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"The NAACP Legal Defense and Educational Fund is simply the best civil rights law firm in American history." -- President Obama

Appellate Lawyer of the Week: John Payton

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Tuesday, June 28, 2011

 The NAACP Legal Defense and Educational Fund celebrated its 70th anniversary at a National Archives event June 21, with President and Director-Counsel John Payton calling the fund the nation's "first civil rights firm." 

John PaytonPayton became the fund's sixth director-counsel in 2008, following in the footsteps of Thurgood Marshall, Jack Greenberg and Elaine Jones among others. Payton previously was a partner at Wilmer Cutler Pickering Hale and Dorr. He had also served as corporation counsel for the District of Columbia. 

In private practice and at the legal defense fund, Payton has argued three key civil rights cases before the Supreme Court – most recently winning an important procedural point in 2010's Lewis v. Chicago. Representing a class of African-American applicants for city firefighter positions, Payton convinced a unanimous Court that their initial EEOC complaints had not been filed too late. 

Payton reflected on the fund's anniversary, its future, and its impact on the Court in a recent interview. The transcript has been edited for length and clarity. 

Q: What exactly are you celebrating on the fund's 70th anniversary? 

Payton: Well, we're celebrating because we've seen both remarkable progress in these 70 years -- it is undeniable and evident to everybody – but we still have a lot of things that need attacking. It's a mistake to celebrate too much about things accomplished, when we can see that some of the progress has been very uneven. To give you an example, look at how schools are doing in the inner cities. We have seen a crisis that was unanticipated blow up right in front of us. 

Q: Looking forward, why is the fund still necessary, still relevant? 

Payton: If we look at schools and education, we can clearly see that we don't have legally imposed inferior schools on black students. That has been swept away. But if we look at virtually all of our inner cities, I'd say that in those systems, which were majority white, every single one, the white flight has turned many of those into minority inner cities. We've seen jobs and the tax base get sucked out, leaving the k-12 public schools in a state of even more crisis as far as what they can do educationally. We see graduation rates that are literally scary. There are some schools that graduate less than half of the students they are entrusted with. If you then see the effect that has, it clearly affects peoples' ability to function in our economy. [Many] get swept up in the criminal justice system. We see very shocking numbers of kids and adults in our criminal justice system at levels that would not have been the case 50 years ago… 

More white people, percentage wise, use illegal drugs, but the arrest rate is seven to one. Seven times as many black people are arrested and in prison. Our prison population today is well over 2 million. Almost half of those are black and Latino men. That's having an outrageous impact on inner cities. 

These things are sometimes manifestations of old problems, sometimes they are new problems. We just have to be able to address those problems or we will not be the just and inclusive democracy that we clearly all aspire to be. And we would all aspire to see, certainly the LDF would, our diversity as a strength and not as a problem. All these things are out there to be tackled. 

Q: How are you tackling those problems through litigation? 

Payton: I'd say we have a litigation focus, and some of our focus is not litigation. With some things you want to achieve a solution without filing a lawsuit. You can go to the relevant entities – a school board or a mayor – and suggest a solution without having to file a lawsuit. You want them to appreciate that if you have to, you will. 

We did bring the Lewis case. That was a longstanding case. It took a very long time. But the result of that class action disparate impact case is that it is going to be unlikely that a fire department or a police department or a private employer will use the tactic that was found to be unlawful in the Lewis case. It has an impact way beyond the four corners of the decision. So that has a structural impact. 

We argued the voting rights case [Northwest Austin Municipal Utility District No. One v. Holder] case and that clearly has an impact. It may be coming back to the Court in the same clothes, as another challenge to whether or not the record is enough to justify Section 5 of the Voting Rights Act. 

We're in a series of criminal justice cases, and we're all over the place in education. Some of these things all tie together. 

Q: What about the LDF's role before the Supreme Court? 

Payton: You recently wrote about the Supreme Court bar being dominated throughout history by white men. Seventy years ago, they were not all white men. Seventy years ago the LDF was appearing in cases. Some were part of the road to Brown v. Board of Education, but some of the cases were on the issues I just raised – employment cases, criminal justice cases, housing cases like Shelley v. Kraemer -- a whole series of cases where the LDF appeared, then and since then on a regular basis. We are important not only to our mission but to the country – the mission being to make this a just and inclusive democracy. We argued these cases, filed amicus briefs in these cases, for the entire 70 years and I'd say, with tremendous effect, and are appreciated as having close to an institutional role that I think the court pays close attention to. We're private practitioners too; we just have an institutional role that has been important from the beginning to right now. 

Q: How does current Supreme Court regard your issues? Is it a tough sell? 

Payton: Well, let me put it this way. The first case Charles Hamilton Houston argued in 1938 [State of Missouri ex rel. Gaines v. Canada] is famous in part for something that happened when he argued. He was arguing on behalf of Lloyd Gaines who was trying to gain admission to the University of Missouri School of Law, and Justice [James] McReynolds turns his chair around, because he refuses to face a black lawyer in the Supreme Court. OK? It was well-noted by folks at the time. 

So there's hostile and there's hostile. We're interested in bringing issues that are trying to make this a better country, and that has always meant that we have to deal with courts that are sometimes skeptical of what it is we're saying. We don't always win, but a lot more than you would think… A lot of folks didn't think we could win the Lewis case, and it was a unanimous opinion. So I have some optimism about the things that we can accomplish. That's not to say that I'm not disappointed with some of the things that courts in general and the Supreme Court in particular has done. I am disappointed. 

Q: You left a big firm for this job. Are you glad you made that decision? 

Payton: Look, I've had a terrific career, in almost any way you want to look at it. When I was in private practice I worked on some of the cases that I believe mattered to our country – the Michigan admissions case [Gratz v. Bollinger] , I handled in my capacity as a private lawyer. But I wanted to affect the issues of justice in society in my private practice, and the opportunity to do it with the legal defense fund was just one of those offers that you just can't refuse. Do I miss private practice? The answer is, no I do not, at all. This is a terrific job, with terrific issues, in a time that is extremely challenging. It is a little scary about how unsettled our economy is and how nasty our politics has become. But those are the challenges we have to deal with. 

Q: How is the fund doing economically in the financial downturn? 

Payton: We're economically healthy. It is harder and harder, though. You know, some of the entities that used to provide us funding don't exist anymore. It is harder to raise money, but we enjoy, I have to say, a spectacular reputation. 

Tony Mauro can be contacted at tmauro@alm.com


This article is reprinted with permission from the June 27, 2011 edition of The Supreme Court Insider (National Law Journal). © 2011 ALM Properties, Inc. All rights reserved.  Further duplication without permission is prohibited.