Thursday, August 17, 2017

Learning from History

In times like these, history is an important source of perspective, ideas and even role models.  One such role model is Pauli Murray (1910-1985), the African American lawyer whose ideas contributed so much to progressive lawyering and jurisprudence particularly in the area of sex discrimination.

Murray was born in Baltimore into a family that included white slave owners and rapists as well as distinguished black free men and women, but as young person with brown skin in the segregated South, she repeatedly suffered the insults of racial discrimination.  With dogged persistence, she made her way to Hunter College and eventually to Howard Law School, where she began working out the sophisticated equal protection theories that were eventually adopted and used by Ruth Bader Ginsburg in her litigation challenging sex discrimination as an attorney with the ACLU Women's Rights Project.   A 2017 biography of Murray by Rosalind Rosenberg, Jane Crow: The Life of Pauli Murray, provides a personal portrait, describing her intense feelings of gender dysphoria, but also setting out the origins of Murray's original legal thinking. 

Though her civil rights work was largely domestic, Murray spent time teaching in Ghana and was well aware of comparative developments and their power to drive a vision of change.  One telling vignette from the biography describes Murray's work on an important case, Mendez v. Westminster (1947) challenging racial segregation of school children based on their Spanish surnames.  Murray and Russian-Jewish refugee lawyer Alexander Pekelis, representing the American Jewish Congress, filed an amicus brief before the Ninth Circuit Court of Appeals intended to take direct aim at the still-good precedent Plessy v. Ferguson.  The brief invoked the text of the 14th Amendment, the social science data demonstrating the impacts of segregation, and finally, the United Nations Charter, which promised "fundamental freedoms for all without distinction as to race."

In Jane Crow, author Rosenberg quotes directly from their brief:  "All discrimination is bad." But none is so "vicious" as that which leads to "the humiliation of innocent, trusting children.  American children full of faith in life.  Their humiliation strikes at the very roots of the American Commonwealth.  Their humiliation threatens the more perfect union which the Constitution seeks to achieve."

The Ninth Circuit ruled in favor of the Mendez plaintiffs on narrow grounds that did not touch the rationale of Plessy.  But the vision of legal equality articulated by Murray, a child of segregation, and Pekelis, a refugee from Nazism and fascism, became law less than  a decade later.

The recent events in Charlottesville and the utter lack of understanding and moral leadership from the Presidency leave many of us in despair.  Perhaps like Murray and Pekelis, we can draw on such experiences to develop a vision of a better America and then take concerted, coordinated action to make it so.

For an in-depth discussion of Pauli Murray's life and contributions, see this panel at the Radcliffe Institute, where Murray's papers are housed.

https://lawprofessors.typepad.com/human_rights/2017/08/in-times-like-these-history-is-an-important-source-of-perspective-ideas-and-even-role-models-one-such-role-model-is-pauli.html

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