Greenberg Statement - 1978: A Year of Trench Warfare for Civil Rights

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NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

egal efense Und 10 Columbus Circle, New York, N.Y. 10019 « (212) 586-8397 

1978: A YEAR oF WARFARE FOR CIVIL | 

For immediate release 
For further information: 

Thursday, December 28, 1978 Anne Dowling, 586-8397 

New York, .N.y. =. Jack Greenberg Director—Counsel, NAACP Legal Defense and Educational Fund (LDF) issued the following Statement: 

In 1978, Lor brought hundreds of cases in district and appellate courts challenging race discrimination in employ— ment, education, housing, health care, voting rights,land use and the administration of criminal justice; Participated in six cases decided by the U.s. Supreme Court (see enclosed fact sheet on cases); began the Operation of its Washington, Dc. office which achieved a major victory in blocki the proposed Split of the Fifth Circuit Court of Appeals — where LDF has a significant number of cases ~ which would have carved out of the present, moderate bench a far more conservative body for the Southeastern States; distributed for the current academic year more than $300,000 in undergraduate and law Scholarships to approximately 325 black Students; and, on the basis of 

™ 

year-end estimates, Spent $43 illion with an expected deficit of $200,000. 

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Contributions are deductible for U.S. income tax purposes 



For civil rights law, 1978 was a year of trench warfare 

in the courts. The NAACP Legal Defense Fund made small but 

significant advances, took an occasional loss and experienced 

a standoff in Bakke which, nevertheless, focused attention on 

civil rights in a way unmatched for a decade. 

Affirmative Action 

On the plus side of Bakke, a 5-4 majority of the Supreme 

Court upheld the principle of affirmative action. The "Brennan 

four" (ineluding Marshall, White, Blackmun) - the center of 

gravity of the decision - upheld affirmative action across the 

board and broadened the concept to include non-academic racially 

preferential programs. Four Justices (Burger, Stewart, Rehnquist, 

Stevens) expressed no opinion on the Constitution and Justice 

Powell, the peripheral vote in both blocs, said that preferences 

are proper in some, but not all, circumstances. Though Powell 

seemed to endorse. the validity of affirmative action programs 

in school desegregation, voting and employment, the narrowness 

of his opinion regarding the University of California's plan 

is the major Bakke negative factor. Bakke has resulted in some 

chilling effect on university admissions officers who must 

fashion and implement affirmative action plans. Black medical 

school applications already have declined somewhat. LDF is 

developing a national program to counsel university admission 

officers to stem post-Bakke backsliding. 

A second adverse Bakke effect is the attempt to overturn 

plans that are unlike the Harvard plan endorsed by the Court 

(preferential admission to insure diversity of student body). 

LDF is involved in two challenges by white students to the race- 

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conscious admissions policy of the University of North Carolina, 

Uzéll v. Friday and Bostic v. Byrd, which,.unlike the University 

of California Medical School at Davis, has a proven history of 

discrimination against blacks. LDF became involved when it 

appeared that the best defense of the admissions policy - past 

discrimination in the state's public education system - is not 

one that will be vigorously pursued by the state. 

In employment, affirmative action is challenged in a series 

of cases including Weber v. Kaiser Aluminum in which LDF is 

filing an amicus curiae brief on behalf of black workers. We 

argue for the validity of Kaiser's plan on the basis of the 

company's past history of discrimination against minority workers, 

something employers ordinarily may not be expected to assert. 

LDF represents the city of Detroit in two separate suits brought 

by the Detroit Police Officers Association to eliminate the 

affirmative action plan adopted by Mayor Coleman Young in 1974. 

The two eases could be highly influential in determining the 

shape and strength of affirmative action in employment and 

may have major and significant implications for the future of 

race relations in many American cities. The trial commenced in one 

September and is expected to end January 19, 1979. The in- 

ereasing number of black elected officials are, more and more, 

trying to use their offices to compensate for past discrimination 

against blacks with the probable result that municipal voluntary 

affirmative action programs will become an important part of 

the law, and will be attacked by white workers. The Detroit 

eases could provide a model for municipalities in developing 

affirmative action plans that will stand the test of litigation. 

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Capital Punishment 

1é year 1978 has drawn to a close without the occurrence 

of an execution anywhere in the United States, continuing this 

country's de facto "moratorium" on capital punishment since 

1967 which has been largely the result of LDF's campaign to 

abolish the death penalty. LDF has sought the abolition of 

the death penalty as racist, as well as because it is eruel 

and unusual punishment. (The moratorium was marred only by the 

"consensual" execution of Gary Gilmore). 

The most significant legal plus of 1978 came with the 

Legal Defense Fund's victory in Lockett v. Ohio (18-year-old 

Sandra Lockett, a black woman, was sentenced to death in the 

killing of a white pawn broker though she was sitting in a car 

outside the pawnshop when the murder occured and did not intend 

nor plan for it to happen; the triggerman was sentenced to prison.), 

in which the Supreme Court of the United States, on July 3, 1978, 

struck down the capital statutes of Ohio, where over 100 persons 

were on Death Row, and invalidated directly or by clear implica- 

tion the statutes of several other states, including those in 

Arizona and Colorado. The Supreme Court in Lockett held that 

severe restrictions placed by the Ohio law on consideration of 

the "mitigating circumstances" which a defendant might prove 

in contending that a death sentence was inappropriate, rendered 

the Ohio law unconstitutional. 

A major setback came in the case of John Spinkellink, an 

inmate in Florida who is probably closer than anyone in the 

country to execution. His case probably will be the most 

significant capital punishment case of 1979. Spinkellink's 

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federal habeas corpus appeal to the United States Court of 

Appeals for the Fifth Circuit was rejected on August 18, 1978 

when the court rejected, as a matter of law, many of the legal 

arguments against capital punishment which have been developed 

since 1976. LDF is trying to prove in Spinkellink and other 

eases, that newly enacted statutes, in their application, are 

arbitrary. If the Fifth Circuit's decision is upheld, perhaps 

300 to 350 capitally-sentenced inmates within the Circuit would 

be adversely affected. The Legal Defense Fund will be filing 

a petition for certiorari in the Spinkellink case in the Supreme 

Court of the United States on or abour January 18, 1979, seeking 

review of the Fifth Circuit's decision. If the Supreme Court 

decides not to hear the case, Spinkellink may be executed 

during 1979. 

During 1978, the Legal Defense Fund also continued its 

direct defense of well over 50 capital defendants, including 

John Irving in Mississippi, whose case will be used to challenge 

that State's capital statute, (among the aggravating factors 

considered in sentencing him to death is that once he was sent 

home from school as a disciplinary measure), and Ernest Benjamin 

Smith in Texas, involving the right of state psychologists 

and psychiatrists to obtain damaging admissions from capital 

defendants without their lawyers* approval. The Fund has 

also worked with lawyers defending several hundred additional 

defendants throughout the country, providing advice, devising 

strategy, assisting with briefs and other help. 

Education 

In 1978 we have been monitoring HEW's compliance with 

court orders in the longstanding omnibus Adams v. Califano action 

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filed by LDF in 1970, and its companion Brown v. Califano, which 

require HEW to perform its duty not to support segregation in 

public elementary, secondary and higher education. At this 

juncture the issue involves HEW's requirement that the long- 

delayed desegregation of six southern statewide systems of 

public higher education proceed. Second, we have brought individual 

actions designed to. desegregate specific universities or colleges, 

and specific state systems. The leading case in this area is 

our action to redress racial inequities in the operation of 

public higher education in Nashville, Tennessee and the State 

of Tennessee generally, Geier v. Blanton. 

In 1977 and 1978, as a result of court orders in Adams, HEW 

for the first time formulated and started implementing criteria 

for desegregation of state systems of public higher education 

in Georgia, North Carolina, Virginia, Florida, Oklahoma and 

Arkansas. HEW had been resisting such compliance with the law 

since the Nixon-Ford years. Throughout 1977-78, HEW has been 

negotiating with these six states, often contentiously, over 

the specifics of desegregation plans, and LDF has been monitoring 

these efforts to determine if further judicial action is needed. 

Among the issues that must be resolved are effective efforts 

to remove program duplication and other hallmarks of the dual 

system while at the same time enhancing the traditionally black 

eolleges which have been historically short-changed in funding 

resources and programs: LDF is closely monitoring whether HEW's 

efforts in this critical area measures up to the requirements 

of the Adams criteria and equity. 

In Geier vy. Blanton, in Tennessee, LDF and the United 

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States obtained a decree that required the traditionally white 

University of Tennessee's Nashville branch to be merged into 

the traditionally-black Tennessee State University. The Court, 

however, denied detailed relief on a statewide basis. State 

officials had developed the University of Tennessee school as 

a white alternative to Tennessee State University in the 1960's 

and 1970's, instead of developing Tennessee State into a larger 

and stronger desegregated institution for the Nashville area. 

State officials appealed the order to merge the Nashville 

institutions. LDF appealed the denial of stronger desegregation 

relief to increase opportunities for blacks at Tennessee's tradi- 

tionally white schools. 

Court Access and Counsel Fees 

Two LDF cases decided by the Supreme Court in June 1978 

settled, in favor of plaintiffs, the twin questions of "court 

aceess" and recovery of attorney's fees in suits against state 

and local governments and officials charged with denying a 

person's constitutional rights. Monell v. Department of Social 

Services (New York) overturned a previous court ruling which 

give local governments immunity against civil rights suits. At 

least two results are anticipated immediately. First, cases 

previously bogged down in technicalities will be speedily 

resolved and second, it will now be possible to bring cases not 

filed in the past due to uncertainty over this issue. 

Hutto v. Finney, a case involving the Arkansas prison 

system, expands the circumstances under which state and local 

governments or officials who deny a person's constitutional 

rights must pay attorney's fees. Hutto achieved also, for the 

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first time, a high court decision that indefinite solitary 

t is unconstitutional. The ruling that it was confine 

icant advance for and unusual punishment is a si 

Taken together, Monell and Hutto repre 

breakthrou for civil rights litigation. 

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