Photo de l'auteur

Œuvres de Adrienne Berard

Étiqueté

Partage des connaissances

Sexe
female

Membres

Critiques

Cette critique a été écrite dans le cadre des Critiques en avant-première de LibraryThing.
Water Tossing Boulders: Legal Fiction, Historical Nonsense
Timothy Ostroot reviews
Water Tossing Boulders: How a Family of Chinese Immigrants Led the First Fight to Desegregate Schools In the Jim Crow South
By Adrienne Berard

Adrienne Berard’s Water Tossing Boulders purports to reveal “How a Family of Chinese Immigrants Led the First Fight to Desegregate Schools in the Jim Crow South.” That prodigious sub-title promises a disquisition worthy of the 2014 J. Anthony Lukas Work-in-Progress Award that she won to finish “a significant work of nonfiction” covering a “topic of American political or social concern.” The book jacket synopsis promotes “one of the greatest stories never told,” and Berard’s stated intention for her book is to “restore” the U.S. Supreme Court’s 1927 Gong Lum v. Rice decision “to its rightful place in history.” Disappointingly, Berard published instead a deceptive book built on an erroneous premise. Her thesis is that Gong Lum v. Rice was the first legal attempt to desegregate schools in the Jim Crow South, and she contends that but for some bad lawyering the case could have been Brown v. Board of Education three decades earlier decided. Her preposterous premise is belied by an embarrassingly faulty understanding of the law.

The Story
Jeu Gong immigrated from China to the United States in 1904, one of an estimated 17,000 Chinese who defied the Chinese Exclusion Act. Gong slipped into the United States across the Canadian border, passed through Chicago where his brother, also a Chinese illegal, lived, and continued to the Mississippi Delta. There, he found work with another relative who ran a small grocery store, married a local Chinese servant girl whose American name was Katherine, and had two children, Berta and Martha. Jeu and Katherine Gong worked hard, and became part of a small but distinct Mississippi Delta community, “a family of Chinese immigrants living in the segregated South, a third race in a binary racial society, navigating the boundary between black and white.” Through their strength and diligence, they eventually both bought a grocery store and built a house in Rosedale, Mississippi. Martha, a promising student, and her sister attended public school there. But in 1924, when Rosedale Consolidated Public School first earned accreditation, Martha and her sister were expelled to the negro public school instead, because they were Chinese and Rosedale Consolidated was now a white only school.
Jeu and Katherine Gong Lum (their formal Chinese name) fought back, hiring a lawyer to challenge the expulsion. Their case was eventually heard by the United States Supreme Court, where the Lums lost. Water Tossing Boulders is Berard’s “biography” of the Lums and their case. “Those who set themselves against the prevailing current of their times, regardless of the outcome, deserve to be chronicled,” writes Berard in her Author’s Note. “What I set out to revive was not merely their story, but their humanity.”

Legal Fiction
Gong Lum v. Rice was never an attempt to desegregate schools. But Berard never grasps this most fundamental point. The law is a thorny bramblebush to penetrate, to be sure. The field is dense with technicality, murky with subtlety, and obtuse with jargon. Nevertheless, when Berard determined that “a biography of the Gong Lum case” was the book that she would write in order to “restore Gong Lum to its rightful place in history, her commitment was to write accurately about both the case and the law. That burden, albeit difficult for a lay journalist, is a crucial starting point. But Berard never understands Gong Lum for what it was, because Berard doesn’t understand the legal principles the case involved. That most basic lack of understanding makes for a misleading biography.
The case was filed as a Petition for Writ of Mandamus. A Writ of Mandamus is a judicial order that commands the performance of a specific legal duty, a non-discretionary act of a public nature. The gravamen of a Writ of Mandamus is that a public official or entity has wrongfully refused to perform a specific duty that is clearly defined by the governing law. Writs of Mandamus execute the law, but are not vehicles by which to change the law. Writs of Mandamus issue only when the facts essential to establish the legal right are not in dispute. A Writ of Mandamus is a claim in equity decided by a summary procedure.
Martha Lum’s legal claim was that Rosedale Consolidated, the County’s white school, improperly refused her attendance. Martha Lum’s factual assertion was that she was Chinese, not a negro. The Writ of Mandamus syllogism was clear: Mississippi’s public school law segregated the negro race from all other races, and Martha Lum was not a negro, so to deny her attendance at Rosedale Consolidated violated public school segregation law. Mississippi’s response was that the segregated school statutes separated white students from all other races, and Martha Lum was not white, so local school officials could not admit her to Rosedale Consolidated. Gong Lum v. Rice never asserted that the schools of Mississippi should be desegregated. That claim would have called for a substantial change to existing law, and the Writ of Mandamus would have been summarily dismissed. Gong Lum v. Rice never claimed that the County’s separate negro public school was unequal to the white school. That claim would have required an evidentiary hearing to establish the fact of inequality. The single issue raised by Gong Lum v. Rice was whether Mississippi’s binary school segregation law defined a Chinese student as white or negro.
The Lum family sought a lawyer to handle a very specific case. They wanted their daughters to attend the same school that they had the year before. They met with a prominent lawyer - Earl Brewer, a former Governor of Mississippi. At their initial meeting, Katherine Lum was “very clear” that “the family did not want to sue for damages.” The “only reason” the Lum family consulted with Brewer “was to get the children back in school.” Berard conceded that this narrow objective “left Brewer limited options.” Brewer, a lawyer, understood his fiduciary duty to pursue his client’s case. He chose a Writ of Mandamus - the legal cause of action best suited to accomplish exactly what the Lum family sought, an Order requiring Rosedale Consolidated to enroll the Lum children.
And in fact, the local Circuit Court issued the Writ. Brewer’s Circuit Court victory is significant. That a local Mississippi Delta judge, at the height of Jim Crow segregation and against the historical backdrop of the Immigration Act of 1924 banning all Chinese immigration, is almost startling. But the Mississippi Supreme Court reversed on appeal. The Mississippi Supreme Court confirmed that the Mississippi Constitution and state public school statutes segregated “the white and colored races,” and held that the Chinese fell into the “colored race” category. Mississippi’s highest court relied entirely on state constitutional and statutory law to determine that a Writ of Mandamus was improper because Martha was not white. Since state public education law separated the white race by segregating away all others, Rosedale Consolidated school officials had no duty to admit the Lum girls. The United States Supreme Court then affirmed. The Supreme Court was careful to decide only that the question was “within the constitutional power of the state Legislature to settle, without intervention of the federal Constitution.” Chief Justice William Taft wrote that the issue presented was not a “new question.” Taft cited a number of decisions to support the proposition of law that public education was strictly a matter of state power, and he cited the now infamous “separate but equal” Plessy v. Ferguson decision as precedent that segregation was not itself a violation of the constitutional equal protection clause.
Gong Lum v. Rice is a racist decision. That alone makes it noteworthy. The case starkly recognizes the overt racism of Mississippi’s public education scheme, and just as starkly demonstrates that early twentieth century American constitutional law condoned such systemic state law racism. That a Mississippi Delta Circuit Court ordered the local school board to enroll a Chinese student in their white school in 1924 might have been surprising; that the Mississippi Supreme Court reversed the Circuit Court is hardly so. That the United States Supreme Court deferred to a state’s blatantly racist educational system is sobering; that the Court cited the notorious, pre-Civil War Plessy case to justify it is especially so. But Gong Lum v. Rice was decided according to the constitutional law of its time. It is, like Plessy, a decision deplorable to the modern ear. Berard is, understandably, offended. But she does not closely read the decision to articulate its constitutional infrastructure - the policy of federal court deference to state court interpretation of state constitutions, the federalist classification of public education as an issue exclusive to state law, or the narrow interpretation of the Civil War constitutional amendments. She tries instead to simply misappropriate Gong Lum, to make it stand for much more than it does. She substitutes misleading rhetoric for the accurate reporting of facts that good journalism and good biography both demand. The State of Mississippi claimed, and the United State Supreme Court’s equal protection jurisprudence of the time tolerated, the power to segregate education by race in 1927. The Supreme Court’s string citation for that legal proposition is overwhelming. Dred Scott was the recognized law that demanded the Writ of Mandamus denial. The Supreme Court’s Gong Lum decision was entirely predictable. But it was also a napalm bomb, defoliating any obfuscation of Mississippi’s racist educational policy. Berard misses this essence of Gong Lum, and she makes up her own instead. Her rhetoric makes for sometimes dramatic reading, but it is legal fiction.
To begin, Berard consistently misuses legal terminology. Introducing the lawsuit, she reports that members of the school board were each “personally charged” with a “constitutional violation” and ordered to appear “for trial.” She misleadingly defines a Writ of Mandamus as “essentially an order demanding the local court prosecute an individual”. “Prosecute” and “charge” are criminal law terms. In fact, the school board members were civil respondents instead, summoned only in their official state capacities to a preliminary hearing to show cause. At that hearing, the Court would determine only whether the respective legal positions asserted any contested issues of either fact or law. A trial was never countenanced, because a Writ of Mandamus is decided without a trial. From this inauspicious beginning, and throughout the rest of the story, Berard uses legal terminology inaccurately. Berard does not understand the language of the law and that failure carries consequences. Over the course of her book, these inaccuracies grow to become Berard’s contrivance. Her basic failure to learn the grammar of the law prevents her from understanding that Gong Lum was important to later decisions, including the Brown v Board of Education decision Berard itself, because it laid the ugly foundation of racist policy bare.
Berard also distorts the ordinary legal process the Circuit Court followed. She makes much of the fact that the case was set before local Judge William Alcorn while the Circuit Court was supposed to be in recess. She claims that there was no obligation to assign a judge or to schedule the case until the court resumed its session. In fact, as an equitable claim, a Writ of Mandamus is just the type of an extra-ordinary petition that most courts would hear immediately, whether in recess or not. She is right that hearing the case in recess was discretionary, but she is wrong that hearing the case in recess was a gross aberration. She further asserts that “without a judge, the school board could delay the trial indefinitely.” Again, no trial was ever to occur, and the case would have been taken up as soon as the next session opened in January regardless. Atop the misrepresentation, Berard insinuates misconduct. “While there is no record of any private conversation between Earl Brewer and the judge from his home district, it is likely Brewer had something to do with the fact that Alcorn decided to hear the case.” That presumption is an allegation of ex parte communication, a bald assertion of professional misconduct by Brewer, and an allegation that Judge Alcorn manipulated the case assignment process. The factual basis to support these claims of misconduct is nothing more than that attorney Brewer and Judge Alcron attended the same small town church. She goes even further, to declare that Judge Alcorn contrived to take the case because he meant to “assist” Brewer. “There was no logical reason why William Alcorn risked his entire career to hear a case he could have so easily ignored, but that is because Alcorn’s reasoning had nothing to do with logic.” State courts, even Mississippi Circuit Courts in the early twentieth century, use established procedures to assign cases to judges and to put cases on calendars. Those established procedures include provisions to account for cases in equity and recess filings. Most judges, even elected local Mississippi judges in the Jim Crow South, were not drummed from the bench for decisions made in a single case. Berard’s implications are serious. They may be plausible, but to impugn a lawyer, a judge and an entire county with claims of impropriety when ordinary procedure can also explain the process they followed, Berard ought to muster up much more than her own speculation ninety years later. More fundamentally, she ought to at least understand the fundamentals of the process she impugns. Speculation build upon a framework of misunderstanding is not just inaccurate, it is reckless.
Throughout the book, Berard’s criticisms of the arguments and decisions made by the lawyers and jurists belie a breathtaking misunderstanding of the legal system that imbues the context of litigation. This is where her failure to understand fundamentals like terminology and procedure leads her to sheer folly. She criticizes the competence of both the lower court and appellate court lawyers who represented the Lums. She impugns the objectivity of the Circuit Court, the Mississippi Supreme Court, and United States Supreme Court. And she implies bias to specific judges at each of the Circuit Court, Mississippi State Supreme Court, and United States Supreme Court levels. To Berard, each key actor in the legal system who influenced Gong Lum v. Rice made every key decision for personal reasons or due to motives outside the law. Her case biography quickly becomes instead a conspiracy theory. Her grammatical insufficiency makes dialectic analysis impossible. Berard doesn’t even understand that she does not understand, and her constant default to lay personal failure at the feet of lawyers and judges belies her inaccurate, superficial judgments.
But most importantly, Berard completely misappropriates Gong Lum v. Rice. The competing claims were that Mississippi law defined Martha Lum as either negro or white. The Mississippi statute and the Mississippi Constitution’s segregation language was binary - it created only negro or white schools. Mississippi’s Assistant Attorney General argued that segregation “was for the purpose of protecting the white race from all other races. This included the Chinese.” Earl Brewer, the Lum’s lawyer, asserted instead that segregation’s purpose “was to make it certain that negro children should not attend the same school with white children.” His interpretation of the state segregation law and the uncontroverted fact that Martha Lum was not a negro presented a Writ of Mandamus case cogent enough to win at the Circuit Court level. But Berard eschews Brewer’s argument before the Mississippi Supreme Court. “There was no need to explain segregation to the court,” she writes. “They understood as well as he did that the races would always be separated in the South.” Brewer had concluded his oral argument before the Court simply: “it is clearly shown by the authorities cited herein that the Chinaman is not a “colored person’ within the meaning of our laws. He would therefore not go to the negro school as a negro.” That contention was exactly the factual basis for the Writ of Mandamus that the lower court issued.
Berard condemns Brewer’s advocacy, calling it a “fatal flaw.” Brewer’s simple syllogism, the basis of his success in the Circuit Court, “recoiled back” on a broader argument of racial equality that Brewer had only once intimated, almost in passing, during his Mississippi Supreme Court argument. That abandoned dicta, Berard claims, “begged the State of Mississippi to do something it had never done before, to treat a student as a citizen ‘without regard to her race.’” Berard despairs that Brewer did not extend the broad claim for social justice so common to modern test case constitutional jurisprudence. But, to “beg” an appellate court to do something never done before would doom a Writ of Mandamus case. Berard’s is no longer the case that the Lums brought to attorney Brewer, and certainly not the case that Brewer pled and won in the Circuit Court. Again, The case that Berard pines for, a landmark civil rights case to extend the 14th Amendment equal protection clause to state education policy, was not Gong Lum. Berard the writer condemns Brewer the attorney for not pursuing her pollyanna rather than to understand the legal basis for the lower court victory that he was trying to preserve on appeal.
Brewer’s Circuit Court victory was significant. But the Mississippi Supreme Court reversed the Circuit Court, and denied the Writ on appeal. State law and state policy, the court decided, “is to have and maintain separate schools … for the races so as to prevent race amalgamation.” The Court held that “the segregation laws have been shaped as to show by their own terms that it was the white race that was intended to be separated from the other races.” Martha Lum was not white. The decision thus concluded that Martha Lum “is not entitled to attend a white public school.” The ruling was narrow, but dramatic. The Mississippi Supreme Court’s explicit decision was explicitly based on the explicitly segregationist language of Mississippi’s Constitution and public education statutes. Brewer’s win in the Circuit Court and the tight syllogism of his appellate argument forced the Mississippi Supreme Court to face the racism of the issue head on. But he lost. And, since the regulation of public education was strictly a matter of state power in the early twentieth century, the United States Supreme Court could find no authority for federal interference in a state court Writ of Mandamus appeal. Gong Lum’s legacy is much like that of the Dred Scott decision: the institutional racism of American law is exposed. That negative legacy is nonetheless significant.
Berard is clearly troubled by Gong Lum v. Rice as the limited Writ of Mandamus case that it was. Yet, Berard knows that the Lum family did not want to lead a Chinese-American equality movement. She knows that the Lum family did not want to fight for the desegregation of education in the Jim Crow South. Berard directly quotes Katherine Lum’s motivation: “I did not want my children to attend the ‘colored’ schools. If they had, the community would have classified us as negroes.” Berard simply does not respect the Lums’ motives. She asserted in an interview after the book was published that the Lums were “clearly making a racist decision. Whether it’s part of what was considered normal at that time or not, I don’t think you can let them off the hook for that very obvious fact that they did not want their daughters going to school with black children.” Berard the postmodern journalist wants more social justice now than the Lum family her story purports to revive sought then.
The Lum family brought Brewer a narrow legal action. Brewer tried to win his case. Berard has a myopic fantasy about Gong Lum v. Rice. “(I)n order for Brewer to win over the judges,” she writes of Brewer’s argument before the Mississippi Supreme Court, “he had to convince the men (the justices) to see Martha as the federal government saw her. He had to shift the focus away from the color of her skin, to the strength of her character. He had to somehow convince the judges that a person should not be defined by their race, but by their ambition. Such words were so dangerous, they could have splintered stone.” One line from Brewer’s entire argument to the Mississippi Supreme Court is all that matters to Berard. “Martha Lum is one of the state’s children and is entitled to the enjoyment of the privilege of the public school system without regard to her race,” said Brewer. Berard tries to transform Gong Lum v. Rice into a modern civil rights test case by that single sentence, because almost a century later she reads the Fourteenth Amendment as “the guardian of privileges for all citizens of all races.” By “speaking that line of the Fourteenth Amendment,” Brewer was “demanding that the state see Martha not as a Mongolian, a Chinaman, a colored girl, or a yellow child, but as a citizen of the United States.” Berard here is flat wrong. Her sanctimonious rebuke is off point, irrelevant to a Writ of Mandamus case. The case that the Lum family brought to Brewer, and the case that Brewer filed and argued, was not nearly as broad as Berard’s sweeping rhetoric. The “lost opportunity” she claims for Gong Lum never was.
Here is where deception, not just her fatal misapprehension of law, becomes the gravamen of Berard’s thesis. She blames the ultimate loss of her fantasy case directly on Brewer. “Gong Lum v. Rice, the first Fourteenth Amendment case to challenge the constitutionality of segregated schools in the Jim Crow South, was neglected by the very man who could have been it’s greatest champion.” Her astonishingly sweeping mischaracterization of the actual case now becomes misplaced slander. She first imposes upon Brewer the motive to mold him a tragic figure. She tries to cast him as justice’s own champion: “By taking this case, the case of the Chinese girl, Brewer would fight for the tacit promise made to every immigrant arriving at the nation’s gates, that they would find democracy on the other side.” Then she foists on him the curse of fate: ”Maybe the notion was too revolutionary for the very man who devised it, or maybe he saw on the judges’ faces the resolute prejudice against any threat to social order.” Maybe, instead, Berard’s dissatisfaction with history’s facts and her misunderstanding of the law provokes a deceptive thesis.
… (plus d'informations)
 
Signalé
TimOstroot | 28 autres critiques | Nov 7, 2017 |
Cette critique a été écrite dans le cadre des Critiques en avant-première de LibraryThing.
Important book covering topic mostly ignored by history. The changing between a documentary voice to a drama voice and back breaks the rhythm of the narrative, but it is an informative and enjoyable read.
 
Signalé
starrywisdom | 28 autres critiques | Aug 8, 2017 |
Cette critique a été écrite dans le cadre des Critiques en avant-première de LibraryThing.
in 1925 subjected to the indignities of discrimination, non-whites, people of color have not been seen as who they are: people as varied as the people who kept them subjected to discrimination. but what all people have in common is the desire to raise their families affording them an education to live their lives freely and fully according to their talents and interests. sadly that is still not always true. this book developed out of the author's desire to write her family history and along the way she stumbled on the history of the Chinese family Lum who challenged the laws of the state of Mississippi which would not allow non-white children to attend the same schools as white children. they found a lawyer who was keen to fight their case,but at the state level the Mississippi supreme court upholds the segregated schools law. the case is taken to the US Supreme Court but the lawyer pursues another local case and the lawyer he passed this case on to did not believe in it so did not fight it with any passion. once the paper work reached the Supreme Court even judge brandeis felt it should have been prepared and presented from a different perspective. the case is decided against the Lum family. the family eventually moves on and finds a community that allows the girls into the white school. eventually desegregation is upheld in Brown v Topeka board of education in 1954. this is a story of missed opportunities.

even though the story is fascinating and intriguing, it was related in a convoluted manner and it was difficult to follow the story. but it is definitely worth reading. amendments 14 and 5 are part of the story here and it helps to know more about those amendments.

i received this book thru LibraryThing early reviews.
… (plus d'informations)
 
Signalé
Savta | 28 autres critiques | Mar 29, 2017 |
Cette critique a été écrite dans le cadre des Critiques en avant-première de LibraryThing.
Until reading this book, I had no idea that around the turn of the last century, there was a sizable population of Chinese immigrants living in the deep South, many of them here illegally. Race relations being what they were at the time, the Chinese walked an uncomfortable line between the black and white population, not usually subject to the same indignities heaped against one, but never privy to the social and economic advantages of the other. In 1924, the U.S. Congress enacted a shamefully racist bill designed to exclude any further Asian immigration. That same year, the Gong family was informed that their two daughters would no longer be welcome to attend the local school for whites, but could join the black students at their school. The Gong family saw this as a step toward being excluded from all of white society, and filed a suit that eventually went to the Supreme Court in 1927. There, the power of the states to determine their own fates was upheld, and racial segregation in the schools was accorded the force of law for decades, until "Brown vs. Board of Education" undid the "separate but equal" concept.
This is a fascinating and well-written and researched study of a legal battle that had the chance to advance the cause of integrated schools and society long before Jim Crow laws were struck down. But the book is more than a courtroom battle; it's a fascinating look at the families and attorneys involved.
… (plus d'informations)
 
Signalé
burnit99 | 28 autres critiques | Mar 22, 2017 |

Listes

Asia (1)

Statistiques

Œuvres
2
Membres
69
Popularité
#250,752
Évaluation
4.0
Critiques
29
ISBN
8

Tableaux et graphiques