimately, it would take the Civil War to settle the matter, but it is perhaps singularly appropriate that a black man and a black woman triggered the most elemental power struggle in American history with the simple act of suing for their freedom based on the irony that their white master had taken them with him into free states.

Lawbreaking in the Antebellum South

As wonderful as these stories of courage and wits are, they remained the exception to the iron rule of the slave system, both in the South, where basic human rights hinged on the genetic serendipity of parentage and legally recognized marital relations, and in the relatively free North, where prejudice likewise was rooted in genetics but practiced in covert fashion. Still, if the law in the form of formal litigation offered a spotty record of success and reactive legislation, black women refused to give up, taking whatever actions were available to them. And that, given the state of law, shrank to the non–window of opportunity of breaking and defying the law. In the United States prior to the Civil War, free African Americans and enslaved people faced different sets of laws, but both resisted the limitations on their lives and freedom by breaking the laws that bound them.

For slaves, the ultimate resistance was breaking the law of slavery itself, in effect stealing themselves from their owners by running away. Slaves ran away by the hundreds, poignant evidence of the desperation of their condition in life. They were tracked with particular vehemence and cruelty. The inhumanity of their stories in turn further inflamed the volatile political environment, moving the nation toward the ultimate schism. It is against this terrible backdrop that a familiar story appears—one of the few black women, indeed black Americans, who most Americans, black or white, male or female, later recognized and correctly linked with her achievements.

Harriet Tubman broke the laws of slavery in the first place by running away from bondage, attaining freedom in the North by means of the Underground Railroad. She then went back into the South and helped others to do the same. On trip after trip, she flouted the laws of the land by helping enslaved people to escape. And she was far from the only black woman to do so. Anna Murray Douglass, for example, maintained a station on the Underground Railroad while her husband, Frederick Douglass, toured to speak against slavery.

Free black women resisted the laws that limited their freedom outside slavery. Elizabeth Jennings was one such woman. She refused to leave a bus (i.e., a streetcar) in New York City and was forcibly removed, and subsequently sued for damages. In New York in the mid-1800s, bus transportation existed on a limited basis, and African Americans had scant access to it, able to board only those vehicles marked “Colored Persons Allowed.” New York was not so hostile in its racial laws to black as the states of the Deep South, but day-to-day living presented plenty of opportunity for racial unease.

On a terribly hot July Sunday in 1855, Jennings, a young schoolteacher, boarded a bus to take her to church services. The conductor tried to remove her, at first alleging that the car was full and then that the other passengers were objecting to her presence. She resisted, and he removed her by force, assaulting her before a crowd on the boarding platform. She resisted throughout, and the fracas was broken up only when a police officer removed her.

Jennings was the daughter of a powerful black businessman and religious leader. Well-connected and with excellent resources for legal redress, she sued the bus company, the driver, and the conductor. Her legal advocates included the then twenty-one-year-old Chester A. Arthur, later to become president of the United States. Jennings prevailed in the Brooklyn Circuit Court in 1855. The judge awarded her $225 in damages, a hefty sum at the time, and declared that “[c]olored persons if sober, well behaved and free from disease, had the same rights as others and could neither be excluded by any rules of the Company, nor by force or violence.” Other black commuters followed her example, suing for refusals of service with success. As the Civil War broke out, discriminatory practices in the New York transportation system subsided altogether.

Postbellum Resistance through Legislation and Election

The Thirteenth Amendment to the U.S. Constitution was the codification of the Emancipation Proclamation, with no less than Abraham Lincoln pressing for its passage with all his formidable political currency. It declared in sweeping language that

"[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

The Fourteenth Amendment was an attempt to remedy the way in which the Dred Scott issue—that of the competing sovereignty of the states, territories, and federal union—had divided the nation and led ultimately to the Civil War. The Amendment does a number of things, including clarification of who could be an elected governmental figure and on what conditions, but more importantly, it provided that anyone born in the United States, including those formerly enslaved, was a citizen. The signature provision went still further, providing that

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The source of some of the most celebrated constitutional litigation, the so-called due process and equal protection clauses of this amendment have provided the backbone of American culture and parity as it has evolved. Stripped to its essentials, this amendment makes every guarantee and protection under the federal law directly and unavoidably applicable to every American citizen, regardless of state of residence. In turn, the states can grant citizens greater freedoms than those afforded by the federation, but none less or essentially different in character. The Constitution was a floor, not a ceiling, and the elastic tendons of the union were formally inaugurated. But it was the Fifteenth Amendment that would provide the crucial element for African American leverage. The Fifteenth Amendment proposed that the right to vote could not be denied to citizens of the United States or of “any state on account of race, color, or previous condition of servitude.” But this sweeping grant was to apply to men only. Women, of any color, remained disenfranchised.

Black women were split in their feelings about the proposed amendment, with some viewing the right to vote, if flawed and incomplete in its exclusion of women, as beneficial for blacks generally. These women tended to view the vote as akin to a family asset or property, in essence. Elsa Barkley Brown makes the point that African American women were an integral part of the decision as to how a family's vote would be used. They organized political groups to discuss the issues and lobby for their concerns. They took an active part in the political meetings held before each southern state's constitutional convention. With black men, they took time off work to discuss what would and would not be demanded at those conventions. One family, one vote, in their view, was far preferable to one family, no vote.

On the other hand, many black women, among them the legendary Sojourner Truth, saw things differently, in part because of the reality of many of the relationships between black men and women coming out of slavery. Truth and those of her philosophical bent believed that increased power in the hands of black men without a corresponding grant of power to black women would lead to the continued and further oppression of black women, this time primarily at the hands of black men. They saw partial loosening of the cultural rules to be worse than none at all and so advocated defeat of the amendment.

The split opinions of African American women were enmeshed in the complexities of the women's suffrage movement generally. At first, an all-woman alliance seemed natural and prudent, especially as many of the white women in the suffrage movement were at least sympathetic to, if not openly and actively supportive of, the abolitionist movement. But when the currents of political opinion, not to mention the attention and contributions of white men to the white women's cause, became clear, a fundamental split occurred.

The Fifteenth Amendment was approved by Congress in 1869, and ratified in 1870, as a matter of brilliant political duress. In passing the amendment, Congress provided that the states of the defeated Confederacy had to accept the Fourteenth and Fifteenth Amendments to be readmitted to the Union and restored to statehood. The sweeping guarantees of the Thirteenth, Fourteenth, and Fifteenth Amendments were deliberately sabotaged by a host of reactionary and clever, though apparently neutral, laws and practices, which were clearly motivated by extreme resistance to the full citizenship of blacks.

Black women may not have had the vote, but they actively influenced, and often determined, the votes of black men. When Andrew Johnson, the successor of the assassinated Abraham Lincoln, ran for a new term against Ulysses S. Grant, black women wielded their influence to squelch Johnson's chances, for he was the much-hated architect of numerous antiblack policies and political appointments with sway over the day-to-day administration of frontline postwar policies affecting black lives and fortunes. One witness to the electoral process observed that black wives accompanying their husbands to the polls carried hickory sticks, some with nails driven in them in the shape of the cross, daring, in effect, their spouses to vote any way but Republican.

Jim Crow

Ulysses Grant's presidential victory made black men players in politics, in the South in particular, and so was born the Jim Crow era, with its systemic practice of treat-ing blacks as inferiors, and all under the tacit support of the law. Separate “but equal” facilities and opportunities were anywhere and everywhere: “colored only” drinking fountains, seating sections of buses, waiting rooms, restaurants, trains, theaters—virtually every venue of life. The most mundane events, such as getting to and from work or getting something to eat, became an exercise in humiliation.

In this atmosphere, another black woman “sat down on the bus,” metaphorically speaking. Ida B. Wells-Barnett was a young woman in 1884 who was forcibly removed from her routinely occupied commuter's seat in the “ladies” car of a Memphis-bound train, to the “smoking car,” a huge sociopolitical demotion, if not humiliation. Wells-Barnett struggled, biting her would-be evictor and eventually engaging in a physical tussle with three other white conductors, all to the enthusiastic cheers of the white passengers. Enraged, Wells-Barnett hired the lone black lawyer in Memphis to bring an action on her behalf. When his performance suggested to her he had been bribed by white establishment figures to make her case languish, she fired him, hiring a white lawyer and former Union soldier, who prevailed. Her victory was overturned on appeal, and an outraged Wells-Barnett became an even more visible figure and revolutionary, with her searing columns and essays, most notably in Memphis's black newspaper, Free Speech, of which she was a co-owner and editor.

But Jim Crow also rose up in an infinitely more sinister fashion. Early on in the postbellum period, lynching more and more became the manifestation of white discontent, extra-political and extra-judicial expressions of rage and frustration, targeting blacks for affronts as varied as crimes against whites assumed upon innuendo, rumor, and fabrication without due process of law, to simply being successful and the subject of unbridled envy. It was mob behavior in the classic sense. Terrorist organizations such as the Ku Klux Klan sprang up and began to murder blacks with systematic design.

The bloody tide began to turn, if slowly, when black women began to lobby for antilynching legislation. Ida B. Wells-Barnett and Mary Church Terrell were touched and motivated by the same tragic event. Three black men, Thomas Moss, Calvin McDowell, and Henry Stewart, were friends who went into business together in the spirit of the new nation, opening and operating a general store just outside Memphis, Tennessee. The “People's Grocery” became a popular gathering place for blacks, a fact that upset local whites on behalf of a nearby white grocer, who was accustomed to his entrenched monopoly on trade.

Moss was a postman, in fact the first black person in Memphis ever to hold a federal job. It was his salary that made the store possible. He staffed the store in the evenings. His partners McDowell and Stewart worked days. The white grocer, whose business suffered as a result of their success, incited an escalating series of anti-competitive “events,” culminating in an assault on the business by a gang of white insurgents whose aim was nothing less than to destroy the business, down to the building itself. This attack came on a Saturday night, when the store was packed with armed black men. The black patrons held off their assailants, but three white men were shot and wounded in the fray. Moss, McDowell, and Stewart were rewarded for their defense of their business with arrest, along with one hundred other area blacks, for supposed conspiracy with the People's proprietors. Press coverage and editorializing was intense and virulent. Tensions abated somewhat as the three white men recovered from their wounds, and a protective black vigil outside the jail where Thomas, McDowell, and Stewart were held dissipated. To have done so turned out to be naive and premature. In a predawn raid, the three men were taken from jail by an angry white mob and lynched. The People's Grocery was looted, gutted, and reduced to ruins. The white grocery owner arose again as the sole proprietor in the area. It was 1892, some thirty years after the end of the Civil War.

The People's Grocery matter, as tragic as it was, would have languished as yet another statistic in an escalating cycle of violence, were it not for the energy and vision of black women such as Ida B. Wells-Barnett and Mary Church Terrell.

Ida B. Wells-Barnett was a good friend of Moss and his wife, Betty. She was a contemporary of Terrell's, and their interest and actions intersected in powerful witness against the lawless savagery of lynching. Wells-Barnett, the driving force of the antilynching movement, wrote against the crime in the New York Age and the book Southern Horrors: Lynch Law in All Its Phases and lectured in the West, as well as the North. She went to England in 1893 and helped to form the British Anti-Lynching Society.

Back in the United States, Wells-Barnett drew the deep and unremitting support of black women in the cause. Southern Horrors was published because of funds raised by an event in Lyric Hall in New York by black clubwomen. Slanders against Wells-Barnett and, by extension, all black women, from a pro-lynching journalist were the catalyst for the creation of the National Association of Colored Women (NACW), headed by Mary Church Terrell.

Terrell and Thomas Moss had been friends since childhood. Terrell was well traveled and educated; she received a degree in education from Oberlin College. Moss had followed his own trajectory of mainstream success, but the two remained in contact. Moss's death had an enormous effect on Terrell. Transformed by her friend's death, she contacted another friend, the powerful black abolitionist, publisher, and activist Frederick Douglass, and they embarked on an antilynching campaign, which would get them an audience with President Benjamin Harrison, who declined to take a public stance against the practice, despite Douglass's eloquent plea.

Terrell continued to advocate, write, and speak out against lynching and discrimination in every form in a remarkable public career that lasted some sixty-two years following her historic audience with the president. She served on the governing and founding boards for many notable black activist organizations in Washington, DC, and was a primary figure in the black women's club movement. She was also one of the charter members of the National Association for the Advancement of Colored People (NAACP). Terrell made headlines again when in 1950 she headed a picket line and subsequent lawsuit to desegregate a District of Columbia eatery, Thompson's Restaurant.

The legal resistance of these two women spans the time from 1884, when the twenty-two-year-old Wells-Barnett refused to give up her seat on the train, through the years of battle to get an antilynching law passed in the U.S. Congress, to 1950, when eighty-nine-year-old Terrell paced the sidewalk in front of Thompson's Restaurant with the aid of a cane.

Jim Crow Is the Law of the Land

Jim Crow became institutionalized, in essence, in 1896, when the U.S. Supreme Court rendered its decision in Plessy v. Ferguson. In that case, the Court coined one of the most famous phrases in American jurisprudence, the “separate but equal” doctrine, a philosophical approach taken directly from the lawsuit Benjamin Roberts brought in the Massachusetts court system on behalf of his daughter Sarah.

The Plessy court was not unanimous. Justice John Marshall Harlan cast the lone dissenting vote. Justice Harlan understood the fallacy of the majority's approach. He wrote: “[E]very one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.” His opinion handed black activists the raw material of profound change. Opinions, which are the formal, written explanations for the vote choices of the judges, are a form of law, called the common law, and every bit as controlling as statutes enacted by legislatures. Their language and logic are often revisited later by judges in new cases and used to support a different result. So when Harlan exposed the logical flaw in the majority's opinion, he fashioned the underpinnings for some of the most powerful advances black Americans have achieved via legal resistance.

Still, sheltered by the Plessy decision, the Jim Crow era held sway for nearly fifty years to come, with black women and men slowly creating the superstructure for ultimate change and challenge as the 1900s unfolded. Especially through the club movement, first the NACW and then the National Council of Negro Women, black women quietly and determinedly pursued every angle they could for education and ownership, for inroads on voting rights strictures, for political and religious and media connections. Their gains would form a network and financial base from which lasting change could be crafted.

Cultural Infiltration

Black women understood that the trappings of law as a profession—to practice, and later to frame, study, and teach—formed a power center for lasting change and reform, not only setting an agenda, but also establishing inclusive and reasoned cultural norms. Women of color, and others, faced a stronger challenge in the pursuit of legal careers than in virtually any other. The law was created by white men and has largely been interpreted by white men, establishing a virtual monopoly of the social order.

The first black women lawyers, unlike many of their white counterparts, aggressively sought to establish practices. When Charlotte Ray graduated from Howard University Law School in 1872, she did so with honors, despite studying the law in the evenings while supporting herself teaching days in Howard's Preparatory and Normal School. She launched her solo practice in the shadow of Howard and its connections, where she tried to target a black constituency. She advertised her practice, for example, in Frederick Douglass's weekly paper the New National Era and Citizen, and quickly gained a reputation as one of the best minds on the subject of mercantile law in the country. And yet, despite her credentials and connections, she was obliged to close her office just five years later, in 1879: prejudice cost her sufficient business to sustain herself as a lawyer. She returned to New York, where she worked as a teacher for the remainder of her professional life.

Over time, matters changed as black women increasingly adopted and adapted the very norms of the profession to their own distinctive use. Sadie Tanner Mossell Alexander was Pennsylvania's first and only black woman lawyer in 1939, the year in which she began corresponding with several dozen African American women attorneys practicing throughout the United States. Alexander had impressive credentials, including a thriving practice with her attorney husband, Raymond Pace Alexander, but still chose to go beyond, gathering basic information about the experiences of black women in the profession. She sent out form letters to every black woman lawyer she could identify, seeking information on their practices and experiences.

The result was the first network of black women professionals in the law. They knew little about one another, but found much in each other, and gave Alexander much to share with the world. Alexander published the results of her original survey in 1941, finding just fifty-seven African American women admitted to active practice of law, and clustered predictably in the country's major urban centers. Few of Alexander's generation practiced law as a full-time occupation, encountering essentially the same obstacles as Charlotte Ray had years before. Early black women lawyers encountered hostility from every quarter, as the profession's white, male, native-born elite scurried to change the standards for legal education and professional certification in ways that were calculated to exclude both black women and the growing tide of ethnic immigrants to the United States.

In the two decades following Alexander's survey and networking project, black women finally started to practice law as a full-time occupation in appreciable numbers. The issues then, as later, were thorny and involved not only basic ability but also the struggles of black women for the coexistence of family and professional life, as well as parity with their male colleagues in everything from pay to basic acceptance by everyone, including persons of their own race. Notably, Alexander and her husband understood the power of networks and alliances and were among the early members of the National Bar Association, the professional association of African American lawyers. Such affiliations would prove central to improvements in the lives of African Americans

In 1938, a young woman named Pauli Murray applied for admission to the graduate school at the University of North Carolina and was rejected because she was black. She went to Howard University Law School instead and earned an LLB. She was first in her class. She applied then to Harvard University Law School for an advanced degree and was rejected because she was a woman. So she went to the Boalt Hall of Law at the University of California and got an LLM. That was 1945. Twenty years later, in 1965, Murray became the first African American to earn the doctor of juridical science from the Yale University Law School.

In the meantime, Murray was admitted to practice in California, in New York, and before the U.S. Supreme Court. She fought for civil rights with the Commission on Law and Social Action, an agency of the American Jewish Congress, and then went into private practice. Even in the early 1940s, she was “sitting down on the bus,” protesting segregated seating on interstate buses. She served as student adviser to a direct-action assault on Washington, DC, restaurants in 1941, starting the campaign that would end in Mary Church Terrell's act of courage at Thompson's Restaurant. In the years to come, Murray would help found the National Organization for Women and, later, become an Episcopal minister.

Most prominent in the civil rights struggle of the middle of the twentieth century was Constance Baker Motley, the first black woman attorney to argue in front of the Supreme Court. She was a clerk for Thurgood Marshall in her last year at Columbia Law School in 1945 and remained on the NAACP legal defense team until 1964, when she became a New York state senator. She was the first woman on the team and years later became its principal trial lawyer in the fight to end segregation. She argued ten cases before the U. S. Supreme Court and won nine of them, including Meredith v. Fair, which got James Meredith admitted to the University of Mississippi. She represented Charlayne Hunter-Gault and Hamilton Holmes in their successful attempt to integrate the University of Georgia and Harvey Gantt, who integrated Clemson College and went on to become mayor of Charlotte, South Carolina. All of these cases were part of the preparation for the NAACP's successful battle against Plessy v. Ferguson in the case of Brown v. Board of Education.

Motley accompanied Marshall to virtually every case he argued from the time she joined the team. In 1952, he moved for her admission to the Supreme Court Bar so that she could work on the school desegregation cases.

The Battle Is Joined

Linda Brown had a tremendous and treacherous journey to and from school each day. She was in the third grade, an eight-year-old at the time. She would depart from her home, walk one mile, alone, and through a route that obliged her to navigate the dangers of a railroad switchyard, and then only to a point where a bus would pick her up and transport her still farther away, and then to an all-black and disparately staffed and equipped school. She would repeat the long trek at the end of her school day, only to have to get up and do it all again the next day and the next. All the while, a white elementary school, forbidden to her courtesy of Plessy's rationalizations, was located just seven blocks from her home. Her father, Oliver Brown, beseeched the school system to admit her to the closer, “white” school, and was turned down. Brown then tapped into the black activist culture, which now had the NAACP, the nation's premier civil rights organization, at the helm. Linda Brown, and the other claimants whose cases were joined with hers, gave Marshall and his team what they had been looking for.

By 1954, “separate but equal” had been discredited once and for all. Besides Constance Baker Motley, Marshall had also relied on a black woman psychologist for the most telling evidence in his case. Mamie Phipps Clark had begun landmark work in graduate school at Howard University. Her master's thesis, “The Development of Consciousness of Self in Negro Pre-School Children,” explored the development of racial identity in young children. With her husband, Kenneth Clark, she published the fact that black children had a sense of their “blackness” when they were no more than three years old and that it negatively affected their self-image. She later went on to show that segregation was a major factor in that negativity. Thurgood Marshall used her results to show that “separate” was inherently unequal.

Linda Brown Smith with Ethel Louise Belton Brown, Harry Briggs Jr., and Spottswood Bolling Jr., at a press conference at the Hotel Americana on 9 June 1964, ten years after Brown v. Board of Education.

Library of Congress, New York World-Telegram and Sun Collection; Sun photo by Al Ravenna

view larger image

That Supreme Court decision was, in effect, the beginning of the modern civil rights movement. Legal resistance to discriminatory laws and customs moved into high gear. “The Law,” with a capital “L” is far larger and more diverse in form than the text of the U.S. Constitution, the constitutions of the fifty states, and the statutes enacted by the federal and state and municipal governing bodies of the country. In addition to legislation, there is so-called judge-made law, the common law, which is set over time as litigation pursuant to constitutions and statutes leads to questions of interpretation and application, and at times manipulation, unanswered by legislation. Also, there are administrative regulations and practices promulgated in furtherance of constitutional and statutory edicts, as well as the directives in the growing body of the common law. Then there is the law in its most frontline sense, as it is applied and enforced, and many times manipulated, at the discretion of persons charged with its day-to-day dispensation, at the hands of governmental administrators and agents of every stripe, from police officers to customs inspectors, social workers, and soldiers. There is, in addition, the whole course of human dealings, as people rent apartments, purchase appliances, apply for jobs, eat in restaurants, ride on buses, and on and on. Virtually all transactions in American life involve persons obliged, in theory, to obey the law as it may direct the mode and manner in which the law says such activities are to be conducted.

If litigation and legislation have achieved success in protecting and expanding civil rights, it has been in no small part due to the manner in which political resistance set the stage, creating an atmosphere of righteous pressure, in which the ugliness and emptiness of biases were exposed and bravely and skillfully exploited. Political resistance created the emotional currency and climate that allowed successful litigation and legislation, and successful penetration of the legal culture as a profession. Black women played highly visible roles here, and the irony is that much of their influence is perhaps attributable to the fact that they were and are women, a group historically both pushed down and protected, most often because of immutable traits.

For the present purposes, political resistance can be seen as the deliberate and studied “use” of the law by black women against the law as a form of protest. These are the stories in which legal action was a result of black women's planned resistance to the harsh and unjust operation of the laws that oppressed them. Black women were leaders in the direct assault against all these facets of the law. The quintessential example of this form of resistance is, of course, Rosa Parks and her refusal to surrender her bus seat to a white man upon demand. In one sense, Parks was exactly what she looked like—a soft-spoken woman of dignity and quiet, inoffensive self-possession. She was also an active member of the NAACP who had attended workshops in political resistance at the Highlander Folk School led by Septima Clark, an experienced union organizer and voter registration and rights educator. Parks was far from naive and, if she was tired that day, it was a weariness that was mixed with outrage and political savvy. The path had been prepared for her act of resistance by the Women's Political Council (WPC) of Montgomery, led by Jo Ann Robinson, which had threatened a bus boycott a year earlier. Working with the NAACP, the WPC had passed over two other black women as test cases because of factors that made them seem less than suitable. Claudette Colvin, for example, was fifteen and pregnant. However, upon hearing of Parks's arrest, the WPC mobilized and, over the course of a weekend, had organized the boycott.

What is particularly interesting in looking at the legal resistance of black women is that this case is one in a series that stretches back a century. Starting with Elizabeth Jennings in 1855, black women repeatedly chose public transportation as a site of protest against law and its interpretation. Black women used buses daily and therefore were subjected to discomfort and humiliation on a regular basis. Riding the bus was a necessity, especially for the working women who made up the vast majority of the black female population. Also, riding the bus was public, and therefore the humiliation was public.

Diane Nash, one of the most important members of the Student Nonviolent Coordinating Committee (SNCC), would take Rosa Parks's act of defiance to the next level and turn civil disobedience into an enormously powerful form of legal resistance for African Americans. Nash was a young woman from a middle-class black family in Chicago who encountered new depths of racism as a college student at Fisk University in Nashville, Tennessee, in 1959. Appalled, she began attending workshops on nonviolent resistance to Jim Crow. In doing so, Nash met and learned from a number of prominent resisters, including the strategist James Lawson, who had recently been to India. With other students, she began doing sit-ins at lunch counters, a tactic that had been originated some time before by Clara Luper in Oklahoma City.

Students staged lunch-counter sit-ins in the Nashville area in the late winter and spring of 1960, most notably at Woolworth's and other similarly well-known stores; such businesses were good tactical targets because of their mainstream nature and the fact that their lunch counters were strictly segregated. The sit-ins received a great deal of attention, with mob violence finally boiling over against the students, who, true to their training, remained nonviolent and were rewarded with arrest and incarceration for disorderly conduct. Outraged, area blacks boycotted lunch counters targeted by the students, and fearful whites avoided shopping downtown. Commercial activity was greatly affected. The attractive and articulate Nash became a highly sought-after press interview.

On 19 April 1960, events took a tragic and galvanizing turn. The home of Z. Alexander Looby, a conservative black city councilman, a far cry from the image of a radical or outside agitator, was bombed, presumably as retribution for the boycott and sit-ins. The bombing infuriated the black community and a sector of the increasingly frightened and frustrated white community as well. Some twenty-five hundred people marched that same afternoon on city hall, at first singing, and then finally in silence, a powerful statement. They were met by Nashville's mayor, Ben West, who attempted to engage in a calming dialogue. He found himself responding to level-headed and pointed questions from Nash that forced him to examine the unfairness and immorality of selling merchandise to blacks only to refuse them service within the same store. West ended the encounter by asking all present, “How about we pray together?” The quick-witted Nash reportedly countered, “What about eating together?” to which West, impressed, responded that they should try to arrange just that. West came to champion the abolishment of segregation in venues of public accommodation and entertainment in Nashville.

Sit-in at a lunch counter, Nashville, Tennessee, 1960. Lunch counters at Woolworth's and other well-known stores were a good target for civil rights activism because of their mainstream nature and because they were strictly segregated.

Library of Congress, New York World-Telegram and Sun Collection

view larger image

With similar student activities going on in a number of areas, the legendary Ella Baker, who was at that time working with the Southern Christian Leadership Conference, organized a conference in Raleigh, North Carolina. The result was the formation of SNCC, under Baker's guidance. Nash became heavily involved with the organization, leaving school to become one of the organization's fieldworkers. When a difference of opinion about goals and tactics caused a split in SNCC, she became head of the direct-action half of the organization. Her election to this position was a stunning victory for black women, who were kept out of most leadership positions in the movement.

Nash was a brilliant strategist, as was the man she soon married, James Bevel. They created the “jail-no-bail” policy of the direct action wing, using arrest and incarceration as a powerful form of resistance. It was dangerous for African Americans to go to jail in the South, but it made a strong statement to the rest of the United States and to the world. Nash coordinated the Freedom Rides that became so much a part of the American consciousness about race. Together with Bevel, she organized the Selma, Alabama, demonstrations that were a response to the church bombings that killed four black girls. Those demonstrations became the pivotal moment when the rest of the country turned its attention and outrage toward the South and demanded justice.

At that point, Diane Nash was twenty-five years old, and she had used the legal system in the United States perhaps better than anyone else ever had in the cause of freedom and equality.

Some Landmark Cases

It is not possible to give a short summary of the avalanche of litigation that followed the Civil Rights Act of 1964, which made history and increasingly formed an enduring protective net of guarantees to black Americans, among others. Title VII of the Act, which prohibited discrimination in employment practices, has a particularly rich history and is crucial to black progress. Because Africans were brought to the United States for commercial exploitation, and all aspects of their fates have flowed from that tainted source ever since, it can be fairly said that being black in America was always about work.

Slack v. Havens was a garden-variety case that did not make headlines, much less elicit Supreme Court attention, but represents a necessary element of proof—what constitutes direct evidence of discriminatory intent by an employer. Isabell Slack and three black female co-workers brought suit under Title VII for their dismissal from a large industrial manufacturing enterprise. At the end of three of the plaintiffs' work day on 31 January 1968, their immediate supervisor informed them that they were not to report to their regular stations on the production line the next day, but to engage instead in a general cleanup of the entire department's environs. The work was to include washing walls and windows, all of which had sills twelve to fifteen feet above the floor, the cleaning of lighting fixtures, and the scraping and washing of the floor, which was caked and layered with the hardened residue of plastic resins from the plant's manufacturing processes. The women objected because they had not been hired with any expectation of janitorial duties, but the company insisted. They were three of just four women in the department; the fourth was a white woman. The three black women were compelled to engage in the general cleaning while their white coworker was reassigned to another department for the day. The supervisor drafted a fourth black woman from yet another department to assist the first three. They protested and were fired.

This case says nearly everything about the black woman's work experience. They were in a minority of a minority in doing the type of work they did. They were asked and expected to be willing to scrape petrified gunk from the floor of a factory, in front of, or rather beneath the feet of, their overwhelmingly male co-workers, both white and black. Their interactions with their supervisors indicate a high degree of savvy, as their alert protests flushed out the very material that would lead to their victory, direct evidence of discriminatory intent on the part of their employer.

One of the most profound signals of progress in attitudes and living conditions for African Americans, and black women in particular, could be seen in changes to statutes banning legally sanctioned marriage between blacks and whites, antimiscegenation laws, and laws creating harsher penalties for adultery, fornication, and marriages between partners of different races as opposed to partners of the same race. Frustratingly, laws providing for disparate penalties for adultery and fornication were generally upheld upon challenge, as they tended to be worded in such a way that if the partners were of different races, the penalties applied equally to both persons. Application and enforcement were a different matter, however, and this practice held sway until miscegenation laws were successfully challenged and explicitly overruled by the Supreme Court in the 1964 case of McLaughlin v. Florida.

In 1967 the Supreme Court took up the case of Loving v. Virginia, which squarely posed Virginia's ban on interracial marriage for review. Richard and Mildred Loving were married in Washington, DC; Richard was white and Mildred was black. A Virginia judge sentenced them harshly under the state's “Racial Integrity Act,” employing reasoning devoid of logic. Richard was sentenced to spend a year in prison, but the sentence was suspended on the condition that the couple leave the state and not return for at least twenty-five years. The Supreme Court overturned the Virginia statute on equal protection grounds. In so doing, it employed strong and sweeping language which made clear that no ban on interracial marriages could pass constitutional muster. Terming all such bans “invidious racial discrimination,” which is to say calculated to give offense and motivated by hatred, the Court ruled such laws unjustifiably deprived the Lovings of one of the basic civil rights. Bigotry and mistrust are, of course, not subject to the Court's purview. But significantly, polls taken after the Loving decision showed a gradual change in attitudes toward interracial couples, as well as less negative attitudes toward children of mixed racial heritage.

Attitudes about violent sexual conduct toward black women began to show change in this period as well, and the effect of direct official address of the terribly controversial subject of interracial sexual behavior generally cannot be underestimated. Joan Little was an inmate in a North Carolina women's prison in the 1970s when she was raped by a white, male guard in her cell. Little was missing, an escapee from the prison, after the guard wasfound stabbed to death in her cell. Little was caught and charged with his murder, in a case that provoked national attention, outrage, and debate for months. Prominent persons became vocal in their support for her; Angela Davis in particular generated and kept sympathies for Little in the fore. That Little, a black woman and a felon, in one of the most conservative jurisdictions in the country, was ultimately acquitted in 1975 of a particularly violent crime says much about a definite change in the political and social climate. Sexual exploitation of black women, especially involving imbalance of power, was on the landscape not just as an issue but also as a matter of clear prohibition.

Legal Resistance at the Turn of a New Century

The history of racial justice in America follows a familiar pattern of change and opposition, followed by more change and more opposition. The enormous advances of the 1960s and the 1970s were followed by an extended period of conservative backlash in law and government, and black women, indeed women and minority groups of every sort, were left battling to hold on to ground gained. The very language and approach taken in Brown, the language of equal protection, was manipulated by whites, and largely white men, as the concept of “reverse discrimination” was created and injected into the debate over the extent of rights and the means of their establishment. This, of course, led to the question of where the responsibility of white Americans lay with regard to centuries of oppression of black Americans. Discussion of that question was later cast in terms of reparations.

Black students in circuit court, Tallahassee, Florida, 1963. These students and others, numbering 220 in all, were facing charges of contempt for picketing a segregated movie theater after a judge had ordered their demonstrations halted pending a hearing.

Florida State Archives; Florida Memory Project: Florida Photographic Collection

view larger image

Reparations, as a legal concept, refers to the movement seeking to compensate the present descendants of African slaves for sustained economic losses to their families over time as the result of the practical injustices of the slave economy and the ensuing history of inferior access to work, wages, and opportunities, relative to that of whites. There are some formally enacted state statutes dealing with reparations. Though these cases were not successful, the matter grew in attention and study. The reparations movement was predictably controversial, not just because of the potential amounts of money involved but also because of the perceived remoteness in time and history of black women and men nearly 150 years removed from slavery and the resulting culpability of potential payers for their predecessors' actions. Supporters view it as appropriate, for the slaves were brought to the Americas against their will, victims of a crime against humanity, and their descendants never had unfettered, meaningful choice over their economic fortunes.

Legacy

Black women have, over the centuries in the United States, put a realistic human face upon their plight, affecting profound change, while creating and accumulating power, leverage, and efficacy. Although not what it could and ought to be, this is nonetheless an ongoing dynamic process. But the most salient aspect of this phenomenon is that it has come about with and through the very legal system that was used to oppress black women. It would take a long and painful history to reach a critical mass of situation and sentiment that could clear the path for real and systematic change—from the barbarous history of slavery and the Civil War to the Emancipation Proclamation to the women's suffrage movement to pressures for voting rights and land ownership and beyond. But black women have worked through, with, and even against the law to gain their freedom. Infiltrating the culture of the law, black women have become lawyers and judges, legislators and administrators, commentators, critics, scholars, and teachers of the law. In so doing, they make and shape the law itself and thus the culture in which it arises and is applied. They have inserted themselves and their unique voices and experiences into the fabric of the law as social order and ordering.

See also Antilynching Movement; Civil Rights Movement; Civil Rights Organization; Jim Crow Era; and Political Resistance.

processed xml | source xml