From Civil Rights to Human Rights

As we have discussed elsewhere, Black intellectuals have long made linkages between U.S. domestic civil rights and global anti-colonial and human rights struggles.Footnote ³ Lamenting the shortcoming of U.S. law, Pauli Murray noted, “as I look back over my life, [] all of these problems of human rights in which I had been involved were moral and spiritual problems.”Footnote ⁴ Because of slavery, Jim Crow, and ongoing assumptions of Black inferiority, the U.S. approach to civil rights was never capacious enough to embrace substantive equality. Thus, at least as far back as the Civil War and Reconstruction periods, Black intellectuals “in both the abolition and women's suffrage movements embraced a shared notion of human rights—one that Black women were central in articulating and embodying.”Footnote ⁵ In the twentieth century, Martin Luther King Jr. pivoted from civil rights to human rights toward the end of his life, both with respect to his opposition to the Vietnam War, as well as in his bridging of racial inequality and poverty.Footnote ⁶

It is critical to place Pauli Murray in the context of this human rights tradition, as her work—indeed her very existence—helped explode the demeaning ways in which discrimination based on socially constructed categories, such as race and gender, can be used to deny marginalized individuals fundamental, universal human rights. Significantly, Murray's ideas and legal theories—and personal experience as a queerFootnote ⁷ African American woman—were central to advancing core human rights protections for all in the United States, most notably in the areas of race and sex-based anti-discrimination law. Iconic jurists Thurgood Marshall and Ruth Bader Ginsburg, widely recognized for their trailblazing litigation work in advancing the rights of, respectively, African Americans and women under the law, each owe a debt of gratitude to constitutional theories that Pauli Murray developed and advanced.Footnote ⁸

Murray grew up in the segregated South and experienced first-hand the insult and terror resulting from a system where, by dint of race, she was subjected to separate and inferior treatment in public accommodations, such as stores, theaters, and trains.Footnote ⁹ Further, she was explicitly denied admission on the basis of race from graduate school at the University of North Carolina and on the basis of her sex from graduate studies at Harvard Law School.Footnote ¹⁰

Murray met the discrimination she faced with activism that foreshadowed the tactics of the civil rights movement. Fifteen years before Rosa Parks was arrested for refusing to give up her seat on a segregated bus, Murray and a friend were arrested, convicted, and fined for refusing to leave their seats on a segregated bus in Petersburg, Virginia.Footnote ¹¹ The National Association for the Advancement of Colored People (NAACP) represented them as a test case to challenge the constitutionality of Virginia's segregation law in interstate travel.Footnote ¹² Although they lost at trial and decided not to appeal, the experience of defying Jim Crow segregation and participating in strategic litigation convinced Murray of the power of nonviolent resistance and legal advocacy.Footnote ¹³

During her final year at Howard Law School, Murray participated in a civil rights seminar whose singular focus was to develop arguments on how to overthrow Jim Crow through the courts.Footnote ¹⁴ In the seminar, Murray argued for a frontal assault on the Supreme Court's 1896 Plessy v. Ferguson decision, which established the “separate but equal” doctrine that paved the way for Jim Crow.Footnote ¹⁵ At the time, few, if any, civil rights lawyers viewed this as a viable strategy—the NAACP Legal Defense and Educational Fund's (LDF) approach was to challenge the equality of the separate facilities, while leaving the Plessy precedent itself unchallenged.Footnote ¹⁶ Nevertheless, Murray chose the frontal assault strategy as the topic of her seminar paper.Footnote ¹⁷ She argued that the separate but equal doctrine was “a badge of inferiority,”Footnote ¹⁸ citing references to psychological and sociological data that supported her argument, as she had no existing legal precedents to rely upon.Footnote ¹⁹

Ten years later, the 1954 Supreme Court decision in Brown v. Board of Education accepted similar arguments in overturning the separate but equal doctrine. The Court found that separating Black students from their peers solely on the basis of race “generates a feeling of inferiority [] that may affect their hearts and minds in a way unlikely ever to be undone,” and relied upon sociological and psychological research in reaching its decision.Footnote ²⁰ Murray's legal theory appeared in the Court's holding because her law school seminar professor, Spottswood Robinson, had saved her paper from all those years prior and, with the other members of the NAACP LDF team, relied upon it in drafting their legal brief for the Brown oral argument.Footnote ²¹

Before and after the Brown litigation, Murray's work reflected an intuition that international human rights law would enhance arguments under U.S. civil rights law.Footnote ²² In 1951, Murray completed a 746-page book which was the first compilation of all laws in the United States on racial segregation and racial equality.Footnote ²³ Murray included in her book the then-new Universal Declaration of Human Rights, the UN Charter, the Inter-American Act of Chapultepec, and the UN Educational, Scientific and Cultural Organization Charter and Report on Race, reflecting her view that these early human rights era international instruments had relevance to the U.S. civil rights movement.Footnote ²⁴

From Race and Gender Silos to Intersectionality and Interdependence of Rights

Decades before Professor Kimberlé Crenshaw coined and popularized the term “intersectionality” through her groundbreaking work,Footnote ²⁵ Pauli Murray was attuned to ways in which race and sex-based discrimination imposed unique and compounding effects on African American women.Footnote ²⁶ By centering Black women, Murray's experience and legal work highlighted the “‘dual handicap . . . of race and sex.’”Footnote ²⁷ Thus, Pauli Murray coined the term, “Jane Crow,” as a way to analogize from “Jim Crow.”Footnote ²⁸ As Professor Lisa Crooms-Robinson deftly notes, Murray, in effect theorized two “Janes”: “One Jane used the race-sex analogy to show that race and sex were both unconstitutionally arbitrary. The other Jane captured Black women's experiences and rights deprivations at the intersection of race and sex.”Footnote ²⁹

In addition to anticipating the notion of intersectionality, Murray embraced the related human rights idea that rights are interdependent. In her pioneering work on “Jane Crow,” she pointed out that “three human rights conventions, two of which are of special importance to women, were submitted to the [U.S.] Senate for its advice and consent to ratification in 1963.”Footnote ³⁰ Murray further contended that “the rights of women and the rights of Negroes are only different phases of the fundamental and indivisible issue of human rights.”Footnote ³¹ Citing foundational international law texts, Murray noted: “[t]he [UN] Charter and the UDHR both stress respect for human rights and fundamental freedoms for all persons without distinction as to race, sex, language, or religion.”Footnote ³² Flagging the shortcomings of U.S. equality law, Murray explained that “[c]ourts have not yet fully realized that women's rights are a part of human rights[.]”Footnote ³³ Broadly, she argued, “We are entering the age of human rights.”Footnote ³⁴

More specifically, in her work on Title VII of the 1964 Civil Rights Act, Murray argued that including “sex” in this provision barring discrimination in employment “represents an important step toward implementation of our commitment to human rights.”Footnote ³⁵ Through her scholarship and advocacy of her theory of Jane Crow, she refined arguments for applying Title VII to prohibit sex discrimination in employment.Footnote ³⁶ In helping to resolve the debate about whether “sex” should be listed among the protected categories in Title VII, she wrote a memo noting that without the inclusion of “sex,” one half of the Black community—namely, Black women—would remain unprotected.Footnote ³⁷ Murray's memo, in part, persuaded the White House and Congress that the prohibition against sex discrimination would advance the goals of the legislation.Footnote ³⁸

While serving on the President's Commission on the Status of Women, in 1962, Murray had already prepared a memorandum establishing a Fourteenth Amendment women's rights litigation strategy based on analogies to race and civil rights.Footnote ³⁹ Further, she persuaded feminist leader Betty Friedan to co-found (with Murray) the National Organization for Women (NOW), a national non-governmental organization similar to the NAACP, which would politically advocate for the rights of women.Footnote ⁴⁰ Through her work, Murray “reasoned from race” to pave the way for Ruth Bader Ginsburg and the Supreme Court in establishing a theory regarding sex discrimination by analogy to race.Footnote ⁴¹

Black Liberation in the United States as Part of a Global Struggle for Human Rights

Pauli Murray understood her activism in the United States was part of a broader transnational human rights struggle, similar to the diasporic approach of W.E.B. Du Bois. Murray noted that she was “a person committed to human rights whether . . . in North Carolina or Accra Ghana,”Footnote ⁴² and credited her time living in International House while obtaining her law degree at UC Berkeley School of Law as informing her understanding of “the civil rights struggle within the wider context of all human rights.”Footnote ⁴³

In 1960, Murray realized her dream to visit Africa when she joined the University of Ghana School of Law faculty. While there, she indirectly became involved in a nascent human rights struggle within the country. Ghanaians had just completed their first post-colonial constitution and had elected their first president under the new political system.Footnote ⁴⁴ Although the regime began to teeter toward authoritarianism, Murray provided her law students with a robust education in constitutional law and the separation of powers, giving them insights into how their new constitution could be interpreted.Footnote ⁴⁵ Her students, some of whom worked for the government, began asking questions about the authoritarian turn of the government.Footnote ⁴⁶ As the political climate continued to worsen in Ghana, Murray was encouraged to depart because her class was seen as a threat to the government.Footnote ⁴⁷

Before departing, Murray co-authored an influential book, titled “The Constitution and Government of Ghana,” to serve as a resource for future teachers, students, lawyers, judges, and government officials about the Ghanaian constitution and legal system.Footnote ⁴⁸ As was her custom, she sought to advance human rights in Ghana through her scholarship and advocacy. Immediately prior to her departure, Murray was approached by one of her students to assist with arguments in a court challenge to the government's detention of political opponents under a draconian security law.Footnote ⁴⁹ Murray secretly assisted with arguments that the law violated tenets of the Ghanaian constitution.Footnote ⁵⁰ The Ghana Supreme Court's rejection of the argument led to the government's detention of the Ghanaian lawyer and senior opposition figure who had brought the habeas proceedings.Footnote ⁵¹ Murray departed Ghana with regret over the vast needs that she was leaving behind, but she returned to her work on human rights as the first African American doctoral student at Yale Law School, where she continued her research on human rights in the newly independent African states and on race and gender equality in the United States.Footnote ⁵²