Saturday, August 17, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Alberto B. Lopez

excerpted from:  Reparations Debate Beyond 1865 , 69 Tennessee Law Review 653-676, 659-664 (Spring, 2002)(96 Footnotes)Book Review: Reconstructing the Dreamland: The Tulsa Riot of 1921. By Alfred L. Brophy. New York: Oxford University Press, 2002. xx 187 pages. $25.00.

Reflecting the modern scholarly interest with the relationship between race and the law in general, Brophy locates the origin of the riot within the conflicting racial interpretations of the meaning of "law" as understood by the riot's combatants. For many of the 8,000 residents of Greenwood, an African-American neighborhood located just north of the center of Tulsa, Oklahoma, and physically separated from it by a set of railroad tracks, the experience of World War I instructed them to equate law with equality (pp. 1-2). The veterans returning from the Great War believed that the nation had fought the war to protect and promote democracy on a global scale (p. 3). Moreover, fighting for democracy during World War I, according to local African-American newspapers that spread the message to Greenwood's readers, meant that "spoilation and exploitation of black men's property and labor shall cease, it means that segregation, Jim Crowism and mob violence must die, and that in its stead there must rise justice, equity, and fairness" (p. 3). Given the lofty aspirations ascribed to the nation's war effort, Greenwood's war veterans expected to find a "new reconstruction" upon their return, a notion reinforced by the vitality of Greenwood as a community (pp. 1- 4). In 1921, Greenwood was a vibrant, economically self-contained section of Tulsa containing a school, a hospital, a variety of stores, and a theater called the Dreamland (p. 1). Moreover, Greenwood became so prosperous as a community that its main street became known as "the black Wall Street" (p. ix). In sum, the idealized promise of democracy associated with World War I and the economic prosperity of "Little Africa" (p. 1) both initiated and promoted the idea of equality in the minds of Greenwood's residents.

In contrast to the egalitarian mindset percolating in Greenwood, the white hegemony of Tulsa-and Oklahoma at large-stood ready to prevent the equality dreamt about in "Little Africa" by using their definition of "law." For Oklahoma's white citizens, "talk of law too often meant black obedience to the white commands and capricious and unequal treatment by the government" (p. 15). As a result, white persons opposed to the increasing aspirations of African- Americans defined the word "law" to mean the status accorded to each race prior to the Civil War and were determined "to put the negro back where he was before the War" (p. 6). To that end, both the legislature and the courts in Oklahoma worked in concert with prejudiced white citizens to suppress the egalitarian dreams of African-Americans. Despite the existence of the Equal Protection Clause in the Constitution, the Oklahoma legislature passed statutes that served to promote racial discrimination, such as voter registration laws designed to disenfranchise Oklahoma's African-American population (p. 15). By implementing the legislature's laws and doing their part to suppress African-American dreams, both the Oklahoma Territory Supreme Court and the state's lower courts commonly denied recovery to African-Americans who suffered brutal violence at the hands of whites (pp. 9, 14). Furthermore, the absence of legal protection even extended to whites who dared to have any working affiliation with African-Americans. For example, Brophy recalls that the Oklahoma Supreme Court denied compensation to a white man who was attacked by a white mob in Norman after merely bringing a young African-American into the town to work on a construction project (p. 9). In sum, the practice of Oklahoma's legislature and courts dissected the idea of "equal protection" by gutting the "equal" half of the concept while providing an abundant amount of "protection" for those seeking to maintain white superiority.

The inequality facing African-American Oklahomans did not end within the ivory halls of the legislature and courts, but instead trickled downward to police enforcement of the law in the street. Oklahoma's law enforcement officials frequently did little to protect African-American citizens under the constant threat of white violence. With police looking the other way as threat turned into reality, the white violence perpetrated against African-Americans traversed a spectrum from "'negro drives,'-the use of violence to drive out blacks from a town or count" (pp. 8-9)-to lynchings (pp. 9-12). White mobs reserved the severe penalty of lynching for African-Americans accused of raping or attacking a white woman, which constituted the most egregious transgression of the social order in the white world (pp. 10-11). Indeed, attacking a white woman transgressed such a deep-seated social norm that "whenever the Negro oversteps the white man's dead line he knows, and he is so informed by the right-thinking members of his own race, that he thereby takes his life in his own hands." Similarly, an opponent of a federal anti-lynching bill defended harsh penalties for transgressing white social boundaries and announced,

We are ofttimes forced to use extreme measures with the Negro. This is caused by the Negro getting the wrong idea of his relation to the white man. He gets this erroneous idea from improper propaganda generally originating in sections other than the South. The man who does not know the darkey and who would help him by persuading him that he is the equal of the white man works the destruction of the Negro race.

In other words, extreme penalties, such as lynching, symbolically preserved and reinforced the appropriate status of race relations in the Southern white mind (p. 11). Thus, white violence represented the physical manifestation of the clash between competing abstract definitions of "law"-African-Americans pushed for greater social and legal equality while whites fought their advance by using outright racial intimidation.

Because imposing barriers obstructed the path to equality for Oklahoma's African-Americans, Greenwood's Dreamland Theater served as an apt metaphor for the disjunction between the egalitarian aspirations of, and the reality for, African-Americans in Greenwood. Although equality existed in the pristine world of ideas, sanitized platitudes failed to describe the everyday experiences of African-Americans in Oklahoma (p. 15). Even residents of Greenwood, where African-Americans lived in relative freedom from both an individual and economic perspective, could not escape newspaper stories describing the horror of lynchings in Oklahoma and beyond (p. 12). As a result, the threat of mob violence not only functioned as a sanction for violating social boundaries, but it had a far more subtle effect-it altered the meaning of "equality" in the minds of Greenwood's residents. Greenwood's inhabitants believed that there should be equal-"even if separate"-railroad amenities, funding for education, voting rights, and respect from police (pp. 2, 6). To that end, Brophy finds that the residents of Greenwood did not believe that the formal law stamped them as inferior, but simply that the law as written should be applied impartially to all citizens (p. 2).

The remarkable aspect of the definition of "equality" in Brophy's description of Greenwood is that, instead of demanding full-blown equality in a modern sense, the meaning of "equality" among those in Greenwood conformed to the Supreme Court's requirements for equality defined in Plessy v. Ferguson. In Plessy, the Court upheld a Louisiana statute that called for"equal but separate accommodation for the white, and colored races" against challenges based upon the Thirteenth and Fourteenth Amendments, thereby giving birth to the now discredited "separate but equal" doctrine. Given the similarity between the Greenwood and Supreme Court interpretations of "equality," Brophy's description not only exemplifies the ability of positive law to infiltrate society, but also provides a single historical snapshot of the incremental steps taken during the struggle for civil rights. Assuming Brophy's assertion applies beyond Greenwood's residents, the Supreme Court's landmark decision in Brown v. Board of Education is the result of a series of smaller steps taken in conjunction with the evolution of the meaning of "equality." In the area of civil rights, then, progress has been made by taking baby steps rather than leaps and bounds.

In addition to mutating the meaning of equality, threats and reports of mob violence forced Greenwood's residents to recognize that the "law," however conceived, had its limits and could not be counted on for protection or justice. Although people in Greenwood believed justice should be obtained by reference to the law, their adherence to, and respect for, the law disintegrated as lynchings continued (p. 12). For residents of Greenwood, the prevention of lynching outweighed their reverence for the law because they realized that the formal laws prohibiting such crimes would not be enforced so long as social norms sanctioned such violent acts (p. 11). Frustrated with the inability of law enforcement officials to protect African-Americans, the local newspaper encouraged citizens to take a more active role in the prevention of lynching, and that message found a receptive audience in Greenwood (p. 17). If the government failed to protect them, Greenwood residents believed that they had both a right and a duty to act in defense of their lives (p. 19). Unless lynching ceased, individuals in Greenwood foresaw that a racial conflict would erupt if whites continued to diverge from the formal law.

The forecasts of violence made by Greenwood's residents proved to be unusually prescient in light of events that began on May 30, 1921. On that day, a nineteen-year-old African-American man allegedly attacked a seventeen-year- old white elevator girl in downtown Tulsa (pp. 24-25). After conducting a search for the alleged assailant, police captured the young African-American male on the morning of the 31st and charged him with an attempted assault of the white elevator girl (p. 25). Despite the charge of attempted assault, the Tulsa Tribune sensationalized the incident by running a story on its front page that referred to the confrontation as an "attempted rape," moving the racial powder keg closer to ignition (p. 24). The Tribune's front-page story created an air of anticipated violence among white Tulsans as "800 men, women, and children" gathered at the courthouse by 6 p.m. on the evening of the 31st (p. 26). However, the Tribune's tale also affected citizens of Greenwood, who were keenly aware of the risk of lynching that faced the young African- American in light of other Oklahoma lynchings in the recent past (p. 26). As a result, armed Greenwood men traveled in shifts to and from the courthouse on the night of the 31st to ensure the safety of the young man in police custody (p. 28). During one of their missions to protect the imprisoned African- American male, a Tulsa man attempted to disarm one of the Greenwood men, but the Greenwood resident refused to relinquish his weapon (p. 33). A struggle ensued for the weapon and a shot rang out into the crowd-the riot had begun (p. 33). After the shot, the streets initially cleared and then chaos broke out all over downtown Tulsa (pp. 33-34).

In response to the confusion in the streets, the Tulsa Police Department decided to commission 250 "special officers" to quell the "negro uprising" (p. 38-39). As a result, Tulsa's Police Commissioner deputized a number of whites, who had armed themselves after the initial outbreak of violence, without asking questions of the men to be deputized (p. 39). In addition to deputizing white volunteers, local police officials issued an order that anyone who was not deputized was to be disarmed (p. 40). After hearing a wild-eyed rumor that 500 men from Greenwood planned to attack downtown Tulsa, Tulsa-based units of the National Guard arrived to preserve the peace and soon began to work with local police authorities to implement the disarmament order (pp. 38-39). Sensing the danger in downtown Tulsa, African-Americans in the area fled over the railroad tracks and back to Greenwood in order to defend it from any attempted attack by the growing white mob (p. 41).

As dawn emerged on June 1, police officers, "special officers," and other violence-hungry white citizens decided to take an offensive strategy and gathered across the railroad tracks from Greenwood in preparation for an invasion of the neighborhood (p. 44). At 5 a.m., a whistle sounded to signal the beginning of the attack after which gunfire could be heard from many directions (p. 45). From the start, Greenwood found itself at a disadvantage because the National Guard had disarmed a number of its residents during the previous night (p. 44). In addition to lacking firepower, the community lacked manpower because the National Guard had sent African-Americans deemed non- dangerous to internment camps whether or not they were involved in any violence (pp. 50-51). Although the rationale for internment was to protect the interned African-Americans from the mob, the internment, in fact, facilitated the attack on Greenwood (p. 51). The white mob simply followed the National Guard throughout Greenwood and, once an African-American resident had been removed from his or her home to be shipped to an internment camp, the white mob looted and then burned that individual's home (pp. 51, 56). If the mob met armed resistance, it responded with excessive brutality and actually murdered some Greenwood citizens in cold blood (pp. 53-58).

Whether through murder or internment, with the accompanying arson, the attack on Greenwood utterly devastated the once prosperous African-American suburb of Tulsa. Although official estimates put the death toll at "twenty-four blacks and ten whites," current estimates place the loss of life at somewhere between 75 and 150 people (pp. 59-60). Moreover, the mob torched thirty-five blocks of Greenwood--including the Dreamland Theater, which symbolized the clash of expectation with reality--and in the process, destroyed the homes of over a thousand of its residents (pp. 55, 60, 88). In the end, the citizens of Greenwood prevented the lynching of one young man, whom a court later declared innocent of any crime, but they did so at the expense of their own lives and property.

. Visiting Assistant Professor of Law, Indiana University School of Law, Indianapolis; J.S.D. Candidate, Stanford Law School; J.S.M., Stanford Law School; J.D, Indiana University School of Law, Indianapolis; M.S. University of Notre Dame; B.S., Rose-Hulman Institute of Technology.

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