Senator Henry L. Marsh III
16^th District, Virginia
From "Explorations in Black Leadership"
Leadership Challenges in Civil Rights Law
with Julian Bond and Michael Klarman
September 13, 2000

Michael Klarman: I am honored to be here this evening to be included in this panel, which is in part a celebration of the contributions to the Civil Rights movement of black lawyers Oliver Hill and Henry Marsh. Since Mr. Hill could not be here this evening to answer our questions, I thought what I would do is talk to you a little bit about some of the special obstacles faced by black civil rights lawyers in the South operating in the Post World War II period, as they litigated against racial injustice.

It might be useful to begin by thinking about some of the difficulties that ordinary lawyers face in the course of their ordinary litigation. A client comes to you with a case; you investigate the facts; you do some investigation of the law. Then you try to see how the facts and the law that you have discovered can be marshaled in court to convince a judge to rule in favor of your client. It was so much more difficult for someone like Oliver Hill or Thurgood Marshall or Charles Hamilton Houston. One obstacle that they faced that ordinary lawyers don’t generally have to deal with was the threat and reality of physical violence. Black civil rights lawyers of the South were challenging a deeply entrenched racial status quo. Many, indeed most, whites were resistant, sometimes fiercely resistant, to changes in that status quo. Even as late as the 1940s and 1950s, some blacks engaged in civil rights protests were killed for what they were doing. Many, many more were beaten and sometimes maimed. For example, just to take one of many examples, Harry Moore, who was the chief NAACP official in the state of Florida, was assassinated along with two members his family by a bomb that was planted in his home on Christmas night in 1951, probably in response for some voter registration activity he had been engaged in for several years.

It wasn’t just NAACP officials, but also civil rights litigators, who faced the threat and reality of physical violence. Thurgood Marshall was nearly lynched in 1946 while representing black defendants in connection with a race riot in Columbia, Tennessee that took place immediately after World War II. It would have been interesting to ask Mr. Hill, had he been here tonight, whether he was worried himself about his physical safety as he traveled around rural Prince Edward County trying to litigate against school segregation in the early 1950s. Perhaps later this evening we can ask Henry Marsh if he had concerns about his physical safety as he litigated many of his cases against massive resistance in Virginia in the 1960s.

There are other ways to intimidate lawyers other than through the use of physical violence. A black lawyer named Arthur Madison was suing in Montgomery County, Alabama in 1944 to force voter registers to enroll black voter. Madison was arrested, convicted, and then summarily disbarred for representing clients without authorization. The county sheriff had intimidated Madison’s clients into withdrawing their consent to representation. At his trial, no white lawyers were prepared to defend Mr. Madison.

What happened to Arthur Madison in Montgomery County was a real problem for black civil rights lawyers generally throughout the South, including Oliver Hill. Their work required them to walk a fine line around the ethical rules that constrain lawyers’ behavior, the violation of which could result in disbarrment or even criminal prosecution. Those ethical constraints that were developed for lawyers were created with ordinary litigation in mind. For example, an individual is injured by a railroad. That individual turns to a lawyer and the lawyer then brings the case in court against a railroad company. Organizations that were organized to litigate for social reform, though, often didn’t and couldn’t operate this way. The NAACP often had to go out and solicit its own clients and the NAACP often had to financially support the litigation it was involved with. So this is how it would work. The NAACP officials, for example, would go to a meeting of black teachers and inform them of their rights. For example, the right to be paid equally with white teachers for the same work, a right they were being systematically denied throughout the South in the 1940s. The NAACP officials at the meeting would inform them that they had a right, that they could sue for redress of violations of that right, and then would ask for a volunteer to become a plaintiff. At the same time the NAACP would often create an insurance fund in order to provide a certain pool of money when that individual who became a plaintiff was fired from his/her job, which invariably happened as soon as the suit commenced.

NAACP lawyers who participated in these sorts of events, risked violating ethical rules against fermenting litigation. Clients are supposed to go to lawyers and not vice versa. And also ethical constraints against financially supporting litigation. Clients are supposed to provide the expenses for the litigation, not the lawyers. Enforcement of these sorts of ethical constraints was one of many ways that Southern states tried to harass the NAACP after Brown versus Board of Education. This was something that Oliver Hill and his colleagues had to be constantly aware of. And this sort of activity was as prevalent in the state of Virginia as it was in the deep South, unlike the sort of physical violence I was referring to earlier, which was much more characteristic of the deep South.

Another problem that black civil rights lawyers had to deal with was the racial prejudice of judges and juries, at this point in time, all of which were white. Black litigants often indeed preferred to hire white lawyers to bring their cases because of the prejudices that white judges and white jurors displayed toward black lawyers. When black lawyers for the NAACP argued cases before the 5^th circuit, the federal court of appeals, that at that point in time governed the entire South. When they argued these cases in the 1930s, this was litigation challenging the exclusion of blacks from democratic party primaries, the judges on the bench actually turned their back on the lawyers because they did not want to acknowledge the presence of black lawyers in their courtroom. Justice James McReynolds on the United States Supreme Court did exactly the same thing, when Charles Hamilton Houston in 1938 argued the Gaines case, challenging Missouri’s exclusion of blacks from higher education in that state. I don’t know how much of this Mr. Hill had to endure in Virginia in the 1940s but I think we can be sure that in rural south-side Virginia counties, he was not always graciously received in court.

There is another important point to emphasize about the job of these civil rights lawyers. We think of lawyers as people who go into court in pursuance of their client’s legal claims, but in some ways the most important job of these black lawyers took place outside the courtroom. These people went into Southern black communities and they tried to teach people, many of whom were still illiterate, few of whom knew much about the Constitution, that they had rights which white people were bound to respect. A black civil rights lawyer like Oliver Hill saw part of his job as mobilizing Southern blacks to fight against an oppressive status quo, encouraging them to believe that progressive racial change was indeed possible, boosting their morale by trying to demonstrate to them that there was an outside organization that was concerned about their interests and was committed to helping them overcome what must have sometimes seemed like insurmountable obstacles to social change.

Charles Houston, who was the NAACP’s chief litigator in the 1930s, saw a principled goal of the NAACP’s litigation campaign as "a rousing and strengthening the will of local communities to demand and fight for their rights." Thurgood Marshall’s leading biographer writes of Marshall being brought to town ostensibly "to work on pending litigation, but actually to rally the troops." Charles Hamilton Houston, in a letter to Thurgood Marshall, referred to himself as "not only lawyer, but as evangelist and stuntsman." The NAACP appreciated the moral and psychological effect that using black lawyers could have to local black communities. Southern blacks were not accustomed to seeing black people stand up to whites on a footing of equality or challenge what white people said. But a black lawyer in court could accuse a white sheriff of lying, for example, when he denied beating a black defendant into confessing.

Such performances had an enormous impact on black audiences that were there to witness these events in the courtroom. Here’s how Thurgood Marshall describes what happened in the courtroom in the small town of Hugo, Oklahoma in early 1941 as he defended a black man named Lyons for murder charges that quite possibly were trumped up. Lyons had been beaten into confessing, a fact that Marshall was trying to get the sheriff and his deputies to admit at trial under cross-examination. Marshall and his co-counsel, who was a white ACLU lawyer named Stanley Beldon, had agreed that Marshall would cross-examine the law enforcement officers, according to Marshall’s account:

So it’s important to emphasize that for black civil rights leaders in the South, this was as important a part of their job as anything that went on in the courtroom. They educated black people about their rights. They mobilized black communities to challenge the racial status quo. They gave blacks hope in this world of extreme racial oppression that they had always known was actually susceptible to change. And they provided concrete role models of blacks standing up to whites and demanding their rights.

There is one last point that I would like to make in my talk this evening. You might think that the main difficulty facing lawyers is coming up with convincing legal arguments, but for black civil rights lawyers like Oliver Hill or Henry Marsh, that often wasn’t sufficient. The system they were challenging was so fundamentally unjust that even when they came up with persuasive legal arguments, they sometimes lost.

One of the most important cases Oliver Hill was involved with was a case involving the "Martinsville Seven" around 1950. Even many civil rights historians and leading Constitutional law scholars today are unaware of this case, but in 1950 this was a huge deal on the national stage. Seven young black men were charged with raping a white woman in Martinsville, Virginia in 1949. They were prosecuted, convicted, and all seven of them were given the death penalty by the trial court. Oliver Hill helped to represent them for the NAACP. The trials that they had were actually relatively fair given the time and place. Unlike with many similar trials taking place in the deep South at the time, the "Martinsville Seven" had capable lawyers who had been appointed months, not days before the trial began. They had a reasonably fair trial judge, who tried to keep racial prejudice out of the proceedings. The trial was not dominated by a mob spirit with threats of lynching in the background. And they had not been beaten into confessing. This was very different from how contemporary cases involving serious allegations of black on white crimes, such as murder or rape…this is very different from how such cases in the deep South, in states like Mississippi or Alabama, would have proceeded at the time. Also it turns out there is no doubt that the "Martinsville Seven" were in fact guilty as charged. There were only two problems with their trial and the death sentences they received. All seventy-two jurors who sat in the six cases for the seven defendants trials were white; and the state of Virginia never (emphasize never) executed whites for rape, only black men who raped white women. Of the forty-five men who were executed in the state of Virginia between 1908 and 1950 for the crime of rape or attempted rape, every single one was black. The state of Virginia could get away with this only by ensuring that blacks never sat on juries in criminal cases.

Hill and the NAACP raised this legal claim in the United States Supreme Court. The claim is not that the trial was unfair, but rather that a racially disparate administration of the death penalty violates the equal protection clause. It seems hard on reflection to deny the justice of that claim. If the state of Virginia did not think that rape was a serious enough crime to justify executing whites who committed it, it’s hard to see how the state could justify executing blacks. That claim won in the Supreme Court in 1977. Unfortunately it did not win in 1951 when Hill was urging the court to grant review in the case of the "Martinsville Seven". Indeed the Supreme Court did not even think the case was worthy of review. That is, the court did not grant review and then deny the claim. The court refused to even review the case. The "Martinsville seven" were executed by the state of Virginia in 1951, the largest mass execution or lynching for the crime of rape in American history.

So the final hurdle facing black civil rights lawyers in the South was that it was not enough to marshal a convincing legal argument since their claims still might lose. Now it’s worth emphasizing when the Martinsville case arose. This is in 1951. This is three years after the Supreme Court barred judicial enforcement of racially restricted covenants under the equal protection clause. It’s one year after the Supreme Court ordered the desegregation of southern law schools. And it’s just three years before the Supreme Court would order the desegregation of public grade schools in Brown versus Board of Education. Yet the court was still unwilling at this late date to intervene against what seems like an obvious racial injustice in the criminal justice system. Many people believe that even today the criminal justice system is the one place where courts have been most resistant to acknowledging the existence of continuing racial discrimination. For example the racial profiling of criminal suspects and the huge racial disparities that arise in connection with the disjunction between the sentences that are imposed for crack and powder cocaine violations.

So just to sum up my little talk this evening, Southern black lawyers were up against a lot: the threat and reality of physical violence, the risk of legal sanctions for ethical violations; racially prejudiced judges and juries. But the greatest obstacle of all that they faced may have been the difficulty of convincing even the United States Supreme Court to grant relief in cases that at least to us today seem to have involved obvious racial injustices. Thank you.

It’s now my distinct pleasure to introduce to you somebody who I am confident needs no introduction, Julian Bond, who is a founding member of the Student Nonviolent Coordinating Committee (SNCC) in 1960. He participated in and was arrested for sit-in demonstrations in Atlanta that year. As Communications Director for SNCC, Mr. Bond participated in voter registration activity throughout the deep South in thee early 1960s. In 1965 he ran for and was elected to the Georgia state legislature, where he was promptly excluded from office by fellow legislators who ostensibly objected to his anti-war views. After being re-elected and then excluded again, he was finally seated after a third election and the intervention of the United States Supreme Court. Mr. Bond was an influential member of the Georgia legislature for more than two decades. In 1971 he became president of the Southern Poverty Law Center and he continues to serve as president emeritus of that organization. Mr. Bond has also authored a nationally distributed newspaper column. He has made frequent appearances as a commentator on radio and television programs. And he has narrated prize-winning documentaries on the Civil Rights movement, including the much-acclaimed "Eyes on the Prize." In addition to his many other distinguished accomplishments, in 1977 Mr. Bond achieved the ultimate pinnacle of success in American pop culture – he hosted an episode of Saturday Night Live. Today Mr. Bond is chairman of board of the NAACP, as well as a distinguished professor at American University in Washington, D.C., and much to our delight and good fortune, a Professor of History here at the University of Virginia. It is my great pleasure to present to you Mr. Julian Bond.

Julian Bond: Thank you. Thank you a great deal. Professor Klarman, you will notice that the 25^th anniversary Saturday Night Live show upon which I appeared won an Emmy on Sunday night. On May 17, 1954, speaking for a unanimous Supreme Court, Chief Justice Earl Warren said:

Now Warren wrote those words in response to the brief filled by the NAACP, which argued, "These infant appellates are asserting the most important secular claims that can be put forward by children – the claim to learn and grow and the inescapably connected but even more important claim, to be treated as entire citizens of the society into which they have been born."

I want to talk about the Brown decision and its legacy, and place that discussion in the context of my own family’s history. I believe in an integrated America -- jobs, homes, and schools. I think it a legal, moral, and political imperative for America, a matter of elemental justice. Simple right waged against historic and horrific wrong. Not only have I spent most of my adult life in the cause, but in 1947 when I was 7 years old, I was a plaintiff in a lawsuit in rural Pennsylvania against segregated schools. As the suit was pending, the school board tried to settle by giving black and white students achievement tests to decide which school they should attend. Most blacks failed. All whites passed and the schools remained segregated until the stupid sons of the local white political boss failed the test. Rather than send them to the black school, that school was closed and all of the children went to school together.

A few years ago I visited Berea College in Kentucky, opened by abolitionists as an integrated school in 1855. It was closed by the Civil War but opened again in 1866 with 187 student: 96 blacks and 91 whites. It dared to provide a rare commodity in the former slave states -- an education open to all, blacks and whites, women and men. One of those early students was my grandfather, James Bond, born a slave, who graduated from Berea in 1892. Berea maintained an integrated student body until the 1900s, when the Kentucky legislature passed a law forbidding the mixing of the races in the state schools and colleges. The Supreme Court upheld the Kentucky law in 1908, forcing Berea to choose which students it would integrate. It chose to become all white. Now my grandfather belonged to a transcendent generation of black Americans, born into slavery, freed by the Civil War, determined to make their way as free women and men. From Berea he studied for the ministry, married and had six children, one of them my father, Horace Mann Bond.

My father graduated from Pennsylvania’s Lincoln University, and won a doctorate in education from the University of Chicago. For him too, education was a means to a larger end – the uplift of his people and the salvation of his race. How fitting then that he would be asked to help the NAACP in its legal campaign against school segregation, the campaign that culminated in Brown versus the Board of Education, on whose legal team Oliver Hill served. If it took the Depression in 1929 to convince Americans that they were obligated to protect each citizen’s well-being, the Supreme Court decision of 1954 began to convince reluctant white Americans that they would have to share their bounty, their knowledge, and their world. As Richard Kluger wrote, "Not until the Supreme Court acted in 1954 did the nation acknowledge it had been blaming the black man for what it had done to him. His sentence to second class citizenship had been commuted. The quest for meaningful equality, equality in fact as well as in law, had begun."

It is easy to cast a cynical eye on the status of school desegregation. (Thank you so much. That’s why you are a senator.) It is easy to cast a cynical eye on the status of school desegregation or even on the status of race relations and minimize the significance of Brown. That’s a grave mistake because the Brown decision, by destroying segregation’s legality, also gave a non-violent army the license and the power to attack and destroy segregation’s morality as well. Unfortunately, in deciding Brown, the court granted a right and delayed its enjoinment, ordering desegregation with all deliberate speed. For the first 10 years after 1954, the emphasis was more on deliberate than on speed. The focus was on dismantling the dual school systems of the south, the products of "de jure" segregation. And in Southern accents, all deliberate speed meant any conceivable delay. Actual integration was more legal fiction than fact. President Eisenhower had lobbied Chief Justice Warren to rule for the Southern states and segregated schools. He never endorsed the Brown decision and the resistant white South, emboldened by Eisenhower’s rectitude, reacted with evasion and delay. Their tactics included violence, expansion of private schools, state support for fleeing white students, proposals to abolish public education, repeal of compulsory attendance laws, and the long discarded theories of interposition and nullification. Prince Edward County of Virginia simply closed its public schools for five years, believing that uneducated children were preferable to integrated ones. By the end of 1964, ten years after Brown, more than 97% of all Southern black children still attended segregated schools.

A second phase occupied the five years from the passage of the Civil Rights Act of 1965 until1969. The ’65 Act prohibited discrimination wherever federal funds were spent, and for the first time, under a Southern president, Lyndon Johnson, the federal government began to take an active role. This period saw the percentage of black children in school with white ones rise from 3 to 13%. In the ten years following the ’65 Act, the Department of Justice brought legal actions against more than 500 school districts and the Department of Health Education and Welfare filed more than 600 actions. It would be a full 13 years after Brown before the court, in the Green decisions, declared separate but equal dead and required school districts to produce plans which promised realistically to work and promised to work now.

The third phase was a backlash phase and it has lasted in increasingly longer fits and starts from 1969 until today. It began in 1968 with the election of Richard Nixon. His campaign summoned a slumbering and sullen America, resentful of civil rights demands. His election gave it a platform and a voice. They cut back on school integration, on federal aide to education, on the pathetically small programs begun to make war on economic inequalities. They changed the courageous Warren court that gave us Brown in 1954 to the callous Berger clack that gave us Backie in 1978. As the focus shifted away from "de jure" segregation in the South towards "de facto" segregation in the North, the tactics of evasion and delay were given new life. The familiar yellow school bus became a menacing machine, mowing down an American shrine – the neighborhood school. The Alexander decision in 1969 ordered integration now. By the early 1990’s a court shaved by Ronald Reagan gave permission to school districts to dismantle desegregation plans despite remaining vestiges of segregation. Brown may be only 46 years old, but it was only for a period of 20 years that any school systems were under an immediate mandate to remove segregation, root and branch. If the years since Brown did not succeed in dismantling segregated schools, those years have seen American preferences for segregated education shrink. That constitutes modest achievement. For blacks and other minorities, separate is never equal.

There are few matters on which experts in any given field agree. Educational experts, however, agree that no school district in America has managed to create equal education on a large scale in segregated schools, be they black or Hispanic schools. This is not to say that there are no successful segregated schools. There are, particularly on the elementary school level. But the bottom line is that students who attend schools that are segregated by race and income consistently rank lower in educational achievement, especially at the secondary school level. In short, the United States can’t afford separate schools. The damage done by racial segregation does not grow from the relationship between blacks and whites alone. It grows from the relationship between blacks and whites and dollars. In America, the education dollar follows the white child. Fewer dollars in the parent’s pockets means fewer dollars in the school board’s treasury. Children in high poverty schools read less, get lower grades, and miss more days of school. Economic and racial integration are preconditions for equal opportunity. Once achieved they permanently alter the pattern of minority-majority relationships. In cities where school integration exists, it’s not only the most visible form of desegregation, but the only one that impacts personally on the lives of millions of whites. There are those who scoff at Brown, as if the advantages to black children were to be gained simply by sitting next to white ones in a classroom, as if a skin-to-skin transfer of knowledge and education could occur. These critics miss the point of integrated schools. One writer called it truly radical, "a public education that is truly integrated, that treats minorities and whites equally, is the antithesis of the larger society, which is profoundly segregated and unequal. The goal of putting minorities and whites in the same classrooms does not only equalize education but also changes the way the formative racial experiences of the next generation."

The generation of blacks born in slavery was right to perceive education as the path to progress. The generation born in segregation was right to believe that a nonviolent army could fight for and win fundamental changes. Almost 50 years ago, Chief Justice Warren spoke of a right available to all on equal terms. Thurgood Marshall, Oliver Hill, the NAACP called it "the most important secular claims that can put forth by children -- the claim to grow and to learn." That was Brown’s promise 46 years ago and it remains Brown’s promise to us today.

Thank you.

As you’ve heard, our distinguished guest, Senator Henry Marsh, has been a long-term legal associate of Oliver Hill. He is a graduate of Virginia Union, earned his law degree from Howard University. In 1961 he joined the Richmond law firm now called Hill, Tucker, and Marsh. But as you will hear, he met Oliver Hill in the 1950s. He worked diligently against Virginia’s massive resistance to school integration. He fought Richmond’s segregation, a system of theater schools and school attendance zones. In the mid-1960s his career moved from the legal realm into the political one. In 1966 he was elected to the Richmond City Council, where he served 11 years. In 1977, he was elected mayor of Richmond, the first African-American in that post. In this capacity he took on a number of controversial issues. Today he serves as a 16^th district senator in the Virginia General Assembly. As a person intimately affiliated with Oliver Hill and the struggle for civil rights, we hope our conversation tonight will be able to include some reflections on Hill’s leadership and the fundamental issues he confronted. But equally important, our guest, Henry Marsh, has been a force for social justice and political change and he has his own stories to tell. And we are thrilled and excited that he is with us tonight. And I would like to begin by asking Attorney Marsh to take us back to his appearance and Oliver Hill’s appearance before the Virginia General Assembly in 1955. Senator Marsh.

Senator Henry Marsh: Thank you very much. I will never forget the first moment I met Oliver Hill in person. I was a senior at Virginia Union University and I was politically inclined. I was president of the Student Government Association and I read in the newspaper that there would be a public hearing the next day in the Virginia Assembly on the massive resistance law. Virginia wanted to change its laws so that public funds could go to private segregated schools. So I decided to go down and testify on behalf of the student body against these laws. I was the only student of 36 people testifying and Oliver Hill was the lead opponent. He represented the Virginia State Conference of the NAACP. I had seen Oliver in court as an observer but I had never met him in person. When he spoke before the Virginia General Assembly, which was in joint session, the House and the Senate were in one room. All white men. Elder white men. No women. No younger persons. It represented all of the political power in the state of Virginia. And Oliver Hill stood there in his prime and told those old men, "Don’t you dare do this!" He shook his fist all balled up. And when he did that I looked for a place to hide. He said, "If you do this we will beat you." And I looked for the door and Oliver’s temples started throbbing. When he gets excited, his temples start throbbing. He was throbbing and he lectured to them. He sat down and I got up and spoke. When I finished he said, "Boy [he’s the only one I let call me "boy"], that was a pretty good speech. What are you going to do when you grow up?"

I said, "I want to be a lawyer. A civil rights lawyer." He said, "Why don’t you come work with me. I need some help." We shook hands and as a college student I had a job. But that experience shaped my thinking a lot.

I recall back to the time when the Brown decision was announced. I worked my way all the way through school. At that time I was a college student and I was working at a restaurant washing dishes. I was in the kitchen and at that time I was paid 75 cents an hour. The students serving ice cream up front, the high school students were making a dollar and a half an hour. They were working over the cool ice cream and I was sweating over the dishwashing machine. I came out front with the tray of glasses and they announced over the radio that the Supreme Court had decided that the segregation of public education was unlawful. When I walked out with the tray all these young white high schools boys looked at me sort of strange. They knew and I knew that things would never be the same. Later on was when I met Mr. Hill and that was the impact that the announcement of Brown had on me. And when I met Mr. Hill I knew what I was going to do the rest of my life. By the way, the end of the story is that when I was a senator in 1995, the Senate of Virginia decided to honor Oliver Hill for his achievement over 50 years and they permitted me to read the tribute to Oliver. Before a packed session of the Virginia Senate I read all of the things that Oliver had done, the challenges he had made to massive resistance, the courage he had shown. And the members of the Virginia Senate gave Oliver the longest standing ovation that anyone had ever had received in the Senate. By his staying power and his courage, he lived long enough to be vindicated by the very body that he had threatened in 1955. Amazing story.

Michael Klarman: Senator Marsh, you talked about Oliver Hill’s reaction to massive resistance and his courageous testimony in the Virginia legislature, and you spoke of your reaction to Brown, I was wondering if it would be possible to re-capture the way in which African-Americans in Virginia generally reacted to massive resistance. Here you have this enormous Supreme Court victory in Brown versus the Board of Education, and yet the vast majority of Southern whites, including in Virginia, are manifesting determination to evade it, circumvent it. They are evoking these old doctrines of nullification and interposition. They are threatening school closures. What was the reaction of most blacks at the time? Does this make you more determined to insist on your rights or was there some other sort of reaction?

Senator Marsh: That’s an excellent question. Virginia became the battleground for the enforcement of Brown, perhaps the number one battleground in the nation. We had a very active NAACP state chapter and all over the state African-Americans sought admission to white schools. I see Gene Williams here -- Charlottesville was a leading area. We actually had litigation going on in Charlottesville, Newport News, Norfolk, Roanoke, Lynchburg, in numerous counties at the same time. And what happened is, blacks in Virginia, under the leadership of W. Lester Banks, who was the Executive Secretary of the NAACP, and Sam Tucker, who succeeded Oliver as the chairman of the legal staff, they began to sue school districts all over the state. As a result of that litigation, Virginia developed a core of African-American leaders all around the state, who were determined to fight for equal opportunity. And as a result of that struggle, a few years later you had African-American mayors in Richmond, Petersburg, Newport News, Lynchburg, Roanoke, Fredericksburg, Charlottesville, Martinsville, more than any other state in the South. It is my theory that Virginia’s resistance to Brown created a counter-resistance among African-Americans that laid a foundation for political success in Virginia later on. And Governor Wilder’s success as being the only African-American Governor in the history of the nation, ironically probably resulted in part from Virginia’s strong resistance to Brown, because that resistance created a counter-resistance that led to a spirit of fight and determination. It also led to a respect for African-American leadership. The persons who became mayors in these cities performed admirably and white people got used to having blacks in leadership positions. So the idea of an African-American governor wasn’t nearly as frightening as it would have been had white people not been exposed to African-American leadership successfully. So I think we owe the massive resistants, the remnants of the Byrd machine, we owe them some of the credit for Lawrence Douglass Wilder being the first governor. He deserved a lot of credit because of his brilliant campaign, but I think the massive resistants deserve a share of that credit as well.

Julian Bond: This resistance to massive resistance doesn’t come out of no where. It comes from some place. You were a college student and grew up in Richmond and must have had some sense that this community… What was it in your community, growing up in Richmond, that let you know or did you know that you were in a community of people who resisted segregation so that when massive resistance came along, they were prepared to resist that as well? How could you tell that about that community?

Senator Marsh: Well I think we are all products of the experiences that we share. And I think Oliver Hill and his leadership, the NAACP and its leadership, created an environment where I was inspired to believe that segregation was not a permanent condition. I personally recall when I would get on the bus to ride to school, and my sister got on the bus, she had to get up when white people got on the bus and move to the back so the white people could sit. And it bothered me to see my sister get up and move to the back of the bus, but that was the law. That was what was expected, and I didn’t like that, but it never occurred to me to fight back formally until I saw the NAACP and Oliver Hill step out front. I was working jobs making half as much as young white boys. It never occurred to me to challenge that. That was the way it was. I was determined to get an education. I wasn’t concerned about how much money they were making. So I was brought up in that environment. But when I saw Oliver Hill step up and the NAACP step up, and there were incidents where…actually there were threats, there were crosses burned on his lawn, and I was aware of all that, then it made me determined to fight for change. I think the NAACP had a profound impact on me and others in Virginia.

There were other things that happened too. There were church groups that sponsored interracial dialogue. These groups were making significant progress before Brown, but once Brown was decided all of a sudden this dialogue was cut off. So I had an opportunity to talk with and interact with white children my age and I was convinced that these laws were being imposed by remnants of the Byrd machine, they weren’t coming from ordinary people, and that these laws would change. And I became involved in the fight for equality and once that happened, everything else was in the background. I was determined to work with Oliver Hill, Sam Tucker, and others to bring about change.

Michael Klarman: Senator Marsh, in some ways your career is a testament to the importance of the right to vote. You were one of the first African-American elected to the City Council in Richmond, you were the first African-American mayor in Richmond’s history. We know that Southern white used a wide variety of devices to disenfranchise blacks historically, literacy tests, poll taxes, the threat of violence, reality of violence. Yet we also know from the fact that Oliver Hill was elected to the Richmond City Council in 1948 that more African-Americans were beginning to vote in Virginia after World War II. I want to ask you to speculate on a counter-factual. Do you think that if the right to vote had been more adequately protected that it’s conceivable it would have been possible to secure more changes in racial practices through politics and it would have been less necessary perhaps to rely on litigation? And do you think there is anything to be said for the proposition that changes that are secured through politics rather than through court imposed mandates are likely to be more durable and far-reaching?

Senator Marsh: That’s a long question. Actually, you’ve touched on something that’s extremely important. Prior to 1965 there were very few black elected officials in the country. There was very little in the way of organized black leadership in the country. When I came out of law school in 1959 and began practicing in 1961, I had to go to Atlanta and participate in a group called the Southern Regional Council to find intelligent, informed white people who were willing to stand up and speak out against segregation. I see Paul Gaston in the audience – he was one of those persons who was involved. But there were no black elected officials around the country who we could look to as leaders. For a while the leadership came from enlightened whites. I decided to get involved in politics because I saw, what Julian Bond referred to as, the "Lay of the courts". From 1954 to 1964, the Supreme Court had numerous opportunities to implement Brown. There was the Shuttlesworth case in 1959, where they could have declared segregation unconstitutional, some in judgement fashion. I took a case to the Supreme Court to challenge segregation in Richmond public school system. They turned it down. They kept doing it piecemeal. They said faculty segregation is bad, freedom of choice, instead of saying the whole system was bad. So I realized that the courts would not ever bring about change quick enough to satisfy me.

So Mr. Hill had been elected in 1948, but very few blacks had been elected since, so I tried to get someone to run for public office in 1966 because the voting rights act had passed in 1965 and no one would run. Everyone said, "I don’t have time. You do it." And I was the least likely candidate because I was suing people all over the state. But I said, "I’ll do it for two years." A two-year term will give me time to find someone else and that two years turned into 26 years, and interestingly enough, when I went to the first meeting of the City Council, I didn’t know what to expect. I sat through the first meeting and said to myself, "I can’t believe, these people are just dumb." And at that first meeting, I decided that I would lead a group to provide leadership to the city next time there was an election. In 1968 I was leading a team of folks running to take over the city. We didn’t make it as an integrated team, three whites and two blacks. We didn’t make it but we scared the dickens out of those folks. And in 1970, they annexed, they settled the annexation right quick so that we wouldn’t have a chance to win. We would have won 5 seats but they brought in 45,000 white people for the purpose of diluting the black vote. We took them to court and were frozen in office for 7 years. The Supreme Court said, "You either have to give the territory back or you have to go to a district system." They elected to go to a district system. Nine districts, five of which were black and we won the five districts and I became the mayor. Now the answer to your question was the political system became a reality because of the voting rights act. And although we had a few hundred elected officials in 1965, by 1985 we had 10,000 and blacks became leaders throughout the South and more change occurred by virtue of the political leadership than ever could have occurred through the courts alone. The voting rights act, which Snick and others helped make happen, was perhaps the most significant piece of civil rights legislation in history because instead of being able to change the practices as blacks learned the system, they had to pre-clear them in advance. The act required pre-clearance so that we were able to learn the rules and adapt to the rules and they couldn’t change the rules without getting clearance through the justice department. And that’s how blacks got political power and that’s how we brought about change. So I think that even now the voting rights act is a very powerful weapon because there are subtle practices that keep blacks limited in their right to vote.

Julian Bond: Let me take you back to Brown for a quick minute. I’ve read that despite the enormous jubilation in black communities all over the South when the decision was announced, that Thurgood Marshall was cautious and said, "You know it’s a good decision. We’re glad we’ve won it, but this does not mean that there is going to be rapid change." And of course there has not been rapid change. And the current statistics show that we are now re-segregating public schools all over the country. Do you feel a sense of disappointment that this great victory, and it was a great, great victory and a great triumph, that it just hasn’t played out the way it was made? Mind you Professor Klarman’s question. Do legal means really produce the results that we hope and pray that we do? Or must you employ a variety of things?

Senator Marsh: I think we have to employ a variety of tactics. For example, the legal gains that we can secure must be secured by political gains. If we don’t get a Senate that is going to confirm fair nominees to the court system and a President will appoint fair persons to judiciary, then the gains of the court system will be nullified by a stack in the court. Any time you can have a person like Clarence Thomas, for example, who is a victim, who is a product of affirmative action, lead the fight against affirmative action now that he has gotten over. And that was a political appointment, made for political reasons. If we can’t stop the appointment of people like Clarence Thomas, then it will nullify any gains you can make in the court system because the Supreme Court can turn around any victory you could achieve. I practice title 7 litigation and the Supreme Court changed the rules. For example on burden proof – instead of putting the burden of proof on the company that has a disparity of African-Americans. They said it’s the burden of going forward, the burden of proof stays with the plaintiff, which means that the person who alleges discrimination now has to prove discrimination, in spite of statistics that infer discrimination. Well unless you get a smoking gun, you can very rarely prove discrimination. So he who has the burden of proof eludes. But the Supreme Court, by subtly shifting the rules, made civil rights litigation in employment cases almost impossible to win. An enlightened Supreme Court that would liberalize the rules would make it possible for plaintiffs to get more relief in employment discrimination. So I don’t care how much victory you can win. In courts, if you can’t protect it with political victories, then you will lose. So to answer your question, you need a combination of political success and legal success in order to protect the gains of civil rights. It is a true statement that the progress that we make has to be won over and over and over in every generation.

The sad tragedy now is that we are victims of our own success. There are a number of blacks who have achieved, or they think they have achieved, and as a result they do not support the NAACP. They don’t support civil rights. They don’t like quotas. They don’t like special treatment until the merger occurs and they are laid off. They come to my office and say, "Senator Marsh, I was laid off. I lost my job. Can you help me?" I can’t help them and I say, "Are you a member of the NAACP?" "No, no, no," "Do you support any of the organizations." "No, no, no. I don’t do all that stuff. But can you help me?" And I have to tell them that companies can merge and for efficiency purposes they can lay off people and there are no rules that protect your job. I’m sorry, but it might help if you joined NAACP or support some of these organizations." I mean it is literally tragic that we have a generation of African-Americans who have gotten where they are because of the civil rights struggle, but who now will not participate at all. And that is a challenge. It is a challenge to this university to help us train leadership that will understand the situation at hand. But if we can’t do something about that I think we are going to lose a lot of progress.

Michael Klarman: You have been talking about affirmative action. I was wondering if you would be interested in saying a few words about the Richmond City Council Affirmative Action plan that was invalidated in crosen. Where did it come from and in retrospect was there anything that could have been done different to perhaps isolate it from judicial invalidation?

Senator Marsh: When I was a part of that, and in hindsight, yes, we could have done it differently. We found ourselves in a situation where we were awarding millions of dollars worth of contracts and less than 1% of the contractors in business were going to African-American companies. You have a situation where blacks have control of the City Council, they are awarding contracts and there are black contractors in the city who can do work, do excellent work, but they can’t get any of the business given by the city. So we enacted a set-aside ordinance that said that…. And we didn’t bother with the general contractors because we didn’t have many people with that kind of experience, but the subcontractors, a third of your subcontracting work had to go to minorities, and it worked. We went from 1-2% of African-American participation to 37 or 38%, and there were no problems. I mean the work was sound; the work was good; and African-Americans were participating. The Association of General Contractors filed a lawsuit saying that we had engaged in illegal preferential treatment, and the Supreme Court found that we had not demonstrated the connection between the discrimination and the remedy that we had created. We needed a disparity study to document that the discrimination that was being perpetuated was tied in to the current result. And we didn’t know that we needed a disparity study so obviously our ordinance was set aside. We suspended the ordinance while the case was on the way up because we knew what was going to happen, and the percentage of black participation went back down to less than 10%. So it’s interesting – with the ordinance blacks were doing 37% of the work; without the ordinance they were doing between 5-10% of the work. So the ordinance was helpful, but we didn’t have the disparity study so it was not validated.

This is the interesting story – one of the arguments against minority contractors is that the work will be inferior, that they wouldn’t do good quality work. Well, when we rebuilt the city structure, City Hall, the coliseum, all of those big buildings, when Arch was running the picture. Yet the City Hall leaks. The coliseum leaks. I go to the coliseum and water is dripping down. All of those buildings that these all white companies built, there were problems. The public safety building is falling apart. Now, the buildings that were built when the minority contractors were involved are holding up all right. Now there is an advantage of having a historical memory, because you live through things. So now when I sit in a meeting and someone starts criticizing, "Well we shouldn’t get these minorities because we don’t know about the work," I remind them that in the City Council chambers there is a leak, and white folks built that building. When Ray Charles sings at the coliseum, there is a leak. White folks built that building. So it is a myth that black people don’t do quality work.

But the answer to the question, if you spend a half million dollars, or a million dollars, and have a disparity study done, then you can have an aggressive set aside program. If you don’t do that, then likely your study will be set aside.