Court strikes down racial segregation ordinance

February 2016:– It was 100 years ago that the Supreme Court of the United States heard oral argument in Buchanan v. Warley, in which it struck down a Louisville, Kentucky, city ordinance that prohibited Black people from moving to city blocks where the majority of residents were White, and vice versa. The decision, written by Justice William R. Day, was unanimous. There was no dissent, not even from Chief Justice — and former Confederate officer — Edward Douglas White, who had voted with the majority in Plessy v. Ferguson. In observance of Black History Month, and in view of present-day calls for segregation on campus (strange but true), I offer a conspectus of Buchanan v. Warley, an important victory in the struggle for liberty and equality.

The case arose when Post Office employee and part-time newspaper publisher William Warley, who was Black and a leading member of the Louisville NAACP, entered a contract to buy a plot of land from real-estate agent Charles H. Buchanan, who was White. Both men opposed the city ordinance and went to court in order to test its constitutionality. To that end, their contract contained a clause that said the buyer (Warley) would only close the deal if he had the right under the laws of Kentucky and Louisville “to occupy said premises as a resident.” This condition, of course, was one that could not be met, and it provided Buchanan with a basis for asking the circuit court for specific performance, i.e. an order compelling Warley to pay for the property.

Neither the circuit court nor the Kentucky Court of Appeals would order Warley to pay for a property he could not lawfully occupy, reasoning that the ordinance gave Warley a complete defense. So the case went up to the Supreme Court of the United States, with Buchanan arguing that the ordinance could not provide Warley with a defense because it was unconstitutional. This was a situation the ordinance’s drafters had foreseen, and they had designed it with a constitutional challenge in mind.

The ordinance started out as a policy proposal from a Louisville resident by the name of W.D. Binford, who  worked as a manager at a local newspaper. He and his allies knew about the constitutional infirmities that had undone segregation ordinances in Baltimore and elsewhere, and planned a workaround.  For a detailed account of the campaign see Life Behind a Veil: Blacks in Louisville, Kentucky, 1865-1930, by George C. Wright; As Long as They Don’t Move Next Door: Segregation and Racial Conflict in American Neighborhoods, by Stephen Grant Meyer; and Race, Place, and the Law, 1836-1948, by David Delaney.

Binford pitched the enforced-segregation idea to a luncheon gathering of the city’s real-estate agents, a group called the Real Estate Exchange. He suggested a measure free of the flaws that had stymied other segregation ordinances. Perhaps because of the failure in Baltimore, Binford’s speech met with little enthusiasm. But he started organizing, and soon had enough White neighborhood associations on his side to make property-owners and politicians take notice.

So, although initially tepid, many real-estate agents came around to Binford’s suggestion. Not J.D. Wright, however, an officer of the Real Estate Exchange, who appeared alongside William Stewart of the NAACP to argue against the proposed ordinance at the city council hearing. But Wright and Stewart did not prevail. The force that they and other opponents of segregation were battling against was the political equivalent of rampant climate change.

Segregation was on the rise across much of the country, and one of its most ardent advocates, Woodrow Wilson, occupied the White House. In Louisville, Binford and his fellow activists were threatening to throw out any councilors who failed to back their proposal; they were well organized, vocal, and enjoyed the support of the local Democratic newspaper, the Times. Not surprisingly, in view of the grassroots activism, the city council voted 21:0 in favor, and on May 11, 1914, the mayor, a Democrat named John H. Bushemeyer, signed into law a measure titled,

“An ordinance to prevent conflict and ill-feeling between the white and colored races in the City of Louisville, and to preserve the public peace and promote the general welfare by making reasonable provisions requiring, as far as practicable, the use of separate blocks for residences, places of abode and places of assembly by white and colored people respectively.”

Banning Black people from living on the same block as White people was the way to “prevent ill-feeling,” the ordinance declared, so certain provisions were necessary. What sort of provisions? “Reasonable” ones. They did not appear all that reasonable to the members of the NAACP, who set in motion the test case.

When the case reached the Supreme Court, the plaintiff, Buchanan, was represented by three NAACP lawyers, including the organization’s president, Moorfield Storey. This article provides a concise description of Storey’s line of argument and the significance of the Court’s decision (scroll down to the section headed “civil rights and property rights”).

In addition to Storey’s, the NAACP filed an amicus brief written by William Ashbie Hawkins, a Black attorney with a practice in Maryland who “participated in almost every major civil rights case in Maryland during the first quarter of the Twentieth Century… [and] ran unsuccessfully as an independent candidate for the United States Senate [in 1920], a first for a black citizen of Maryland,” according to J. Clay Smith in Emancipation: The Making of the Black Lawyer, 1844-1944. It is worth remembering that Hawkins was born in 1862 in Lynchburg, Virginia — which at the time housed a prison camp for Union POWs — so, although the record is not clear, it is likely that he was born into slavery. Property rights and liberty of contract must have had a powerful import to someone the law had until recently considered to be property with no right to enter into contracts of his own.

The NAACP argued that the ordinance violated the Fourteenth Amendment’s guarantee of equal protection including “the right to acquire and possess property of every kind [and] to dispose of it and to live upon one’s own land.” In a phrase that the Court found persuasive, Storey argued that the ordinance “destroys, without due process of law, fundamental rights attached by law to the ownership of property.”

In response, the attorneys advocating for the validity of the ordinance (ironically, representing Warley) claimed that “the use of property and liberty of contract are subject to reasonable police regulations, and their enforcement does not deprive a person of property without due process of law.” Property rights are not absolute, they contended. After all, cities are free to limit the height of buildings and prohibit billboards in residential neighborhoods: The segregation ordinance was analogous to regulations of that sort, they claimed.

The Court came down on the side of the NAACP.  It acknowledged the government’s police power, noting that “legitimate business may… be regulated in the interest of the public.” But it concluded:

We think this attempt to prevent alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case the ordinance cannot stand.

This Black History Month, I tip my hat to the lawyers and litigants of the NAACP who brought about the decision in Buchanan v Warley.  In particular, I honor the memory of Attorney William Ashbie Hawkins, and William Warley, whose service to justice the Wilson administration saluted by firing from him from his job in the Post Office. May they rest in peace.

Peter Vickery July 2012

 

One major lesson from the “blind barber” case

The recent decision from the Massachusetts Commission Against Discrimination (MCAD) in Nixon v Tony’s Barber Shop has attracted some media coverage, e.g. this story in the Boston Herald and another in the New York Daily News.  The MCAD awarded the visually-impaired Joel Nixon $100,000.00 because his employer, Tony’s Barber Shop, fired him after he tripped over a customer’s legs, a chair, and a ladder.

Perhaps the most noteworthy fact for employers is that the respondent, Tony’s Barber Shop, defaulted. At the hearing,  there was nobody to advocate for the employer (by raising the possibility of a BFOQ, for example) and the only witness was the complainant himself, Mr. Nixon. The key lesson for employers? Show up!

Boston’s $11 million payout: mission accomplished

I see that the declared mission of City of Boston’s treasury department is “to collect and transfer all funds due to the City.” Well, as a result of a generous jury decision, the treasury department is going to have to transfer funds in the amount of $11 million to one of its own employees, senior administrative assistant Chantal Charles. Congratulations to all concerned — parties, counsel, and jury — for demonstrating that whatever happens in Washington, D.C., at least local government can accomplish its mission.

mission accomplished

On a completely different subject, here’s a guide to public choice theory.

ZAP! That’ll be a quarter million bucks

In the business of intimate hair removal, it turns out that in Massachusetts it is not only unkind but costly for employees to joke about zapping a client in the scrotum with a laser.  By “costly” I refer to a figure north of one quarter of a million dollars ($260,000.00, in fact), which is the sum of money that a respondent in a discrimination suit is going to have to part with following a decision from the Massachusetts Commission Against Discrimination (MCAD), namely Barnes v. Sleek, Inc., et al.

ZAPThe bare facts are these: The respondents hired the complainant, Mr. Barnes, to manage a spa in the Burlington mall, where patrons could pay for certain hair removal procedures, such as bikini waxing. Mr. Barnes was only there a week, however. He was fired after complaining to his boss about the employees’ habit of laughing and joking about what the MCAD describes as “clients’ genitals and private parts” (emphasis added; until today I had thought that genitals were private parts, not something separate and additional to them). As an example, the decision refers to a “discussion about intentionally ‘zapping’ a male client in the scrotum with a laser.”

To make matters worse, at least so far as Mr. Barnes was concerned, “the outgoing manager of the spa flashed her breasts to a web-camera.” She expressed the hope that the owner was watching. And all of this going on in the Burlington mall, just a few doors down from Pretzel Twister and the Cheesecake Factory.

Perhaps it is my British school-boyishness, but given the nature of the work, i.e. pubic topiary, I would have considered ribaldry to be a what lawyers call a BFOQ, or a bona fide occupational qualification. Not so the MCAD, which awarded Mr. Barnes $41,641.67 for lost wages and $150,000.00 for emotional distress. In addition, the Commission imposed a civil penalty of $50,000.00 and ordered the respondents to pay a hair over $18,000.00 in legal fees, with interest running at 12%. Altogether that comes to more than a quarter of a million dollars, which is at least as eye-watering as the prospect of a laser zap to the private parts, including but not limited to the genitals.

Readers should note that the respondents did not mount a defense. They did not submit an answer and position statement nor did they, in the words of the decision, “cooperate in the Commission’s investigation.” Although it may not have made any difference to the finding of retaliation — and I am speculating here — the lack of a robust defense may have affected the size of the damage award. With a bit of care and attention, the respondents might have been able to shave off a few thousand dollars.

Two Reasons to Worry About the New Domestic Worker Law

At a recent conference on employment law, I heard a panelist say that the new Massachusetts law on domestic workers will leave people who hire housecleaners vulnerable to lawsuits in the Massachusetts Commission Against Discrimination (MCAD). And those people need not be employers of six or more workers: Even individual homeowners will be open to suit in the MCAD. My first thought was that housecleaners have a hard enough time as it is, without having their potential clients scared away by politicians. After all, who in their right mind would engage the services of a cleaner if the deal included a possible sojourn in the MCAD? My second thought was that the panelist had to be mistaken and that I must go back to the office and read the whole statute for myself. So I did, and now I am slightly more worried than before.

The statute in question is M.G.L. c.149, s. 190 and s. 191, which you can read here and here. Its proponents (the National Domestic Workers Alliance) gave it the moniker the Domestic Workers Bill of Rights, and in their FAQs they claim that it covers “housekeepers, housecleaners, nannies, and those who care for the sick, convalescing or elderly.” Some provisions are already in force, and the law in its entirety comes into effect on April 1, 2015. I suspect that by May 1, 2015, the MCAD will have screened in at least one case of a disgruntled housecleaner suing a homeowner for harassment on the basis of sex, sexual orientation, gender identity, race, color, age, religion, national origin, disability, or some combination thereof. Of course, this will depend on how the MCAD construes the statutory definition of “domestic worker.”

So who is a “domestic worker” under the Domestic Workers Bill of Rights?  Before I tell you who is one, let me tell you who is not one. There are three categories of workers who, although they would qualify as domestic workers in ordinary common parlance, fall outside the statute’s definition of the term. First, personal care attendants. Second, people whose services “primarily consist of childcare on a casual, intermittent and irregular basis,” i.e. babysitters. Third, “an individual whose vocation is not childcare.”

Yes, according to the text of the new law, and contrary to the assertion of the National Domestic Workers Alliance, the term “domestic worker” does not include “an individual whose vocation is not childcare.” The two negatives can trip the reader up, so the exclusion merits some time and attention. Bear with me while I re-state it: The term “domestic worker” does not include “an individual whose vocation is not childcare.”

If my powers of reasoning and grasp of English are up to snuff, a domestic worker must be an individual whose vocation is childcare. In other words, if you are an individual whose vocation is childcare, you are a domestic worker; if your vocation is not childcare, you are not a domestic worker. Either the Legislature consciously and deliberately chose to limit the Domestic Workers Bill of Rights to childcare workers, or did so by accident. I am not sure which is worse.

The exemption within the definition defies one of the elementary principles of draftsmanship and rule-making, one that has been around since antiquity. I am no Latin scholar, but I feel confident that when Cicero said exceptio probat regulam in casibus non exceptis he meant that the exception confirms the rule in the cases not excepted, not that the exception should swallow the rule. Accordingly, if one of my Legislative Drafting students had submitted a draft bill containing such a poorly crafted definition, she or he would have to try again.

The meaning of the exemption is plain. Like personal care attendants and babysitters, people whose vocation is not childcare are not “domestic workers” and not, therefore, entitled to the statute’s protection. From the statutory-construction standpoint that should be an end of it. Interpretatio cessat in claris as the maxim says (interpretation comes to an end when the text is clear). But is this what the Legislature meant? I doubt it, given that the Legislature defined the term “domestic worker” to include caring for the elderly, a task not synonymous with — in fact, quite distinct from — caring for children.

What will happen when Mr. Wooster, facing the need to retrench, decides, as part of his belt-tightening, to let go of old Jeeves, his long-suffering English factotum? If Jeeves files a complaint against Wooster in the MCAD alleging harassment on the basis of — picking a couple of categories at random — age and national origin, what will the MCAD intake staffer tell him: Sorry, you lack standing to sue under Chapter 149, Section 191, because you are an individual whose vocation is not childcare? “Is that so?” Jeeves might say, eyebrow raised.

To summarize, my two reasons for worrying about this new law are (1) what it tries to do, (2) that its failure to do what it tries to do will make no difference to the construction the MCAD will put on it. The Legislature’s unintentional limitation of the law to childcare workers will not prevent the MCAD from construing the law as if the limitation did not exist. The MCAD will pretend that the Legislature had drafted it competently, and the courts will defer to the MCAD’s interpretation.

For housecleaners looking for work in Massachusetts, life may become just that bit harder in 2015.

Peter Vickery, Esq.
Peter Vickery, Esq.