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Photos by Paul Fetters
For attorney John Payton ’73, the chance to represent the University of Michigan in arguably the most important civil rights case to be heard by the Supeme Court in a quarter century has resulted in vindication and in a challenge to future generations.
John Hope Franklin, one of America’s most esteemed historians, was in Washington, D.C., several years ago to receive the Presidential Medal of Freedom, the nation’s highest civilian award.
But just before a dinner held in his honor, in the lobby of an elite private club where he himself is a member, a white woman approached the soft-spoken 80-year-old professor, who is black.
“Go and get my coat,” she ordered, holding out her claim check.
Franklin’s experiences are emblematic of both the progress and the intractability regarding race relations in the U.S., says Pomona alumnus John A. Payton ’73.
“I would say that something like that incident has happened to a huge number of black men in this country,” says Payton, who served as lead counsel for the University of Michigan in the landmark affirmative action cases decided this year by the Supreme Court. Franklin was a witness in one of the cases.
“What you have to figure out,” says Payton, “is whether you want to become angry and bitter over those kinds of racial incidents, or look for a way to make it something that happened in the past.”
Payton made his choice long ago. And his leading role on the national stage in the most important civil rights ruling in a quarter century was in part a personal vindication: Payton, a contemplative, professorial man with an unwavering inner compass regarding social justice, was once accused of lacking passion on civil rights.
Payton grew up in Los Angeles and was already at Pomona when the 1965 Watts riot seared images of violent protest into his consciousness. A high school honors graduate, he was one of about two dozen Pomona first-years who arrived on campus in the summer of 1964 as part of a National Institutes of Health scholars program. His early arrival and his membership in a group regarded as academic “hotshots” helped ease the discomfiture of standing out because of his race.
“I think there were two other black students at Pomona when I arrived, and there may have been one or two at the other schools in Claremont,” Payton says. “The numbers were insignificant. Trivial numbers.”
By the late 1960s, Black Power was a rallying cry that stirred emotions throughout the country. Politically astute activists such as Eldridge Cleaver, Stokely Carmichael and Angela Davis, and the raised fists of Olympians John Carlos and Tommy Smith, brought black militancy via the media into the living rooms of suburban and rural America. Riots were rending U.S. cities from Los Angeles to Boston.
At Pomona, Payton went quietly about the business of effecting change. During his second and third years, black and Chicano students were being admitted in greater numbers. He was a founder of the Black Student Union, and he worked with fellow student Eileen Wilson ’69 to establish a Black Studies Center, which led to the creation of special admissions offices at Pomona to encourage recruitment of qualified black and Chicano students. Payton then became head of the office in charge of black student admissions. The recipient of a prestigious Watson Fellowship for study in West Africa, he later went on to Harvard Law School.
“I think college is a special time in just about every student’s life. It certainly was in mine,” says Payton. “But the ’60s were a very different time. In the ’60s, I’d say we—college students as a whole and black students included—were confident, and a little arrogant, and thought that there was no problem we couldn’t tackle and defeat.
And it meant that we went ahead and tried to tackle the problems. We believed we could make a difference. If you don’t think you’re going to make a difference, you won’t. If you don’t think you have a winning argument, you won’t convince anybody you do.”
While at Harvard, Payton wrote briefs defending some Native Americans charged in the 1973 standoff at Wounded Knee, S.D., between members of the American Indian Movement and the FBI. Two people were killed, 12 wounded, and more than 1,000 arrested during the siege.
After law school and a clerkship for a federal judge, Payton joined Wilmer, Cutler & Pickering in Washington, D.C., one of the country’s most influential law firms. Payton, now a partner at the firm, was drawn from the start to issues involving social justice. He served as counsel for the Free South Africa movement and was directly involved in other civil rights cases, some of which became important referents in the Michigan litigation.
The fulcrum for the Michigan cases was the famous Bakke decision of 1978. In the Bakke case, the Supreme Court ruled five to four that the University of California, Davis could not, as a means of remedying past discrimination, set aside 16 out of 100 seats for minority applicants to its medical school. The court, while not ruling out a narrow use of racial “plus” factors, ordered that Allan Bakke, a twice-rejected white applicant, be admitted to the school. The Bakke decision barred racial quotas, but did allow the use of race in admissions to achieve a racially diverse student body.
The ruling was widely celebrated or decried, depending on one’s perspective. It helped to usher in a tide of conservatism that soon swept the country, a tide that carried Ronald Reagan to the presidency. During the 1980s and early 1990s, affirmative action, representing to many an unfair “hand up” in violation of the Constitution, appeared to be in retreat.
Payton’s star, meanwhile, was rising. Fortune 500 companies and other high-prestige clients sought his counsel, and he also took part in significant defenses of civil rights. Barbara Arnwine (Scripps ’72), executive director of the national Lawyers’ Committee for Civil Rights Under Law, was quoted in a laudatory 1988 article about Payton in Legal Times, describing him as a “change agent” but “not necessarily a rabble-rouser.” During the Clinton administration, Payton was expected to be nominated to lead the Justice Department’s Civil Rights Division, the government’s most important civil rights post. A lack of support from the Congressional Black Caucus, however, halted his consideration. One member, quoted anonymously in The New York Times, said that Payton seemed to lack the requisite “fire in the belly.”
The description still rankles. “Look, I’ve been involved in issues of social justice forever,” says Payton. “I was head of the national Lawyers Committee for Civil Rights Under Law. I was head of the Washington Lawyers Committee for Civil Rights and Urban Affairs. I was the chief counsel for the Free South Africa movement. I was head of the 77,000-member District of Columbia Bar Association at the time of the Sept. 11 attacks. That was a very stressful year. It was a time when lawyers, I think, felt proud to be lawyers, to help make sure that we didn’t throw away the things that make this country what we are. I think I care as deeply about issues of social and racial justice as
Beginning in 1997, that commitment was put to a test that would resolve any doubt about Payton’s fervor. A tiny organization of conservative legal activists in Washington, the Center for Individual Rights, filed two lawsuits on behalf of rejected University of Michigan applicants. One challenged a race-conscious admissions policy at the university’s College of Literature, Science and the Arts. The other contested a differently structured policy at the university’s law school, which is one of the country’s most selective. Although Michigan, like many colleges and universities, provides admissions advantages premised on other debatable factors—such as athletic skill, relationships to alumni, geographic origin, and the wink and nod sometimes accorded close relatives of major donors—the issue in these cases was race.
The university retained Wilmer, Cutler & Pickering, and Payton was lead counsel for both cases from the start. The defense would rest heavily on the interpretation of a few key lines from the Bakke decision. In that case, Justice Lewis F. Powell Jr., the swing vote, said that the use of race as a factor in college and university admissions had to be quite limited; in his words, “precisely tailored to serve a compelling governmental interest.” The one interest Powell specifically approved was “the attainment of a diverse student body.” Powell’s opinion emphasized that the country’s “future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.”
In two historic votes last summer in the Michigan cases, the high court revisited the polarized debate. It upheld the law school’s individualized race-conscious admissions policy, ruling that race can be one of many factors considered in admissions because it furthers a “compelling interest in obtaining the educational benefits that flow from a diverse student body.” A record number of amicus curiae, or “friend of the court” briefs, had been filed in support of campus diversity by a broad array of U.S. corporate, military and academic leaders, as well as thousands of college students and other groups. Even the MTV Networks sought to be heard.
The Supreme Court rejected the undergraduate admissions policy, which involved a more formulaic point-based system. Chief Justice William H. Rehnquist, in writing the majority opinion, said the undergraduate policy violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution because it was not “narrowly tailored to achieve respondents’ asserted compelling interest in diversity.”
But, most important, the court’s support for race-conscious admissions policies was reaffirmed in both cases. The court acknowledged a “compelling state interest” in diverse leadership.
“Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized,” Justice Sandra Day O’Connor wrote. “… In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”
The rulings have been the subject of intense publicity and impassioned debate, especially on college and university campuses.
“I think the symbolism of these cases is as important as the actual issues in litigation,” says Payton. “This really was about the use of race and what we refer to as affirmative action, and it was about hope and optimism about what we can accomplish regarding the use of race. We didn’t want to fight this case just for the sake of fighting. We wanted to win this fight.”
Despite the advances of recent decades, many divisions remain regarding race in America, Payton points out. “We’ve made enormous progress,” he says. “If you look at who is on TV, who does the news, who is in Congress, who is in the president’s cabinet, who are judges, who are prominent lawyers, all those things have changed so dramatically that most of the time, no note is made of the fact that a person is black.
That’s enormous progress. We’ve had a whole range of anti-discrimination laws enacted, none of which existed before 1964. They’ve made a tremendous difference.
“At the same time, we still have fundamental problems that relate to race. The briefs in the Michigan cases pointed up the fact that, sadly, we’re still much more segregated than anyone would have guessed 35 years ago. Residentially, in K through 12, there is amazingly rigid and frustrating racial and ethnic segregation. We still have profiling, we still have employment discrimination, we still have harassment.”
Payton, who came of age in the 1960s, says that many members of his generation share a common attitude: “It’s that we didn’t go to college thinking just about the jobs we were going to have when we got out. For many of us, it was a time of activism; we thought we could make the world better, and a lot of us wanted to make sure that that’s what we did with our careers. It’s been enormously rewarding to me to have been in a place where I have had a chance to help do those things.”
But he also described the chagrin he has felt while lecturing. “I have spoken all across the country in the last six and a half years,” he says. “I’ve talked to minority students, majority students, mixed groups, separate groups. I’ve talked to administrators, college presidents, faculties. I’ve talked about the Michigan cases and about 9/11 as well. I am disappointed that students seem to be less engaged in issues of social and racial justice than I thought they would be. The problems of our society are going to be solved by 20-year-olds. These issues have got to engage the next generation, and the generation after.”
In the Michigan law school case, Justice O’Connor provided the swing vote. In her opinion, she wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Payton says all Americans should take that to heart.
“We cannot be bystanders in this—none of us,” he says. “Justice O’Connor has issued a challenge. In the next 25 years, we should accept the challenge and undertake what is necessary. And the issues that have to be addressed really have nothing to do with higher education. They have to do with test score gaps and unequal funding for public K through 12, and the consequences of segregated residential patterns. They have to do with the fact that for every black male in college there are two black females. They have to do with continuing discrimination and racial profiling. All of those have to be attacked.
“My response to the challenge is, let’s make it so. We should do what is necessary to make us the country that we ought to be.”
—Michael Balchunas is a freelance journalist living in Claremont.