Oregon State Bar Bulletin JULY 2014
As America celebrates and reflects upon the 50th anniversary of the Civil Rights Act, the Bulletin caught up with several members of Oregon’s legal community who were an integral part of the equal rights movement in those early years.
The anniversary is a good opportunity to reflect on efforts undertaken 50 years ago, to talk about the changes brought about since then and to think about what comes next — the challenges that lie ahead.
Oregon Lawyers Answer the Call
Over the years, the Bulletin has captured and preserved several accounts from attorneys who provided legal services to African-Americans in Mississippi following the act’s passage. These accounts include a 1995 article by Oregon attorney Gayle Patterson, who spent part of the summer of 1964 in an Oklahoma jail cell for participating in the civil rights movement.
In 1964, in what was to become known as “Freedom Summer,” four civil rights workers were murdered. In July 1965, African-American civil rights leader Medgar Evers was murdered. Other civil rights workers were being arrested and detained unlawfully. Many civil rights litigants were unrepresented, and their claims were ignored or given short shrift by the courts. As tensions in Mississippi mounted, many attorneys there, fearing negative financial and social consequences at the least — if not outright injury and even death — averted their eyes from these defendants and litigants. The due process machinery of the Mississippi courts almost came to a halt as the numbers of these unpopular defendants and civil rights petitioners increased.
In that same year, the American Bar Association formed the Lawyers’ Committee for Civil Rights Under Law and called upon attorneys across the country to take up the cause of equal access to justice in Mississippi. In one of the Oregon legal profession’s finest hours, more than a dozen Oregon lawyers responded to the call. This group of attorneys was the third largest contingent of lawyers from any state, and it was the largest number of lawyers, per capita, sent by any other state in the country.
The late Cliff Carlsen was the first Oregon attorney who volunteered to go to Mississippi. In a 2003 article for the Bulletin, Portland attorney Charles Merten recalled the time he spent in Mississippi after Carlsen encouraged him to join the movement.
Portland lawyer Cliff Carlsen was in Mississippi in 1965 as a Lawyers Committee volunteer. In the fall of 1966, he called me. “They have no lawyers. They need lawyers. Will you go?”
I agreed to go. I arrived in Jackson, Miss., on Nov. 30, 1966, and worked for the Lawyers Committee until December 23. In hindsight, the legal work I actually performed in Mississippi was no different than some of the more routine Legal Aid cases I handled in Portland after leaving the D.A.’s office — drunk driving, welfare eligibility, licensing applications. Unlike some other Oregon lawyers who volunteered, I had no high-profile case. But in 1966, rendering even routine legal services on behalf of any black person in Mississippi made you a foot soldier in the revolution President Kennedy spoke of and which was ongoing when I arrived.
The late William Martin followed in Carlsen’s footsteps and, as the second Oregon attorney to volunteer, traveled to Jackson, Miss., in November 1965, and spent a month representing African-Americans. In 1998, Martin was one of the 25 Oregon attorneys the Oregon chapter of the Honorary Mississippi Bar Alumni Association awarded the ACLU’s prestigious McNaughton Award for their civil rights work in Mississippi.
Among them, Don Marmaduke was practicing at what is now Stoel Rives in 1965 when he learned of the opportunity to help civil rights activists in Mississippi. Now a senior trial partner at Tonkon Torp in Portland, Marmaduke attended Jefferson High School during World War II, and was greatly impacted by seeing his Japanese-American friends experience the injustices of internment.
“What I felt was the most rewarding experience was the opportunity to try a case to desegregate the Nashoba County Courthouse in Philadelphia, Mississippi,” he said in a 2007 interview, adding that the effort allowed black residents to register to vote in the courthouse. “We were successful and it meant a lot to the people symbolically to win that case.”
Marmaduke remembered being followed by members of the Ku Klux Klan during those five weeks in November and December 1965, as he interviewed people for the case. Despite the intimidation tactics, he said he didn’t feel threatened. “I wasn’t scared because I felt an Oregon lawyer would be immune from violence.”
Another Oregon lawyer who played a key role in the civil rights movement was Jake Tanzer. A 1959 grad from the University of Oregon’s law school, Tanzer joined the U.S. Department of Justice as a trial attorney in the Organized Crime and Racketeering Section. He investigated and prosecuted cases of official corruption, labor racketeering and tax evasion while working under Attorney General Robert F. Kennedy Jr.
Tanzer’s grand jury experience earned him a transfer to the department’s Civil Rights Division to handle the grand jury investigation of the Ku Klux Klan in the 1964 murders of civil rights workers Michael Schwerner, James Chaney and Andrew Goodman in Philadelphia, Miss.
“It was the most profoundly moving experience of my life,” Tanzer said during a 2007 interview. “My job was to prepare witnesses who had been identified by the FBI, so I spent a lot of time in the cotton fields of Neshoba County. These were witnesses who had been brutalized and were scared to death. I found their humility, dignity and courage moving and admirable.
“I also saw it, in the larger picture, as a truly popular mass movement that we helped, but the force was the people themselves,” Tanzer added. “As it turned out — and you could see it coming — it was the greatest social revolution in this country, and I just wanted to be part of it. It was something where lawyers’ skills could help make a difference, and they did.”
Marmaduke, Tanzer and other Oregon lawyers who were part of the “Freedom Summer” and beyond during the Civil Rights movement have been asked to reflect on what accomplishments have been made during the last 50 years and what challenges lie ahead. They have been joined by younger members of Oregon’s legal community who also describe how the very definition of civil rights and the populations most in need of protection has changed since 1964.
Gains Extend to Fair Housing, Greater Opportunities
During a May 2014 interview, Tanzer recounted the many accomplishments that have been achieved since the Civil Rights Act was passed. Of them all, Tanzer says, voting rights for African-Americans was the most significant.
“The critical one was voting because that’s the way you change society, and ultimately it changed Southern society,” he says. “It was almost more symbolic than real. It was unenforceable in that the right to vote required a government or an individual to act on a case-by-case basis. The thing that remedied it was the Voting Rights Act of 1965.”
Tanzer says the murders of Schwerner, Chaney and Goodman had an enormous impact on public opinion and gave President Lyndon Johnson the courage to advance his goal of passing a more effective Voting Rights Act.
“It allowed the Department of Justice to bring the equivalent of class-action suits and a federal regulatory scheme to review voting changes in historically discriminatory states. So the act of ‘65 brought about tremendous change because it allowed blacks to vote.”
When asked what he considers to be the biggest civil rights gains made over the last 50 years, Marmaduke cites access to public education as among the most important, though progress has been slow and the desegregation movement seems to be reversing.
“That’s disappointing, but if you look at the net effect I think there has been progress since 1964,” he says. “Education is the biggest segment to address because of the long range. If you start with the young ones and give them equal education, it will not only give the blacks progress in education but also educate the whites that they are human beings, too.”
Marmaduke also sees a significant improvement in the ways African-Americans are viewed by people of other races, which he says is reflected in everything from television shows to the courtroom.
“We have more black judges, and the change in the selection process encourages more black lawyers to become judges. We have more applications for minority students in law schools, so there are more lawyers of color,” he says. “I think the attitude of the bar toward minority lawyers and judges is favorable in our state and in most states.”
Merten sees greater social acceptance of minorities and gains in employment as significant markers of progress over the last half century. However, he is troubled by the impact the economic crisis has had on middle-class families and particularly those of color. Merten notes that more than half of African-Americans who graduated from college in 2013 are now working in jobs that require no degree. And many college grads carry hefty student-loan debt, which further exacerbates the problem.
“I’m not very optimistic about where we are right now, but we certainly made a lot of gains in acceptance of a lot of different races. For a long time, there was a realization that we don’t have to be afraid of people with different colored skin,” he says.
The Next Generation Weighs In
Portland attorney Melvin Oden-Orr, who hopes to host an event this fall that would commemorate the 50th anniversary, says he believes freedom of choice is one of the greatest accomplishments since passage of the Civil Rights Act.
“I think there is tension between the idea of equal opportunities and supporting historically disadvantaged communities. I think that tension is probably best represented when you look at the issue of gentrification throughout the country,” he says, noting that prior to the act many neighborhoods and schools were definitively segregated.
“Some of that continues today by choice. People want to live in a community with other people who are like them, speak the same language and have the same cultural norms so that not a lot of translation is needed. At the same time, people want to be able to live and work where they want to,” Oden-Orr says. “I think our greatest accomplishment is that we’ve given people the freedom to choose — freedom to choose to pursue higher education, and the freedom to choose where they want to live. We’ve made it easier.
“We’ve also made it culturally unacceptable to openly discriminate against people. That is another major accomplishment,” he adds.
Christopher Ling, a Portland attorney and co-chair of the Oregon Minority Lawyers Association, credits 1964 with opening the door for several landmark U.S. Supreme Court cases not only related to school segregation and voters’ rights, but also public accommodations and employment discrimination, among others.
“Its influence is especially visible in the passage of subsequent laws that expanded civil rights protections on the basis of gender, sexual orientation, gender identity and disability, including the Civil Rights Act of 1968, the Voting Rights Act of 1965, the Americans with Disabilities Act of 1990 and the Matthew Shepard Act of 2009,” says Ling, who serves on the Advocacy Committee of the Oregon Asian Pacific American Bar Association.
“Even today, we continue to witness major civil rights milestones in the ever-growing number of states that have recognized marriage equality, including Oregon (the 18th state to do so, as of May 19, 2014), with courts recognizing the parallels between same-gender marriage bans and past anti-miscegenation laws that were declared unconstitutional by the Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967),” he says.
Adrian Brown, assistant U.S. Attorney for the District of Oregon and chair of the bar’s Civil Rights Section, says greater acceptance of service animals, particularly in schools, reflects a major improvement in civil rights for people with disabilities.
“There really has been a sea change in the types of service animals that are out there. It’s no longer just guide dogs, but dogs that can detect seizures and can help people with hearing loss. We’ve even had cases that involved dogs that helped children with autism,” she says.
Brown says she believes good strides also have been made when it comes to fair housing.
“The passage of the Fair Housing Act and its amendments has been a huge achievement,” she says, noting it’s a social issue with a broad impact and its passage signified a huge legal shift. “If you don’t have a place to live, you’re not integrated into the community.”
At the same time, however, the lack of affordable fair housing is still a problem, which is reflected in the rise of gentrification. Brown says better state and federal enforcement of the act’s affordable housing requirements is greatly needed.
Along with providing an opportunity for celebration, the 50th anniversary creates a chance to highlight the work that needs to be done moving forward. Marmaduke says equal employment and pay for women ranks high on the list of shortcomings that must be addressed.
“We still have a long way to go in opening the doors to education, and we need to spend more money on teachers,” he adds. “It’s got to be understood that some special efforts have to be made to make up for the disadvantaged who have struggled for so long.”
Tanzer laments what he calls the U.S. Supreme Court’s “recent gutting” of the Voting Rights Act.
“What has been a tremendous success was then found to be obsolete and the news since then has been full of stories about one state after another trying to restrict voting rights. It was a huge step backward. The Civil Rights Act of ‘64 is justly celebrated, but recent history has cast a sad light on it,” he says.
Tanzer says socioeconomic inequities, freedom of choice for women and immigration rights are among the issues that need to be addressed as well.
“With the fundamental problems we’re facing, the answers are political. And in the world of government it’s difficult to make a change and extremely easy to stop a change. You just have to look at Congress to see that,” he says. “At the same time, the Supreme Court has been aggressive in undoing many socioeconomic reforms of the last 80 years. I hope those trends will change, but we’re facing the ongoing politics of government.”
Brown says human trafficking, for both sex and labor, present a major civil rights problem that needs to be solved. According to the U.S. Department of Justice, about 300,000 children are at risk of being sold for sex in America, and the average age of children forced into prostitution is 13-14 years old. The National Human Trafficking Resource Center reported a 259 percent increase in its hotline calls between 2008 and 2012. Labor trafficking was most frequently reported in domestic work, restaurants, peddling rings and sales crews, and men made up 40 percent of the victims.
“This is a problem that is in our face now and it will continue to be a problem. Really, it’s modern-day slavery that we’re talking about,” Brown says.
And, while many gains have been made in fair housing, there is substantial room for improvement when it comes to housing that meets accessibility requirements, she says.
“We have a lot of work to do with integrating people with intellectual and physical disabilities into housing, places of work and our communities in general,” Brown says. “The Department of Justice promulgates ADA regulations, but attorneys in the private and nonprofit sectors are necessary to promote the law and also to communicate to us what is actually going on out there.”
Brown adds that greater public awareness of housing discrimination is necessary in the ongoing effort to promote the right to fair housing.
“I don’t think the general population realizes that housing discrimination is still very prevalent today,” she says, noting it ranges from racial discrimination to bias against single mothers. “The type of discrimination is much more nuanced and it’s not so blatant, but it’s still there.”
To Oden-Orr, marriage equality and immigration reform are among the issues that come to mind when he is asked about the future of civil rights. “I think our biggest struggle is letting people live the way they want to live,’ he says.
Ling cites the need to eliminate gender gaps in wages, employment, academia and leadership as well as guaranteeing marriage equality in all 50 states. He also highlights areas of civil rights where ground has been lost, including Supreme Court decisions that scale back affirmative action programs in higher education (Schuette v. BAMN) and voter rights’ protections (Shelby County v. Holder).
“The evolution of civil rights over the last 50 years underscores the need for us, as a society, to continually recognize the unique challenges facing historically disadvantaged groups, to relate those life experiences to our own, and to take the affirmative steps to respond to those issues in a meaningful way,” he says.
While there is much work to be done, Brown finds it rewarding to work with the bar’s Civil Rights Section because of the variety of attorneys working together to solve these problems.
“Even though we come from all these different practice areas and niches, there is a common thread of promoting the protections for these most vulnerable citizens in our society. People come with a very common mindset about that,” she says.
ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and frequent contributor to the Bulletin. She can be reached at precisionpdx @comcast.net.
© 2014 Melody Finnemore