Dickerson Conference: Formative Influences

– Welcome back I’m Richard McAdams and a key theme of this upcoming panel will be the Formative Influences of Earl Dickerson I’m pleased to be introducing our two presenters, Professors Thaxton and Strauss Sherod Thaxton is a Professor of Law at UCLA Law School Now, he earned his JD here at the University of Chicago Law School, and so we are happy to welcome back our alum He earned his PhD in Criminology from Emory University And I am pleased to say that before moving to UCLA, Professor Thaxton spent some time here as a lecturer, including time as our very first Dickerson Fellow Professor Thaxton teaches and writes about criminal law and procedure, the sociology of law, and empirical legal studies He will present remarks titled, “To Inspire Service in the Public Interest.” Earl B. Dickerson, Kappa Alpha Psi Fraternity, and Social Movement Lawyering My colleague David Strauss is the Gerald Ratner Distinguished Service Professor of Law here at the University of Chicago Professor Strauss is a practitioner, scholar, and theorist of constitutional law and has written and taught extensively on the Equal Protection Clause of the 14th Amendment and its applications to matters of racial justice He will present remarks titled, Earl Dickerson’s Constitutional Law Class As with the other panels, at the end, we will have time for questions And I will ask you to signal your interest in asking a question by raising your virtual blue hand or by sending a private Chat message to me, Richard McAdams So I ask the speakers to limit themselves to no more than 25 minutes And with that, I turn the Zoom spotlight over to Professor Thaxton – Thank you very much for that kind introduction, Richard It’s great to be back at U of C, albeit virtually It is great to see some familiar faces in the gallery So on August 10, 1986, Kappa Alpha Psi Fraternity held its 75th Diamond Jubilee Conclave in Indianapolis, Indiana The fraternity’s Diamond Jubilee was unlike any other national meeting that had been held in the fraternity’s history to that point It had more than 2,000 attendees Tennis great Arthur Ashe, well-known at the time for his civil rights work, was awarded the fraternity’s highest honor, the Laurel Wreath Award Another Laurel Wreath Award awardee was Congressman George Crockett, a former judge and former Vice President of the National Lawyers Guild, who was famously held in contempt of court and sentenced to jail for his efforts as an attorney to defend 11 Communist Party leaders convicted of violating the Smith Act Now, Mr. Crockett appealed his conviction all the way up to the US Supreme Court, which granted cert in the famous 1952 case Sager et al v. United States Now, Mr. Crockett was defended by, among others, another Laurel Wreath awardee, Earl B Dickerson, who had received the fraternity’s highest honor, the Laurel Wreath Award, nearly 40 years earlier Not at that Diamond Jubilee celebration, a 95-year-old Earl B. Dickerson, who was also a former national president of Kappa Alpha Psi Fraternity and the fifth person ever to serve in that capacity, established the Earl B Dickerson Endowment Fund with a $15,000 gift to the fraternity He remarked at that celebration, and I quote, “I wanted to do something for the organization that had done the most for me socially.” Unfortunately, he passed away the following month Now, at that time, he was the second oldest living member of Kappa Alpha Psi Now, oddly, in his obituary appearing in the New York Times on September 4, 1986 just three days after his passing, there was no mention of his involvement in Kappa Alpha Psi Fraternity Now, the official text of the fraternity, The Story of Kappa Alpha Psi; A History of the Beginning and Development of a College Greek Letter Organization, is now in its fifth edition Now, the most recent edition chronicles the history of the fraternity from 1911, well, actually 1910, through 1999 Now, when one begins to read the text, it becomes very obvious very early on that the story of the fraternity, along with its role in the struggle for racial justice and civil rights, cannot be properly told without also telling the story of Earl Burrus Dickerson Now, trust me, this is no exaggeration

Mr. Dickerson’s name appears 40 times in the book’s Name index, and the index probably missed a couple So while Mr Dickerson said, when he established the endowment for the fraternity, that he wanted to do so because the organization had done the most for him in his social life, it’s equally true that Mr. Dickerson, along with a handful of other individuals, has done the most for the fraternity that currently boasts over 150,000 members and over 700 chapters, operating at the undergraduate alumni and international levels, and an organization that includes countless notable members involved in education, arts, entertainment, business, politics, law, religion, theology, sports, science– you name it Although I was the inaugural Earl B. Dickerson Fellow and Lecturer in Law at the University of Chicago, as Richard mentioned, my connection to Earl B. Dickerson occurred long before then In fact, my connection to Mr. Dickerson occurred before I was enrolled as a student at the University of Chicago Law School and became a member of the Earl B Dickerson Chapter of the Black Law Students Association In fact, my connection to Mr. Dickerson came 12 years earlier in 1993, when I became a member of Kappa Alpha Psi Fraternity after being initiated into the Iota Sigma Chapter at the University of California at Davis exactly 80 years after Brother Dickerson entered the bond of the fraternity Kappa Alpha Psi Fraternity was founded by 10 Black college students on the campus of Indiana University in Bloomington, Indiana, on January 5, 1911 Brother Dickerson’s name appears in the story of Kappa Alpha Psi early And as I said before, it appears often In fact, only a few pages into the fraternity’s history, one encounters mention of him Brother Dickerson was a student at the University of Illinois, And with a group of other students, he formed an organization called the Illio Club And then, surprisingly he was its first president Now, several founding members of Kappa Alpha Psi, along with a handful of early initiates, were concerned about the level of isolation felt by Black male college students It was well-known that the harsh realities of anti-Black racism were similar in both college communities, that is Bloomington, and Champaign, and Urbana Housing for Black students was scarce, and many of them had to wait tables for their board There were no restaurants in Champaign where they could eat and only one restaurant in Urbana Now, after hearing about the Illio Club, these Kappa men traveled from Bloomington to the University of Illinois to discuss the possibility of the club becoming the second chapter of the fraternity of Kappa Alpha Psi Now, after a meeting between the members of Kappa Alpha Psi and the Illio Club, Brother Dickerson, along with eight other members of that club, became charter members of the Beta Chapter of the fraternity, its second chapter, on February 8, 1913 Unsurprisingly, again, Brother Dickerson became the chapter’s first president, referred to as Polemarch And the Beta Chapter occupied its first fraternity house in October of 1915 Now, as one of the fraternity remembers remarked at the time, the House marked the beginning of a new life, a life that, from all indications, would carry Beta Chapter to the front ranks of fraternal organizations at the University of Illinois And as a quick aside, with respect to Black women, the first Black sorority Alpha Kappa Alpha was founded three years before Kappa Alpha Psi on the campus of Howard University And chapters would emerge in Chicago and the University of Illinois around that same time Now, the Alpha Chapter at Indiana University and the Beta Chapter at Illinois were remarkably successful in the achievement of its members And the story of Kappa Alpha Psi expressly refers to Brother Dickerson’s teaching position at Tuskagee Institute after he left the University of Illinois Now, at the next national meeting that the fraternity held in December of 1913, there were about 75 participants there And Brother Dickerson was elected the Grand Vice Polemarch, which was equivalent to the national vice president Now, the country’s involvement in World War I greatly impacted the fraternity’s growth, as relatively few men returned to college in the fall of 1917 because of uncertainty surrounding the draft Now, recognizing the growing numbers of alumni members in the fraternity in Chicago and the need to establish a chapter for these members to return the fraternity to distinction after the interruption and expansion of the fraternity caused by the war, Brother Dickerson and others, including three of the fraternity’s founding members,

charted the fraternity’s first alumni chapter, called the Chicago Alumni Chapter, on April 6, 1919 Now, Kappa Alpha Psi was unique from other Greek-letter fraternities at the time in that it decided to give its alumni chapters regional names rather than naming them with Greek letters, as was done for the undergraduate chapters Now, this is important because the purpose was to give these chapters a distinct identity, which would become crucial in the fraternity’s efforts to combat systemic racism Now, at the 14th national Grand Chapter meeting at the fraternity held in 1924, Brother Dickerson was elected Grand Polemarch in absentia Now, again he was elected in absentia Now, this was a testimonial to the respect in which he was held by the membership In his inaugural address the following year, he committed himself to changing the direction of the administration to a more forward-looking administration So in The Story of Kappa Alpha Psi, it refers to the years under Brother Dickerson’s leadership as, quote, unquote, “a period of growth in chapters and in achievement that expanded the fraternity from a provincial organization of just a few ambitious youths in a single community to a national society of members, who walked the high road in many cities and towns throughout the nation.” At the 16th Grand Chapter Meeting in 1926, Brother Dickerson gave a keynote address, calling upon members to accept and discharge their responsibility for the service to Black college students and the larger Black community Specifically, he urged active participation and deliberation between college and communities to eliminate racial discrimination He also highlighted an increase in discrimination against Blacks in northern universities, resulting from increased Black enrollment Now, central to his vision of the Fraternity’s role in the Civil Rights struggle was the use of the Fraternal Brotherhood to fight discrimination through the courts and by every other means at their disposal He also underscored that high scholarship and extracurricular participation, such as bolstering African American businesses and civic groups, were potent weapons that must be utilized Now, if Brother Dickerson were alive today, his approach would likely be labeled social movement lawyering or even rebellious lawyering due to his emphasis on building relationships with community organizers to work for transformative social change at the local level, connecting lawyers, legal workers, and law students to assess collective capacity and build community, committing to using law to build power for impacted communities and stay connected and engage with other movement lawyers and impacted communities Now, long after his tenure as Grand Polemarch, which lasted from 1924 to 1927, Brother Dickerson remained active in the administration of the fraternity At its 37th Grand Chapter meeting held in Los Angeles in 1947, Brother Dickerson opened the meeting of 1,500 attendees by urging the membership to help America become a world leader by first combating racial discrimination domestically In particular, Dickerson highlighted abolishing segregation at the Washington National Theater, with litigation efforts actually led by another fraternity member, Leon Andrew Ransom Dickerson advocated for more Black faculty at predominately white colleges and universities, and promoting the participation of Blacks in the Veterans Emergency program Now, four years later, Brother Dickerson would host a closed meeting of all past Grand Polemarchs and his national presidents at his home to discuss important matters concerning the direction of the fraternity for decades to come At a subsequent meeting, he challenged the fraternity to, and I quote, “make even bolder forays into the arena of public service.” Now, for decades, Brother Dickerson helped shape the direction of the fraternity on the social active front, often with the imprimatur of four of the university’s 10 founding members, who were also members of the Chicago Alumni Chapter The fraternity, in turn, played an important role in Brother Dickerson’s personal life and professional life Under Brother Dickerson’s leadership in the 1920s, Kappa Alpha PSI became the first Black Greek-letter organization to use its national meetings to devise strategic plans regarding racial and social justice issues and used its flagship journal, the Kappa Alpha Psi Journal, to disseminate information about the broader social and racial justice movements to African American college

students and push against racism Many of these nation’s key civil rights attorneys were both mentored by Brother Dickerson and members of Kappa Alpha Psi Fraternity, who are connected to Brother Dickerson And it is well-known Brother Dickinson’s most famous case, Hansberry v. Lee, was a precursor to Shelley v. Kraemer, which brought an end to racially restrictive housing covenants But Brother Dickerson was connected to other key civil rights cases through the network of lawyers associated with Kappa Alpha Psi As I mentioned earlier, he was elected to the fraternity’s highest position, Grand Polemarch in absentia And that was, in large part, due to his tireless efforts to not only expand the fraternity, but also pair this expansion with a racial justice agenda and strategy Perhaps the first biggest civil rights win orchestrated by Kappas was during 1924, the year Brother Dickerson was elected Grand Polemarch, when two members of the fraternity, Brother Elisha Scott and RM Van Dyne, both charter members of the Topeka Alumni Chapter of Kappa Alpha Psi, litigated the precursor to Brown v. Board of Education in the case Thurman-Watts v. Board of Education and the Kansas Supreme Court The case was extensively covered in several news outlets, including the fraternity’s own journal and the NAACP’s flagship journal, Crisis Brother Scott will play a pivotal role behind the scenes in Brown v. Board of Education litigation, although he was not an attorney of record in the case And he also represented victims of the Black Wall Street Massacre in Tulsa, Oklahoma Leon Andrew Ransom, who I mentioned earlier, who is most closely aligned with Charles Hamilton Houston when Houston was special counsel for the NAACP, was also closely connected with Brother Dickerson through their affiliation with the Chicago Alumni Chapter of the fraternity Now, one of Brother Dickerson’s most successful proteges was William Robert Ming, to be reffered as Bob Ming, who was initiated into the Iota Chapter of Kappa Alpha Psi Fraternity, which is located at the University of Chicago And Brother Ming was also a graduate from the University of Chicago Law School Now, he became one of the key attorneys in the landmark Supreme Court cases Swette v. Painter, McLaurin v. Oklahoma State Regents, and others, as well as Brown v. Board of Education Brother Ming would later successfully defend Martin Luther King, Jr in a criminal case for perjury, obtaining an acquittal before an all-white jury And one thing that the University of Chicago is particularly proud of is he also became the first African American tenured law professor at an historically white institution, which was the University of Chicago Law School Now, in 1974, the NAACP named one of its most prestigious awards after Brother Ming Now, an article published by the University of Chicago Law Record in the spring of 1991, titled “Earl, Bob, and Me,” was penned by a University of Chicago Law graduate and then former Cook County Judge Ellis Reid, who graduated from U of C Law in 1959 Brother Reid was also a member of Kappa Alpha Psi, and he noted in that article that Brothers Dickerson and Ming were the two men who had the most lasting impact on his life All were U of C Law grads All were Kappa men Actually, Brother Reid was an initiative the Beta Chapter, which was chartered by Brother Dickerson And all dedicated their lives to fulfilling one of Kappa Alpha Psi’s stated main objectives, which is to inspire service in the public interest Now, Brother Reid expressly noted in his article that the achievements of Brother Dickerson and Brother Ming brought about lasting changes to society But very few young people today were aware of those contributions Now, Brother Reid only makes brief mention of Brother Dickerson’s membership into Kappa Alpha Psi, but also notes that his article was simply an overview of a broader work in progress Now, I never had the opportunity to meet Brother Dickerson or Brother Ming, but I was honored to have the opportunity to meet Brother Reid while I was a student at the University of Chicago Law School A classmate of mine at the time, who was a member of an historically Black Greek-letter sorority, happened to mention to Brother Reid that I was also a member of Kappa Alpha Psi I did not know he was a member At that point, he did not know I was a member And as soon as she mentioned that, the conversation immediately took a turn from the professional to the familiar He immediately asked me where my chapter of initiation was He gave me his private phone number He invited me to an event that he was having at his home and then began telling me about his relationships with Brother Dickerson and Brother Ming Last month, I attended a virtual meeting of Kappa Alpha Psi Brothers here in Los Angeles

And I mentioned to them at the time that I was asked to deliver some brief remarks about Brother Dickerson’s involvement in the fraternity One of the attendees at that meeting, Brother Harry, mentioned that he was a 1959 initiate of the Fraternity at the University of Cincinnati and that he actually worked with Brother Dickerson when he was in the Midwest, and then relocated to Los Angeles to work with former Los Angeles Mayor and another Kappa Alpha Psi Brother, former mayor of Los Angeles Tom Bradley Now, I had spoken with Brother Harry on several occasions before that And although I was aware of his work with Mayor Bradley, his association with Brother Dickerson never came up Needless to say, Brother Harry was very thrilled to hear that Brother Dickerson’s influence in Kappa Alpha Psi would receive some much deserved recognition Now, quoting from the obituary for Brother Dickerson in the Kappa Alpha Psi Journal, “To call him a great man of our time is less than accurate He was also an extraordinary presence in most areas that we are either too young to know or either remember He was always substantially more than the volumes of titles he hailed would indicate He was first and foremost, to use his favorite expression, a citizen of the world.” I am honored to have had the opportunity to shed more light on this particular aspect of Brother Dickerson’s remarkable life Thank you – Thank you So Professor Strauss? You have to unmute David, you have to unmute – You would think by now– thanks, Richard, for the introduction I also wanted to thank all of you for coming And also, Sherod, great to be in the same space with you, even though it’s only a virtual space My subject is Earl Dickerson’s constitutional law class, two classes He took two classes in constitutional law And here’s I want to go about thinking about this important subject First, I want to say a few words about the era in which he went to law school and what implications that era has for constitutional law And then I want to go back in time and say, given what was going on in the world then, what would we want someone in Earl Dickerson’s position to be getting out of his constitutional law classes if we were teaching him? What would we want him to be thinking about, learning, exploring in his constitutional classes, given what was going on? Now, that’s obviously an anachronistic question We have the advantage of a hundred years of development in the law in general And specifically, we have the advantage in the civil rights revolution, to which, of course, Earl Dickerson contributed so significantly The civil rights revolution effected constitutional law as profoundly as anything in the hundred years since he took the class here at the University of Chicago And obviously also, constitutional law looked very different back then, especially in areas where the development of the laws occurred mostly in and after the middle of the 20th century, meaning the developments traceable to the New Deal and developments traceable to the civil rights revolution But still, I thought if we asked, what might we have hoped ideally he would get out of his constitutional law classes on the issues that we know from his later career meant the most to him? So that’s the second thing I want to talk about a bit And then the third question, obviously, is something about what those classes actually taught to the extent we can reconstruct it So let me begin with the era in which he went to law school The darkest post-Civil War chapter in the United States’ treatment of Black Americans, darkest post chapter since the Civil War and the abolition of slavery– that darkest chapter corresponded to the first decades of Earl Dickerson’s life, including his time at the law school He was born in 1891 in Canton, Mississippi In the year he graduated from high school, he took a Mardi Gras trip to New Orleans and met some Black university students there And he thought he would like to be with people like that,

so he told his mother that His mother had a relative in New Orleans And after he graduated from high school, he went to a University of New Orleans prep school And when he was later asked, much later in his life when he was talking to his biographer, how did you pay for that? He said, well– well, I did some chores Tuition wasn’t that much I did some chores And as for transportation, well, that wasn’t too much of a problem I just bribed the porter on the railroad line and stowed away So he spent a year at the prep school in New Orleans A white teacher who knew him there thought he had a lot of potential and said she would pay for him to spend a year at the University of Chicago Laboratory Schools, a school affiliated with the University of Chicago So he moved to Chicago in 1907 He later described Lab Schools as his first nonsegregated experience, but he ran out of money after a year He worked for a while Then he went to the Northwestern equivalent of the Lab Schools, a university affiliated school, then to the University of Illinois, and entered law school in 1915 In 1917, he enlisted in the Army and then returned to law school after that His constitutional law classes he took in 1919 and 1920 And by then, he was almost 30 years old And he’d seen a lot He’d had an extraordinary range of experiences, really, even for anyone, for any law student Meanwhile, there was massive disregard of lax constitutional rights in the South And when I say disregard of constitutional rights, that was not even the worst of it There was private and official violence that went well beyond just the violation of constitutional rights And also, it was not just in the South There was anti-Black violence in the North as well There were outbursts of anti-Black violence in Chicago where he was in 1919 And on some trips to the law school, he had to arm himself in order to protect himself against the threat of anti-Black violence from whites But as far as the Constitution is concerned, what characterized this era was rigid segregation that started to be enforced right around the time that Earl Dickerson was born in 1891 Even after the abandonment of Reconstruction in 1876, Blacks continued to vote in significant numbers in the South And some institutions were integrated, notably railroad Schools were never integrated, but some institutions were But beginning in 1990, rigid segregation and disenfranchisement enforced by law and private violence took hold in the South And of course, as I said, he was born in 1891 The 15th Amendment guaranteed blacks the right to vote, free from racial discrimination But Southern states contrived various devices, notably literacy tests and the fitness requirements enforced by white registrars and used those to disenfranchise blacks That last pattern about disenfranchisement continued to a significant extent, really, up to the enactment of the Voting Rights Act of 1965, although [INAUDIBLE] at least part of the South before that, but absolutely part of the de facto legal system of the United States throughout the first decades of Earl Dickerson’s life, including his time at the law school I don’t know from the research I’ve done, which is incomplete, how much he was affected by the installation of this rigid system of disenfranchisement and Jim Crow enforced by private and official violence I don’t know how much he was affected by that, but he couldn’t possibly have been unaffected by that OK What about its classes then? We have transcripts we have a course catalog His constitutional law classes were both taught by James Parker Hall, then the dean Hall had written a treatise on constitutional law He also had a casebook, which he assigned to the class So– excuse me for a second while I go cough, which I’ll mute So we have some idea from Hall’s writings what he would have covered in the class Earl Dickerson’s grades are hard to decipher, which, if you’re worried that sometimes things change, that hasn’t changed He got an 80 in Constitutional Law 1 There was a blank on his transcript for Constitutional Law 2 But apparently, he did well because James Parker Hall, the dean, recommended him enthusiastically, along with Ernst Freund, another prominent professor,

recommended him to firms And then he interviewed with the firms And the firms told him, sorry, we can’t hire you Our clients will never accept our having a Black lawyer So he started his own firm in Chicago The course catalog descriptions list very quickly a dozen subjects, all in general terms None of them is totally unfamiliar to modern readers, like things like separation of powers, intergovernmental relations, police power, privileges and immunities, and permanent contracts, the role of the judiciary, all these things And none of them is a term we have never heard before But they wouldn’t ordinarily be a significant part– some of those things, at least, would not today be a significant part of a constitutional law class And there were a couple of things conspicuously missing No mention of the Bill of Rights by name There were some mention of individual rights, and apparently nothing about the First Amendment, not surprising, considering the state of the law of the First Amendment at the time Equal protection was mentioned as one on a long list, due process and equal protection, but nothing explicitly about race And judging from the treatise and the casebook, equal protection at the time was mostly, not entirely, but mostly about things like taxation and business regulation That was the core of equal protection, and not race Now, what would you want– the question that I was mentioning before– what would you want someone in Earl Dickerson’s position as a law student then to hear about, among other things, of course, in his constitutional law class, bringing together the obvious advantage we have of hindsight? I guess a couple of things One is, what was going on in the South was a massive circumvention established constitutional rights, voting rights, and the right to sit on juries So right to sit on jury is not explicitly guaranteed in the Constitution, but the Supreme Court had established it in Strauder against West Virginia in 1880 But the exclusion from juries was actually derivative from the exclusion from the voting rolls of segregationist states could– the jury pool was chosen from the voting rolls so segregationists could keep Blacks from registering to vote They could keep them off of juries as well, and that’s what they did So these were established rights, no question about it Strauder against West Virginia is in Hall’s casebook The circumvention of voting rights was obvious And you would certainly think one thing you’d want to talk about in a constitutional law class is, OK, what do we do in this situation? We’ve got constitutional rights that are indisputable One is in the text, the other a well-established precedent And really, no one is questioning They apparently exist for many Black people in name only They’re not enforced Is that a doctrinal failure? Is that an institutional failure? What do we do about this? You’d think that would be an important subject Now, Hall, in his book, does address this One of the ways of excluding Blacks from voting was a so-called grandfather clause, which set up these hurdles like literacy tests and various fitness requirements nominally for all voters and then said, but if you were voting already before the Civil War, or you had an ancestor was voting, or if you lived in a foreign country then, you don’t have to pass these other requirements And obviously, that was meant to exclude everybody except the descendants of slaves from voting And the Supreme Court was onto this in a case called Guinn against Oklahoma in 1915 When Earl Dickerson was in law school, the Supreme Court said that that form of grandfather clause was unconstitutional And Hall says that as well He says it’s not totally unequivocally But he says, it’s really hard to see how that can be constitutional, given the 15th Amendment But OK, then the question is, what is to be done? And at that point, what Hall’s book does is to cite an opinion written by Justice Holmes called Giles against Harris, a very odd opinion, in which Holmes, also confronted with an obvious effort to circumvent the 15th Amendment, says, this is a fraud But there’s really no point in entering an injunction against this because it’ll never be enforced If we’re going to put an end to this fraud, the courts aren’t going to be able to do it

So we’re not going to enter an injunction I’m paraphrasing a little, but that is the essence of the opinion And Hall cites that on the question of, what is to be done about this circumvention? I’ve looked a little bit at Hall’s biographical information But one of his obituaries actually describes him, at least in part of his career, as an admirer Holmes, so not surprising, I guess, he would sign on for that aspect of what Holmes did What about juries? They’re discussed in the book Strauder against West Virginia is a case in the casebook But on that issue, there is no apparent awareness by Hall that by the time he was teaching Earl Dickerson, Strauder against West Virginia had become essentially a dead letter, and that while a state could not enact the statute saying juries are to be all white, it could essentially ensure that juries would be all white by covert means And there’s no suggestion in either the casebook or the treatise that that’s going on, whether what might be done about that Then the other thing I’d sort of looked into is segregation in general The fact is segregation in general at that time was probably not a big issue It’s actually pretty well-known that Plessy against Ferguson, the notorious case that more or less ratified the doctrine of separate but equal– upheld the constitutionality of Jim Crow, decided in 1896, was effectively overruled by Brown against Board of Education That decision was not a big deal when it was decided it wasn’t– it’s buried in the middle of the New York Times, not big news, and only became big news actually in the ’30s when a Black historian Carter [INAUDIBLE] made it big news So at the time, probably the idea that now most facilities would be segregated was just not seen as, by at least by white people and maybe by Black people as well, certainly by white people, as not particularly troubling And in Hall’s books, Plessy gets one sentence And the book presents it as a police power case Here are various reasons you can restrict economic activity, health, welfare, morals Here’s an instance in which a state ordered segregation in order to keep the peace Next issue No hint that was an equal protection issue And as I said, that was probably the view among legal elites at the time Now, here’s another thing about this period in which Earl Dickerson was at our law school There are four cases decided in the 19-teens that, in retrospect, are significant and really, in some ways, quite significant The James Parker Hall books were published before they were decided, so I don’t have any way of figuring out, at least that I could think of, how they were handled in Earl Dickerson’s class But here were the cases, a case called Bailey against Alabama, that held that Alabama could not enforce a peonage law, a law that made it a crime to break a contract for personal services These laws were pretty obviously efforts to recreate slavery by getting Black people to agree to contracts to work And then if they wanted to quit on terms that weren’t specified in the contract, they breached their contract And they could be prosecuted The Supreme Court said, no, that’s peonage That’s actually violating the 13th Amendment A case called McCabe against the Atchison, Topeka, and Santa Fe Railroad– and remember, this is the year of separate but equal In McCabe, a state authorized a railroad to provide luxury accommodations, they then were a sleeping car basically, for white people but not Black people The justification was that there’s not enough demand among Black people This was attacked as being inconsistent with– as being unequal And the attack succeeded And the court said, no, you can’t discriminate because Black people don’t demand sleeping accommodations Everybody’s entitled to equal treatment as an individual, not as a group, which for in the year of separate but equal is a pretty surprising step And really, you can sort of– if you follow that thread, you can really follow that thread all the way to Brown against Board of Education A third case was Guinn against Oklahoma, which I mentioned, which struck down the grandfather clause, and then Buchanan against Worley, which declared unconstitutional so-called checkerboard ordinance that prohibited people of a race from buying a home in an area inhabited by people of a different race So a state could not insist that there were Black neighborhoods and white neighborhoods, and you could only live in your neighborhood And the Supreme Court said that was unconstitutional The decision is largely written in terms of property rights

but there it’s really not much of a leap at all to say, well, that checkerboard ordinance is exactly separate but equal And if that’s unconstitutional, what happens and separate but equal? Now, no one read the cases that way I think there was some talk in the newspapers that maybe the grandfather clause case was a big deal, and maybe this was a sign that the courts would actually crack down on these subterfuges that Southern jurisdictions were engaging in But that didn’t happen No one saw the possibilities in these other cases It’s really in retrospect that we can look back and say, if you’re trying to build a case for Brown against Board of Education, if you’re trying to do that in 1954 or even today as a matter of justifying it, it really was anticipated by the case about the sleeping cars and the case about the checkerboard ordinance But if you were to drop one of us into a classroom back then after those cases had been decided, I think we would say, OK, here’s some openings The climate now in the country is terrible But for whatever reason, the Supreme Court decided these cases, upheld the claims of the Black plaintiffs in these cases And maybe they’re entering wedges that we can use to ensure that the constitutional rights of Blacks can be enforced, at least to a greater extent than they are now I think that’s how we would have done with those cases, as I said, if we were to be dropped back into Earl Dickerson’s classroom today Did James Parker Hall use these cases in that way? I mean, I don’t have direct evidence I don’t really have a good sense of what he was like From what I can tell, it’s extremely unlikely, not because of anything specific to him But legal elites attitudes at the time about race discrimination seemed to have been that obvious denials of constitutional rights are unacceptable Pass a law saying Blacks can’t serve on juries– that’s unacceptable Pass a law saying Blacks can’t vote– that’s unacceptable But beyond that, it’s just that its treatment of Blacks as second-class citizens or worse in the South particularly– that was just the way things were That was not something that aroused a lot of passion on the part of legal elites, including legal elites who were otherwise quite passionate about what we might think of as progressive causes, about the causes of workers, for example It’s not that they were enthusiastic about Jim Crow, or even that they thought it was OK But it wasn’t part of the cause, and I don’t know of any reason to think that what came through in Earl Dickerson’s constitutional law classes varied from that attitude The blatant violations of constitutional rights– we can’t have those We have a Constitution We have to observe it But these other things going on– look, this is just the way things are in the South, and end of story You have to remember, this is an era in which Woodrow Wilson showed The Birth of a Nation And so to say it’s overtly racist is understated, a film that glorified the Klan He showed it at the White House, in the White House, in 1915, the year that Earl Dickerson started law school The so-called Dunning School view of Reconstruction was prevalent among intellectual elites Dunning School view was that Reconstruction was a matter of a vengeful, corrupt Northerners and Blacks, terrifying white Southerners, and that the end of Reconstruction gave the South the chance to rebuild itself, a school that’s subsequently been discredited But by then, at that time, that was the received view, that Reconstruction was a bad thing, a terrible thing, its own form of corruption and terrorism Of course, the opposite was, in fact, true, that what went on after Union troops were withdrawn from the South was a reign of terror No one on the Supreme Court, one possible exception, championed the rights of Blacks There was no one on the Supreme Court who was writing opinions, even every now and then, saying, look, let’s– I mean, do you know what’s going on in this country? Do you realize what’s going on, that we need to do something about that? No one in the court said that No one in the court seemed, at least in official pronouncements, to be particularly solicitous of Blacks, with one exception The exception, interestingly enough, was Charles Evans Hughes, whose grandfather, I think,

had been an abolitionist And Charles Evans Hughes actually wrote a couple of opinions upholding the rights of Blacks But otherwise, this is a court with Holmes and Brandeis on it And while, Brandeis, in private, apparently saw Jim Crow and the treatment of Blacks and lynchings were horrible and scandalous, was very– did not make public pronouncements And certainly, that wasn’t in his opinions All the presidential candidates at this time of both parties, not just Wilson, but the Republicans historically, of course, the party that supported the rights of Blacks immediately after the Civil War– they were all appealing for Southern whites at this point And Blacks and supporters of Black rights really had nowhere to turn So as far as, at least, I could tell, the idea that something had to be done about a flagrantly unconstitutional, authoritarian, undemocratic system in the South, supported by private terror– the idea that something had to be done about that was not widely held among people like James Parker Hall Many definitely approved and did, as I said, draw some lines of clear violations And maybe Hall was an exception, and I’m selling him short That’s certainly possible But while Earl Dickerson was probably given some of the basic materials he needed to contribute to the Civil Rights revolution as he did, the inspiration to use the law as an effort to change things, as a way to attack these problems, rather than just reacting impassively– that inspiration and the determination to do that came from within him – OK David, are you are you done? – Yes Thank you – OK Thank you very much So now let me remind people we have time for a Q&A until 1:35 And you can send a private Chat to me, or you can raise your virtual blue hand But right now, I’ll start by asking my own question I guess, I have different questions for each of our presenters And for Professor Thaxton, how wonderful it is that you could give us this history that has been not well stated and to bring– to talk about your own involvement with Kappa Alpha Psi And I looked at that– I took the time to go and look at that obituary in the New York Times you mentioned It is odd that it doesn’t mention this It does mention, for example, that Earl Dickerson, after World War I, founded an American Legion post in Chicago, one of the few founded by a Black military personnel, but not Kappa Alpha Psi And I guess I thought I would just ask you if you have any idea why this aspect of his life is underappreciated I have an idea, which is probably– it’s probably wrong But let me just throw it out there as a reaction, which is, I think that it was undoubtedly a white writer who wrote this obituary I think that it would be obvious to white people that there is an organization that was important in civil rights, which were Black churches But maybe that has gotten through, but maybe not so much this kind of fraternal organization And that just leads me to wonder, is this a secular organization? Did it have any kind of religious commitments to it? And just tell us more – Thank you for your question or questions, Richard So I’ll start with the last With respect to it being a secular organization, no Actually, in its bylaws and its Constitution very much founded on a time Christian principles I can’t go too much in it, because all, obviously, quote, unquote, “secret societies have their own rituals and symbols,” and so forth So I can’t give you that much If you want to become a member, talk to me offline But I will say, definitely no It wasn’t a secular organization And in fact, there were many, you could say, [INAUDIBLE] of fraternity church partnerships throughout But when you ask, why is this aspect of Dickerson’s life not

been given, I think, due appreciation, there’s a couple of answers So one is, I think, perhaps timing He joined the fraternity in its infancy So the fraternity was founded in 1911 As I said, he became a charter member– January 5, 1911 He became a charter member in February 8, 1913, so in the second chapter And so a lot of that work was unappreciated because the fraternity was not a known quantity It also wasn’t the first Black Greek-letter organization, which leads to my second point So the first Black Greek-letter organization was, continuing in existence, was founded at Cornell University in 1906 by the name of Alpha Phi Alpha Now, Alpha Phi Alpha had very high-profile members, and their affiliations with Alpha Phi Alpha were noted So individuals such as Thurgood Marshall and WEB DuBois were members of Alpha Phi Alpha, and Martin Luther King So when you have those names in that organization, that affiliation is much stronger So when you think about the organizations and their work in the civil rights struggle, you tend to think about Alpha Phi Alpha And interestingly, a law professor, Gregory Parks, who’s at Wake Forrest University, has written a series of articles– he’s a member of Alpha Phi Alpha But he and some co-authors have written a series of articles about the role of Black Greek-letter organizations, both fraternities and sororities, in the civil rights and social justice learning And I think through that work, and hopefully comforting such as these that connection that Dickerson’s connection to the fraternity and also how that influenced not only his approach to social justice law, but the fraternities organized approach, not just Kappa Alpha Psi, but also in connection with other– – [INAUDIBLE] Alpha– – Oh, so I think someone wanted to add a little bit But I think that you have those connections that, over time, became more– they became strengthened So I think that answered multiple of your parts, but I don’t know Is there something I left out, Richard? – No No, no, thanks That’s the good I understand better David, I– Professor Strauss, I guess the end, the way you ended, makes me want to really ask– I guess you were leading up to this point, which I was going to ask, which is, where did Earl Dickerson get this idea that the law could help and the movement? And the dean, this morning, read this letter that Earl Dickerson wrote in the 1980s towards the end of his life to Gerard Caspar, the then dean at the law school, in which he talked about having decided to go to law school because he thought that maybe the law was a source of improvements and a tool for change So that’s sort of puzzling Let me combine that with the question about the NAACP So the NAACP Legal Defense Fund brings many of the cases that, in Earl Dickerson’s life, changed law equal protection and [AUDIO OUT] [INAUDIBLE] board of that organization for [INAUDIBLE] years from– I think it was 1941 to 1971 And I guess that organization consisted of people who had this idea that the law could be a force for change And where did it come from? I mean, was it Harlan’s dissent in Plessy that there were the seeds of a different view of the 14th Amendment? – It’s a great question And Plessy itself was a staged case I mean, it was a setup, in which the streetcar company cooperated to try to get at, segregation was carefully chosen They chose New Orleans because it was a place there was less hostility than elsewhere in the South They chose Plessy himself Because apparently when you looked at him, you couldn’t tell he was Black He was only one eighth Black So he didn’t look Black, which heightened the absurdity of telling him he couldn’t sit with white people in the streetcar So this was all carefully staged,

so the idea was there before And as you said, Richard, the NAACP certainly did that It would be possible to sit in a constitutional law class and look at these decisions, and especially if he had the surprising decisions that I mentioned before that came out in the 19-teens, when he was either in law school or about to enter law school– look at those decisions and thinks, OK, I see some possibilities there, and just figure that out for yourself And maybe his larger climatist association with other Black people gave him some ideas along these lines I guess what struck me was that while there were– among legal elites, there was an idea that you use– of course, you use the law instrumentally You use the law to achieve progressive goals For example, Louis Brandeis made his career before he went on the court that way, that you don’t see among legal elites anyone– among white legal elites, at least– anyone saying, you know what? This should be an area in which we should be doing the same thing, and here are some cases There are some doors here, potential doors to push open here, or at least get part of the way in the lower courts, because the Supreme Court has done things that seemed to undermine separate but equal, seemed to undermine the subversion of the– seemed to make it harder to subvert the right to vote and the right to sit on juries And you just don’t see that So either he got it from people he associated with Or I could imagine if he went to law school with the attitude that part of what I want there is to think about how I can make some progress on these issues, he didn’t need his teacher to tell him And maybe Parker Hall did tell him James Parker Hall did tell him I don’t know I just don’t have any reason to think he did I don’t need my teacher to tell me I can figure this out, and pick it up, and run with it myself I don’t– it’s possible that that way of thinking about the law, although there were these litigation efforts– that way of thinking about the law– it’s possible it’s even– that is an anachronistic criticism in the sense that the reason we think about that potential in the law today– that is to say, here’s a decision Can we push it in a certain direction or to establish, you name it, reproductive rights, women’s equality, or, for that matter, gun rights, the rights of religious groups? Here’s the decision, how far we can push it– it’s possible that that way of thinking is itself the result of the NAACP’s work And so it was really– really, it doesn’t make any sense to speculate about whether that was something the way people thought about the law back then But I don’t see any reason to think that what Earl Dickerson ended up doing was other than self-generated or possibly generated by his associations with the Black community He was certainly respected by white legal elites and was a student that the faculty at the law school thought well of being promoted But I don’t see any indication that they gave him that idea – Thank you Let me call on Vice Provost Daniel Abebe – Thank you, Professor That’s very generous of you It’s always a pleasure to learn from Professors Thaxon and Strauss, so thank you very much for your presentations I have a quick question, I think, for each of you For Professor Thaxton, I think you pointed out very well the centrality of fraternities certainly with respect to Dickerson and Ming, and maybe more so [INAUDIBLE] the civil rights movement more generally I wonder if there’s the same impact today of these fraternities in the movements that we see in the current moment and that we’ve seen in the recent past, and we’re likely to continue to see So I’m wondering if you just have any thoughts about associations or the role of these fraternities and movements going forward My question for Professor Strauss, I think, builds on where, I think, you ended I completely agree with your conclusion that, despite incredible obstacles, Dickerson was extraordinarily self-directed, ambitious, hardworking, and had all the qualities that I think we’ve seen demonstrated through his life It is still interesting to think what the University may or may not have done It could very well have been that the law school pushed to him in ways to make him think that law was not a tool for social change, or it could very well have gone the other direction I’m curious if we have records of the exams

that James Parker Hall may have put together for his students in constitutional law class The questions he may have asked may have gone to your point about, did he frame it as a police power question? Or did he frame it as something else? And that history might be available And then secondly, if we know if there’s contemporaneous scholarship from Hall or Freund, given that both of them wrote letters of recommendation for Parker They may have, in their legal scholarship, hinted at their views on these things, which may very well have been present in the courses they taught Thanks for the opportunity to participate – You can go first, David – Yeah, Daniel, great, I mean, obviously great questions The writings that I– I don’t have his exams That’s a great idea I wish I had his exams And if we can dig them out of the archives, that would be a much better indication of what the class is about than anything else, certainly than the course catalog or the treatise and casebook, which don’t tell you how the course was focused So that would be great if we had those Whether he got– and as far as– I don’t know Freund’s writings I didn’t see anything in the works of Hall that I read that took this approach that you can see law’s a systematic way of getting to a more just world Now, I could be selling him short I haven’t done an exhaustive search I certainly haven’t done exhaustive work on his life I really just read some of what he’s written in these areas But I didn’t see that I wasn’t looking for it in general I didn’t see– I was looking for it about race, and I didn’t see it about race As far as what the law school did, a plausible account– I mean, this is clearly a really exceptional guy I mean, he was born in Mississippi in 1891 For heaven’s sake, you think of how many Black people born in Mississippi in 1891, even people of enormous talent and advantages, probably had had a very, very unfulfilling lives because of what society was doing to them And he, with help from a lot of people– but still, he got himself out of there The one thing that kind of has stuck with me is the extent to which being in the North, being in Chicago, being at the University of Chicago, both at the Lab School and the Law School, also being in Evanston and affiliated with Northwestern Evanston at the time apparently was seen as a place that was unusually receptive to Black people, more so than Chicago– that being in those places and then being celebrated by the law school, at least to the degree that the dean was willing to go to bat for him, that that gave him some sense that he could do some things that maybe he didn’t have before And maybe he had it all along But it wouldn’t shock me if, someone who had this trajectory, the reason that his Chicago experiences were crucial, and there was just the normal human reaction, is that they eliminated a level of self-doubt that would be hard to believe did not exist in a Black kid born in Mississippi in 1891 And Chicago cured him of that, but that’s obviously just speculation – Yeah Thank you I think it’s a great question, Daniel And so one of the things I’ll say is the Black Greek-letter organizations I think constantly ask and want to reexamine not their mission, because our missions, I think, are stable is still necessary, but examine how to best effectuate those goals So each organization has its own objectives Kappa Alpha Psi has five objectives The fifth one, which was the title of my talk, was to inspire service in the public interest And the question is always how to best do that I think that organizations still have continued relevance We have to send the way that it actually manifests itself is going to be different when you’re combating de facto racism as opposed to de jure racism, OK? So I think the efforts are going to be more notable in a de jure context than a de facto context But I think the organizational– the capacity, the capacity for collective action that the organization to have are just important as today as they were in generations prior And so there are what we call nine Black Greek-letter organizations, five fraternities, and four sororities There are actually more than that, at least, because of the nine large ones who formed a collective, which is colloquially referred to as the “Divine Nine.” And now, these organizations talk within but also

across organizations in thinking about how to best collaborate, and really, I mean, broader than just anti-Black racism, but how to think at the time, the current times we’re in and dealing with that as well So I’ll just give two quick anecdotes to give a perspective, so one when I was an undergraduate When I was an undergraduate at the University of California, Davis, Proposition 209 was on the ballot And I’m going to mention this, because now Proposition 16, which is to repeal Proposition 209, is on the ballot now in California And for those of you who haven’t had the pleasure of being in California long enough to know what any of those propositions are, Proposition 209 was the proposition to repeal affirmative action And Proposition 16 is, among other things, a proposition to reinstate it But while I was an undergraduate at the University of California at Davis, not only just Kappa Alpha Psi, but then also the other Greek-letter organizations, and all of them were represented on my campus at that time, met to best– really, to best work against or to try to defeat Proposition 209 We were unsuccessful But the way we went about trying to get information out, encouraging individuals to vote, phone banking, and so forth– all of that was done And it was made it a lot easier when you already have an existing organizational structure Similarly, those things are being done now And I’ve talked to some of the undergraduates even here at UCLA, as well as members of my alumni chapter And similar efforts are being made So that’s just one example of how I think organizations still are involved today – Thank you, Professor Thaxton, Professor Strauss We’re a little over time I’m not able to get to all the questions that came in, but we’ll do a break now And we will reconvene again at 1:50 Thank you so much