Amidst the Nation's Desegregation Crisis, A Voice of Reason

A Southern Negro's View of the South

By Charles S. Johnson*

From The New York Times Magazine, September 23, 1956

It is not merely by inadvertence that the viewpoint of the Negro Southerner is consistently omitted from characterizations of the "Southern point of view and way of life." It is a part of the Southern way of life to disregard it. Some writers, in order to provide a touch of realism for persons outside the South, explain that "the better-thinking elements of both races'' prefer to leave things as they are, or "it is only the outsider and agitator who want to stir up things and change the social pattern of the South." But these are not Negroes themselves speaking.

A few years ago a university press editor in one of the Upper South states projected a volume that would represent the range of Negro thought on race relations, from conservative to liberal to radical opinion. The title was "What the Negro Wants." In the final result, all of the Negro writers seemed to think and want substantially the same things; differences appeared only in the literary styles Of the authors. ·This irritating unanimity provoked the editor to one of the most extraordinary introductions in publishing history. He censured the writers for thinking and wanting the wrong things, and advised them what they should be wanting!

The common desires of Southern Negroes reflect a viewpoint about which several generalizations can be made.

(1) The Southern Negro viewpoint is more broadly national than regional. There are very few, if any, Southern Negroes who do not want full American citizenship, even though there are undoubtedly those who, if they had it, would make no better use of it than some of their white counterparts. In philosophy, the Southern Negro identification is with the nation and not with the Southern region, which is, in spirit, separatist.

(2) The present day Southern Negro does not share the belief of the Southern white that he is inferior as a human being, even though he may earn lower wages and have fewer years of schooling. Sixty or seventy years ago there were many who acted as if they believed themselves inferior, although they no longer actually believed it. What is for white Southerners most difficult to understand, in these days, is the absence of both the belief in inferiority and the simulation of this belief. More than this, there has been a measurable loss of Negro respect for the white pretenders to a superiority that can only be sustained by legal statutes and illegal violence, or the threat of it.

The apparent change in attitude of the Southern Negro reflects the difference between the political and social structure in the South itself as of today and sixty years ago. The genteel tradition of the South has been extinguished with the displacement of the Southern gentleman and planter aristocrat in business and politics by the culturally undisciplined new generations coming into power. The genteel tradition needed no segregation laws to confirm cultural superiority and position in society.

(3) It is variously expected that Negro Southerners. as a result of their limited status in the racial system, would be bitter or hostile, or patient or indifferent. They are typically none of these. If a generalized attitude can be defined, it would be something closer to forbearance. Bitterness grows out of hopelessness, and there is no sense of hopelessness in this situation, however uncomfortable and menacing and humiliating it may be at times. Faith in the ultimate strength of the democratic philosophy and code of the nation as a whole has always been stronger than the impulse to despair.

(4) The Southern Negro does not seriously expect very much change in his civil rights status through "grass roots" conversion. There has, indeed, been improvement in education, health, housing and welfare at this level, as an aspect of general improvement in community facilities. But in employment and wages, voting, personal security, access to cultural facilities, and other requisites of democratic living, there has been very little change except that brought about by a stronger and higher authority.

It was the Federal Government that wiped out the racial differentials in Southern wages, and the Federal courts that equalized white and Negro teachers' salaries and opened the ballot box. It was the impact of national and world .criticism that curbed mob violence in the South, and gave the stigma of crime to such brutal indulgences as the Emmett Till case in Mississippi; it was not the local courts or the neighbors. Few Southern whites of liberal or· humane views regarding Negro civil rights want personal responsibility among their less liberal friends for advocating such. It ·is simpler if the mandate comes. from some unchallengeable and objective authority that is stronger than the community itself.

That is why so many dark fingers are crossed in the United States today, as the compassionate high court patiently awaits local compliance with its school desegregation decrees. For aIl the recent, and welcome. advances in :border regions, the deep South is still erupting with white citizens' councils, and the Southern state Legislatures, which are dominated by the medieval pillars of the rural "grass-roots" areas, are passing defiant and, in some instances, brazenly insulting legislation in the name of the Southern way of life.

Just what do these Southerners stand for? The stereotypes and arguments in defense of what is called the Southern way of life are put forth by Southerners of presumed high responsibility, who are, in fact, the greatest present danger to American democracy. The reasons they give for insisting on racial segregation are defined as sociological and cultural, rather than moral or ethical or even humane. No Southern white opinion, respectable or otherwise, has, in the past half century, seriously ventured a moral or ethical - or humane justification for the Southern way of life.

It is true that there have been some fundamentalist attempts to torture he Holy Scriptures into a blessed condonement of inequality and inhumanity. Biblical scholars are considerably bewildered and embarrassed about the religious convictions of these mentalities.

There have been, too, attempts to "prove" that Negro students in the available Southern schools measure lower in educational achievement than white students. But Negro youth in Ohio, where there are better schools available, measured higher in the comprehensive intelligence tests for army recruits than the white youth of every state in the South except Florida, where there has been much migration from the North. With a historical one-third of the educational facilities, Negro youths have managed to do at least two-thirds as well as Southern white students on their own ground.  It is a tortuous logic that would use the tragic results of inequality to establish the need for continuing it.

Equally illogical is the economic character of the Southern way of life. 

The United States has lately experienced tremendous social and economic changes. There has been a shift in our economic perspective not yet fully recognized. The vast productive potential has made necessary the development of new areas of consumption and these are no longer found in sufficient quantity abroad. The most obvious and immeiate outlet for an expanding economic is the increased purchasing power of the underdeveloped markets at home.  This is impossible in a social economy, like that of the South, that artificially limits earning power through a restrictive racial system.

We cannot escape the fact that the Negro minority market alone, even when held down by unequal opportunity and limited education to one half of its potential, is equal to the total wealth of Canada or to our total foreigh exports.

The Southern region, despite the inevitable currents of industrializatoin, continues to cling to the older patterns of its inadequate agrarian economy. Mr. Hodding Carter of Mississippi is responsible for the statement that 65 per cent of the white college grad­uates have to leave the region to find adequate careers.

Closely related to to this plantation economy and "way of life" is the illusory role and historical philosphy of "states' rights." This is the basis of attacks on the Supreme Court and the reckless array of state legislation confirming ancient patterns of racial inequality.   

Mr. William Faulkner, the Mississippi Nobel laureate, in a second thought on this whole issue, said: We sold our states' rights back to the Federal Government when we accepted the first cotton price support subsidy twenty years ago. Our economy is not agricultural an longer.  Our economy is the federal government. We no longer farm in Mississippi cotton fields. We farm now in Washington corridors and Congressional committee rooms." Thus, if there has been a broadening of federal powers, it has been made necessary by the demands of the Southern states themselves. 

 

Finally, what of the political character of the Southern way? Most of the Legislatures are dominated by rural representatives who lack the cultural sophistication of an increeasingly urban and industrial age. As a result, the region is anti-labor, anti-capital, anti-race, anti-liberal, anti-civil rights, anti-education, anti-intellectual, anti-technology, anti-Federal Government; it is provincial and isolationist to the core.

 

Political leadership has to adjust to this level of operation, and does so whenever it prizes political success above national welfare or the dominant current of human rights sweeping over the world. At present, the preoccupation of the Southern Legislatures is not with improving the health, welfare and economy of the region, but with defeating "civil rights" as a national policy.

It is the tragic truth today that in the face of the world's turning away from the crass inhumanities of racial snobbery and imperial domination, we have a substantial part of an entire region asserting defi­ ance of freedom and the laws that support it. It is a tnrg'iC pity that wltile the rest of the world is giving new attention and .respect to basic human rights, every device from subversion of   law to violence is being employed to defeat the Constitution, and with such frantic desperation that no voice of stern national statesmanship dares defy, without apology and compromise, this organized his organized retreat from freedom to tyranny and feudalism.

There has been no bold and forthright national statesman­ship that would dare look at tlte nation as a whole and its intractable parts, and face a common destiny in the new kind of world we have today.

Even in the North, it is not yet fully recognized that the real issue is not how ·much education Negroes and other minorities can get in a segregated system, but how to improve the education of all American youth; not how racial minorities can be gradually and cautiously insinuated into industry and labor organizations, but how to increase and improve the total manpower potential of the nation for maintaining our productive capacity.

The issue is not how unsanitary some enforced racial slums and ghettos may have become, but how to improve the health and welfare of the nation without regard to race or sex or national origin - not now much a person thinks his property loses in value if a Negro moves into his neighborhood, but how to achieve a free market for living space for the people of the nation.

Basically, this Is a struggle today not between North and South, or whites and Negroes, or between the national and international points of view. It is a struggle between those who believe in democracy and those who do not.

 

Of all the voices raised in this crisis, the one most ignored has been that of the Southern Negro. In October, 1954, a group of nearly 100 Negro educators and civic leaders met in Hot Springs, Ark. and drafted a statement of invitation to sober and intelligent cooperatoin in working out this admittedly difficult problem. Although it was issued to the national press through its central services in the Southern region, it has been one of the most ignored public invitations on record.

 

 

Since it still lies buried in limbo, it is perhaps worth quoting from it:

Good statesmanship in a democracy requires that all segments of the population participate in the implementation of the court's decsion, which is  of common concern. The idea is still too prevalent that the issues involved can be resolved with­ out Negro participation. Some public officials speak as if only white Americans are involved. We are all, Negro and white, deeply and equally involved. Many Negroes can contribute sound, intelligent and states­ manlike techniques for the handling of the inevitable issues. . . .
 

The court's decision makes possible a single school system with the opportunity for the people in the region to marshal their educational resources and to develop a philosphy that brings education generally a new perspective, and to the nation a new spirit. This cannot be done in a dual system of education. Let it be clearly understood that we are not pleading for Negroes alone.  We are concerned about the best education that can be made available for every child in teh South. . . .

 

Ours Is a common democ­racy in which the weakest and the strongest, the most privileged and the most dis­ advantaged, the descendants of every race and every na­ tion, can share and happily boast that we are proud to be Americans. Children educated from the beginning in such a system will insure for us all a future of which we can be as proud as of the abolution of slavery and child labor, woman suffrage, equal educational opportunities for women, and the institution of the public schools themselves.

Time will prove that our fears have no foundation in fact just as has been proved by the implementation of previous court decisions. Segregation breeds fear; and when the barriers of segregation are at last removed from American life,·we will. wonder why we feared at all. . . . We as Negro citizens stand ready to cooperate whole-heartedly in the progressive fulfillment of these democratic objectives. 

None of this cooperation has been seriously sought or accepted. The course of events has left no alternative to Negroes but the courts. This is an unnecessary waste of ability and social statesmanshp, and a repudiation of a gracious and tempered gesture of goodwill aimed at helping the whole nation surmount a common problem.

The really critical problem of the present, we believe, is the confusion of the moral imperatives of this issue with the tired poicy of moderation, our current middle-of-the-road philosophy. Whatever the personal sentiment, there can be no middle-of-the-road attitude toward morality or legality if the fabric of our society is to remain inviolate. Where there is repudiation of the integrity of the Court and the law on any or all is­ sues. No one expects laws to reform the hearts of people, and this is not their purpose. They can, however, and do, according   to the venerable Judge Learned Hand, control the disorderly, even at times at the risk of making them angry.

The issue today is human equality and national. civil rights, and the touchstone is the racial segregation that prevents this human equality. Whatever our internal national differences on domestic issues, we are a total nation to the rest of the world, and no allowances can safely be made for regional defections from our basic American philosophy and practice. At stake is our survival in a world in which we are losing our allies by millions, the allies we need for military aid and support, friendship, trade and the essential raw materials for our industrial growth.

The essence of our system of government and life is voluntary cooperation in a democratic process that respects the dignity and rights of individuals. Our faith in the power of the human spirit to achieve the ends of a free so­ciety has given hope to mil­lions of mankind over the world. We cannot default on this · promise. This is our moral challenge tn a national crisis.


*Note by the Editors of The Times: Charles S. Johnson is a noted Negro educator and author.  He has served as President of Fisk University since 1946 and has written many books dealing with racial problems.

Establishing a Culture of Ethical Behavior and Legal Complicance After Penn State

In the wake of the Penn State crisis, educational institutions are assessing the effectiveness of their compliance and ethics programs. In doing so, they find themselves looking to the report published by former FBI Director Louis Freeh, Penn State's Special Investigative Counsel. That report contains Mr. Freeh’s candid assessment of how Penn State handled the matter based upon the results of an investigation he headed, and his governance recommendations for Penn State going forward.

The Freeh Report presents a fine starting point for an educational institution’s compliance review, as it identifies elements of effective governance and meaningful avenues for implementation and assessment of its compliance programs. It is not the end point, however. Each institution must develop its own programs to maximize effectiveness for its campus. This alert highlights several of those elements and avenues that are critical for all educational institutions to address in order to maximize their legal compliance efforts and maintain focus on their core mission to educate their students.

To learn more, click here.

As GOP Convention Set to Start, Holland & Knight on Home Turf in Tampa

From the Blog of LegalTimes
By Andrew Ramonas and Todd Ruger

With the start of the Republican National Convention only days away, Holland & Knight is busy helping to ensure that the festivities in Tampa, Fla., go off without a hitch.

Founded in Tampa, Holland & Knight is the legal adviser to the 2012 Tampa Bay Host Committee, which works with the Republican National Committee and the city to set up facilities, transportation, housing, security and other convention necessities.

Rich Gold, a Washington-based Holland & Knight partner who leads the firm's public policy and regulation practice group, said his firm is primarily assisting the host committee with "nuts and bolts" contract work. "It's been more intense as we get closer," he said.

 

About 50,000 convention-goers, as well as 20,000 additional visitors, protesters and reporters, will descend on Tampa for the convention that is slated to start August 27 and end August 30, the Sarasota Herald-Tribune reported. Organizers have secured more than 400 buses and 16,000 rooms in 105 hotels for the convention, according to the Committee on Arrangements for the 2012 Republican National Convention.

Gold said he expects the convention to run smoothly, despite reports that Tropical Storm Isaac likely will become a hurricane and move toward Florida in the coming days. The lawyer said hurricanes are rare for Tampa. And if it hits Tampa, which is a lobbying client of Holland & Knight, immediate action is "really the city's responsibility," not the firm's concern.

But Holland & Knight will have to worry about matters related to host committee contracts for about three to four months after the convention, Gold said.

"There's going to be cleanup work," he said.

Recovery of Medicare Underpayments

When Grady Memorial Hospital was getting less than their fair share of federal funding for Medicare, they turned to Charles Johnson and Paul Vranicar in the Atlanta office of Holland & Knight.   As a result of an intermediary's interpretation of Medicare regulations, Grady had been underpaid by approximately $4 million from 2003-2004.  The Atlanta team quickly pushed two cases that had been pending for years to hearings before the Provider Reimbursement Review Board in Baltimore.  At the last moment before each hearing, the intermediary agreed to reimburse Grady for almost the full amount owed. 

Grady Memorial Hospital is the primary hospital for inner-city and medically indigent populations in DeKalb and Fulton Counties - the two largest counties in the Atlanta metro area. Grady Memorial Hospital serves as the only Level-1 trauma center in metro Atlanta and for 100 miles in all directions. It also serves as one of only two burn units in the state, provides ambulance coverage for the city of the Atlanta, houses the state's Poison Control Center, and serves as a regional referral for high-risk obstetrics and neonatal care.

66 Members of Congress Join Amicus Brief In Support of University of Texas Admissions Policy

Holland & Knight, Couinsel for Amici      

SUMMARY OF ARGUMENT 

The University of Texas at Austin ("UT") has a compelling interest in attaining a diverse student body that justifies the consideration of race in its admissions. See Grutter, 539 U.S. at 325. Indeed, diversity is a compelling government interest in a number of other contexts as well, including the selection of our future military leadership, the selection of leaders of Executive Branch agencies, and the selection of federal and state judges. Accordingly, the Court's resolution of this case should be informed by these broader concerns and the need for clear guidance from this Court about how race, ethnicity, and gender can be taken into account in government programs in a manner that is consistent with the Constitution.

The Court, in Grutter, formulated a sound method for taking account of an applicant's race as part of a lawful effort to achieve diversity. This method forbids the use of quotas but permits diversity goals based on a good-faith effort to come within a range demarcated by the goal itself. It requires each applicant to be evaluated as an individual and compared with all other candidates for the position(s). The method allows race to be considered as a "plus" factor as part of a holistic review of each applicant's file that does not make race determinative or give it a predetermined weight, and which gives substantial weight to other diversity factors as well. See 539 U.S. at 335-38. This methodology is logical, straightforward and readily enforceable.

UT considered appropriate benchmarks in formulating its admissions program. While eschewing any numerical goals for the admission of minority students, UT concluded that African-Americans and Hispanics are underrepresented in its student-body in comparison to state demographics. Thus, they are eligible to have their race considered as a diversity "plus" factor when their applications are reviewed. "First Amendment interests give universities particular latitude in defining diversity." Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 792 (2007) (Kennedy, J., concurring). This Court has approved diversity goals that constitute "reasonable aspirations" for correcting underrepresentation. See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 635 (1987). UT's use of state demographics as a benchmark is clearly reasonable for a state university. Furthermore, UT's effort to increase diversity at the classroom level, as well as the student body level, is also reasonable. The Court has recognized that multiple benchmarks may be appropriate to measure underrepresentation in a refined manner, such as by job categories rather than by reference to the overall workforce. See id.

UT concluded that its existing practice of admitting the top 10% of graduates from every Texas high school was not producing sufficient diversity in its incoming class. Under Grutter, UT could have scrapped this race-neutral "percentage plan" and implemented a race-conscious methodology for all of its admissions without violating the Equal Protection Clause. Instead, it chose to retain the percentage plan for most of its admissions and implement a race-conscious process for only 20-30% of its admissions. UT not only gave good faith consideration to a race-neutral method but adopted that approach to the maximum extent that it deemed workable as part of an overall plan to achieve its various admissions goals.

Petitioner asks the Court to second-guess the judgment of UT and the Texas legislature and rule, in essence, that the top 10% approach produces "enough diversity" so that it precludes UT from using any race-conscious component to help fulfill its diversity goals. This argument contravenes this Court's tradition of giving a degree of deference to a university's academic decisions, including the selection of its student body. See Grutter, 539 U.S. at 328-29. Accepting this argument would undermine the "narrow tailoring" of race-conscious admissions programs and experimentation with race-neutral alternatives. The lesson drawn by other universities would be to employ an entirely race-conscious methodology if they want to preserve some leeway to conduct individualized assessments to assemble a well-rounded, diverse student body. Universities would be discouraged from developing and using race-neutral admissions approaches in combination with race-conscious approaches.

Atlanta Team wins $1.8 Million for Hughes Spalding Children's Hospital

This is the second time in two years that Holland & Knight has secured a money judgment against the state of Georgia on behalf of Grady Health System.

A Holland & Knight team recently handled an appeal to the Superior Court involving the Georgia Department of Community Health's decision to recoup $1.8 million in Medicaid funds for costs incurred at Hughes Spalding Children's Hospital from 1999 - 2002.  The hospital is owned by Grady Health System, Georgia's largest public health system. 

 

 

The Medicaid plan incorporates Medicare rules which require the regulator to recognize an individual hospital's method of cost allocation.  In 2003, the state decided that it would recognize only its own method of cost allocation, and attempted to apply this decision retroactively to Hughes Spalding's cost reports for 1999-2002.  The Superior Court of Fulton County sided with Holland & Knight, agreeing that it was improper for the state to engage in this sort of retroactive decision making. 

 

 

"The Georgia Department of Community Health has essentially acted as if they could run the Medicaid program in any way they like," Charles Johnson (ATL) said.  "We have repeatedly been forced to take them to court to establish that they have to follow their own rules and also abide by principles of due process." 

 

 

The Holland & Knight team was led by Charles Johnson with the assistance of Joshua Bosin, Sarah Leopold, and Jane Warring (all ATL).  If the court's decision holds, Grady will receive a refund of  the $1.8 million they paid the state some time ago.

 

 

In 2005, the Atlanta Team secured a $6.4 million judgment for Grady as a result of the state's failure to follow another portion of its Medicaid rules relating to the federal Medicaid Disproportionate Share Hospital Program. 

 

 

10/9/2007

Rare Grant of Rehearing on Medicaid Reimbursement

With Holland & Knight's help, a large public hospital in Atlanta finally obtains $1.8 million in reimbursements.

Charles Johnson, Sarah Leopold and Josh Bosin (all ATL) recently received an appellate win on behalf of Grady Health Systems.  The case stems from an action by the Georgia Department of Community Health (DCH) to under-reimburse Hughes Spalding Children's Hospital for services rendered to Medicaid patients from 1999-2002. 

Hughes Spalding was owned and operated by the Fulton-DeKalb Hospital Authority (d/b/a Grady Health System).  The DCH based its reimbursement decision on a retroactive application of its hospital services manual, despite the existence of a contract between the parties expressly prohibiting such retroactive action.  The action by the DCH resulted in a $1.8 million loss to Grady. 

Grady's in-house counsel first challenged the action in administrative proceedings and lost before an administrative law judge who affirmed DCH's reimbursement decision.  Holland & Knight came in as appellate counsel and successfully appealed the action to the Superior Court of Fulton County.  The superior court reversed the administrative law judge and awarded Grady $1.8 million. 

On DCH's discretionary appeal to the Georgia Court of Appeals, the court reversed the superior court, adopting the position of the administrative law judge and finding in favor of DCH.  Holland and Knight filed a motion for reconsideration arguing that the court ignored the binding authority of the contract between the parties.  On Nov. 7, the same appellate panel reversed itself, vacated its original opinion and found in the client's favor based on the arguments advanced in the motion for reconsideration.  Click here to view a copy of the opinion. 

"Getting rehearing granted like this is an extremely rare occurrence," said Laurie Webb Daniel (ATL), chair of Holland & Knight's appellate team.  "This win will provide Grady with a much-needed $1.8 million in reimbursements."

11/25/2008