Elaine R. Jones
Director of NAACP Legal Defense and Educational Fund
Public Service Law
September 24, 1998

Elaine Jones: Thank you. Thank you. Thank you very much. Julian, thank you for that wonderful introduction. I asked Julian, I said, Julian, please be merciful. Although my office sends out those two or three pages, it's for you to select what you want to tell the people and he selected well, and he was merciful and I appreciate it. I also want to thank my sponsors for bringing me here to the University of Virginia. It's extraordinary to see a Women's Center. Just to be able to put the words together at this university is a wonderful thing. Women's Center. You see, you have to put yourself in the context of where I was, where I am coming from. I came to the University in 1967. Now, someone told me, a friend said, Elaine, women don't tell. They can do the math for me. That's alright. I can handle the math, but the idea of a Women's Center at this University was just something that one just didn't think of. I mean, women were not admitted to the undergraduate school until after I had graduated from Law School, and to see what the years have wrought is wonderful. There's been growth here and I just hope Mr. Jefferson can handle it all today -- with a Women's Center and my getting this wonderful award and all of you here this afternoon.

I arrived this morning and I was to have arrived last night and when I got here, I was picked up at the airport and I was the last one to get off the plane and then I disappeared in the ladies' room. So the person who was picking me up looked around and looked, and then she said, where is -- to herself, I could see it in every fiber of her body -- where is this woman? Is she coming? She promised. It's been a wonderful day so far, meeting with the students over at the Law School at lunch and now spending a little time with you this afternoon. With all the competing things going on on campus, I don't know whether it's a course requirement or are the professors taking notes. I don't know why it is you're here, but whatever the reason I'm grateful, and I promise you I will make it as painless as possible.

It reminds me of the student who when the student was asked if he had an hour to live, how would he spend it. The student thought. He said, "Well, I'd like to spend it in Professor Jones's class." And he said, "Well, why Professor Jones's class?" "Well, an hour in there seems like a lifetime," … so I'll try not to make it a lifetime.

The anthropologist Margaret Mead made a statement that has resonance for us today and her quote is "never doubt that a small group of thoughtful committed citizens can change the world. Indeed, it's the only thing that ever has." That speaks to me. "Never doubt that a small group of thoughtful committed citizens can change the world. Indeed, it's the only thing that ever has," and I believe her to be right. I completely agree.

When I came to the University in 1967, I came with one goal. That was to graduate. Not simply to be a statistic, but to be a graduate of this institution, to learn what I could, take from the Law School and to apply it in the best way that I could. Now, coming from the Peace Corps, a Wall Street job was quite something to get; $18,000 a year in 1970, ladies and gentleman, it's about $100,000 today. That's good money having made $40.00 a month, you know, in the Peace Corps for two years, but that is not the reason I had gone to law school. I went to law school because my mentors were Constance Baker Motley and Thurgood Marshall and Charles Hamilton Houston and all of those people that Julian mentioned whose footsteps are too big for any of us to fill, because we have to make our own footprints.

Now, as Julian told you, Thurgood Marshall started the Legal Defense Fund in 1940 and he spent 21 years there as head of LDF. Prior to that, he had been legal counsel of the NAACP and from '40 to '61 he wore two hats. Still, general legal counsel of the NAACP and was director counsel for the Legal Defense Fund, and so the organizations, while separate today, our birth comes from the NAACP but Thurgood and George Wilkins and others thought that the lawyers should be chartered separately under the laws of New York State and so they did get it chartered in 1940. The courts could not understand the idea of a public interest law firm. You mean, lawyers working for free? Pro bono? They didn't understand the concept, but we were able to explain it to them, and so the LDF was able to be incorporated.

Now, Margaret Mead's quote in the context of the Legal Defense Fund -- a small band of lawyers intent on using the law in a way to make systemic change, has resonance for us today and is something that we need to understand and understand how it affects us and how you are part of this ongoing continuum. It just didn't start with Thurgood Marshall and his band of lawyers. It started back when the 55 came together called the Founding Fathers in 1787. They came together from the 13 states, but there were only 12 states. Rhode Island didn't send anybody to the grand Convention because Rhode Island said, you know, they smelled a rat and they didn’t want to be a part of that, so only 12 of the states participated.

[An idea] when they came to Philadelphia was to see if they could amend the Articles of Confederation, but said, well, no, no, no, we can't keep them. We have to change them, and so, again, you have a small group of thoughtful, committed people changing the world. Fifty-five men in a room who could've debated the issues in Latin as well as in English. At that point, most of them were wealthy. They were very learned. Many of them had studied abroad in France or England. They were horticulturists. They were linguists. They understood arts, and they came together in May of 1787, they couldn't get there on time even though they-- Leaving it up to the end men.

It took George Washington four-and-a-half days to get in from Mt. Vernon, but he was there early, and Benjamin Franklin was there early because Benjamin Franklin was the grand old man of the group of the great Convention. He was 81 at the time, and so they all came and the Convention was supposed to start on May 11th. It didn't start until two weeks later because they had to have a quorum. You had 12 states. They needed seven states, seven representatives, and so they locked themselves in and they were there for four months and when they came out, they gave us the basis of our law. One of our most important documents in this country is the Constitution of the United States. Shut themselves in a little room and they said that they didn't want the secrets to fly out and so it was hot. No air conditioning and they debated the great issues for four months from May to September in that little school room in Philadelphia.

Now, they were very human, these men. The attorney general of Maryland came in. He got so drunk one weekend just he fell right off his horse right there at the Convention, so they just put him there and he was the attorney general of Maryland and they brought him in and he got himself together and he participated. Of the 55, you had no more than 30 or 35 in session at a given time, but when they were writing this great document and before, Thomas Jefferson one day, the founder of the University, he was in France at the time, but Jefferson didn't come back until 1789, but they were all there. George Mason and you had the, as I told you, you had Elbridge Gerry from Massachusetts, George Washington had come in, and you had James Madison -- a young man with a plan, and you had Alexander Hamilton from New York. Prior to that, Abigail Adams had written to her husband, John Adams and said look, maybe a few years before, 11 years before putting together the Declaration of Independence, she said, please don't forget the ladies. In these great documents that you are putting together and talking about all men are created equal, don't forget the ladies. And John saw that and he said, my, my, we knew that the Indians had grown insolent and the Negroes were, the slaves were becoming restless but never did we know there were tribes more numerable than those who had, who were becoming impatient. And she said make, if you will, of husbands partners and friends rather than masters.

John didn't listen, and so the Constitution while it was quiet and silent on the question of gender is shrine through the common law on all the practices and customs that continued to repress women. We know what the Constitution did on the question of race. In some twenty-one different places in the Constitution you see those references to poverty. Many of them were talking about slaves. We knew that it sanctioned the importation of slaves for 21 years, and so throughout the document and you read the original Constitution and you will see that when they discussed the property rights, they kept in mind the whole idea of slaves and the south, so you've got many exclusions. You've got black people, included and subjugated and so the issue is how do we find ourselves in 1998. How did 1787 bring us to this point?

What we find is once that Constitution was adopted and those signatories signed that Constitution in September of 1787. From that day forward, there was a movement, there was a movement to make our laws apply to all of us, and so you saw the interrelationship and the interconnectedness. You saw the movement for the abolition of slavery and the movement for the enhancement of women coming together. The first women’s conference, 1848, Seneca Falls -- Frederick Douglas was there. The second one in 1852, Sojourner Truth was there, and the issues for inclusion, you found the movement, that was struggle and it wasn't always easy, but they knew to make a difference, and to get real change they had to work together. They also had to work to support us. There were white men who supported the Africans and it wasn’t an accepted thing at that time. It was very much questionable when a man supported the women's movement and the suffragette movement, but men did it.

I think about when African Americans in 1868 came into the Constitution and we didn't come into the Constitution until 81 years after it was adopted. It was adopted in 1787. African Americans came in 1868 with the passage and ratification of the 14th Amendment. The 13th Amendment outlawed slavery. The 14th Amendment brought us [to] this Constitution, but the 14th Amendment also for the first time mentioned gender and it had male and female and so that was a big argument between those who wanted all to get the right to vote. That is, women and African Americans get the right to vote together, but Congress was not going to support the right to vote for women in 1868 and so Elizabeth Cady Stanton and Lucretia Mott were very upset with the fact that Congress would consider the 15th Amendment which was adopted in 1870 that gave black men the right to vote which is a right that white men had control of. All women got the right to vote 50 years later in 1920 with the passage of the 19th Amendment, but what did it take? It continued to take joint efforts, this suffragette movement. The marchs in 1930, one of the major African-American sororities, came into existence in 1913, the week before the march in Washington, the suffragette movement.

Today, there are still struggles out here and what happens is that for political gain there are messages which divide us rather than unite us and you cannot go forward alone. Martin Luther King tells us that if we want polarization, it's easy to gain, but we really have to work for unity.

Now, as I look at the work of the Legal Defense Fund, when people think about LDF, right away they think African American which is alright. It's alright. But it's not a reality for us, the LDF, because it's not the race of the complaintant -- that doesn’t matter -- it is the issue that the person brings to the table. It is the issue. Earlier today I told the story about how LDF in one case represented the white man who had hired folks at the restaurant in Maryland and the regional manager told him he had too many blacks in there. Too many black people in here. What are you doing? And so he said, well, I'm hiring those who come in the door who have the qualifications for the job, I’m being colorblind. The regional manager said, well, do something about it. He came back two months later and it hadn't changed that much, so the person, the manager, was fired and then he found the Legal Defense Fund. When he came in the door with his story, I told people, I sat him down, heard that story and got two lawyers, not one. Got two, because when people are doing the fair, right and just thing, they need to be supported. I don't care what their color. Came in and sat down and we represented him vigorously. He is now somewhere on board his boat and went to Florida and he never has to work anyplace else ever again.

Now, the point is that the law is inclusive and it includes all of us. I took the case, I am very proud of the McKennan case, white female, 62 years old from Tennessee, age discrimination. And she alleged that her employer had discriminated against her because she was 62 years old and they wanted a younger person on the job. Well, she and her lawyer had taken the case to district court and they had learned that during the course of her statement, which was deposition and we know a lot about depositions and statements now, sworn statements. In the course of her statements, she had indicated that she had taken some documents home. She had taken home documents and that was a no-no, it was an automatically dismissable offense. So the company argued, look we did not discriminate against her on the basis of the age, but even if we did, it does not matter because she took the documents home and she would have been dismissed anyway, had we known it. The district court brought into that argument, agreed, and she appealed it to the court of appeals. The court of appeals agreed again that she should have been dismissed. It was all right, and so then her lawyer came to us. They came to the Legal Defense Fund and the question for me is, do we take this case? Age discrimination, white female, and something called after-acquired evidence rule, but I looked at them. I said, you know, that this woman is white female is wonderful because I've got someone who really understands those issues and understands issues of gender on the Supreme Court. Justice Ginsberg understands those issues.

Secondly, the fact that it's after-acquired evidence rule in an age case, we can also see later, it could come up in a race case or ethnicity or disability case, so I don't want the "after-acquired evidence rule" to seep into the law and the third point is age, the Supreme Court could, you know, help me on this agenda. You know, but much much more difficult. They grapple with race, but age? Age … that's something the court should have an understanding of, and so we brought that case to the Supreme Court, filed the papers for (suppression) and I'm happy to report we won that case. And guess what the vote was? 9 to 0. Didn’t lose a vote! Everybody. But representing Miss McKennan in her case saved the day for the rest of us as all of our cases, no matter what our civil rights and human rights claims are under the civil rights statutes.

Now, so my theme I'm trying to show you is the interconnectedness of the issues of civil and human rights and we make a mistake when we think it applies to those people but not to me. That I'm an excluded. That I am excluded and that I am not a part of the fabric of laws that protect us all.

Now, there is still work to be done. There is much work to be done that as citizens we must do, but before we can do it, we have to be aware of a couple of these issues, and that's what I want to share with you, just a couple of these issues that you need to know about. When I go to the Department of Justice and on occasion, meet with the Attorney General, I first walk around the Department of Justice [outside of] Washington, DC, or 9th and Pennsylvania Avenue and inscribed in the building at the very top -- if you walk around, it’s a long walk, but if you finish -- it says, "Justice in the life and conduct of the state is possible only as first it resides in the hearts and souls of its citizens." That's a wonderful, lofty, important quote. Now, we often don't put into practice what our policies are and what the principles are that we espouse. We turn them into platitudes, so we have to do a better job and one of the issues just to give you an example …

Thurgood Marshall filed a lawsuit. One of his first cases he filed, was against the University of Maryland. Thurgood went to Howard Law School, graduated 1933 with Oliver Hill. Thurgood, was first in his class, Oliver was second. Came out of school and Thurgood previously, had applied to the University of Maryland Law School. Maryland had rejected him on the basis of race, so what was his first order of business when he graduated from law school? Sue the University of Maryland, which is what he did. Sue the University of Maryland and got [Donald Murray] admitted to the law school around 1936, '37. Now, Maryland realized that they had an awful issue, but they didn't come to realize that until 40 years later. Takes awhile for a public institution to understand that change needs to take place, so in 1971, '70, Maryland was sued again because it had not dismantled the segregated system.

And I said I will apply to the University of Virginia and get admitted or I will be Jack [Greenberg's] test case. We'll see what happens, and I fully expected the University of Virginia to pay my tuition to another school because that was policy of Virginia. If you were qualified to enter the University, the state would pay your tuition to go some place else to school, so I said, well, I'll either go to Harvard and let Virginia pay it or I will test it, and Virginia fooled me and admitted me. And then when they admitted me, I had to come because they had me down. Virginia just out-foxed me on that one, they said alright, you have to come. And so I came and there were seven or eight of us -- sometimes seven, sometimes nine, I think two left -- but we would sit downstairs in the ladies' room. There was only one place in old Clark Hall and we would sit there and they would ask me (we bothered them) and they would ask me, well, Elaine, you know, is what you’re feeling because of race discrimination or gender discrimination? I said, well, I can't divide that. I can't peel off the skin and figure out which it is. But there were issues, but Virginia has made some progress and I’m sure progress also remains.

Now, getting back to Thurgood, so the University of Maryland had some problems, and so Maryland decided we are going to set up a scholarship program for high- achieving inner-city African-American students since we are spending all of this time discriminating from our inception and we admit it. No issue of proof here. You don't have to prove anything. They admitted it. We are going to do something about it, so they set up a plan, a scholarship plan, that they used less than one-half of one percent of their funds to give scholarships to high-achieving inner-city students and, of course, that plan was challenged and when that plan was challenged, it was struck down by the… No, the district court upheld it. Judge [Mocks] in a 56-page case, he said this is a fair, reasonable use of less than one-half of one percent of University resources. We won that case and we come up here to the Court of Appeals of which Virginia sits in 4^th Circuit. Without even looking at us -- the court was turned, you know with their backs turned to you and talking to each other -- three judges, out there arguing the case and they decided two weeks later that the plan was unconstitutional. Maryland could not have the scholarship program, but by striking down that scholarship program for high- achieving inner-city African-American and Latino students, look what scholarships remain. Scholarships for students who are descendants of early Dutch settlers. That's alright. Scholarships for students of the Christian faith in need of financial assistance. That's alright. Scholarships for American citizens of Canadian descent. That's alright. Scholarships for students of Greek descent from low income families. That's alright. Scholarships for Baptist students of good character. That's alright. Scholarships for students of Huguenot ancestry. That's fine. Scholarships for our [Armenian] students who show scholastic promise in the political science department. That's okay. Scholarships for deserving students of Italian descent from upstate New York. Scholarships for students who are lineal descendants of a Confederate soldier. Maybe. Scholarships for young men who are studying for the Episcopal ministry. Now, we can have all these scholarships for these specialties, yet when a University admits its history of discrimination -- it's not something to prove because the University admits it -- then we say that because these are black and brown students, you can't have scholarships earmarked for them. There's something wrong with that. There's something wrong with that.

Which brings me to how that affects Virginia. We are sitting in a state that is part of a court of appeals. Every state in the country is a part of a court of appeals. This is the federal courts, appellate courts. There are 13 federal appellate courts and these courts are called circuits and they are numbered. Each state is in a numbered circuit. Virginia is in a circuit called the 4th Circuit. If you're in California, you're in the 9th Circuit. If you're in New York, you're in the 2nd Circuit. If you're in, Texas, you're in the 5th Circuit. If you're in Alabama, you're in the 11th Circuit. In other words, we all have courts that are circuit courts in which our state sits and most Americans don't know even know anything about this. They don't even know what circuit means. You look at them, they don't know what you're talking about, and these courts … appellate judges appointed for life. They make about $140,000 a year. As prestigious as the court, just below the Supreme Court, the circuits, and the Supreme Court hears very few cases because the circuit court hears most of the cases and the Supreme Court can decide which cases it wants to hear and which ones it doesn't want to hear. The circuits can't do that.

So, we sit in the 4th Circuit. Now, what states are in the 4th Circuit with us? We have four other states, so it's a five-state circuit. North Carolina, South Carolina, West Virginia, and Maryland, so Virginia, North Carolina, South Carolina, West Virginia, and Maryland are all states in the 4th Circuit. The court sits in Richmond sometimes. The court sits in Alexandria, Lynchburg. The court sits where it wants to sit, but primarily it sits in Richmond. This court wields awesome, awesome power on our lives … any right that we have which emanates from the Constitution of the United States. That's the way it goes. They have the last say because the Supreme Court is unlikely to take the case.

Now, the problem is with our circuit in Virginia. We have a real problem here because those states in the circuit have more African Americans than any other circuit in the country. Twenty-three percent of the circuit is African American. Over 5 1/2 million people live in those five states total. Fifty-six percent in the country, of African Americans, live in the south. Thirty-five percent of those living in the circuit in those states I named, you would think Alabama, Florida, no…4th Circuit. Now, what is our problem today? Never, ladies and gentlemen in the history of the Republic since the 55 men came together has an African American sat on that circuit. Never! Never did it, doesn’t do it now. And there are vacancies and the circuit came, one of its judges, the Chief came and testified before Congress they didn't need the vacancies filled because they have collegiality [up there]. That's a problem, ladies and gentlemen. That's a problem. And it's a problem that we aren’t even aware of because the right thing to do … who’s talking about the porportional anything? … but the right thing to do in 1998 is to have at least an African American on that court, and in light of the fact that you come to Congress and testify you have vacancies but we don’t want them filled because we have collegiality. Now that's a problem. Now, so all of these cases that I'm talking about come up to the 4th Circuit, that's what we see.

Now, let me tell you about what's happening with women and it has particular resonance in the 4th Circuit. More and more, our society is making the wrong policy choices. We are taking money from our education budgets for our public institutions and putting them in the prison system. We are increasing the number of folk going to prison by leaps and bounds and guess who we're sending increasingly? Women. Women who are non-violent offenders. There's been a ten-fold increase in women going to prison for non-violent offenses while we at the same time have to parole some violent offenders to make room for the non-violent, because the non-violent ones are giving these [Draconian] sentences under these [drug] laws, and disproportionately the burden is falling on women and nobody is paying attention to that because [they say] they’re in prison, they must have done something wrong. If the criminal justice system, they must have done something. But if we don’t speak out and understand what's going here, who will?

Now, what has happened is that more and more we’re finding, when we look at the economics, we're finding poor women and some not so poor getting caught up with abusive boyfriends and husbands who are beating them and abusing them and [when] the prosecutor may be after the boyfriend or the husband and when he is killed in a shoot-out or what-have-you or for whatever reasons, she is then charged with conspiracy because she is assumed to have been a part of whatever it is he was doing. Being sentenced under drug law, she then gets the mandatory minimum and usually gets maximum sentences. These are women who haven’t used or sold cocaine, crack cocaine. They haven’t used, haven’t sold it, but they’re brought up, no lawyers, and some are pleading guilty and filling up the prisons.

Now, why is this? Well, I'll tell you. Privatizing prisons is one thing. You say, well, maybe we can get some economic efficiencies. We turn this social responsibility, this public responsibility, over to a private corporation. They [give some] autonomies and the taxpayer's better off. Well, not only have we privatized the prisons. What have we done with them? We have put them on stock market. The prisons are going to the stock market. I called Morgan Stanley Dean Witter and got the prospectus on the Wagenhut Corporation and the Corrections Corporation of America. Just got these, September. They include the business profile. They're looking ahead to growth, buying new beds, getting a $54 million contract from the district. We expect that in the year 2000 we will have X and Y increase. Revenues rose 68% last year. In other words, they're on the market and when you put the prison system on the stock market, what are you looking forward to? You are looking toward growth. In other words, we want to increase incarceration, so the stock goes up.

As a society, what is our interest? Our interest is to treat criminally what belongs to treated as criminal -- those who are out maiming, robbing, murdering and raping. Yes, they should be given prison time, but we also should treat medically what is medical, and we also should be taking people who have no business in prison, who would be productive citizens, who have harmed no one sitting in there 25 to 30 years which is what we're doing and we are increasingly doing it to women. These women have children. Most women in prison have at least two kids, so not only are we paying the $25,000 a year to keep them incarcerated, we are also paying on the social services side for the foster care and all that for their kids. We're paying through the nose, and it's misdirected funds.

Now, I want you to see this five-minute tape of Kemba. This is Kemba Smith, a college student. Rather, than being at the University of Virginia, she's at Hampton. No crack baby, no dysfunctional family, two-parent family from Richmond, Virginia; had swimming lessons, ballet lessons, music, Girl Scouts, Brownie, debutante, prom, the whole nine yards. Only child. Parents doted on her, together then, together now. Her mother and father are both college graduates. Kemba goes off to Hampton with a self-esteem problem because her folks have done everything for her. It's hard and you have to get through a time when you can think through -- sometimes it’s alright to say no, or no, I don't feel like or I'm not going or -- it's alright to do that. Kemba … there was a fella on campus who showed up in a fancy sports car, second year, and all the girls wanted his attention and he selected Kemba and she was just so honored to be the one. Peter Hall was one of the biggest dope dealers on the east coast, started beating Kemba. She didn't know who to turn to. She's thoroughly abused.

To make a long story short, Peter Hall ends up dead. The prosecutor throws the book at Kemba after saying on the record that Kemba had never smoked, used or sold crack cocaine in her life. Conspiracy. That's a nice word. Conspiracy -- you're responsible for whatever the neighbor done -- Conspiracy. The judge sentences Kemba to 24 1/2 years in prison without possibility of parole. 24 1/2 years. Kemba had never had a traffic ticket before meeting Peter Hall. Now, we’re doing that. I want you to see this little piece. We interviewed Kemba. She's up at Danbury.

LDF is now representing her, but because we take cases that affect…Kemba is an example of the kinds of abuse that's going on with this prison empire I'm telling you about. She represents other women. I don’t think we would have taken the case if Kemba was the only case, but she reflects the thousands of women, too many of them, who are being shoved aside. Women who have potential, who ought to be out here, that we should be supporting in other ways. Let's hear this. Let's see this. It's about five minutes and then I'll conclude. Could you turn it around so they can see it.

[audio of video undecipherable]

So, as I end this talk, I just want you to keep in mind since 1890, the number of women in federal and state prisons has nearly tripled. Mothers constitute more than 80% of women in prison. The average mother in prison is 30 years old, under-educated and unskilled. More than two-thirds of women inmates are the mothers of at least two minor children. She's also likely to have been the primary caretaker with legal custody and more than half the children of women in prison never visited their mothers during incarceration. I want you to know the Kemba is taking college courses in prison and she has a 3.8 average, but Kemba has no business in Danbury Correctional Facility with a 24-year sentence without the possibility of parole, so the Legal Defense Fund is now representing her. And what it takes is people to understand how those laws are operating and at the local level to begin to be aware of and to do things and to make it known what their views are about this.

This whole question about the prison and the stock market needs to be looked into. Whole communities now are [housed] in prisons. We've taken Virginia, taken the southside of Virginia, that's the way it is. And people are then depending on the prison for their livelihood, so therefore they become lobbyists for the continuation of the system, but these are systemic problems that we're creating and that we have to be aware of and do something about it.

Remember what Margaret Mead told us, "Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it's the only thing that ever has." Thank you very much ladies and gentlemen.