In Black America; Dr. Mary Frances Berry

with you. In Black America, reflections of the Black experience in American society. Dr. Mary Francis Berry is an eloquent advocate of education. From April of 1977 to January of 1980, she had at the largest unit of the Department of Health, Education, and Welfare. Dr. Berry was the chief education official in the federal government, directing 4200 people in five divisions and controlling an annual budget of $12.8 billion. Before she was appointed Assistant Secretary of H.E.W. in 1977, Dr. Berry was chancellor

of the University of Colorado. Today, she is a member of the Commission on Civil Rights and a Professor of History and Law in the Department of History at Howard University in Washington, D.C. I'm John Hanson, and this week I'll focus on Dr. Mary Francis Berry in Black America. There's a struggle going on in this country for the hearts and minds of Americans, and that struggle since we are Americans includes us, other minorities, women, and the disadvantage. What is that struggle about? There are some people in Washington who are in the saddle now who believe that their approach makes for a better America, and they can believe that if they want to. But they also believe that their approach includes getting us to accept for getting our history. We're supposed to forget slavery, we're supposed to forget Jim Crow, we're supposed to forget continued discrimination, we're supposed to ignore our unemployment rate, and we have to blame ourselves for what is wrong, and we ought to believe that if the economy gets better, for example, that means we will get better.

There is a difference of perception around in the country, and there is a struggle for the hearts and minds of all of us to make us believe that their approach to seeing things as the correct approach, even though it is at variance with our experience. And it's important for young people, important for all of you, old people, middle-aged people, people like me who, in between, to understand what is going on with that struggle. And as I stand here, I remember, and I hope you do, Roy Wilkins, because of his vision, which was always beyond the immediate, it was a long, for a long commitment to the struggle that's always ongoing, and for his wisdom that if you learn about it, we'll prevent younger generations from repeating some of the mistakes we've made in the past. Dr. Mary Francis Berry, a former Assistant Secretary for Education in the Department of Health, Education, and Welfare. Dr. Berry earned her a Ph.D. degree from the University of Michigan in 1966, and graduated from the University's Law School in 1970. Prior to serving with HEW, Dr. Berry was chancellor at the University of Colorado at Boulder,

in Provost, Division of Behavior and Social Sciences at the University of Maryland in College Park. She has taught at Central Michigan University, Eastern Michigan University, and the University of Michigan. The Nashville-born educator has always wanted to be a scholar, a teacher, to do research, and write. She has written and published three books. The first is 1971 entitled Black Resistance, White Law, a history of constitutional racism in America. Her second book entitled Military Necessity and Civil Rights Policies, Black Citizenship and the Constitution, 1861 to 1868. Dr. Berry's third book entitled Stability, Security, and Continuity, Mr. Justice Burton and the Decision Making and Supreme Court, looks at the high court decisions and relations to black concerns. In April of 1980, President Jimmy Carter nominated Dr. Berry to the Commission on Civil Rights. As a present time, she is a professor of history and law in the Department of History at

Howard University. I asked Dr. Berry about her pending removal from the Commission on Civil Rights. Well, even though I'm not completely removed yet because the Senate has to confirm the President's illegal action for it to become a reality, I think that the President having a temerity to announce that he was firing members of his commission means that he does not respect the independent nature of the Commission or the law, because the law and the legislative history is quite clear that this is an independent, fact-finding agency that is supposed to be a watchdog over him and the rest of the government, and that commission has since 1957 been a watchdog. I mean, it criticized presidents, members of Congress, anybody who wasn't doing what they're supposed to do legally, and for this President to take it personally and then to go out and try to clean sweep the Commission for the announced reason. By the White House of political firings, wanting people a ideological compatibility, I think it's insulting.

I think it's outrageous, and I just hope the Senate will not go along with it. The Senate, of course, has a majority of Republicans. I don't know whether they would vote straight-party line in order to defend the President's action. There are some Republicans, people like Senator Matthias from Maryland, who, and Senator Wiker from Connecticut, who are people who don't care about the fact that they belong to some party. They're interested, and I would hope that others would care about legality. There is also the alternative some people have been looking at of trying to enjoy the government from taking this action if the Senate insists on proceeding. Just on the playing grounds, it's not saving anybody's jobs because we all have other jobs, but that you can't have an independent watchdog agency if it's not going to be an independent watchdog agency. In your opinion, when did the Civil Rights Movement actually begin? The Civil Rights Movement started almost at the beginning for blacks, black people coming to this country. I mean, you can trace, throughout our history, there were people, the issues changed.

There were people arguing about slavery being wrong, and about free Negroes being mistreated and denied public accommodations and jobs from the 17th century and the 18th century. And then after slavery, of course, the main struggle became to try to make equality a reality for all of the people who had been free, the right to vote for public accommodations and all the rest. And now the struggle is about trying to get the laws enforced that are on the books, since we found out that we couldn't just pass laws and think that they would be self-enforcing or that people of good will, when they swore to uphold the law, wouldn't try to find interpretations of it, that where they could wease a lot of it. So the Civil Rights Movement had been going on for as long as we've been going on. And it'll have to continue until we have full equality in the society, equality of opportunity, which we do not have. There's a whole range of actions with the Justice Department, for example, selectively enforcing the law across the board, deciding that since the President and the Republican Party platform

don't like things like affirmative action, which are the law, don't like school desegregation when it involves a busing, have not vigorously enforced the Voting Rights Act, we may forget, but they, in the first place, they didn't even support the reauthorization of a strong Voting Rights Act. And now we see foot dragging in the enforcement of all these things. And so we've got across the board a real crisis in law enforcement that is going on in the country. And it would seem to me that anybody who believed in enforcing the law, whether it was in civil rights or any other area, having respectful law, would find it apparent to have a President and a Justice Department that sort of picks and chooses the areas in which they'll have enforcement. The federal role in education has been to do those things that either were in the national interest, that it is an interest of everybody in the country as opposed to just providing basic education, which the states are supposed to do, or to take up responsibilities that

the states wouldn't implement for various reasons. For example, since the 1960s, with bipartisan support, Republicans and Democrats, the government has undertook taking to add monies to state and local budgets for poor children's education, so they can have extra teachers and extra help more time spent on tasks, to make up for the fact that many of them come from deprived homes, where there's nobody around to teach them how to read, or help them do things, to make up that. The federal government has provided head start programs to give children children an extra chance before they go to school. The federal government has provided some extra money to help educate handicapped children, so that that won't be as much of a burden on state and local governments. And in higher education, a whole massive program of giving aid so that you wouldn't be in a position of saying there was a student who could have made it and could have gone to college, but they just didn't have the resources. And that has been the federal role in education, to see too that there's equal opportunity in education and an equal opportunity for a quality education.

Now what we see is that whole concept under Challenge 2. We start out with Mr. Stockman in the early years of the administration, the OMB director saying that people don't have any rights or any more education they can afford, which is just completely contrary to all that we've learned since 1965 about the importance of education and the importance of federal money going into it. And you've had the administration every single year proposing cuts in education budgets to the Congress. And they're like people who learn nothing from history. The Congress has to restore the cuts. And then next year they come back with the same cuts in the budget, and then everybody has to go through all the energy of showing and fighting and saying this that in fact that these cuts shouldn't be made because it'll hurt those programs, those equal opportunity programs, which are a small part of the total national budget, but are important to many poor school districts that don't have the taxpayer-based support for the local budgets that a rich district might have and to help the children in those districts.

So the federal role meant is to add on what isn't being provided, it can't be provided, it won't be provided by state so that everybody has a chance at some kind of excellence of quality in education so they can be more productive people. We hear arguments that we're supposed to accept that unless we can prove that somebody intended to do something to us, then in fact we should not prevail. You have also the Supreme Court of the United States, which just about two weeks ago decided a case which is absolutely disastrous to us as black people. It's a case called a Guardians case, and you probably don't know anything about it. I hope you do. I'm going to tell you about it anyway. It involves some black police officers in New York City who claimed that they were discriminated against in promotions, blacks and Hispanics, and therefore they wanted to get promoted, so they proved the case and everything, and they got to the Supreme Court with the case, and the Supreme Court said, from now on, and in this case, you can prevail by showing that blacks didn't get promoted before.

You can win the case, but when you win, you don't get any damages for the losses that you've suffered, and what you get is a declaratory judgment that from now on the police department won't do that anymore. They won't do it anymore, and the only way you can get more than that is you have to prove that the police department intended to do it to you, and there's a statute which is called Title VI of the Civil Rights Act of 1964, which forbids the use of federal monies in any program to discriminate. You might have heard about it in the Bob Jones case with the tax exemptions and all that. The Supreme Court of the United States and the Guardians case said for the first time that you have to prove intent to prove a case in Title VI and to be able to get some kind of damages from it, and only two judges descend it from that view. And those were Mr. Justice Marshall, of course, third good, and Mr. Justice White, just two of them, which means that now we are in danger of having to prove intent on the

Title VI over and over again, trying to figure out what to do about that also. So that's the employment area. So here in 1966, now he's already told us what we need in fair housing legislation, and now there's a bill before the Congress to do what Roy Wilkins said. But instead of the administration tagging on to that bill, they come up with this thing and then tell us that it is a housing bill that has teeth, and we all supposed to stand up and applaud and tap dance and say, you know, how nice it is. Now, he had something to say on the issue of politics, too, in 1966. He talked about the right to vote and to run for office. He said the participation of free men, and I added, and women, because he meant that, in their government, it's just in 1966, it was all right to say, you know, free men. But he meant both of them. The participation of free men and women in their government, both as voters and as honorable and competent elected and appointed public servants, is absolutely a priority for the NAACP.

It is a priority for the NAACP, of course, and all of us today. And what has happened on the right to vote? We've all had voter registration drives, the NAACP has had one. It seems to me forever. Everybody else is having voter registration drives. And we have the justice department. After all we know about the troubles people have, trying to register, having people ask them in some of these counties, where do you work? Does your employee know you here to register? Which is not required. And all this is documented in a report that the Civil Rights Commission did, where we went out and talked to people in these areas, awe, the registrar straw closing up the office when they come in. She gets that nine and then they come in and register at 10 o'clock, she's like, I got to go to lunch, you know, awe having the polling place in an all white lodge house where blacks don't go, and that's where you're supposed to go to vote, awe having dual registration. Where you got to go to one place, well over here to register once, and then you got to

go one place, well over here to register twice. But in addition to the more sophisticated things like at large elections, instead of single member districts to dilute the black voting power, you have all that going on. And we have to look at Brad Reynolds, who's the assistant attorney general for Civil Rights, come back after that trip he made down to Mississippi with Jesse a few weeks ago and say, well, I didn't know how bad it was. I didn't know. You know what reminded me of folks? In 1978, I went to North Carolina and some of you folks from North Carolina might remember this on this infamous trip when I was assistant secretary and I went around, looked at all the black colleges and I had TV cameras following me everywhere, newspaper, people and everything. And I looked at all the deficiencies, the resources they didn't have, the whatever, whatever. And then I went to all the white, major white places and looked at all the goodies they did have and that this and that and compared all of them and the governor of North Carolina who is otherwise a decent man, didn't know what to say after that happened, coming

here to say something. So when the press went to him and said, what are you going to do about? What are you? He said, I never knew that those poor students had to put up with that and it makes my heart break to know that that's going on. I see. So Brad Reynolds pulled the same number, you see, after he went there he came back, oh, we've got to do something, oh, and I don't blame Jesse for going to show it to him because my opinion is that I would as Winston Churchill said about World War II when he made a pact with Soviet Russia to save England and people said, why are you doing that? He said, I would make a pact with the devil himself to save the British Empire. So I would go see the devil himself to try to get something for people, if people are dying in the desert I would go somewhere to try to get him a couple of water. Would tuition tax credits hinder the public school system in this country? If since the Supreme Court decision in the Minnesota case on tuition tax credits which provides that they're okay if they're given to both public and private schools, if a tax credit were enacted that gave extra money to the public schools, at the same time that people could

get a tax credit for private schools, it might not be a threat, but I haven't seen anybody proposing that extra resources being given over and above what's going now for public education. The other thing is that this argument about tuition tax credits is sort of ridiculous on the supply side. There are not enough private schools anywhere I know about to absorb all the children who are in public schools, there aren't even enough to absorb most of the children in public schools and especially not to absorb most of the poor black children who are in public schools in the largest cities in the Catholic schools especially. There are many many black children, some have more black children and otherwise parents seeking to find a place where their children can get educated because the local schools are bad. They aren't enough of those to begin if even if you had a tax credit of any amount to absorb all of those children and when people think about tax tuition tax credits and private education, they think they are going to send their child to some quality private school

that's somewhere that they don't know where it is but they don't realize that there aren't enough and two you don't create quality private schools overnight and that private schools do not take all the children that the public schools must take and that if you start forcing them to then they won't be private anymore. They also don't realize that if they complain that public schools have teachers who are unionized, people who don't like that, they don't understand that if all the schools immediately overnight became private, the unions people have already said we'll go organize those teachers too and in fact I was talking to a black parent who sends her children to private school and who script and scraped to send them there because their schools in their neighborhood were so bad and she said she was all for tax credits until I asked her if it meant that there would be no extra money commensurate going to the public schools and that their budgets might even be cut would she still be for it and she said certainly not they can keep that tax credit because I don't want the public schools to be worse than they are and I'm sending my children to a local school and I'm not even Catholic because I think the schools are better, their children ought to be able

to go to the public schools and they ought to be better by that time. So I think that unless a tuition tax credit proposal takes all of these things into account, it would not only be bad for public education, it would be bad for education. In the late six or early seventies a lot of school districts across the country filed suit for desegregation. Now a lot of these suits are being settled out of court. Is that the regular administration, the Justice Department is a no-win attitude? Yeah, we had a lot of problems with school desegregation in some places because it didn't do what we all thought it was going to do. A lot of black teachers got displaced and principals and lost their jobs and we didn't know how to remedy that problem so some of us gave up on school desegregation which we shouldn't because the achievement levels of black children are higher in desegregated schools not because they're no longer black but because of what we find in the desegregated school that we don't find elsewhere. But the Justice Department posture is that it will make agreements, voluntary agreements to desegregate the schools and anybody who knows anything about desegregation knows that voluntary. If

we had voluntary desegregation work we would already have had desegregation. Nobody kept anybody from desegregating the schools. It's all part of their posture of not really being interested in it. They say that instead of desegregation we're interested in quality. But if you look to see what they've done every single federal program that is devoted to improving the quality of education they've tried to cut. What are some of the cases that have come before the commission that particularly disturbs you in 1980? Well there are a lot of things to disturb me. One of the things that disturbs me is the lack of enforcement on voting rights that there are many communities as documented in 1981 report called voting rights unfulfilled goals where those problems haven't even been remitted yet. And the Justice Department knows about them because the report was sent to them before it was issued and after it was issued. So it's not that they don't know. And we went back recently to check in some of those jurisdictions. We found such things as registration office opening when the folks got there but they got there when it opened and then it would close about an hour after they got there because the registrar said

she had to go to lunch or registrar was asking people where they were working does their employee know they're there registering which isn't required or having polling places move in the polling place right before the election. Having it in a place where no blacks goal ever have gone some private club somewhere in addition to the more sophisticated ways of deluding the black vote like changing from a district election system to an at-large system. And the Justice Department has done an absolutely terrible job in terms of enforcement in that area and even after Brad Rennel celebrated trip to Mississippi where he went with Jesse Jackson and became a reconstructed. We still do not have adequate enforcement so since voting is the key to unlocking all these other things, the education, the housing and all these other areas we've just got to have stronger voting rights enforcement. We talked about reverse discrimination, merit standards, affirmative action. Could you expound on that a little bit more? Well affirmative action is imposing merit standards

where no merit standards existed before. What I mean by that is in the old days before the Civil Rights Act when employers would say no blacks need a plight, a Negro is as they used to call it. The jobs and a bunch of white folks could go on a plight for a job, usually white males, compete among themselves and get the job. Obviously there were no merit standards because merit means that everybody can apply and then you pick the best person. Now what we have is merit standards. Everybody can apply and you're supposed to pick the best person. Affirmative action people who don't like it say well it means hiring unqualified people. There's nothing in the law or in rules regulation that says hire unqualified people. Sometimes affirmative action of course is burdensome to white males as a group though not as individuals because certainly when they could compete among themselves for the job then they didn't have to worry about anybody else getting part of them and if they now have to compete with other people there are sure there are fewer of them that they can get. But depending on whether you think that's unfair and not depends on whether you are one of the people

who's been deprived of the opportunity in the past or one of the people who in fact is getting the opportunity now. This creates particular problems when places where they have started hiring blacks you have to have layoffs and whites who have seniority because they got the job years ago when they didn't have to compete with anybody say well you know we shouldn't be laid off because we have more seniority. Well do you are you supposed to benefit a person who was hired without competing against a pool of people. Got to work there all that time and then you're going to hire lay off the newly hired worker who was disadvantaged because he didn't even get to apply. It's not an easy situation but clearly if the law has to choose between a beneficiary of a bad situation and a person who was wounded by a bad situation is going to pick the person who was wounded. You see there a needful to return to boycotts and marches. I think that we should use every single strategy or tactic we have used throughout our history all together all as many as fast as we can and that when we have leaders and organizations and groups that promote

one tactic or another what we should do is support each other and not criticize each other and understand that you do not win a battle or a war just by picking one strategy or tactic. There's a role for all of these things to play. Dr. Mary Francis Berry, a former Assistant Secretary of Education with the Department of Health, Education and Welfare and a member of the Commission on Civil Rights. If you have a comment or would like to purchase a cassette copy of this program write us your dress CS in Black America, Longhorn Radio Network, Austin, Texas, 78712. For in Black America's technical producer Walter Morgan, I'm John Hanson. Join us next week. You've been listening to in Black America Reflections of the Black Experience in American Society. In Black America is produced and distributed by the Center for Telecommunication Services at UT Austin and does not necessarily reflect the views of the University of Texas at Austin or the station. This is the Longhorn Radio Network.