A Legal Legacy, from RBG to the ERA

Joanne Freeman:
In 1941, Pauli Murray entered Howard Law School with, in Murray’s words, “the single minded intention of destroying Jim Crow.” But soon after Murray started classes, another problem arose. This one wasn’t found within the law books of the United States, but the halls of Howard University.

Pauli Murray:
There was a notice on the bulletin board very shortly, maybe two or three weeks after school began, which said, “All male members of the first year class are invited to Dean so-and-so’s for a smoker.” There were only two females in the entire school, one of which was myself. And I was so stunned and I couldn’t imagine, “What is all this?” So what I’m really saying is that removing the racial factor, Howard University being school with a racial factor, was not a problem. Immediately, the sex factor was isolated. And so my whole experience at law school was an experience of learning really for the first time what, in a way, a crude kind of sexism can be.

Joanne Freeman:
Murray came up with a name for this kind of prejudice, Jane Crow, and this term quickly became more than just a name. It turned into a framework for the way Murray pursued legal equality. Here’s historian Serena Mayeri again.

Serena Mayeri:
She used the concept of Jane Crow to embody an analogy between race and sex. That analogy was in many ways a rhetorical move designed to persuade skeptics that sex inequality was an injustice worthy redress in the same way that Jim Crow was an injustice.

Pauli Murray:
I must always be concerned, not theoretically, but I must be involved with and necessarily concerned with racial liberation. But I must also personally be concerned with sexual liberation because, I often say, the to meet in me, the to meet in any individual who is both woman and a member of an oppressed group or a minority group.

Serena Mayeri:
In particular, she saw how women of color, especially black women, experienced intersecting forms of oppression and discrimination that were often overlooked or ignored by, on the one hand, male dominated civil rights organizations, and on the other hand, white dominated feminist organizations. And I think the term Jane Crow, in her view, placed African American women at the center rather than at the margins of both of those movements and of a broader movement for universal human rights.

Joanne Freeman:
Murray’s time at Howard was by no means the first time Murray had encountered discrimination within the world of academia. Three years before attending Howard, Murray applied to the University of North Carolina at Chapel Hill for graduate school, but Murray was rejected because the school did not accept African Americans. Murray appealed the rejection and was unsuccessful, but the story still made it into the headlines.

Pauli Murray:
And it suddenly burst out over the radio and became sort of national news, but it was this “unidentified Negress”. It’s in the headline, an “identified Negress makes application to the University of North Carolina.”

Joanne Freeman:
Murray graduated Howard at the top of the class. For most students, this achievement was followed by a prestigious fellowship to Harvard. So Murray applied, but this time race wasn’t the issue.

Serena Mayeri:
She received a letter from Harvard stating that, “Your picture and the salutation on your college transcript indicate that you are not of the sex entitled to be admitted to Harvard Law School.”

Serena Mayeri:
Again, Murray did not take this lying down. She enlisted a number of very powerful supporters, including Eleanor Roosevelt and her husband, the president, and Murray wrote a letter to the faculty of Harvard Law School requesting that they reconsider. And the closing line of her letter was really telling. She wrote, “Gentlemen, I would gladly change my sex to meet your requirements. But since the Way to such a change has not been revealed to me, I have no recourse but to appeal to you to change your minds on the subject. Are you to tell me that one is as difficult as the other?”

Joanne Freeman:
In the end, these rejections did little to dissuade Murray. Murray continued to work tirelessly to fight against not only Jim Crow, but also Jane Crow. And over time, Murray started to gain the platform needed to spark real systemic change.

Joanne Freeman:
In 1961, President Kennedy appointed Murray to a government group focused on improving women’s equality. It was called the President’s Commission on the Status of Women. This was where Murray published a memo the tackled Jane crow head on.

Serena Mayeri:
So Murray’s memo proposed a new constitutional strategy based on an analogy between sex and race discrimination. The idea was that sex, like race, was used to limit and oppress individuals for reasons that were unrelated to their ability or their human worth.

Joanne Freeman:
Serena Mayeri says this memo was big for a couple of reasons. It helped unite the women’s rights movement with the civil rights movement, and it also healed divisions over another controversial measure that was up for debate, the Equal Rights Amendment.

Serena Mayeri:
So instead of becoming bogged down in debates about the proposed ERA, Murray argued in her memo that advocates for women should use the Equal Protection Clause of the 14th Amendment to challenge laws and policies that discriminated against women in areas like jury service, hiring, pay, education, and these were issues that were largely uncontroversial among advocates for women. In addition to overcoming these divisions over the ERA, Murray’s 14th Amendment strategy attempted to bridge gaps between the civil rights and women’s rights movement. So by analogizing sex to race and by proposing, as she did in this memo, a litigation strategy modeled on the NAACP legal defense funds, successful campaign against racial segregation, Murray really hoped that she could tie together these sometimes divergent movements in a kind of a common cause.

Joanne Freeman:
Now, I understand that that linking of those things and generally this memorandum of Murray’s had some influence on Ruth Bader Ginsburg’s work a decade later.

Serena Mayeri:
Yes, it most certainly did. So Ginsburg’s strategy in writing, for example, the first, it’s sometimes called the grandmother brief, a brief that was used in the first successful constitution sex discrimination case brought to the Supreme Court in 1971, that brief relied heavily on Murray’s strategy that she had laid out. And in fact, Ruth Bader Ginsburg credited Pauli Murray on that grandmother brief. Though they weren’t directly involved, she, and still to this day will always mention the influence of Murray when talking about her early litigation strategy.

Joanne Freeman:
Now, we’ve been talking about this string of influential writings. I’m going to raise yet another one, and this is Murray’s very influential memo having to do with Title VII of the 1964 Civil Rights Act. And in this case, Murray is tackling the debate that surrounded a proposed amendment prohibiting employment discrimination based on sex. So give us a little bit of context, both to the amendment and what Murray was advocating.

Serena Mayeri:
So when Congress was debating Title VII, which is the employment discrimination provision of the Civil Rights Act of 1964, feminists in the National Woman’s Party persuaded a segregationist congressman, Howard Smith of Virginia, to introduce an amendment banning discrimination based on sex as well as race, color, religion and national origin, which were the other categories on which discrimination was prohibited.

Serena Mayeri:
To this day, there’s this pretty pernicious myth that the sex amendment to Title VII was kind of a joke or a fluke. In fact, it was the product of deliberate efforts by advocates for women. But when the sex amendment was introduced, debate in the House of Representatives framed the amendment in a very problematic way, framed the amendment as necessary to protect what one proponent called “White Christian women of United States origin”, in other words, women who would not be able to claim discrimination based on race or religion or national origin to protect white women, essentially, from discrimination. The idea, in other words, was that if only race discrimination were prohibited, white women would be, as one Congresswoman said, “last at the hiring gate”.

Serena Mayeri:
So this kind of rhetoric, which pitted presumptively white women against presumptively male black workers, made proponents of the Civil Rights Bill understandably nervous. So this is when Pauli Murray steps in with a brilliant and really strategically savvy memo. Murray argued that the sex amendment was in fact crucial to racial justice, not antithetical to it. Without an amendment prohibiting sex discrimination, she said, both black and white women would suffer what she called a common fate of discrimination. And this was a time when, like the Title VII debate up to that point, debates over equal employment opportunity often really erased African American women.

Serena Mayeri:
Murray’s memo, in contrast, placed black women at the center. She argued that without the sex amendment, fully half of the black workforce would have no protection from discrimination. And given black women’s really central role in supporting their families, many more black women were in the workforce than white women. A sex discrimination prohibition was really crucial to racial and economic justice. So one transformative effect of Title VII was that by putting both race and sex discrimination together into a single statutory prohibition. Title VII essentially tied together the fates of racial justice and feminine and cemented what would become a crucial alliance, sometimes a fragile alliance, but a crucial alliance between the civil rights and women’s movements that more or less completely replaced this older coalition between segregationists and the National Woman’s Party.

Joanne Freeman:
Let me step back and take a broad view here. We’ve really been focused on the range, the scope, the influence of Murray’s work during the time that that work was happening. But in what ways would you say we still feel the effects of Murray’s work today?

Serena Mayeri:
I think Pauli Murray deserves credit as a key architect, possibly the key architect of 20th century American feminist legal and constitutional strategy. So her intervention in the debate over adding a sex amendment to Title VII was crucial, even though it’s pretty under-recognized. And while that story is now well-known to historians, it’s not very well-known to the courts or the public. And to this day, statistics show that, what are sometimes called complex claims of discrimination, claims that are based on more than one category, such as race and sex, are even more difficult to win in other types of employment discrimination claims. And indeed, today there are two cases before the Supreme Court testing whether discrimination on the basis of sex encompasses discrimination based on being gay or lesbian or bisexual or transgender.

Serena Mayeri:
I think one of the most crucial ways that Murray’s legacy is still with us is her strategy of centering feminist activism on African American women, which has a tremendously rich legacy. Murray was an early theorist of what legal scholar Kimberlé Crenshaw leader called intersectionality, and black women have been at the forefront of almost every major feminist advanced in the law over the past several decades. If you think of issues like sexual harassment, pivotal figures, including Eleanor Holmes Norton, who is a protege of Murray’s, of course, Anita Hill and many other extraordinary and courageous women whose names are not widely known, if you think about social movements such as #MeToo, the movement for Black Lives, #SayHerName, voter protection efforts, reproductive justice activism, prison and foster care abolitionism, criminal justice reform, organizing on behalf of low wage and domestic workers, all of these continue what’s really a century’s long tradition of black women’s leadership that Pauli Murray personified and put into action.

Joanne Freeman:
Serena Mayeri is a professor of law and history at the University of Pennsylvania.