May 8, 2007 -- Before Brown v. Board of Education, the early civil rights movement explored avenues to create equality for African-Americans that have mostly been abandoned today, argues University of Virginia law professor Risa L. Goluboff in her groundbreaking new book on the history of civil rights law. “The Lost Promise of Civil Rights” explores the legal fight for blacks’ economic and labor rights that began in the 1930s. Abandoning this path to civil rights when the 1954 Supreme Court decision outlawing “separate but equal” schools set the stage for looking at race through the lens of integration in education, Goluboff claims, is a major contributor to the troubling legacy of racial economic inequality that remains today.
“Before Brown, civil rights looked a lot different than they do today,” Goluboff said. “Brown isn’t only the end of segregation, it’s the end of an era of experimentation … [After Brown,] we lose images of civil rights and civil rights claims that were more concerned with economics, that were more concerned with material inequality than with stigma or classifications on their own.”
Harvard law professor Mark Tushnet, a constitutional law and NAACP expert, called Goluboff’s book “one of the best in the current generation of historical studies of civil rights litigation.”
“It is likely to define lines of inquiry that other scholars will pursue over the next decades,” Tushnet said. Goluboff “is less interested in the way courts developed and transformed legal doctrine than traditional legal history, and more interested in the ways in which lawyers worked — both with respect to the ideas they worked with and the material and institutional conditions under which they worked.”
In the book, Goluboff examines the claims African-American workers brought against exploitative employers. She traces a change in focus on civil rights from labor issues in the 1930s to issues that combined economic and racial concerns in the 1940s. During that period, African-Americans began to feel a growing sense of entitlement to economic equality. They fought in World War II — a war against an enemy that believed in racial superiority — and migrated north to work, where they subsequently became more politically important to the Democratic Party.
“All of a sudden there’s a new kind of civil rights that seems like it needs attention — civil rights for African-Americans — but it doesn’t displace workers’ rights,” she said. “That’s one reason that I focus on African-American workers. I think they are really at the center of civil rights before Brown.”
Civil rights lawyers at the time wanted to destroy Jim Crow — a system that was not only about racism, Goluboff points out. Established after the end of slavery, Jim Crow laws instituted both state-imposed segregation and discrimination and private labor market exploitation, she said. Hobbled by a segregated job market, black workers who brought claims in the 1940s were asking their lawyers to undermine the entirety of that racial and economic system.
The NAACP, the eventual legal champion of Brown, pursued many labor cases at the time — cases challenging union exclusion and segregation, and those claiming that black workers had a “right to work.” “They’re arguing for equality within segregation, which is not their ultimate goal, but they’re doing it,” Goluboff said. The NAACP “really does get openings in job markets and really does get changes in the way labor unions operate.”
Civil rights lawyers in the U.S. government also took on black workers’ cases. In 1939 the federal government established the first federal office in charge of protecting civil rights since the Civil War, the Department of Justice’s Civil Rights Section. Several cases brought by federal lawyers involved African-American farmworkers facing what amounted to involuntary servitude, the definition of which Justice Department attorneys were able to expand using the 13th Amendment barring slavery.
Brown’s impact may be seen today with two cases before the Supreme Court on whether school districts can assign students to high schools using race as a factor.
“If you define Jim Crow as being a problem of state-created classifications and not also subordination, exploitation, and inequality … it’s equally discrimination under the 14th Amendment to classify on the basis of race, whether you’re harming whites or racial minorities,” Goluboff said. “You can’t really address the problem of inequality — of economic inequality — under the Constitution.
“We still have the idea that [the equal protection guarantee of] the 14th Amendment only protects against state actions,” she said. “So long as you take that idea strictly, you’re never going to uproot all of Jim Crow, [and] you’re never going to uproot all of material inequality because so much of it is state-supported private actions that wouldn’t come under the rubric of state action.”
“The Lost Promise of Civil Rights,” published by Harvard University Press in May 2007, is in bookstores and available online now.