+(,121/,1( Citation: 52 UCLA L. Rev. 1393 2004-2005 Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Sep 1 11:52:08 2010 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0041-5650 "LET ECONOMIC EQUALITY TAKE CARE OF ITSELF": THE NAACP, LABOR LITIGATION, AND THE MAKING OF CIVIL RIGHTS IN THE 1940s Risa Lauren Goluboff During World War II, the lawyers of the NAACP considered the problem of discriminationin employment as one of the two most pressing problems (along with voting) facing African Americans. In a departure from past Practice, they pursued the cases of African American workers vigorously in state and federal courts and before state and federal administrative agencies. These cases offered the NAACP lawyers opportunities to facilitate the growth of the Association, materially assist African American workers, and develop legal doctrine. After the war ended, however, the postwar political and economic climate was less favorable to such cases, and the NAACP's institutionalplans conflicted with the continued pursuit of labor cases. Moreover, the kinds of doctrinal opportunities labor cases offered diverged from the NAACP lawyers' increasingly single- minded pursuit of desegregation in education. By the time the NAACP lawyers embarked on the path that would ultimately lead them to victory in Brown v. Board of Education, labor cases, and the particular problems of working African Americans, had disappearedfrom their legal agenda. That loss has had fundamental implications for the civil rights they succeeded in instantiating in constitutional law, and for the civil rights we know as our own today. * Associate Professor of Law, University of Virginia School of Law. J.D., Yale Law School, M.A., Ph.D., Princeton University, A.B., Harvard University. The author thanks Dirk Hartog, Dan Rodgers, Bob Gordon, Colin Palmer, Bruce Ackerman, Eric Amesen, Reva Siegel, Mark Tushnet, Martha Biondi, Lani Guinier, Barry Cushman, Mike Klarman, Chuck McCurdy, and Ted White for assistance at various points. The author would also like to thank the participants at the University of Virginia School of Law Faculty Retreat, the Yale Legal History Workshop, the Harvard Faculty Workshop, the American Society for Legal History Annual Meeting, the Workshop on Historical Dynamics at Columbia University's Institute for Social and Economic Research Policy, and the May Gathering for their insightful comments. The author received excellent research assistance from Leslie Kendrick, Deborah Carleton Milner, Laurie Ripper, Sheri Lynae Shepherd, Marcy Smirnoff, Mary Ellen Stefanou, and Sarah Teich. The author especially thanks Rich Schragger. 1393 HeinOnline -- 52 UCLA L. Rev. 1393 2004-2005 1394 52 UCLA LAW REVIEW 1393 (2005) IN TRO DU CT IO N ..................................................................................................................1394 I. LABOR LITIGATION AND THE EARLY NAACP .........................................................1402 II. LABOR LITIGATION IN W ARTIME ..............................................................................1413 A . Embracing Labor C ases .....................................................................................1414 B. Political and Institutional O pportunities ..........................................................1418 1. G aining Political M om entum ...................................................................1418 2. Building the Institution .............................................................................1422 C . D octrinal O pportunities ....................................................................................1427 1. Pursuing Equality and Desegregation ......................................................1430 2. Arguing Due Process and the Right to Work ...........................................1435 3. G enerating State A ction ...........................................................................1443 4. Filling out the Fragm ents ..........................................................................1451 III. LABOR LITIGATION IN THE POSTWAR ERA ...............................................................1455 A . Political and Institutional C hoices .............................................................. 1459 1. Defending Against the Cold War .................................1460 2. C larifying the Institutional M ission .........................................................1467 B. Doctrinal Choices ...............................................1473 1. A voiding Due Process ................................................................................1 474 2. T argeting State A ctors ..............................................................................1476 3. Reinterpreting Equal Protection ...............................................................1478 C O N C LU SION .....................................................................................................................1483 INTRODUCTION In December 1943, Thurgood Marshall, special counsel of the National Association for the Advancement of Colored People (NAACP or the Association), flew on short notice to northern California to assist a group of African American shipyard workers fighting for their jobs in area shipyards. The day before, 430 African American workers who had refused to pay dues to a segregated and powerless auxiliary of the International Brotherhood of Boilermakers had been barred from employment at the shipyards of the Marinship Corporation. Marinship had signed a closed-shop contract with the union-an agreement to hire only union members-and the black workers, the union claimed, had lost their good standing when they refused to pay their dues. The crisis had garnered so much local attention that Marshall appeared on a radio show to discuss it. He told his radio audience that, "as a negro and an attorney" of the NAACP, he saw "the right of the negro to nondiscriminatory employment"' and the right to vote as the two most 1. America on Guard (KSFO radio broadcast transcript, Nov. 27, 1943), microformed on Papers of the NAACP, pt. 13, set. C, reel 1, frames 55, 59-60 (John H. Bracey, Jr. & August Meier eds., Univ. Publ'ns of Am.) [hereinafter Papers of the NAACP]. HeinOnline -- 52 UCLA L. Rev. 1394 2004-2005 The NAACP and Labor Litigation 1395 pressing long-term problems of African Americans. "When those problems are solved," he predicted, "other questions will settle themselves."2 The African American boilermakers complaint, Marshall later explained, was "the type of case which must be filed."3 The NAACP's defense of San Francisco's African American shipyard workers reflected the Association's commitment to what Marshall called its "nation-wide fight against discrimination in defense industries. 4 As mobi- lization for World War II heightened national attention to discrimination against African Americans in the workforce,' the NAACP described "one of [its] objectives [as] ... the improvement of the economic status of Negro workers through the strengthening of their legal position by the enforcement of rights granted to them by the Constitution of the United States, the constitutions of states, and Federal and state laws."6 In the spring of 1946, a report on the work of the NAACP in the field of employment concluded: "During the war years the work of the NAACP concerned with elimination of discrimination in employment reached such a peak that the National Office found it necessary to employ one attorney [out of five] who would specialize in such work throughout the nation."7 In the years after the war ended, however, so too did the NAACP lawyers' pursuit of complaints like those of the San Francisco shipyard workers. By May 1946, Thurgood Marshall no longer could find the time to get to California, although he still had the boilermakers cases on his mind.' By 1950, when Marshall and his legal team embarked on their direct attack on segregation, the 2. Id. at 60. 3. Letter from Thurgood Marshall to Noah W. Griffin, NAACP Regional Secretary, West Coast Regional Office (May 9, 1946), microformed on Papers of the NAACP, supra note 1, at pt. 13, ser. C, reel 1, frame 492. 4. Letter from Thurgood Marshall to W.F. Turner, President, Denver Branch (Dec. 13, 1940), microformed on Papers of the NAACP, supra note 1, at pt. 13, ser. C, reel 7, frame 22. 5. See infra notes 108-124. 6. Motion for Leave to File Brief as Amicus Curiae, James v. Marinship Corp., 155 P.2d 329 (Cal. 1945) (S.F. No. 17015), microformed on Papers of the NAACP, supra note 1, at pt. 13, set. C, reel 1, frames 259, 259-60. 7. Work of the National Office and Branches of the [NAACP] in the Field of Employment-New York (Apr. 16, 1946), microformed on Papers of the NAACP, supra note 1, at pt. 18, set. A, reel 7, frame 762. 8. Letter from Thurgood Marshall, Special Counsel, NAACP to George R. Andersen & Herbert Resner (May 11, 1946), microformed on Papers of the NAACP, supra note 1, at pt. 13, set. C, reel 1, frame 494. HeinOnline -- 52 UCLA L. Rev. 1395 2004-2005 1396 52 UCLA LAW REVIEW 1393 (2005) attack that would eventually lead to victory in Brown v. Board