by Professor Chuck Henson
September 11, 2014, St. Louis Post-Dispatch
White man shoots and kills black man. Predominantly black population protests, riots, loots. Predominantly white police force overwhelmed. Governor calls out the National Guard. Curfew imposed.
Similar events took place in Newark and Detroit in the summer of 1967. President Johnson responded by dispatching what would become known as the Kerner Commission to find the causes and propose a solution. The commission’s basic conclusion was “Our nation is moving toward two societies, one black, one white — separate and unequal.”
Among its findings, the commission reported action against “local symbols of white American society, authority and property.” No single triggering event caused the “disorders.” They were part of a disturbed atmosphere in which tension-heightening prior incidents, often police action, became linked in the minds of blacks “with a reservoir of underlying grievances” in communities where blacks were grossly underrepresented in government. The two most intensely held grievances were police practices and unemployment.
The most fundamental reason for civil disorder in 1967 was “the racial attitude and behavior of white Americans toward black Americans.” Contributing factors included exposure through the media to unparalleled white prosperity, an unemployment rate more than double that of whites, and the frustrated hopes of unfulfilled expectations aroused by the major events of the Civil Rights Era.
The commission’s proposed solution was not equality, but equity. De jure equality, meaning everyone is promised the same amount of access, the declaration of a “colorblind” society, already existed in 1967 because of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The commission recognized that it was too late for de jure equality. Equity, granting more to those who need the most, was the cure: “Only a commitment to national action on an unprecedented scale can shape a future compatible with the historic ideals of American society.”
The commission’s proposal required “the will to tax ourselves to the extent necessary, to meet the vital needs of the nation.” At the local level: a guaranteed meaningful voice in politics, the recruitment and fair promotion of more black police officers. At the federal level: the specific creation of jobs for blacks and the delivery of a sense of community ownership by providing access to the ability to own and situating affordable housing in areas outside of the existing ghettos. Blacks required authority and property so that those symbols of white American society could become symbols of a shared American society.
There was no equitable reallocation of resources to support the commission’s solution. The proportion of black unemployment to white in the Unites States has been about 129 percent for the past 50 years. In the St. Louis metropolitan area, including Ferguson, the black unemployment rate is 300 percent higher than the white unemployment rate.
Ferguson’s population is 67 percent black. The mayor is white. The city council of six has one black representative. The 53-member police force contains three black officers. As the commission reported in 1968, Ferguson this summer contained all of the ingredients for “disorder.”
The events in Ferguson evidence the enduring truth of the commission’s major conclusion of separate unequal societies. The “reservoir of underlying grievances” remains as well. The United States’ civil rights experiment attacked only the worst forms of discrimination. In the 1960s, television showed the worst forms: attack dogs and high-pressure fire hoses being turned on black protesters in cities like Birmingham, Ala. Those are not the only or most pervasive forms of discrimination. Covert intentional discrimination and unconscious bias remain unabated.
Despite the commission’s report, the danger of missing the point is again at hand. The perennial issues remain the lack of shared authority and property and their symbolic racial exclusivity. Those who are blind to these issues have never been concerned about their place in American society. What can be seen by all is of dubious relevance to the creation of a single American identity: Was Mr. Brown armed, what had Mr. Brown allegedly done earlier, what Officer Wilson knew, were the protesters rioters, were they locals or in words reminiscent of George Wallace in 1964 “outside agitators”? Separateness, focus on irrelevancies and obliviousness to the meaning of the symbols generates questions like: “What’s wrong with those black people?”
Officer Wilson did not recognize that Mr. Brown’s walking in the street was a demonstration of property and authority. For a person with no share of actual property or authority, walking in the middle of the street creates and sustains a belief that they have property (the space on which they stand) and authority (the ability to command that cars go around them). Officer Wilson did know that, after accosting Mr. Brown, Officer Wilson was in fear of Mr. Brown. Fear of Mr. Brown is part of Officer Wilson’s culture. We fear the unknown. We despise, vilify and ultimately come to hate what we fear.
The Kerner Commission highlighted the testimony of a witness who had studied the reports of the investigations of riots in Chicago in 1919, in Harlem in 1935 and 1943 and the McCone Commission report on Watts in 1965. According to that witness: “I must again in candor say — it is a kind of Alice in Wonderland — with the same moving picture re-shown over and over again, the same analysis, the same recommendations, and the same inaction.”
The last two weeks in Ferguson represent an opportunity to make a choice. We can embark on the Kerner Commission’s project of the “creation of a true union — a single society and a single American identity” by choosing equity as a national policy. Or, we can choose, as we always have, inaction, and await the next Ferguson.
Chuck Henson is a law professor at the University of Missouri School of Law (UMSL). Trial Practice Professor of Law. Senior Fellow, Center for the Study of Dispute Resolution.
This article originally appeared in the St. Los Post-Dispatch on Thursday, September 11, 2014. The images included have been added for our students’ benefit and were not a part of the original article’s publication.