In Black America; Attorney Joseph Fleming, Esq.

Damn it! from the From the Longhorn Radio Network, the University of Texas at Austin, this is In Black America. You are members of an exalted class.

You, because you have labored and studied long and hard, are entitled to and deserving of respect and admiration. You are deserving of this because it is mental capacity and intelligence that rules the world. Not physical prowess or group strength, but what happens when the respect and admiration that you have worked so long and hard for is denying you. What happens when the very institution through which you disseminate your knowledge draws a line in the sand and dares you to cross it, a line that impumes your intellectual and scholarly integrity. What happens when that line is in one place for your white colleagues and in another place for you. Attorney Joseph Fleming, Esquire. Attorney Fleming was counsel representing Dr. Lynn and Jeffries in his first amendment lawsuit in Federal District Court of New York.

This past November, Florida A&M University held its 9th National Higher Education Conference on Black Student Retention in Hollywood, California. The theme of the five day conference was, minorities on predominantly wine campuses. This theme not only focused on the concerns of students, but also the needs of African-American faculty, staff, and administrators. While colleges and universities are said to be the citadel for free expression and ideas, African-American faculty are judged by a different set of rules and or guidelines. Case in point, Dr. Lynn and Jeffries chairman Black Studies, City College of New York. I'm John L. Hanson, Jr. and welcome to another edition of In Black America. This week, Attorney Joseph Fleming Esquire, In Black America. You are supposed to be beneficiaries of two of the greatest freedoms in this country. Freedom of speech and academic freedom. Either one should be enough to protect your scholarly utterances, but what if they are not? I have been asked to speak to you today on the topic, Dr. Lynn and Jeffries Jr., it

could have been you, you could be next, the fate of Black faculty on predominantly white campuses. Yes, it could have been you, for you, for you, or you, or any one of you, or each and every one of you. After a five week trial, federal judge agreed with Black Studies professor Dr. Lynn and Jeffries and determined the City College of New York violated his rights when they demoted the veteran educator after he made a speech that offended Jews and was called anti-Semitic by other groups. U.S. District Judge Kenneth Conroy decided that officials at the City College of New York should not have removed Dr. Jeffries as chairman of Black Studies after his July 1991 speech in Auburn, New York. In his speech, he said that Jews and Italians shaped an alliance which conspired to control Hollywood and his image of Blacks and Jews bankrolled the African slave trade. Dr. Lynn and Jeffries Jr. is a tenured professor at the City College and has held that post

for almost 20 years. At the Ninth National Higher Education Conference on Black Student Retention held this past November, Attorney Joseph Fleming was a keynote speaker. Attorney Fleming was Dr. Jeffries Lawyer in his lawsuit. Attorney Fleming's address focused on the point that it could have been you. Of course, they say that he misused that information, but that's progress for them. It seems though that nothing makes those who oppress us angrily than the truth and angry they were.

In response to the effort at suppression though, Dr. Jeffries stood up like a man and sued. Now, you might think that you don't have a chance if you stand up for your rights. You might think that you can't find a forum within which you can present your case and when. You may be concerned about the proliferation of conservative judges. Well, don't be. Only be concerned about how prepared you are to fight for your rights because preparation as you know involves a great deal of groundwork and dedication. So we got to trial on the Jeffries matter, we read thousands of pages, we wrote hundreds of pages. We had depositions in which we brought into various defendants and questioned them under oath. We reviewed their documents, hundreds and hundreds of pages of documents, researched applicable statutes and confidence with the judge and litigated several motions. All of that constituted the training and groundwork we engaged in just to prepare for a trial that turned out to be a five-week ordeal.

And speaking of conservative judges, we had a judge who had a history that caused some to be concerned. He worked with a district attorney's office. He had been counseled to the police department and was deputy mayor on the former mayor Edward I. But he was also the judge who handled the case involving the city university when they tried to punish a white professor, Michael Levin, who said that blacks were not as smart as white people and that we were naturally prone to criminal behavior, that this was in our genes. He was saying that simply because we are black, that we are dumb and we are criminals. In that case, this judge, Kenneth Conboy, ruled that the university could not punish Levin for having uttered those words because they would violate his freedom of speech. We felt he could do no less for Dr. Linda Jeffries. Now the system for picking judges in the federal court is a very simple one. When you go in and file your case, the clerk sticks his hand in the barrel and pulls out

an envelope. Inside that envelope is the name of the judge, that's the judge assigned to your case. The first bit of strategy that we employed in the Jeffries case was to get Judge Conboy assigned to our case. So we made a special application on the related party doctrine to have that done. The district court accepted our application, granted our request, and Judge Conboy was the judge on our case. Now there was still some who said that it was dangerous to have him because it was felt that he had very conservative leanings. Our feeling was that if there is anything a conservative judge who will protect, it's the First Amendment. Remember, many of the cases in the First Amendment area, especially recently, have nothing to do with the black man saying something about white folks. They have to do it white folks calling me and burning crosses on your lawn. As we got into the trial, the university began to make one mistake after another, and let me tell you a little bit about the trial just to give you some background and flavor.

The first mistake was to demand a jury. They were convinced I'm sure that no jury would deliver a verdict in favor of Dr. Jeffries. Not after the hatchet job, the press and politicians had done following his speech, and besides they thought, black folks don't serve on juries. For the most part, they don't own homes. They don't register to vote. The list of homeowners and registered voters are where they take jurors from. And those blacks who are called usually make excuses to get excused, so they thought. We wound up with a jury of five African-Americans, one Hispanic, and three whites. They were more blacksting usual in the jury pool, perhaps because jury selection was occurring one week after Passover, but more likely because the ancestors were with us. You see, the federal courthouse is located in downtown Manhattan, right on top of the African burial grounds. If you're all familiar with the African burial grounds, they discovered last year or so that Lower Manhattan was actually the graveyard, the thousands of Africans who were buried in

Lower New York in the 1617 and early 1800s. Our spirit controls that area. Now normally in federal cases, the judge selects the jury. In this case, however, we employed a process called the Arizona Method, which allowed us to directly question jurors and rule out those who were burdened by biases they could not leave outside the courtroom. That process was very beneficial to us and revealing of some of the contradictions in our society. As an example, one prospective juror, a Filipino who had immigrated to this country some years ago, came here to take advantage of our constitution. The one we fought and died for in several wars. The one we gave life to throughout protests, the protest that led to the 13th, 14th, and 15th amendments. This man, stating that he had voluntarily converted to Judaism, admitted that he could not

and would not apply the constitution to Leonard Jeffries Jr. We had another case, a man who was a dentist who had immigrated from Poland to Brazil and the United States. He said he would not be fair to Dr. Leonard Jeffries Jr. He could not apply the constitution to Dr. Leonard Jeffries Jr. Why? Because the only people in the world who had ever discriminated against him were black people. And we asked him, why? What was your experience? He was a dentist in a prison. And one black man brought a lawsuit against him because he didn't like the way he handles his teeth. Now, that experience with one black man poised in this man's mind against black folks for the rest of his life. My co-counsel turned to me when he said that and said, wow, if he has that type of venom in him from that one little experience, how powerful and how much patience we must have, even our lifetime of experience here in this country. Needless to say, we were able to eliminate these two from the jury because we were able

to get these and other confessions out of perspective jurors because we cornered these people in the judges' chambers where we could squeeze their biases out of them and thereby eliminate them from the jury. In the end, we had a jury that was extremely intelligent and diverse. They deliberated after the trial for nearly two weeks. They sent 25 notes to the judge asking for a clarification of fine legal points. Inside the jury room we learned later, there was a great deal of give and push, tugging debate. One interesting exchange occurred when some of the white jurors were upset because Dr. Jeffries' alleged to have called Dr. Henry Lewis Gate of punk and a faggot. They thought this had to do with an attack on homosexuals and they were sensitive about that. One of the sisters on the jury said, though, wait a minute, you don't understand. It's a black thing. She explained to them that when a black man says two or of another black man, hey brother,

you're a punk and a faggot, it has nothing to do with sexual preference. It means, hey brother, you're weak. They said, oh, we didn't understand. But with that understanding, they were able to go on and deliberate without the bias their misunderstanding would have sustained. We knew that the defendants would pick the speech apart and use pieces of it out of context to inflame the passions of the jury against Dr. Jeffries. And we knew, based on pre-trial discovery, that they had prepared their case supported by this strategy. And so just before the trial, we made application to the court for ruling that the speech, the entire speech, every single phrase and word, because it touched substantially on matters of public concern, was protected, and that it could not be dissected. We were asked to submit a brief on that.

We did overnight, following warning, the judge ruled in our favor, he says, yes, the speech is protected, every single piece of it, every phrase, every word, every letter, any one to defend it says, if you take any part of it and throw it at the jury, I will instruct them that you have violated Dr. Jeffries' First Amendment rights. This sent the defense into a tailspin from which they never recovered. The trial was a wonderful experience, really, even though it took five years out of our lives. We slept approximately three hours that entire five-week period, but during the course of the trial, we were strengthened not only by the presence of our ancestors, the spirit, but by the physical presence of our people, we packed the courtroom every single day. And they came from all walks, in suits and ties, in overalls, in flowing African robes and gowns, in coupes and in jury. They were all beautiful, and they inspired us. And as you know, those of you who watched court TV, Dr. Jeffries was similarly adorned. Now, the trial lasted a full three weeks, every day we prepared for testimony reviewed the prior days testimony, often we had to prepare briefs overnight, and we stayed up all night

to do it. They didn't bother us because we were pumped. We believed that what we were doing was right. We presented our case through Dr. Jeffries' testimony in a stack of corroborating documentary evidence, including the videotape of the speech, which, by the way, none of the jurors found to be offensive. The defense consisted of testimony from CUNY officers and trustees, CUNY being the City University of New York. They tried their best to project their superiority and their righteousness whenever they took the stand. They failed miserably. Each one came to the stand defiant and eager. They all left, wilted, humbled by the crushing weight of their own lies. We followed the defendant's case with rebuttal testimony from some of our most respected scholars. Professor Caluity, Catimil, Catimmy, from City University, Dr. Sharshi McIntyre, and Dr. Malefica Assante.

Then we closed out with a summation putting together all of the evidence showing the jury that Dr. Linda Jeffries Jr. was not an incompetent administrator, nor was he lacking as a scholar as the defendants had charged. When looking back at the trial, we like to say that we took the meat of their lies, sandwiched them between the bread of our truth, and then we ate them up. When the trial was over, the jury answered all of the crucial questions in our favor. Was the speech the substantial motivating factor behind the defendants' acts? The jury answered yes. Would Dr. Jeffries have been relieved of his championship had he not made the speech to this, the jury answered no? Rejecting completely the defendants' allegations of incompetence and wrongdoing on the part of Dr. Jeffries, the jury then awarded Dr. Jeffries $400,000 in punitive damages, not opinion of which he has seen, or we'll see for quite some time.

Now, Dr. Jeffries' controversy and trial attracted a lot of negative press. The newspapers were jammed into the courtroom every day. Their mission, however, was to report anything and everything that made Dr. Jeffries look bad. On the first day of the trial, the one little negative tidbit that surfaced was front page. But when it became clear that the tide flowing through the courtroom was against the defendants and in our favor, suddenly there was a white out of trial coverage. The press corps was there every day, but you would not have had any idea how well the trial was going for us without the black press and the miracle of court TV. Whatever their initial intent in covering the trial, court TV became the only national outlet for truth because the images and words they broadcast could not be disputed. Court TV recorded our victory and our march towards victory and made it available for all to see.

No matter fact, during the trial, court TV reached the parts of Latin America, South America and Europe. Two people came up from Central America. One who had been watching the trial came to New York and sat in the courtroom just to get the feel of the atmosphere there. Another from a ruler did the same thing. The press white out, therefore, didn't matter. When the jury finished its work, we made an application to the court for injunctive relief, specifically, we asked that Dr. Jeffries be reinstated as chairman of the black studies department on August 4, 1993, Judge Carmboy ruled that Dr. Jeffries be reinstated and ordered that to occur fourth with. The defendants immediately complied with this order and since August 4, 1993, Dr. Jeffries has been and he remains chairman of the black studies department of the City College of New York. That is why we crossed that line in the sand and it was well worth the trip. Immediately following Judge Carmboy's decision, the defendants appealed and we are now fighting

that appeal. So that's the story of the litigation of Dr. Linda Jeffries, Jr. That's what happened in the case of Dr. Linda Jeffries, Jr. versus the forces of the state of New York. Now again, what does it all have to do with you? What are the implications for us as African Americans? What are the implications specifically for you as individuals who may be black folks on predominantly white campuses? It's simple. Ask yourself again, what about Rodney King? What about the girl in the grocery store whose murderer goes unpunished? What about you, Seth Hawkins, the young black man in New York shot simply because he was black in a white neighborhood? Ask yourself, what does the black postal worker, teacher, doctor, lawyer, athlete, construction worker, student or mother who has followed around the store or stopped by the police for no reason other than the color of their skin have to do with you? What does the black professor who dares to criticize whites and is smacked down by a vicious

and bigoted response have to do with you? Think about it. But for the color of their skin, not the content of their character. And for the color of their skin, they would not have been beaten, killed, harassed or victimized by an unrelenting campaign designed and intended to destroy them, either physically or psychologically. The color of their skin is the color of your skin. That's what it has to do with you. It is the color of your skin and the land of your heritage that causes you to face that line in the sand. It is for the preservation of your pride, integrity and human dignity that you must cross that line. It could have been you is a two-sided coin. It could have been you, it can be you, suffering the backlash of your administration when you get out of line or cross that line in the sand. Your initial response will be emotional and that's fine.

But go home and let your emotions out. Cry, yell at yourself in a mirror because the days of using your spouse as a sounding board is over. Run a mile or punch the punching bag in your basement. Tell your spouse you've had it up to here that you don't have to take that stupid hypocritical ignorant trash anymore. Go on rant and rave because you'll deserve it. But then after your emotions are spent, after you satisfy that basic human need to vent, look inside and ask yourself honestly, is it me? Did I fall short somewhere? Did I fail to perform up to reasonable standards? And when you've answered those questions honestly and satisfied yourself that it was not you, but rather it was them, then sit back and recognize like my friend from a big corporation that it's their conscious and unconscious reaction to the color of your skin, that is the problem. Now you get to flip that coin.

What part of the Jeffrey saga will you be? Will you simply be the victim of their reaction, suffering, rebuke, stagnation of your career or removal? That's tails on the coin. Or will your coin come up heads and be that part of the Jeffrey saga that tells the story of one who accepts the challenge presented by oppression? The acceptance of the challenge means that there is a willingness to fight, to go into their backyard and beat them with their own stick. Their backyard may be the internal grievance machinery, or the Federal District Court, or the Equal Employment Opportunity Commission. It depends on the nature of the wrong. And whether or not the underlying reason for their treatment of you is the color of your skin, the remedy available to you may or may not lie in statues based on race or color. They treated Dr. Jeffrey as the way they did because he was a black man, speaking as he did about white folks. He was brash, bold, impudent, and unapologetic.

Qualities and traits they find unacceptable in a black man. But we didn't use race as a basis for our action. We used First Amendment freedoms and due process. You may have occasion to rely on the law, but you must fully and completely explore all of your legal options. If discrimination is your complaint, then Title VII is your remedy. Title VII prohibits discrimination on the basis of race, color, national origin, et cetera. You can use it if the treatment you receive is different than the treatment received by whites similarly situated. If the difference in treatment is based on your race, to take advantage of the laws protecting your First Amendment rights or to bring an action grounded in academic freedom, you simply go into Federal Court with your complaint. To initiate an action based on discrimination, you must first file a complaint with the EEOC. That is a jurisdictional prerequisite to judicial action. Your complaint must be with the EEOC for 180 days during which time they may or may not

investigate or seek to reconcile your problem. In any case, whether they reach any conclusions or not, whether they find probable cause or not, after 180 days you can demand the right to sue. When you get it, you then go into Federal Court. And you must do that within 90 days of your notice of right to sue. Once in Federal Court, you have to prove the following. That you are a member of a protected class, that you are qualified for the job of position in question, and that you have been the victim of disparate treatment regarding the terms and conditions of your employment or with respect to promotional and other opportunities. If you prove the foregoing, you make your primary face case. In short, you get to avoid dismissal of your complaint. Then the burden shifts to your employer to show a non-discriminatory reason for the treatment you've complained of, or even a mixed motive that is a combination of discriminatory and non-discriminatory reasons.

If they meet this burden, then the burden shifts back to you to show that the non-discriminatory reasons advanced by your employer are a sham. If you can prove their reasons to be a sham a long time ago, you would have won your case. You have an additional burden of showing that your employer treated you the way it did because of your race, that it was their intent to discriminate it against you because of your race. In effect, you must present evidence that shows your employer's state of mind a difficult task, yes, but not an impossible one. I've taken you through all of this to come to a look at the fate of black faculty on predominantly white campuses, and this point is very, very short, so bear with me. I'm almost done. Your fate is, if you want it to be, in your own hands. You have the power, if you have the will, to determine your destiny. No, it's not easy, and yes, there will be those who are martyred in the process, but

isn't that how we've come as far as we have by taking chances, by braving the water hoses, the dogs, the whips, the guns, the death? Can some of us not risk a job to ensure true equality in respect for all of us and more importantly for those who follow? The lesson from the Jeffery's case is that we must stand up to oppression in whatever form and in whatever form the circumstances dictate. We learn from the Jeffery's case that we have the talents within our mists to overcome the system when it lines up against us. We learn if we do our homework and take care of ourselves, we can challenge and defeat anyone, anytime, anywhere. We learn that if we infiltrate and participate in the very system that attempts to oppress us, and if we refuse to be co-opted by it, we can ensure a just result. What would have happened, for instance, if the Jeffery's jury did not have a strong black presence?

What would have happened if there were no blacks on that jury with the courage and the ability and the strength to say, wait a minute? This is what it's about. This is where we have to go. As an example here for all of us, if any of you were called to serve on a jury, go and serve because your presence there can make a difference. We learn from the Jeffery's trial and victory that no matter how difficult the battle, no matter how trying to process, no matter how complicated the issues, if we refuse to give up, if we refuse to compromise our values, and if we refuse to back down in the face of all odds, we will emerge victorious. Remember this though, that bringing a case to court is a form of agitation. It is a demand for power to concede something to you. Frederick Douglass said that power concedes nothing without a demand. You have to be prepared to struggle, though, to back up your demands and borrowing again from Frederick Douglass, keep in mind that those who want freedom without struggle want the ocean without the roar of its mighty waves or are stormed without the roar of thunder

or the flash of lightning. You cannot have one without the other. Attorney Joseph Fleming Esquire, speaking at the Knife National Higher Education Conference on Black Student Retention. If you have a question or comment or suggestions, ask the future in Black America programs, write us. Also let us know what station you heard us over. I would like to thank Florida A&M University for their assistance in the production of this program. Views and opinions expressed on this program are not necessarily those of this station or the University of Texas at Austin. Until we have the opportunity again for IBA Technical Producer Dana Whitehair, I'm John L. Hansen, Jr., please join us again next week. Cassette copies of this program are available and may be purchased by writing In Black America Cassettes Longhorn Radio Network Communication Building B UT Austin, Austin, Texas 78712. That's In Black America Cassettes Longhorn Radio Network Communication Building

B UT Austin, Austin, Texas 78712. From the Center for Telecommunication Services, the University of Texas at Austin, this is the Longhorn Radio Network. I'm John L. Hansen, Jr., join me this week on In Black America. There were a number of orders in verdicts in the trial. The most important of which were one that the speech was constitutionally protected all of it. There were two that the University did violate his free speech rights. Attorney Joseph Fleming Esquire this week on In Black America.