Wednesday, November 24, 2010

Walker on ASLH panel: Lost Intersections: Labor, Civil Rights, and Feminism in 20th Century U.S. Legal Advocacy

Our first guest post about this year's American Society for Legal History conference comes from Anders Walker, St. Louis University School of Law.  His panel description follows:

Lost Intersections: Labor, Civil Rights, and Feminism in Twentieth Century U.S. Legal Advocacy

This panel focused on intersections between labor, civil rights, and feminism, both broadening and challenging prevailing narratives. 

Tomiko Brown-Nagin (University of Virginia) presented “‘The Only Woman in the Courtroom’: Constance Baker Motley and Twentieth-Century Struggles for Equality,” a paper drawn from a new project using Motley to de-center traditional narratives of civil rights lawyering and feminism.  Raised in poverty, Motley worked at the NAACP Legal Defense Fund for 20 years, confronting hostility in southern courtrooms both because she was black but also because she was female. Yet, the biggest “valley” in Motley’s career occurred in 1961 when Thurgood Marshall passed her over for LDF director, appointing Jack Greenberg instead.  Suspecting gender-bias, Motley became a champion for sex equality for the remainder of her career.  As a district court judge, she fought male efforts to remove her from gender discrimination claims, successfully pressured Sullivan & Cromwell to support affirmative action, and opened the New York Yankees’ locker room to women.  As public outrage ensued, Motley defiantly responded “let them wear towels.” 

Sophia Z. Lee (University of Pennsylvania) presented a paper entitled “More than a Hamburger: The Labor Roots of the Sit-In Cases,” showing how claims to lunch counters resonated with earlier workplace demonstrations both involving constitutional assaults on a business’s private status and concomitant efforts to expand the notion of state action.  Central to this story was Archibald Cox, solicitor general at the time who helped shape the outcome of the cases by arguing for conservative readings of the state action doctrine.  Animating Cox’s approach, however, was not simply a traditional interest in property rights, but a more intriguing concern for labor’s rights.  A firm believer in collective bargaining, Cox feared that an over-expansion of the state action doctrine might lead to over-regulation of unions. 

Serena Mayeri (University of Pennsylvania) presented a paper entitled “Rethinking Legal Feminism, Race, and Civil Rights in the 1970s,”  showing how sex equality claims often began as combined gender/race claims, only to have race fall out as cases wound their way through the appellate process.  To illustrate, Mayeri focused on Andrews v. Drew School District, a 1976 case brought by Katie Mae Andrews, a black unwed mother who had been denied a teachers’ aid position in Drew, Mississippi.  While the Drew School District called known segregationists to testify against Andrews, lawyers for the plaintiff called Kenneth B. Clark and Fannie Lou Hamer, both icons of civil rights.  Hamer charged that the school superintendent was repressing blacks by denying employment to unwed mothers.  Clark emphasized the sexual subordination of women, calling Drew’s policy part of a long history of gender discrimination.  Though the Supreme Court dismissed the case, the litigation story nevertheless underscores that many of the plaintiffs in sex equality cases were blacks suffering coded forms of discrimination, yet the racial roots of such cases became obscured as litigators and courts shifted the nexus of the claims away from race and towards sex. 

Nancy McLean (Northwestern University) provided commentary, noting that Motley’s story illustrates how the “threatened loss of new possibility (in this case Marshall’s choice of Greenberg) can be “a radicalizing force,” that Cox’s support for collective bargaining (a defeat for labor) indicated limited sympathy for labor’s rights, and that we cannot draw conclusions of advocates convictions from the judges’ rulings on their cases, a lesson illustrated clearly by Andrews v. Drew.