Vol. 46, No. 5

Taking a step: North Carolina Bar Association, Foundation examine ties to systemic racism, how to move forward

By Marilyn Cavicchia

“[I]f a Bar Association is afraid to take a step, then you cannot expect society to take it for you. You are the leaders. You are out front.”

With these words, Black lawyer Eric C. Michaux unsuccessfully urged the Board of Governors of the North Carolina Bar Association to allow him and his brother, Henry A. Michaux Jr., to join the all-white bar association. Both brothers were eventually approved for membership, in 1967, but it took several attempts. Their experience was part of a pattern in which the bar association removed a clause that had limited membership to white people only but then made it difficult, through seemingly arbitrary requirements, for Black lawyers to join. These tactics caused Duke University School of Law (where Eric Michaux had earned his J.D.) to sever important ties it had with the NCBA.

In November 2020, in a unanimous decision, the board of the NCBA apologized for this and other instances of discrimination within the association, and for cases where the NCBA and its leaders were directly involved in systemic racism throughout the state. The boards of both the NCBA and the North Carolina Bar Foundation announced their decisions—also unanimous—to each take several specific steps to address this history and ensure that those mistakes are not carried forward any further.

The incidents in question date back to 1898 and extend until 1970, with “an arrow” that seems to connect the older and more recent events, says Executive Director Jason Hensley. The underlying theme he sees is that throughout the entire time period, NCBA founders, its eventual leaders, and the organization itself either directly promoted racial discrimination or failed to put a stop to it when given the opportunity.

And while many would say that even 1970 was a long time ago and that the past is the past, Hensley has a different point of view. “The past is alive and well,” he says, noting that the consequences of unjust actions in the past often build on each other as time goes on. “And it is alive and well until we address its wrongs.”

A ‘clear and honest understanding’

“To understand what you should do, and to look at the steps that are needed, you really have to understand how you got here,” Hensley believes. “And only with that clear and honest understanding of what has happened can you really work to achieve what’s possible.”

To help inform both boards’ decisions, the NCBA prepared a 56-page report on its historical connections to systemic racism in North Carolina. The report includes transcripts of bar leaders’ speeches, newspaper clippings about Black lawyers who were denied membership, excerpts from bar publication articles, and minutes and transcripts from board meetings, including the one during which the Michaux brothers stated why they should be allowed to join. The Michaux transcript is especially powerful, Hensley says, and it has never been made accessible until now. The NCBA’s press release about the board decisions also prominently features a link to the full report.

And the work of confronting the association’s history isn’t over, Hensley says. The hurdles encountered by the Michaux brothers and other Black lawyers in the 1960s present an especially pressing need for additional research, he notes. “Given that many of those events were occurring 50 and 60 years ago, our opportunity to record first-person accounts of those events are becoming fewer with the passage of time,” he explains. “It’s important for us to tell that story in the most complete way that we can.”

Rethinking a key historical figure

The desire for a clear understanding, Hensley says, is the underpinning for work done by both the NCBA and the North Carolina Bar Foundation since July 2020, when a resolution by The Commission on History, Race and a Way Forward at the University of North Carolina at Chapel Hill revealed some troubling details about several key figures in North Carolina history—including Gov. Charles B. Aycock, a founding member of the NCBA.

Aycock was (and by some, still is) revered or even mythologized throughout the state as having been deeply invested in education—and he was recognized via named buildings or similar honors at several universities, Hensley notes. However, he and other charter members of the NCBA were also directly involved in a white supremacy campaign in 1898 that included mass rallies, voter intimidation, and a massacre and coup d’etat in Wilmington, N.C.

Throughout the state, Republicans and Populists had formed an interracial coalition called the Fusionists, which had won every statewide office, swept the legislature, and won the governorship. The Fusionist platform included Black men having as much voting power as white men, and in fact, many public offices were held by Black men. In part by making a violent example out of Wilmington and deliberately inflaming anti-Black sentiment statewide, the Democratic Party succeeded in regaining its power. This led to several measures, beginning in 1899, to disenfranchise Black voters using tactics such as literacy tests and poll taxes.

The NCBA was founded one month after the start of the 1899 legislative session, with several Democratic leaders as charter members and leaders; Aycock became governor in 1901 and served one term. In 1912, shortly before his death, he told his supporters, “We have fought for this issue or against that policy, but everywhere and all the time, we have fought for white supremacy.”

Aycock’s legacy pertains not only to the bar association, but also to the North Carolina Bar Foundation, which maintains a justice fund (an endowment) in his name. The fund, and therefore Aycock himself, are noted on a plaque at NCBA and NCBF headquarters.

A painstaking—and painful—report

The foundation’s initial research specifically into Aycock and the justice fund in his name led to a much more thorough investigation into systemic racism within the NCBA itself, and into how the association helped promote discrimination within the state. Though Aycock was a natural starting point, he was one of at least 14 founding or early members and leaders of the NCBA who were involved in the 1898 white supremacy campaign and the institution of Jim Crow laws in North Carolina.

The resulting report focuses primarily on the events of 1898 and 1899 and on the longstanding legacy of the Jim Crow laws and other forms of discrimination that the NCBA helped promote; on Black lawyers’ repeated attempts to join in the 1960s; and on the association’s failure in 1970 to support a state constitutional amendment to repeal the literacy test for voter registration in North Carolina. The literacy test, instituted in 1900, was one of several Jim Crow measures that were directly aided by founding members of the NCBA, the report notes. The board voted to support six out of seven amendments proposed in 1970; North Carolina voters followed suit, approving every amendment on the ballot except the repeal of the literacy test.

Though it was made inoperable by the Voting Rights Act of 1965, North Carolina’s literacy test remains in the state constitution to this day, Hensley says, which means that it is void only as long as this act remains in its present form. The NCBA is now actively working to encourage repeal of the test.

While Hensley says the reckoning brought about by this report has been difficult, the discomfort hasn’t necessarily been in reconsidering or letting go of historical leaders who had been beloved. “I think the pain is in understanding the events that happened and the longstanding effect that those events have had,” he explains.

While response to the report has been “across the spectrum,” Hensley says, many members have indicated that they are receptive to the ongoing discussion that it has helped spark, and that it has been productive to understand in a new way their own time in the profession in North Carolina.

Actions by the association and the foundation

Though the report, and the research that went into it, was an important first step, Hensley says much of the work is ongoing or lies ahead, for both the association and the foundation. Here are the specific actions that the association board is taking now, many of which will lead to recommendations for further actions:

  • President Mark Holt directed the Awards and Recognitions Committee to review the NCBA’s current named awards, honorees, commemorations and collectibles and to make recommendations. Specifically, these recommendations will pertain to past presidents and other individuals who are currently recognized in this way and who have ties to the Wilmington Massacre and Coup D’etat or who otherwise helped encourage disenfranchisement and discrimination toward Black people. The committee will also make recommendations on whether the practice of making named awards should continue, and if so, whether new guidelines are needed.
  • A task force has been appointed to do further research into the history of the NCBA’s integration and to propose any additional steps and actions to oppose racism and advance the principles of equity and equal justice for all, in the legal profession and for the general public. This task force will also explore and highlight the contributions of people who opposed racism in the history of the NCBA.
  • The NCBA has “publicly and decisively commit[ed] to opposing racism and advancing the principles of equality and equal justice for all, in the legal profession and for the citizens of our state, and further commit[ed] to taking practical action in its work and contributions with legal education, law firms, corporate counsel, and government and the public, to help our profession and our society promote diversity, inclusion and equal opportunity for all.” This commitment includes encouraging the repeal of the literacy test; making diversity, equity, and inclusion education available to members and employees (via free monthly CLE and staff-wide training); and authorizing Hensley to create a staff position focused on DEI.

For its part, the foundation is taking these steps:

  • Hensley is pursuing the removal of a plaque recognizing the Governor Charles B. Aycock Justice Fund from display and the repurposing or disposition of the corpus funds. This will involve working through several steps, he notes, because justice funds are established with the understanding that they are meant to honor specific individuals, as a condition of the funding.
  • Holt, who is also president of the foundation, has appointed a task force to review and make recommendations regarding the diversity and inclusion of individuals recognized by justice funds. The development of justice funds that are not already in progress has been halted until this work is completed. The task force will also consider and make recommendations regarding grant and program initiatives to encourage greater DEI in the practice of law and delivery of legal services in North Carolina.

Other organizations’ similar efforts

The NCBA and its related foundation aren’t the only organizations that have recently taken a new look at their history and also at whether to continue honoring important figures whose legacy is troubling from a DEI standpoint. For example:

  • In April 2021, the Dallas Bar Association announced that its board had unanimously voted to rename the Belo Mansion, which the bar purchased as its headquarters in 1977. The mansion’s original owner, A.H. Belo, was a Confederate colonel. “Our ability to hold events in a venue that is welcoming to every member of our diverse association and city is vital,” DBA president Aaron Tobin said in a statement, adding that the renaming decision (which followed the bar’s first-ever DEI report) reflects who the bar is today, and its commitment to DEI.
  • In a February 2021 post on the American Medical Association’s website, CEO and Executive Vice President James L. Madara, MD, wrote about the AMA’s commitment to DEI in recent years and about whether this was reflected in how it honors the physician who is widely thought of as its founder. Dr. Nathan Davis and some of his contemporaries directly or tacitly promoted discrimination toward women and Black physicians. “We can’t erase history, but we can decide the appropriate way to recognize individuals from our past,” Madara wrote, adding that a bust and display of Dr. Davis at AMA headquarters had been removed from public view. 

    In March 2021, a podcast and related promotional tweet by the AMA’s JAMA Network caused public outcry by questioning whether systemic racism exists within the medical field and whether doctors are fundamentally able to be racist. Madara posted again to reiterate the AMA’s commitment to DEI and to outline measures that had been and would be taken to ensure that content from JAMA Network was in line with the AMA’s values. 

Hensley has heard from some other bar organizations that want to look into their own history and that find the NCBA’s report and both boards' actions to be a useful model to start from. “Our suggestion would be that the best path forward is to look for the truth and to be honest about it,” he says, noting that as the foundation and the association began to uncover more information, they knew it was important to share it directly and openly.

Echoing the quote from Eric C. Michaux that opened this article, Hensley says bar organizations have a particular call to lead when it comes to DEI. “In our form of government, the path to justice is through the judicial system,” he says. “How can you have fairness and equity and equality in that system if the profession cannot provide it to itself?”