Abstract

Excerpted From: Kevin Perteet Boens, March on the Courtroom Part I: Background on African American Lawyers and the Question of Identity, 37 DCBA Brief 30 (September/October, 2024) (68 Footnotes) (Full Document)

The late Justice Thurgood Marshall believed that “[a] man can make what he wants of himself if he truly believes; that he must be ready for hard work and many heartbreaks.” It is by this standard this article will be reviewing the dichotomy between the education system before and after Brown v. Board of Education. This article shall provide an elicitation of racial standards, educational imbalances, and governmental involvement, as the progression of African Americans into the courtroom and higher education shifts throughout time. The centralized question is whether the pivotal case of Brown v. Board of Education has changed the dynamic for people of color in education or other socio-economic ways.

Bound in the Law

There is no secret that the biggest imbalance to plague the United States was slavery. Though thought to be a societal for-mation, the concept of enslaving African Americans was indoctrinated by the forefathers in the nation's Constitution. In 1787, at the first constitutional convention, it was determined that slaves would count as three-fifths of a person for the purpose of voting power in Congress. The three-fifths compromise was an agreement between delegates from the Northern and the Southern states at the United States Constitutional Convention that three-fifths of the enslaved population would be counted for determining direct taxation and representation in the House of Representatives. The authors of the Constitution in Article 1, Section 2 state, “Representatives and direct Taxes shall be apportioned ... adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons.” The drafters further wrote in Article 1, Section 9 that “the importation of such persons ... shall not be prohibited prior to the year 1808.” During this time, African Americans were not considered people to the nation in which many were brought to by force.

This inequality lasted, in physical form, until the ratification of the Thirteenth Amendment in May of 1865, but did not completely dissipate for all African Americans until June 19, 1865, when the army freed over 250,000 slaves in Galveston, Texas who had not known of the abolishment of slavery. For many African Americans, this marks the beginning of a new era, in which slavery was no longer an issue. However, integrating into a world that has fundamentally oppressed this marginalized group presented many new challenges. One of the battles that African Americans faced after receiving their freedom was gaining citizenship. This challenge was exacerbated due to the Supreme Court ruling, its first case ever interpreting the Fourteenth Amendment, in the Slaughter-House Cases, where it held, “[h]aving shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so.”

Due to this holding, states were left with the power to determine the citizenship of their constituents and what rights or immunities they would receive under their supervision. With this power, states effectively created two tiers of citizenship which separated the privileges and immunities that African Americans and Caucasian Americans received. African Americans continued to struggle with the idea that they were free but separate from their white counterparts; however, they attempted to use the law to their advantage to gain those basic human rights and privileges. In 1883, there was a series of five cases known as The Civil Rights Cases, which were meant to draw attention to the states' infringement upon the Fourteenth Amendment. However, in these cases, the Supreme Court made a distinction between social and civil rights and noted it had no authority in which to regulate private acts by states to stop their discrimination. Due to this furtherance of federal inaction, states essentially had the full authority to openly discriminate against African Americans, thereby resulting in the creation of the Jim Crow era.

During the Jim Crow era, many laws were enacted that would enforce the “separate but equal movement.” These laws hinged on African Americans' lack of resources and literacy to make it seem as though their restrictions were due to their own inadequacies. Voting rights were intrinsically taken away from African Americans through mechanisms such as literacy tests, which required African Americans to be able to read and perform tasks on examinations that were almost impossible at the time, as well as grandfather clauses, which required voters to be descendants of individuals who were citizens of the state during slavery. African Americans were also subjugated to indentured servitude, which was the only plausible way for them to make a living because these laws restricted their access to own land, work for fair wages, or even gain full profit from the farmland they tilled for their Caucasian bosses.

Alongside the institutional discrimination, the Jim Crow era brought about a fundamental hate of African Americans by specific groups of individuals who encouraged their execution by lynching. The Ku Klux Klan, though created in 1865, reigned hate heavily upon the African American community from the 1880s to the 1930s. The violence by this group emanated throughout southern states, with most of their constituents agreeing that African Americans did not belong as part of their society. As a result, many southern states and cities became “sundown towns.” The name derives from the posted and verbal warnings issued to Blacks that although they might be allowed to work or travel in a community during the daytime, they must leave by sundown. Although the term most often refers to the forced exclusion of Blacks, the history of sundown towns also included prohibitions against Jews, Native Americans, Chinese, Japanese, and other minority groups. However, the plight against African American life was not enough to curtail the spirit of progression. From the 1930s until the ratification of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, African Americans pillaged through hardships and discrimination to secure the rights conferred unto them equal to that of their Caucasian counterparts.

These various stages of systematic oppression and covert violence to displace African Americans during this time are a gateway into the evolution of the ever-illusive plague of the American citizen: racism. George Santayana said that “[T]hose who cannot remember the past are condemned to repeat it.” While the fight for equality has persisted, African Americans' abilities to effectuate change have grown. The quest for literacy, community, and enforcement of laws drew lines in the sand that few dared to cross, but the equality of man was never more prevalent than in the courtroom.

[. . .]

Although these are but a few accounts of trailblazers in the fight for equality in the courtroom, there is an inherent theme that arises from each of their stories. The question of Identity: who you were raised to be; what you were raised to believe; how you learned to think; and how would that perception aid your efforts while interpreting the law. With Congress abolishing slavery in 1865, the social climate by the early 1890s had still not adjusted to the notion that all people regardless of race were supposed to be made equal, and thus, there was still an economic divide. Due to this, many African Americans were born into families that by today's terms would be considered poor or lower working class. Where, if a family had more than one child, there was a significant notion that they would struggle to provide for the basic needs of the entire household. However, African Americans during this period were determined to gain a living. They would work at jobs where they endured slanderous remarks, where they were treated worse than their counterparts, even being paid less, but a common consensus amongst black families was their hope for their youth.

Kevin Boens III is a 3L at Northern Illinois University College of Law. He is Chicago born and raised and has wanted to be a lawyer since he was four years old. He is now at the threshold of that goal and looks forward to being a licensed attorney shortly. His current focus is corporate law, but he is always interested in pursuing the questions that can't be answered binomially.