BY GEORGE CRITCHLOW
When I was young, there were no Black residents in Kennewick, my hometown, just a half-mile across the Columbia River from Pasco. This was not by accident. Kennewick was a “sundown town.” Until the early 1960s, there was a sign on the Kennewick side of the old Pasco-Kennewick bridge warning Black people to leave town by sunset. This was the Inland Northwest where Black residents discerned where they could live by trial and error, by overt or implied threats, and by the largesse or exclusivity of those white people who controlled lending, real estate, contractual covenants, and local government.
I was raised in white, middle-class comfort in a big house on a leafy sycamore-lined avenue. My world was wheat fields and vineyards, swimming and skiing, lemonade stands, and hot summer days. I was unaware that African Americans could not rent or buy homes in my community. The Kennewick public schools taught me about liberty and the pursuit of happiness, Manifest Destiny, and the Emancipation Proclamation, but no one ever talked about how Black people were denied the right to live on my street, Kennewick Avenue.
Sam and Dorothy were born, raised, and married to one another in pre-World War II Mississippi. Like many African Americans, they lived in rural poverty with little chance of rising above the station assigned by history and culture to poor and poorly educated southern Black people. They decided to join the migration out of the South to northern venues they believed would provide economic opportunity and an escape from pervasive discrimination. Sam heard there were good railroad jobs in the Northwest, so he brought Dorothy to Pasco just after serving with the U.S. Army in the European theater during World War II. Sam worked as a laborer in the old railroad roundhouse that repositioned locomotives back when Pasco was an important railroad hub. The job was steady, and it supported the couple’s growing family.
Living in Pasco offered more opportunity than Mississippi, but post-war Pasco for African Americans was not a Norman Rockwell picture of the American dream. Pasco was a segregated town where custom and practice consigned Black residents to live in several blocks of low-income rentals and modest homes on the city’s east side beyond the railroad tracks. The remainder of the city was predominately white. So was the county, a big county with miles of open, undeveloped land mixed in with large wheat, grass, and potato farms.
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Sam and Dorothy were renters. They were never able to afford their own home during Sam’s working years. But, since coming north, the couple dreamed of buying and owning their own place. For decades they had set a little money aside each month to make their goal a reality. It was not until the kids had grown and Sam was retired from his railroad job that the couple finally felt they had saved enough to start shopping for a home they could call their own. They had noticed that a huge parcel of land had recently been developed in Pasco for manufactured homes. The development was complete with curb, gutter, electricity, sewer, and water. It consisted of dozens of vacant lots located just north of east Pasco’s historical Black district. A major sales effort was underway, but no one had yet moved a manufactured home onto a site. The year was 1976—12 years after the enactment of the Civil Rights Act.
The couple did their research and decided to put money down on a manufactured home that would be delivered to them once they had purchased a suitable lot. They knew the lot they wanted. It was situated on the northwest corner of the new development with a view into Pasco to the west and open county land to the north. The parcel was not far from the neighborhood in which they had lived for years as renters. They approached the development’s marketing office and communicated their interest in buying the lot on the northwest corner. The white sales employee politely informed them that, unfortunately, that lot had already been promised to someone else. Sam and Dorothy recovered from their disappointment and quickly decided on an alternative lot. They were surprised to find that that lot had also been sold. They thought it odd there was no public sign or other indication these two lots were unavailable. Not to worry, there were plenty of other newly developed lots that went on for blocks. They expressed interest in still another lot only to be told there was a problem with that lot’s utility hookups, and the lot was not currently for sale. When they inquired about still another lot, and another, they were given varying explanations as to why the lots could not be sold.
Sam and Dorothy did not have the privilege of extensive schooling, but they knew a few things about how the world worked. They knew the official recipe for achieving the American dream: work hard, take care of your family, serve your country, and have faith in God. They had done it all. They were humble, God-fearing people who had raised a family, worked hard, and fought for freedom. Sam and Dorothy also knew the alternative narrative, the lived narrative of people of color who learn from experience that no matter what kind of lives they live, some doors will be closed. The couple politely told the sales agent that they believed the development was not open to Black people. The salesman expressed shock and assured them that if they came back—perhaps in a few months—he was sure he could find them a suitable lot.
Sam and Dorothy did not return to the sales office. They went, instead, to see a lawyer—my father, Ed Critchlow. He quickly filed a discrimination lawsuit in the Franklin County Superior Court alleging violations of the couple’s state and federal civil rights. It was about this time that I graduated from law school and went to work for my dad. Knowing of my interest in civil rights, he gave the case to me and remarked that it might not be worth a lot of money, but it was among the most important cases in the office. He also mentioned that Sam and Dorothy were about the nicest people you would ever want to meet.
I pulled up to the modest, wood-framed home in the center of east Pasco’s Black community. The street was littered with junk vehicles. Lawns were brown and dry. Most structures needed paint. I wanted to see Sam and Dorothy’s aging rental house and have them show me the development where they had hoped to live in their new manufactured home. They met me at the door and ushered me into a clean and tidy living room adorned with pictures of their two boys, now grown and on their own. There were also framed portraits of Martin Luther King Jr., John F. Kennedy, and Pope Paul VI. Sam was tall, slender, and taciturn. His wife was diminutive and effusive.
They offered me coffee, and we chatted about their early lives in Mississippi, their move to the Northwest, and their efforts to create a secure and stable family life. I asked what home ownership meant for them, and they responded the way any American might respond, regardless of race or station. Home ownership represented safety and security, independence, and a means for accumulating wealth by building equity. People take pride in home ownership, and it symbolizes achievement. Sam and Dorothy had talked about these things for years.
The trial took place after months of pretrial skirmishing aimed at discovering documents and communications that might disclose and prove the discriminatory intentions of the defendant corporation that refused to sell to my clients. Depositions and informal interviews with witnesses had shown what I believed was a shared understanding among corporate officers and employees that they would not let Black people buy into the development for fear that it would gain a reputation as a “Black development.” No one would admit this squarely, but several people opined that Black folks would have no problem buying lots once the majority were sold first to white buyers. I also discovered there was no impediment to selling my clients any of the lots in which they had expressed interest. They had been lied to. By the time of trial, white people had purchased these lots.
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We selected an all-white Franklin County jury. I had hoped against all odds that there might be one or two African Americans selected, but the jury panel called by the court was overwhelmingly white. The one Black citizen called to come forward during the selection process was promptly struck by the defendant’s attorney who, at that time, had the legal right to use peremptory challenges to remove up to three prospective jurors without stating a reason. The jurors we ended up with were local people, most of them raised in Pasco, the town just across the river from Kennewick, the city dubbed the “Birmingham of the Northwest” during the civil rights struggles of the 1960s.
I was pleased with how things went, especially since it was one of my first civil jury trials. I worked my butt off and was successful in getting my witnesses to say what I hoped they would say. On cross-examination, I hammered adverse witnesses who I knew to be lying. It was a good sign when the defendant’s lawyer finally offered to settle the case for several thousand dollars during trial. By that time, we had considerable expenses invested in the case; my clients had lost their down payment on the manufactured home, and we were convinced the evidence would support a substantial award of both compensatory and punitive damages. My only reservation stemmed from the fact that the jurors seemed uncomfortable and refused to look me in the eye. In any event, my clients rejected the settlement offer, and the trial concluded with a rousing closing argument that I had waited my whole life to give.
We had been in trial for eight days. The jury deliberated for two days, which I assumed meant jurors were arguing over how substantial the award of damages should be. Finally, the jury reassembled in the courtroom. We waited anxiously and heard the foreman announce the jury’s answer to the court’s first question: Did the defendant corporation discriminate against Sam and Dorothy based on race—yes or no? The foreman answered, “Yes.” My heart leaped—we won! The foreman went on to answer the second question: “If the answer to the first question is ‘yes,’ what are plaintiffs’ damages?” The foreman lowered his eyes and mumbled the jury’s answer: “Zero.”
I was devastated. The clients were more philosophical. They took the verdict in stride, as they had learned to take things in stride their entire lives. I asked the court’s permission to interview individual jurors, at least those willing to talk with me. Two jurors shared with me how their deliberations led to a verdict of discrimination, but no damage. The explanation went something like this: “Well, yes, the developer did discriminate, you proved that. But you should remember, this is Pasco, and we just felt that your clients were better off and happier living with their own kind rather than forcing themselves into a community that did not want them. So, since your clients were better off, not worse off, we just didn’t see any damage.”
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This statement of the jurors’ sense of justice may be the most succinct and forthright declaration of white privilege and racial paternalism I have ever heard. The trial court refused my request for a new trial. The judge considered the verdict to be a judgment for the defendant. I appealed. A year later the court of appeals reversed the trial court in a written decision that affirmed the legal principle that a verdict of discrimination automatically mandated an award of at least nominal damages and attorney’s fees. The appellate court assessed damages in the amount of $100 and sent the case back to the trial judge to calculate legal fees. In the end, the defendant paid my dad’s law firm several thousand dollars in legal fees and $100 to Sam and Dorothy. My dad instructed me to send the legal fees to our clients. The incongruity of the outcome was just too much for him.
I suppose some might conclude that my clients’ experience was a regrettable but anomalous example of racial bias in a post-Civil Rights Act America. But people whose ancestors were legally treated as chattel know better. The habits and practices of our country’s systemic marginalization of non-white people were evidenced by Pasco’s historic housing patterns, the attitudes and behavior of the defendant’s corporate agents, the minds of the jurors, a justice system composed almost exclusively of white folks, and a trial court judgment that erased a finding of racial discrimination. In the context of racial justice, Pasco (like many towns in America, North and South), was a town that lived in the past, not in some idealized post-racial present.
Our continuing struggle for racial justice in modern times requires us to challenge and overcome the trope that today’s America is post-racial—that slavery, Jim Crow, redlining, school and housing segregation, voting impediments, employment discrimination, and disparate law enforcement practices are things of the past, long since remedied by civil rights laws, court decisions, and social policies. As symbolized in the iconic photo of a jubilant protester carrying a Confederate flag in the halls of Congress on Jan. 6, the atavistic appeal of racial dominance has not disappeared. It may, in fact, be ascendant.
I hope young lawyers today burn with the same passion for justice that motivated me. But if we are to rid our nation of the vestiges of white supremacy, there must be intentional engagement in all spheres of society, not just reliance on lawyers and the law. We must educate our children and ourselves about our racial history and its tenaciously destructive effects on both individuals and institutions. We must talk about white privilege and the dirty secrets of our past so that young people do not grow up, as I did, learning about the rhetoric of freedom and the rule of law but remaining ignorant about those principles’ imperfect application in modern society. The objective of critical thinking about race is the opposite of what some might argue. It is not about making white people feel bad, it is about making all of us more empathetic and aware of our shared humanity.
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