Elaine R. Jones
Director, NAACP Legal Defense and Educational Fund
From "Explorations in Black Leadership"
"Living a Life of Challenge"
November 1, 2000

Elaine Jones: That is a Swahili warrior song, which states "Life has meaning only in the struggle. Triumph and defeats are up to God, so let us celebrate the struggle." And it is what I have spent my professional life doing – celebrating the struggle. Now, I first need you to understand the organization I am privileged to work for, the NAACP Legal Defense and Educational Fund. Don’t pump my hand up and down and say, "Oh, Ms. Jones, Oh yes, I am a member of the NAACP. I know all about its work. It’s a wonderful organization" [as the chairman of the board sits here and looks at it]. Well that’s not me. That’s not who I am. I am the NAACP Legal Defense and Educational Fund that was created by the NAACP as a separate entity in 1940, under Justice Thurgood Marshall. We are a nationwide civil rights law firm. In 1937, after Brown versus Board was won, we severed (we had interlocking boards prior to that time). And we had severed and those boards… LDF had tax exempt status at the time, as the NAACP Legal Defense and Educational Fund is known, and the NAACP did not. So when Brown was decided, some Southern congressmen, I understand, contacted the IRS about this organization. And we have the letter from the IRS indicating that our tax exempt status was in some jeopardy if we didn’t really become a separate organization, not only in law but in fact as well. And so at that time, with our interlocking boards, those who chose to serve on the NAACP board stayed there, those who chose to serve on the LDF board, and we both added new members to the board. Now I go through this explanation, and Julian and I often joke with one another, because I have to raise 10 million dollars a year, and I cannot do it if you think that the check that you are giving also takes care of me. Now so send Julian his check, but write one that says NAACPLDF on it so that Elaine can have one for these litigation efforts.

Now the issues, I have learned, and I learned it very early, these issues of social justice, civil rights, and human dignity are issues that impact on us all. And too often they are used to divide us because we don’t have the PR mechanism to explain our commonality of interest in these issues. I often give a couple of examples of cases. I’m a lawyer and cases can explain this. One that I mentioned earlier that I think it’s good. It’s a case involving a white female. You would think NAACP Legal Defense Fund, all your clients are African American. Not true. It’s the issue presented by the case, not the race of the person walking through the door with the claim. White female, 62 years old, she felt that she was going to be dismissed, and she felt the reason she was going to be dismissed was because of her age. She was 62 and her employer wanted to hire someone younger. She was not wrong. In thinking that this dismissal was coming about, she took some documents home to sort of prove her claim when she went in for litigation. So she filed a suit under the Age Discrimination Act, and when she filed this case, during the course of the deposition -- we all know what that is now. At one time we did not. Now we do though. -- during the course of the deposition, it was learned that she had taken some documents home and that was an automatically dismissable case. Take documents home, you are dismissed, no questions asked. She filed her case, and she’s from Tennessee, in the district court (that’s the lower federal court). The court dismissed her case, threw it out because they said if the employer had known that she had taken documents home, she would have been dismissed anyhow. Although they didn’t know it at the time they dismissed her, they felt they would have learned it. And that was enough to throw her case out. It negated her claim.

A rule that I tell people, before we go to law school, we speak English. Jack and Jill went up the hill. When we come out of law school, it’s the party of the first part, here and after known as Jack, party of the second part, here and after known as Jill, paused to be ascendant a slope of undetermined height, here and after known as hill. Alright, so following that rule, this dismissal becomes the after-acquired evidence rule. So she is thrown out of court. The appeal is taken to the court of appeals, the sixth circuit (that sits over the district court) and let me tell you about the judges now, they will get rid of a case if they can. They will. I mean, it’s all moving your docket. So it goes to the sixth circuit and the higher court agrees with the district court judge and says, "yes, we agree. It should have been thrown out." So here she is. Two courts have put her out of court. She still feels she has been wronged. There is this new doctrine there that has found itself into the law called the after-acquired evidence rule. And so her lawyer contacts the Legal Defense Fund, finds us up in New York. Now he says, "LDF, we need help on this case. We need you to come in and help us get this case to the Supreme Court of the United States." Now LDF has had more cases in the Supreme Court of the United States than any other entity, other than the Solicitor General’s Office of the Department of Justice. So we know how to get it into court. We also have learned a new strategy – how to stay out of the Supreme Court. So take this case. Help us. I had to think about that. Limited resources. Ten million dollars, ladies and gentlemen, is not a lot of money for the entire country, and you’ve got all of these issues on all of these social justice and civil rights cases. You cover the entire country. Ten million dollars is not much money, considering the cost of litigation. So I had to look at this. I said, "Now this case is going to cost me $50,000. If you’re talking about an appeal and getting this case to the Supreme Court, it’s going to cost me."

Now why is it that LDF, being who we are, should take this case? Three factors. First, the whole notion that this after-acquired evidence rule has come in, in context of an age statute, it would then find its way into the law in gender statutes, race statutes, ethnicity statutes, religion statutes. These are sister statutes. These civil rights laws – it is a fabric that is woven. One is usually based on the other and often you can find similar language, similar covered classes. There is great similarity in these statutes. So this opens the door to really erasing the impact and import of those civil rights statutes. So I have an interest in making sure this concept doesn’t become a law. That’s number one.

Number two, this is an age discrimination case. Strategically it comes up in a good context. You know, I might have trouble with race in the high court, even have a little trouble these days with gender in the high court. But age, age, age is something, you know, I may get some willing ear on this subject. So that’s a good thing.

Thirdly, I look at the plaintiff. Plaintiff was white female. That’s a plus. On the Supreme Court of the United States are two white females, and these females, both of them, understand something about exclusion and discrimination. So I said this is a good thing because Justices Ginsberg and O’Connor will talk about this and figure out a way to pick up a few more votes. All they need is three more. And so we took that case and I had one agreement with the lawyer below. I said, "Look, LDF was business funded and we will put you below into a moot court environment, but if we don’t think you can adequately argue this case, then an LDF lawyer will argue it. If we think you are prepared and can argue this case, then we will second chair you in a high court and you can argue. If you agree to those conditions, then we will agree to represent Ms. McKinley."

So the agreement was made. We brought him up to New York. We mooted him and worked with him. He made an excellent argument. We second chaired him in the Supreme Court. We won that case. Not only did we win it, but the vote was 9-zip. We didn’t lose a justice. Therefore we got rid of the principle. It was never able to get itself cemented into law. And it’s the point that I want to make about how it is that these issues represent and how they interrelate.

Another example – white male comes to the door (this is a few years ago) and he was manager of a food operation, a retail operation, a restaurant in Maryland. When his regional manager came and looked around at his people, he took his employees aside and said, "Too many blacks. Too many blacks." Now I explain to people because sometimes people think that you have one black person somewhere and you are desegregated. One black person I tell you goes a very long way. You see more than one black person, my goodness. So he came to the restaurant and said, "Too many blacks." And he [the manager] said, "Well, wait a minutes. I am just hiring those people who are qualified, my labor pools who are coming to the door, the people who can do the job, that’s what I am doing." And he [the regional manager] said, "Well you find a way to do something about it."

A few months later the manager comes back and he doesn’t see any reduction and so he pulls the restaurant manager aside and he says, "I’ve told you, too many blacks." And he said, "Well, you know, I’ve had a need and I’ve continued to hire on the basis of the available labor pool." He was dismissed and he found his way to the Washington office of the Legal Defense Fund. When I saw him walk in the door and heard his story, I welcomed him into the conference room and found two lawyers to come out and spend some time with him. We took his case because when people are opposing the law, when the law permits them to hire and reach out and exclude people who have been historically excluded, I can’t sit back and let him be dismissed because it has a chilling effect on others who will do the right thing. And so we represented him and I am happy to report that he never has to work anywhere again as long as he lives. Never. On a boat somewhere in Florida is where he is now.

But these are…when we talk about civil rights laws and statutes and how things…these are things we never hear. But these are things that I fill my days looking at these issues and working them through. Now, I have an affirmative action plan at the Legal Defense Fund. It is important for me to have lawyers who know their craft. My lawyers have to be able to function in many different environments. They have to be able to write superbly. They have to be able to…or advocacy has to be second to none because we’ve got some of the most difficult cases out there. They’ve got to be able to function in a meeting of citizens, in a community. They’ve got to be able to speak English. Communication is a strong skill. They often ask me what is the best major for law, I often say English. Communication skills are very important in the law, written, oral. So my affirmative action plan is to make sure I have white lawyers on my staff. A lot of qualified people. A lot of very able lawyers come to the Legal Defense Fund, because people who want to do civil defense law…and we work hard to make sure we keep our salary scale the same as the Justice Department. It takes a lot of energy and ducats and effort, but we do it. Therefore we have a large pool and when I am sitting around a table and we are discussing a case, or an argument to make to a jury, or argument to put in a brief, I need all viewpoints. I have Latina lawyers. I have Bill Le Ayole, head of civil rights justice was head of my Los Angeles office. We are a richer organization and we can do what we do well because we have diversity of views and we can interact the way we should. We learn from it and we can take it and transport it to judges and juries and all kinds of arguments. We think of things that would never cross my mind. Some of my lawyers of different backgrounds bring up in meetings and it makes us a better law fund for it. And I want to hold on to it. We reflect that diversity in our board, on our staff, in our client base. What connects us, though, is social justice and human rights issues. And our emphasis, now I am going to be clear with you, it is African Americans. But African Americans can’t do it alone. When we open up opportunity, our job is to open it up for all of us. So we found that our cases have done it case after case after case.

I mentioned today the height and weight requirement. Many of you won’t remember but there used to be for police officers or state troopers, you had to be six feet tall. They had all of these non-job-related requirements that you had to meet in order to be have some of these public service jobs. Police, state trooper, must be 6 feet tall. It’s just a requirement. Now women aren’t usually 6 feet tall. Latinos aren’t usually 6 feet tall. Asians aren’t usually 6 feet tall. So just with that job requirement, there are whole groups of people who are automatically rules out and the requirement has nothing to do with your ability to do the job. Not only did they have the height requirement but they had a weight requirement. We used to call them "airline stewardesses". Now they are flight attendants. The job was, what? You had to weight 110 pounds. 110 pounds?! That’s my thumb. Had to weigh 110 pounds. 110 pounds means what? Most men do not weigh 110 pounds, and men could not get those jobs. That’s why it was called airline stewardess. LDF participated in bringing those cases. We spent thousands of dollars. Brought those cases in Alabama across the South to get rid of those requirements. When we got rid of those requirements, what happened in terms of the state trooper? Now you no longer have to be 6 feet tall, but we have Latinos, Asians, African Americans, we opened it up, but who else did we help? Short, white men. Short, white men couldn’t get the job before. Say what you want. Could not get it. Think about it. But we don’t see. Nobody teaches us how to think this way. The flight attendants remove that weight requirement and now men are flight attendants. Change the name, no longer stewardess, now flight attendants. Opens up job opportunity.

Now LDF deals with big problems. I mean big, and I have to. With this ten million dollars, we have to deal with the big problems. For example, we took on the state of California because they weren’t testing the kids for lead poisoning and that was a federal requirement within the law. There are some good federal laws. A federal requirement that these kids be tested. But nobody was testing these kids for lead poisoning. So when the parents brought their kids to our offices, we filed a class action. 500,000 kids tested because we won that lawsuit in California. Then we took it to Colorado and brought a nationwide class action to require all the states to test these kids because the kid can’t learn with the lead poisoning. The kid can’t think; can’t see; can’t do anything. But the testing makes a difference. Big issues and we are still struggling. We run up against forces, entrenched interests, when we take on these cases.

Back in California, everybody who’s been to LA, you know about California – city of freeway. LA is freeways. You don’t have a car in LA, you are dead in the water. Have you ever seen a bus in LA? But poor people in LA, I don’t care what color, need access to public transportation. The transit authority was spending the money building the fixed rail out capacity. And building the fixed rail meant that people with two cars in the garage could come in, in the morning on the train reading the Wall Street Journal, with the cars in the garage, using public transportation. The people who need buses to survive, to go to the day care, to get to the doctor, to get to the supermarket, to get to the job if they have one – no public transportation. So here’s a transit authority with a $340 million surplus. $340 million, you hear me, surplus! They come to us, the LA Office of Legal Defense Fund. "Help us." Organized group. It’s a community organizing itself, and that’s a service that we are supposed to provide. When the community organizes itself and has a need, and it’s a systemic need, you need to be able to respond.

Now they come to us. LDF goes to the hearing and represents, tries to the get the people…they say, "Look. There is a $340 million dollar surplus. Put some buses on the street." They ignore that. So once you try. See I don’t always go to court first. No I don’t. I try to work it out. I am going to talk to you and see if we can have a meeting of the minds. But then if we cannot, we have to do what we do. We don’t know what the outcome will be, but we can’t just sit and let you get away. So we filed a lawsuit against MTA. To make a long story short, after a year and a half of litigation, LA was ordered to spend $1 billion over the next ten years in putting buses on the street. But now, we win that in the lower court and we tried to hold onto it. But where are we now? We are in the9th circuit court of appeals, because that is now under review.

Now that brings me to the point. I am talking about big problems. I guess I am energized by adversity. There are problems all around us and we have to feel that we can make a difference. We can’t feel powerless. We can’t say what difference does one person make. You look at the problem and you see if you have a skill set or the means to address it. Now the issue that I am dealing with now is very important to me, and it ought to be important to you. I raise it here because I am sitting in a state that is in the 4^th circuit court of appeals. How many in here are law students? Good. How many are undergraduate students? Good. How many are in graduate school that’s the business school? How many are in graduate school that’s not law school? Now how many are from the community that are not attending the university? Great. Great. All right. So we’re not going to do "party to the first part, party to the second part." I’m with Jack and Jill on this one.

We have, in this nation of ours, two real sets of laws. We have the laws passed by our various states, and with that our state constitutions. So that’s one body of law. So each of our states has its body of state law. But we also, in this country, have a body of federal laws. The body of federal law consists of, primarily, the Constitution of the United States and the statutes passed by the National Congress. So you will find that acts that I am talking about, the Civil Rights Act, the Age Discrimination Act, Disability Act, various race, ethnicity, and gender statutes. All are congressional acts that apply to the entire country.

There are a set of courts on the federal side, and these are called our federal courts. There are three levels. The lowest court in the federal side, your trial court, is called your district court. It’s called that no matter where you are located. You have a district court in San Antonio, TX and you have a district court in Norfolk, VA. You’ve got district courts.

Then your next level of courts on the federal side are called court of appeals. We’ve got 13 of those in this country. We’ve got the 50 states. The 50 states are divided into 11 court of appeals. The 12^th is the D.C. circuit. So it’s got its own circuit with its special jurisdiction. Then you have a new court that was established about 50 years ago called the federal circuit. But if we look at these 12 circuit courts, these are the courts that make the most basic fundamental decisions about our lives. Not the Supreme Court. The Supreme Court hears about 75 cases per year. Thousands of cases are filed. It is the court of appeals that decide the cases, decide more cases and decide a greater variety of cases, cases that the law they make just simply stands there, even if there is a conflict in the circuit and the Supreme Court doesn’t choose to hear it. The law can be different from circuit to circuit.

Now, if your grandmother was trying to get a mortgage because she wants to sell one house, buy another one, and the house she wants to sell costs a little more, so she wants to finance it. They tell her, "You are too old to get this mortgage." Where is her claim? It is in the federal court under age discrimination. If on the job, you are denied a promotion because they simply said, "Well, women have never been in this position. We are not ready just yet. We will be ready in time. But we are not ready yet." You slap a Title 7 suit on that and you are in federal court. Scholarships. Let me give you an example on scholarships. Thurgood Marshall graduated from Howard University in the class of 1933. He was first in his class and Oliver Hill, who the project has taught, 93 years old, living in Richmond today, was second in the class. Thurgood Marshall was denied admission to the University of Maryland. He was from Maryland, so he applied to the University of Maryland for admission. Maryland didn’t ask about SAT, which was not given then, but they didn’t ask about anything, grades, ability, nothing. Race. You’re black. Sorry, you’re not coming to the University of Maryland. Simple. No argument. End of discussion.

Thurgood then goes to Howard and graduates in the class of ’33, and what happens? The first order of business when he graduates from Maryland is to do what? It is to sue the University of Maryland, which he does. Look it up. Bell versus Maryland. Donald Bell, 1936, Supreme Court. Sues University of Maryland to admit blacks.

Back to my principle. Maryland admitted Donald Bell, but that was it. For a long while you had desegregation as long as you had one black. You may have 10,000 students but you have one black so you’re desegregated. So the principle continued. You add Donald Bell and then once in a while you get one or two blacks in and that’s the way it went. In 1970, the Federal government Office of Civil Rights sued the 17 public universities across the South for discriminating against blacks. They had the ridiculous argument that black folks pay taxes too and if you have a public university, they ought to have an equal right to get admitted. So finally, that suit went of for years, the Adams case. Finally in the late 70s, Maryland on it’s own, to its great credit... University of Maryland said, "We’ve been discriminating long enough. And we’ve decided it’s time for us to change. To show that we mean business, we are going to take one half of one percent of the scholarship money and target it to inner city, high achieving black and brown students." One half of one percent. That was the program. Benjamin Banika Scholarship program, University of Maryland. You know what? The program worked. It worked. We don’t care if the program was on the books and it didn’t work. If it doesn’t work, nobody cares about it. But when it starts becoming effective, black and brown students started coming to Maryland and you really began to get some real desegregation at Maryland, a vibrant atmosphere where diversity made a difference. All of the students were saying it is a different place and it’s much more positive.

Well, what happened? You know what happened. A reverse discrimination suit. "No, that’s reverse discriminatory. That one half of one percent should not be earmarked. I don’t care what Brown has done in 50 years. It’s discriminatory." So the scholarship program was challenged. Here comes LDF to court. The case is tried before Judge Motts. Judge Motts, in district court in Maryland, a Reagan appointee. You know something. No, no I’m coming a different way than you think. All I ask of a judge, any judge…I don’t expect to win all the time. Neither do I expect to lose all the time. I expect the judge to read my papers to understand the law, and to apply the law fairly. Don’t prejudge my case before you’ve read my papers and I’ve opened my mouth. Give me a chance. Apply applicable law. Look at the precedent. And you are not the Supreme Court of the United States, district court judge. You are not.

Go before Judge Motts. Judge Motts writes a 56 page paper saying this issue of affirmative action is one of the most difficult we have, but Maryland’s use of it is narrowly tailored and it does not unnecessarily trammel the rights of whites. One half of one percent is reasonable to try to overcome this legacy and to change things around. He found the program constitutional. Now I like to think I would be singing Mott’s praises if he had rules against me, I don’t know. I’m not promising that. We then appeal. Go before the full circuit court of appeals, which sits in Richmond. LDF was standing there and peaking their argument. The judges are talking to themselves. They come down in two weeks with a cookie cutter opinion, which is… when you compare to Mott’s opinion, it really makes no sense because they really didn’t think about the issue. They come down with a cookie cutter opinion saying, "Unconstitutional affirmative action. Throw the scholarship program out."

What does that mean? That means in the fourth circuit, which sits in Richmond, five states in the fourth circuit (Virginia, North Carolina, South Carolina, West Virginia, and Maryland). In those 5 states, a public university then cannot set aside even a small set of money and earmark it to address problems that are reflected by its past. That’s wrong. It’s in the fourth circuit. No so in other circuits, but the fourth circuit and also the fifth circuit.

Now here’s the problem with the fourth circuit. The fourth circuit is comprised of those five states. They have awesome authority over our lives. The circuit courts as we know them came into existence around late 1890s, 1891. They really became the way we know them in 1925, but 1891 was really the beginning. The fourth circuit, I guess, dates in its present way from 1925. Never in the history of the fourth circuit has an African American ever sat on that court. In those five states of the fourth circuit are more black people than any other circuit in the nation. Nearly 23%. Not one. 15 judge court. As I speak, there are only 10 judges on that court. It is operating at two-thirds capacity and there has been a relentless effort to make sure that that court is not desegregated. It is so bad that the most populous state in the circuit, which is North Carolina (with 7.7 million people) has no judge of any color on the court. That’s a violation of law. The statute requires that the residents of a particular state be represented on the circuit. North Carolina has no one. There has been one vacancy on that court for 10 years, since 1990. People have been nominated for the court. Outstanding people. I mean, you talking about qualifications, I’m talking about yin yang qualifications.

If you just look at the history of those nominees, there was a nomination in 1995 - an African American gentleman from North Carolina, who is now a U.S. district court judge. The nomination sat before the Senate for two years. For two years there was no action. It finally lapsed when you got the new Congress. In 1997, another judge was nominated. Nothing happened. In 1999, James Winn, a North Carolina court of appeals judge was nominated. His nomination has been pending and is pending now, for more than a year. Both nominations blocked by Senator Jesse Helms, who refused to return the courtesy of the blue slip. On June 30^th of this year, Roger Gregory from Richmond was nominated to the circuit. Outstanding lawer. Not a civil rights lawyer, but a business lawyer. He’s got business clients. That’s what he’s been doing. Both Virginia senators returned the blue slip, Warner and Robb. Still no hearing for Roger Gregory. What do all these nominees have in common? Each one is African American. Now that’s wrong. Look at this list. Every circuit in the country. All of the remaining circuits in the country have at least an Asian American or Latino or African American. All of them have some representation for minorities except this circuit. It’s beginning to be embarrassing. I’m a Virginian. It’s beginning to be embarrassing and we don’t need to be complacent I told North Carolina. You should be up in arms. You are sitting here, the largest state in the circuit, with no judge on the circuit for North Carolina. That’s a real problem. And what I do with problems – I don’t despair and say it’s too big. No, this one is going to be solved and it’s going to be solved soon. This one is going to be solved soon because we cannot tolerate that in a system of democracy. And I am telling you ladies and gentlemen, look at the record. It is intentional. It would be different if it was by accident or things just happened (because things do happen). This is intentional. Therefore, I mean that is a problem. You say challenges and living a life of challenge, those are the kind of challenges.

I want to thank you your patience this afternoon, listening to me. I could go on with the issues and that. I don’t think a whole lot about Calvin Coolidge, but he has a saying that I like and wanted to share with you about perseverance. Maybe I am not supposed to find it because you will go out and say Elaine was quoting Calvin Coolidge, but it was…Oh yes, he said, and he would know, he said, "Press on, nothing in the world can take the place of perseverance. Talent will not (can’t take the place of it). Nothing is more common than unsuccessful men," he said (I say people), "unsuccessful people with talent." He said, "Genius will not. Unrewarded genius is almost a proverb." Then he says, "Education will not. The world is full of educated derelicts." Then he goes on to say, "Persistence and determination alone are omnipotent." And I just want to say to you, just make sure when you get out in the world of work and begin to make your difference, make sure -- you can’t do it if you don’t show up. Thank you very, very much.

Julian Bond: Thank you a great, great deal for that. We want to have some time for audience questions so I think we will try to limit our questions. And I wondered if I could get you to…I saw in your biography that at age eight that you had decided to become a lawyer and I wondered if you could tell this audience a story that you told this morning.

Elaine Jones: You don’t have time to hear that.

Julian Bond: Yes, we do. About your toothache.

Elaine Jones: Well, I am a bit precocious. My parents would call it brazen, but I had a toothache coming home from school one day and dropped in at the dentist’s office. The dentist took full mouth x-rays and I was there for an hour and a half or two hours taking everything that he had to do to examine me and then some, he did. Then I probably went home and said nothing about all that and my parents received the bill for some huge amount. One hundred dollars was big money then. So they wanted to know what was this about. I said that I had gone to the dentist. They said, "No. You didn’t have our permission and we are not paying this." So they told the dentist, "She didn’t have our permission and you didn’t have any business doing this and we are not paying."

So they ignored it and finally the person came to the door from the court and tapped the notice on the door to show up in court for nonpayment of debt. Well my father was a Pullman porter and he said, "I’m going on my trip. I’m not going to give up my trip because of this." Mother said, "I’m going to school." She was a teacher. She said, "I’m going to school. Elaine, you created this." So they said, "We have this family friend who will go with you." And they got this elderly gentleman, one that would say, "You have to go down there."

So I went. Went down to the court. I was scared to death. The judge calls us up, calls the case. The lawyer for the dentist was there. The dentist isn’t. And the judge asks me this question, he said, "Young lady?" I said, "Yes sir." He said, "Young lady, did you have your parent’s permission to go to the dentist? Did you ask permission to go to the dentist?" And I had a fleeting moment of not knowing what to say. I clearly did not have their permission and if I had told him that, he would have thought that I was just a disobedient, unruly child and that I didn’t know my place and I didn’t want to give a bad impression. If I had said "yes" to make myself look good in his eyes, and I thought about it. So I didn’t know what to do and the little voice said to me, "Tell the truth. Tell the truth." So I looked up at him and I said, "No, your Honor, I didn’t have their permission (thinking that I was going to jail for 20 years). No I didn’t have their permission." Then he looked over at the lawyer for the dentist. He said, "Does your client have a habit of minor children walking into the office with no permission slip, no phone calls to parents, nothing and giving full mouth x-rays, doing $100 of work. That’s just bad practice. Case dismissed." A lawyer born! But it also taught me something else – if I had said, "Yes my parents knew about that visit", they would have been charged for that $100 because I went with their permission. It was just, the truth is the way to go, especially in this practice. The truth, get at the truth. Don’t sugar-coat it and don’t put yourself in a position where you are both accountable and the judge will not trust your word because then you are not useful. You can’t negotiate. You can’t do anything. Your words have got to mean something. So that’s the story of a lawyer born.

Patricia Werhane: As you know I teach in the business school and as you also know, since the early 80s, we have had many more African Americans in our business schools and they have done very well and we are very proud of that. But according to the latest data that I have found, there are only 7 black CEO’s in the Fortune 1000 and none of them are women. There are only 8 women all together in the Fortune 1000. So while we…

Elaine Jones: Eight African American women?

Patricia Werhane: No, there are no Afro-American women.

Elaine Jones: Maxwell House is Fortune 1000, is it not? So that’s one. Ann Fudd is CEO of Maxwell House.

Patricia Werhane: But not of the whole company. She is CEO of a division.

Elaine Jones: Okay.

Patricia Werhane: Yeah. So there’s nobody who is…

Elaine Jones: I’ll take it.

Patricia Werhane: And we don’t have to have a bake sale for her but we have gotten far in some areas and we are doing, at least in Darden our students get great jobs and that’s wonderful but we don’t see the promotions. We don’t see them at the top and you talked a lot about how diversity has made the Legal Defense Fund the wonderful place it is. How can we change that in corporate America?

Elaine Jones: You know, it is gratifying. LDF is involved in defending Michigan in terms of its affirmative action program. We have intervened and represented black and brown students in that case. But it’s very interesting in Michigan. GM filed a friend of the court brief. It was one of the most beautiful briefs that I had read, talking about in the context that you raised, in the business community the value of diversity, especially when you’ve got a global technology. We’ve got a global village. I talked to the executive vice president, Harry Pierce, about that brief and about Michigan. Then President Gerald Ford has weighed in on the side of diversity in that case. But more than that, Harry Pierce told me the other day that he has gotten 30 major corporations to join him. And he said that this is nothing yet. He wants to really increase those numbers. In other words, corporate America tells us that they value diversity.

Patricia Werhane: Oh, I know.

Elaine Jones: They tell us and the brochures are glossy and very attractive, very pretty. Now we’ve got to see the glass ceiling break and we’ve got to see folks move into the top. Now as limited as it has been, there has been some. I mean, to say that you’ve got an African American CEO of a Fortune 1000 company, you’re saying something. That was something unheard of just a short ten years ago.

Patricia Werhane: There were none.

Elaine Jones: That’s right. There were none. But the pace is slow. We’ve got to quicken the pace and you’ve got to use some friendly pressure. There are ways of getting their attention for these kinds of things. And I think we are going to see someone move up. There is the merger of Texaco and Chevron, but I think we are going to see some things happening because people have rude awakenings when a lot of their innermost problems come out in public light. Texaco experienced that and they realize the importance of having diversity at the top. So we have to keep pushing, Patricia. We have to do what we do and it’s not going to happen overnight, but it shouldn’t take as long as it has taken.

Julian Bond: You mentioned staying out of court.

Elaine Jones: Yes.

Julian Bond: Particularly what comes to my mind is the Pascattaway case -- affirmative action case, not good evidence, risk of a bad decision.

Elaine Jones: Let me tell you something.

Julian Bond: You go ahead.

Elaine Jones: Let me tell you something. These are tough issues. Nobody is saying they are easy to slam dunk, especially when you are talking about the 14^th amendment and equality under the law. All these are very tricky, difficult issues and I make it seem clear and simple but I realize it’s difficult. I also realize that the whole notion of affirmative action in many instances has run against our grain in terms of equality. But the point about it is that we do have some vestiges that we do have to do something about. I am not here to talk about affirmative action. No, but I am saying, just like when I was admitted to the University of Virginia. Oh, I had the grades and all that stuff just like everybody here does, but the point is that for every me, there were 10 white males. Virginia was all-male. Undergraduate was all male, and the law school had five African Americans. There were two in my class and two in the class ahead of me and one in the third. So Virginia could easily have not admitted me, because nobody matches up like that. But my qualifications were as good as several others, but there was one slot. Virginia decided, "Look, this woman is over in Turkey. We don’t know what she is with this neru jacket and afro, but that’s alright. We are going to take a chance on her if she will take it on us."

And we did and it was a good thing. It was a good thing, because then after my first year, my second year I could help the university recruit. We knew what to look for. So it makes that difference. Now in terms of the Supreme Court, let me tell you, on these tough issues, the easiest way for them to knock you out of the park is for you to go up there on just a legal issue. "The law says this…." They don’t want…facts are messy. Facts are always messy. But I want facts. I want a fully developed record, so they can see the issue they are dealing with in some context. I want a fully developed record.

So, you’re right, Pascattaway, I woke up at 4:00 in the morning. Pascattaway was the worst thing I have seen in a long time. It was misuse of affirmative action, complete misuse of affirmative action. The black teacher had a masters. The white teacher did not. It was not in the record. The black teacher had superior qualifications not in the record. Instead there was a stipulation, there was an agreement that they were equally qualified. Once you made an agreement, you are out of the water. Nothing you can do. Yet that case had the potential of overruling 22 years of law. Since 1978 the Supreme Court’s decision in Bocky and in (it will come to me)….since the late 70s. Weber, that’s right. Thank you. So there’s 22 years of law on the line coming up in this context. I woke up at 4:00am. I sat straight up in the bed. I looked in the dark and I said, "You know what, Elaine." (I was talking to myself. You would have thought I was crazy.) I said, "The court will not hear this case." The court had granted circ in the case. The case was getting ready for argument. I said to myself in the dark. I said, "The court will not hear this case. Now they will hear an affirmative action case but it ought to be one with a fully developed record." So then I had the problem of how to make this great pronouncement come true. I had a case on the way to argument in the high court. So I had to figure it out and get with friends and folks and get busy.

You have to keep one thing in mind about the Supreme Court of the United States -- it can’t go out and pick up cases. It can only hear what the parties bring to it. That’s all it can take. If you are a judge, keep that in mind. You are not an advocate. That’s why I am suited to where I am. I take up one of you and I hound and hound and hound. The judge has to be balancing it out. The Supreme Court, as in the court, can only take what the parties bring to it. It can’t go out with a broom and sweep up cases and bring them on in. So the issue then was the parties. The parties need to come to some agreement. So once I realized that, the question was how to bring that agreement about. Although one of the lawyers said, "What! I bought a $2000 suit and I want to be heard. I want to make my argument." I said, "Man, if you don’t. (Smile and shrugs.)"

Patricia Werhane: You won’t be a good friend of Ralph Lauren.

Elaine Jones: That’s right.

Patricia Werhane: You’ve worked a lot on environmental justice too and that’s an issue that we hear less about. We hear a lot about the environment but environmental justice and environmental racism are issues that I think are not typically at the forefront of our thinking always. Maybe you could just talk a little bit about that.

Elaine Jones: No, these are very important issues because what we do… In the law, unfortunately, there is no class or poor people. There is no jurisdiction or basis for you to go into the law and say, "I am representing this class of poor people." It is not there. If you find it let me know, but it’s not there. So you’ve got to do race or one of the protected classes. Race, ethnicity, gender, religious. You have to have a basis that’s recognized in law for bringing a lawsuit. Poverty is not recognized as such a basis. Can you imagine what would happen to the dockets of the court if it were? So I am not going to spend any time trying to make Congress make poverty a protected class. It’s just not going to. We all know that there are issues that poor people have to deal with that many people do not. One of them is dumping, the toxic dumping, the quality of their lives, cancer in Louisiana. Just look across the country at where we choose to put our national waste is on the backs and in the neighborhoods (I call them neighborhoods, some people call them ghettos) of poor folk. So to get at those issues, I have to file a race claim or an ethnicity claim. That’s the only way I can get it looked it. What we have been able to do... We had a big docket of those cases about three or four years ago across the board. What we’ve been able to do now is to get some of the main stream organizations that are looking at environmental justice issues like the Sierra Club, to take these cases and look at them sometimes through a lense (a racial or ethnicity lense), which is important. Remember, that’s ten million dollars. I’ve got four main areas. One I call economic access, very important, and that’s a broad range of activities (that is entrepreneurial, employment opportunities, access to capital, all the issues that impact on it).

Education. Education takes nearly half of our budget and continues to be a very important issue at the Legal Defense Fund. The other issue is civic preservation. A whole issue of voting rights. Something like campaign finance reform. LDF is interested in that because that impacts all of us. Voting rights and being able to participate in your government. The final and equally important issue is the criminal justice issue. What’s happening in criminal justice in this country? We are misusing our resources so bad in this country. The kind of money that we are spending to incarcerate nonviolent people for huge lengths of time. We’ve got to turn that around. That’s not something our parents or grandparents passed down to us. That’s something we created in the early 80s. We are taking money out of education budgets and putting them into prisons for nonviolent offenders. I am not talking about the people who rob, rape, maim, and murder. I am talking about people who were not incarcerated before, men and women who had these boyfriends who were drugs dealers and they knew nothing about it. Because they had nothing to negotiate with the prosecution, they end up with a 15 to 20 year sentence and the boyfriend ends up with a five-year sentence. These are issues that we have to deal with and so criminal justice is awful big.