National Association for Advancement of Colored People v. Button/Concurrence Douglas

by William O. Douglas

United States Supreme Court

371 U.S. 415

National Association for Advancement of Colored People  v.  Button

 Argued: Oct. 9, 1962. --- Decided: Jan 14, 1963

Mr. Justice DOUGLAS, concurring.

While I join the opinion of the Court, I add a few words. This Virginia Act is not applied across the board to all groups that use this method of obtaining and managing litigation, but instead reflects a legislative purpose to penalize the N.A.A.C.P. because it promotes desegregation of the races. Our decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, holding that maintenance of public schools segregated by race violated the Equal Protection Clause of the Fourteenth Amendment, was announced May 17, 1954. The amendments to Virginia's code, here in issue, were enacted in 1956. Arkansas, Florida, Georgia, Mississippi, South Carolina, and Tennessee also passed laws following our 1954 decision which brought within their barratry statutes attorneys paid by an organization such as the N.A.A.C.P. and representing litigants without charge.

The bill, here involved, was one of five that Virginia enacted 'as parts of the general plan of massive resistance to the integration of schools of the state under the Supreme Court's decrees.' Those are the words of Judge Soper, writing for the court in N.A.A.C.P. v. Patty, D.C., 159 F.Supp. 503, 515. He did not indulge in guesswork. He reviewed the various steps taken by Virginia to resist our Brown decision, starting with the Report of the Gray Commission on November 11, 1955. Id., at 512. He mentioned the 'interposition resolution' passed by the General Assembly on February 1, 1956, the constitutional amendment made to carry out the recommendation of the Report of the Gray Commission, and the address of the Governor before the General Assembly that enacted the five laws, including the present one. Id., at 513-515. These are too lengthy to repeat here. But they make clear the purpose of the present law as clear a purpose to evade our prior decisions as was the legislation in Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281, another instance of a discriminatory state law. The fact that the contrivance used is subtle and indirect is not material to the question. 'The Amendment nullifies sophisticated as well as simple-minded modes of discrimination.' Id., at 275, 59 S.Ct. at 876. There we looked to the origins of the state law and the setting in which it operated to find its discriminatory nature. It is proper to do the same here.

Discrimination also appears on the face of this Act. The line drawn in § 54-78 is between an organization which has 'no pecuniary right or liability' in a judicial proceeding and one that does. As we said in N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488, the N.A.A.C.P. and its members are 'in every practical sense identical. The Association * * * is but the medium through which its individual members seek to make more effective the expression of their own views.' Under the statute those who protect a 'pecuniary right or liability' against unconstitutional invasions may indulge in 'the solicitation * * * of business for (an) attorney,' while those who protect other civil rights may not. This distinction helps make clear the purpose of the legislation, which, as Judge Soper said, was part of the program of 'massive resistance' against Brown v. Board of Education, supra.

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