For Immediate Release

	May 11, 2004 Remarks Of Clyde Bailey, President National Bar Association Law Day Program of the Monroe County Bar Association INTRODUCTIONS/ACKNOWLEDGEMENTS County Executive Maggie Brooks, Mayor Bill Johnson, distinguished members of the judiciary, honorees, officers and members of the MCBA, members and officers of the NBA, and all friends and guest, GOOD AFTERNOON! I must thank President June Castellano and Executive Director Mary Corbitt for inviting the President of the National Bar Association to participate in the law day events this afternoon. I am certain this is one benefit of having the home court advantage. Notwithstanding, I am indeed extremely grateful! I also thank the Eastman Kodak Company, my employer, who has steadfastly supported my participation in the bar, particularly during my presidency. I know that many Kodak Legal Department members are here today. Gary's reminder memo was quite persuasive, "lunch will only be served at the convention center today." There are a few other people here this afternoon I would like to single out for recognition for supporting my presidency, without whom, much more would have been promised then delivered! I am privileged to be accompanied this afternoon by my wife Jean, a Professor and Chair of the Center for Drug Abuse Research at Howard University. My General Counsel, Andrew Brown and his team of lawyers at Brown Hutchinson, the Honorable Roy King, the Honorable Valerie Johnson and Yohannes Assefa of Harris Beach all of whom supported our Fall Board of Governors Meeting in Rochester which was heralded a huge success. A very special thanks to my friends and supporters at Nixon Peabody, particularly David Schraver, Managing Partner, Deborah Quinn and Kathleen Kitt, Elizabeth Allen and Kendal Tyre, my chief of staff, all of whom have added real and substantial value to my ability to lead the National Bar Association. In the time remaining, I would like to tell you a little about several National Bar Association developments and then reflect on the landmark Brown v. Board decision focusing primarily on what I believe are the remaining challenges and opportunities for civic leaders like all of you. ABOUT THE NBA As many of you know, the National Bar Association is this nation's largest and oldest bar association of African American lawyers, judges and legal scholars. Founded in 1925 in Des Moines, Iowa, when our numbers were few, and when were unable to affiliate with our colleagues in the ABA, we now have a network of over 20,000 lawyers, all of whom remain committed to our core mission of improving the administration of justice and protecting the political and civil rights of all citizens, particularly citizens of the underserved communities. Incidentally, it was National Bar Association member lawyers who worked with the NAACP LDF that developed and executed strategies that lead to the landmark decision in Brown. More about that later. This bar year we have launched a number of important initiatives that support our Association's mission as well as my Bar Year Theme "Pursuing Parity, Delivering Services," an ideal, by the way, that reflects that there remains much more to do in our society if the Constitution's guarantee of "Equal protection of the law" is to have full meaning. GOAL 1: To Increase Business Development Opportunities For Our Lawyers. Here we have instituted an advocacy strategy, which includes the development of an NBA Diversity pledge directed to urging major law firms and corporate law departments to hire minority and female lawyers as well as to urging corporate law departments to increase their use (including hiring) of minority/women owned law firms. We will approach some 100 corporate law departments and law firms during our first year of this program. I'm happy to say that Kodak was awarded the National Bar Association's 2003 Corporate Award for its long-term support of minority and women owned lawyers and law firms. Goal 2: Increase Service To Our Communities. We have launched several important initiatives in support of our communities. For instance: Election 2004 Project focuses on Election Protection which includes voter bill of rights, training for election officials and guidance on interpretation of the Help America to Vote Act (HAVA) 2000. This initiative is in direct response to the 2000 election in which millions of voters were either denied the right to vote or their vote was not counted because of flaws in our election system. Health Care Disparities Project, a collaborative project with the NMA, recognizes that the health status of African Americans is jeopardized because of well documented disparities in access to health care and treatment options available to the African American population. A 2003 Department of Health and Human Services found significant differences in the quality, type and degree of treatment given to patients who are similar in all relevant circumstances, including ailment, income and insurance, except for race. African American men, for example, are between 30 and 80 percent less likely to receive a bypass than are White men similarly situated. The report suggests that the disparities in health care are due to "the persistence of negative racial and ethnic stereotyping and bias… and the inequities of a system that leaves more than 40 million Americans without health insurance". As a final example, Drug Policy Reform Project focuses on the disparate impact our drug laws and policy have had on our community and advocates for policies and laws that, for instance, embrace the protection of the nation's children, reduce crime and improve public order, enhance public health, and promote the wise and efficient use of scarce public resources. Just three weeks ago on Capitol Hill, the National Bar Association hosted the official signing of a Memorandum of Understanding that joins together a number of Black Professional organizations to pursue alternative drug policies that include public health concerns. And, just last week, at the National Press Club in Washington, DC, I along with several physicians and lawyers addressed the media regarding a new Partnership (founded at Brown University) of leading physicians and lawyers coming together to promote an evidenced based, public health approach to drug policy. In addition to these special services to our communities, it should go without saying that the National Bar Association remains forever vigilant in the areas of racial discrimination, racial profiling, police brutality and other societal woes that unfortunately persist at even higher rates than one would have predicted during the dawning of the 21st century. Lastly, Goal 3: Increase The Percentage Representation Of Minority/Fem. Lawyers In The Judiciary. Here we launched some exciting partnerships with our traditional allies including, Lawyers Committee for Civil Rights Under the Law, the Congressional Black Caucus and NAACP Legal Defense Fund to promote candidates for federal vacancies whose ideologies are favorable to our communities. We have also provided official commentary to the Senate Judiciary Committee and the President on judicial nominees whose civil rights records and judicial opinions, in our judgment, do not reflect sensitivity to the citizens of the underserved communities. And, the National Bar Association is developing, with the support and urging of our friends in the Congress, the first official NBA judicial grading process, much like the ABA, but one that specifically reflects the views of the African American legal community. When most of think about the Brown v. Board of Education decision of 1954, we tend to relate to it as having strictly dealt with education and, particularly whether segregated education deprived children of equal opportunity under the 14th Amendment of the Constitution. But as the Brown Court pointed out, the Constitutional sanction of school segregation was an outgrowth, not of education precedent, but of Plessy v. Fergusson (1896), a transportation case. In Plessey, the Court upheld a La. Stature that required separation of the races in public conveyances. But the Brown Court recognized that it was responding to a much broader issue about whether our society and Constitution could continue to function with state sponsorship of racial discrimination operating at its core. This is some of what Chief Justice Earl Warren, who authored the unanimous opinion. Education is the "most important function of government, as it is "the very foundation of good citizenship" and the performance of "our most basic public responsibilities." He went on to say "It awakes children to "cultural values," prepares them for employment and helps them to "adjust normally to society. Thus children who are denied this opportunity cannot reasonably be expected to succeed in life." These passages, according to Derck Black "NBA magazine, Mar/Apr 2004 edition, "Beyond Brown: Its impact upon American Education and culture" illustrated that Brown would be about more than education; it would determine whether African Americans were going to have the opportunity to participate as full citizens in this society. Brown also was about the persistence of black lawyers, all NBA members, working for the NAACP LDF . The NAACP developed a strategy for using the law to change things for blacks. This campaign was carried out by a distinguished group of black attorneys (NBA members), including Thurgood Marshall, Constance Baker Motley, Oliver Hill, Julian Dugas, Spottswood Robinson, James Nabritt and Charles Hamilton Houston. The legal strategy of the NAACP focused first on insisting that states make separate facilities truly equal. I recall that a brand new high school was built for blacks in my town of Petersburg, Va. in an attempt to subvert desires of integrating the local all white school. STILL - this new facility was far from "equal" to the facilities for whites. State enforced segregation kept blacks from public schools and libraries, restaurants and theaters, residential neighborhoods and many other public facilities. Here's how Dr. Martin Luther King, Jr. characterized this era----" Negroes with the pangs of hunger and the anguish of thirst were denied access to the average lunch counter. The downtown restaurants were still off-limits for black man. Negroes, burdened with the fatigue of travel, were still barred from the motels of the highways and the hotels of the cities. Negro boys and girls were not allowed to inhale the fresh air of the big city parks. Negroes in desperate need of allowing their mental buckets to sink deep into the wells of knowledge were confronted with a firm no when they sought to use the city libraries." When it became clear that equality could not be achieved "separately, the NAACP's legal strategy evolved from "separate to truly equal" to directly challenging the doctrine of "Separate but equal", that is, nothing less than eliminating segregation would be acceptable. Derrick Bell formerly Harvard U. Professor, now visiting Professor NYU law School: "These strategies were intended to end racial segregation, not merely in the public schools but throughout society." In the U. S. Supreme Court, the issue was whether segregation deprived students of equal protection under the law, as guaranteed by the 14th amendment. Under the leadership of Chief Justice Earl Warren, the Court unanimously decided, on May 17, 1954, that segregated schools were unconstitutional. Chief Justice Warren's decision stated, "We conclude that in the field of public education the doctrine of "separate but equal' has no place. Separate educational facilities are inherently unequal. A landmark in the struggle for equality under the law had been achieved. REFLECTIONS How successful was Brown? Experts are mixed. If the primary goal was to dismantle the state sanctioned "Separate but Equal Doctrine", then it was a success, according to Dennis Hutchinson, University of Chicago Law Professor. And Professor Charles Olgetree, in reflections presented in his book "All Deliberate Speed" stated that "I see great disappointment in the effort to achieve a society of equality under the law, blindness to the harm that racial prejudice inflicts on African Americans, and refusal to address the problem with candor or conviction. If it promised desegregation, it missed its marked because schools today are de facto re-segregated. [Harvard study] excerpted in the ABA Journal, April 2004 edition. Professors Carty and Johnson of Syracuse University in their 2004 law day program, "quality of life overall, for African Americans in the United States has scarcely increased beyond the pre-1970 levels (in some cases pre-1960), indicating living standards that have either not improved or have declined dramatically. President Lee Bollinger (Columbia University) states " One of the key obstacles to equal education remains, unequal funding for public education citing the case of Rodriguez v. San Antonio Independent School District (USSC, 1973). Rodriguez held that education is not a fundamental right and therefore there is no right for state to fund education. When Dennis Archer (ABA President) was asked, 'Do you think the promise of the decision has been fully realized' he responded, "No. Not in my mind. The decision in Brown set forth the law, but you still need the people to respect the rule of law and embrace it to assure equality of education…. REMAINING CHALLENGES PRESENTED BY BROWN DECISIONS Realistically, in order for Brown to have worked in its broadest sense necessitated government policy addressing inequality in housing, employment, social welfare, health care, the legal system, and many other realms of society. Because this has yet to occur, there remain many outstanding challenges for our communities to help achieve the goal of equality contemplated by the Brown decision. We need to get real about those social-economic and legal factors in our communities that present undue burdens and insurmountable challenges for our youth in their pursuit of success in a society that, in most instances, appear more threatening than nurturing. Here are some of those challenges and undue burdens: CHALLENGES: Ineffective Pre-K -12 education This is clearly a socio-economic issue that relates to living patterns and the historic impact of discrimination against traditionally depressed communities. The Civil Rights Project found that "The vast majority of intensely segregated minority schools face conditions of concentrated poverty, which are powerfully related to unequal educational opportunity. The data constantly reminds us that schools with high poverty concentrations have higher drop out rates, low literacy, lower average test scores, fewer advanced courses, fewer teachers with credentials, inferior levels of competition and fewer graduates going to college. In many cases, the outcomes and performance are worse than before Brown. Historical impact of socio-economic factors Almost a third of Black children live in poverty-32.1% in 2002. In the richest nation in the world, almost one-quarter of African Americans live in poverty, a difference that only slowly eroding. Black unemployment is almost double the white rate, 10.8% versus 5.2% in 2003 - a wider gap than in 1972. The Black-white gap in median family income has actually grown since 1968. The typical Black family had 60% as much income as a white family in 1968, but only 58% as much in 2002. Children in foster care system lack permanency Of the over 600,000 youngsters in the foster care system, 40% of them are African American. These are youngsters whose lives are disrupted and whose chances of emerging from their youth with aspirations of success in our society greatly diminished. A closer examination reveals that in States with large minority populations, like N.Y., Mich., Illinois, Florida, Washington, DC, the percent of African American children in the foster care population can range between 60 - 90%. Ineffective public policies and laws, e.g., drug laws Of the 251,100 state prison inmates serving time for drug offences in 2000, nearly 150,000 (58%) were black. Among the 2 million offenders incarcerated on June 30, 2002, an estimated 600,000 were black males between the ages of 20 and 39. According to the Federal Household Survey, the most current illicit drug users are white. There are an estimated 9.9 million white users (72% of all users) compared to 2.0 million (15%) Blacks, and 1.4 million (10%) Hispanics. And yet, Blacks constitutes 36.8% of those arrested for drug violations, 42% of those in federal prisons for drug violations, and 58% of those in state penal systems for drug felonies. Assault on Diversity There are well financed groups in our society who wishes more than to turn back the clock to Pre-Brown era. For instance there is a group called Project for All Deliberate Speed" whose aim it is to urge state governments to end so-called racial preferences and other forms of their laws and programs. Their spokesperson indicated publicly that it is time to turn the heat up on corporations that support affirmative action, that is make them "pay a price for funding preferences" Historical impact of racism and discrimination Traditionally manifested in poorly financed public schools, inadequate housing, inadequate health care facilities and support services and countless other services that are in stark contrast to those provided in nearby suburban communities. Overcoming the digital divide Without the technological tools to advance ones learning skills, these students will inevitably be left behind and, more tragically, left out. Black and Hispanic households are 40% as likely to have home internet access as White households. Decline in college enrollment of African Americans The trends in College Admissions survey showed a decline in Black achievement in education. For example, the percentage of all Black students who were accepted for admission at a four-year state institution and who eventually enrolled in 1985 was 59 percent. In 1999, that number was only 37 percent. Infant mortality Infant mortality has dropped across the board since 1970, but Black infants are now almost two and a half times as likely as white infants to die before reaching one year of age. Infant mortality rate for Blacks in 2001 was 14.0 per 1,000 live births vs. 5.7 deaths per 1,000 births Whites. Conclusion Here's the point of those rather grim demographics, far too many of today's children growing up in our mostly urban communities will not have equal opportunity to realize their potential or aspirations for success in our society because of the finality of an untimely death, the scourge of drugs, remnants of a legacy of poverty, inadequate education, discrimination and incarcerations, etc, unless there is a societal reversal of these trends. PROPOSED RESOLUTIONS: Here's what I think we as lawyers and bar associations can do to help so many youth with great human potential and desire to achieve in our society. As Charles Hamilton Houston, the initial leader of the NAACP attack on state sponsored segregation said " A Lawyer is either a social engineer or a parasite on society." Lawyers, Bar Associations And Civic Leaders Must Actively Advocate For The Eradication of Barriers That Limit The Aspirations of Our Youth First, individually and collectively, we must continue to agitate - Unless we, as lawyers, are vigilant and agitate on a perpetual basis, then no meaningful advances will be made with respect to equality Expand bar association sponsored mentoring programs to expose disadvantaged youth to diverse experiences and worlds outside of their inner city environments (NBA Judicial Council outreach program/ Crump Law Camp) Advocate funding support for the "No Child Left Behind" Act and develop complementary mentoring programs for schools with large populations of African American youth. l Advocate funding support for "Head Start Program" Advocate "drug policies" that emphasize prevention and the public health nature of drug abuse. Support the eradication of the digital divide in our communities. The National Bar Association's "Computers the Community" is an attempt to help bridge the technology gap. With the help of local companies, the Rochester Black Bar Association donated over 100 computers to local public schools in need of technology. We anticipate that our expanded proposed initiative under our Leave No Child Behind Project will have a much greater impact in many more communities. Help eradicate the barriers that restrict the transition of African American children from foster care to permanent care. Support legislation that advocates permanency for act risk populations. Oppose proposed policies and rules that separate and divide people rather than embrace diversity and inclusion I'm going to close with this: Thurgood Marshall, said it best, in 1992 when he received the Medal of Liberty in Philadelphia., providing thoughtful insight as to what we all must do to achieve a nation of democracy, freedom, equality and justice. "The Legal system can force open doors, and sometimes even knock down walls, but it cannot build bridges. That job belongs to you and me. The country can't do it. Afro and White, rich and poor, educated and illiterate, our fates are bound together. We can run from each other, but we cannot escape each other. We will only attain freedom if we learn to appreciate what is different, and muster the courage to discover what is fundamentally the same. America's diversity offers much richness and opportunity. Take a chance. won't you? Knock down the fences, which divide. Tear apart the walls that imprison you. Reach out. Freedom lies just on the other side. We shall have liberty for all." Thank you.