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Excerpted From: Megan Ming Francis, The Price of Civil Rights: Black Lives, White Funding, and Movement Capture, 53 Law and Society Review 275 (March, 2019) (References) (50 Footnotes) (Full Document)


What influence do funders have on the development of civil rights legal mobilization? Fundraising is critical to the creation, operation, and survival of rights organizations. Yet, despite the importance of funding, there is little systematic attention in the law and social movements and cause lawyering literatures on the relationship between hinders and grantees. This article recovers a forgotten history of the National Association for the Advancement of Colored People's (NAACP) campaign to protect black lives from lynchings and mob violence in the early twentieth century. I argue that funders engaged in a process of movement capture whereby they used their financial leverage to redirect the NAACP's agenda away from the issue of racial violence to a focus on education at a critical juncture in the civil rights movement. The findings in this article suggest that activists tread carefully as the interaction between funders and social movement organizations often creates gaps between what activists want and what funders think movements should do.

In 1916, the National Association for the Advancement of Colored People (NAACP) mounted the largest campaign in history against lynching and racist mob violence. Focused on the protection of black lives from state-sanctioned violence, the NAACP organized mass demonstrations, advocated for an anti-lynching bill in Congress, and won a landmark criminal procedure decision in front of the Supreme Court. One hundred years later, racial violence has reemerged on the national political scene as the defining civil rights issue in contemporary U.S. politics. Chanting “Black Lives Matter,” activists have taken to the streets in big cities like New York City and small towns such as Ferguson to bring attention to the disposability of black lives at the hands of law enforcement. Numerous scholars have rushed to explain the persistence of racist violence against blacks and have linked it to such factors as discriminatory policing, unresponsive federal institutions, political policies that criminalize poverty, and persisting housing segregation. This top-down analysis is important in shining a light on oppressive institutions but it is only one part of the story. The other is how activists have strategized internally and externally with funders over the meaning of civil rights. Thus, another way of looking at the present situation is: Why does the protection of black bodies from private and state-sanctioned violence remain an unmet challenge for civil rights groups committed to racial equality? A major but under recognized reason, I propose in this article, is directly connected to movement capture--the process by which private funders use their influence in an effort to shape the agenda of vulnerable civil rights organizations.

The puzzle is perplexing because throughout the twentieth century, the NAACP has been at the center of the U.S. civil rights movement and racial violence used to be at the center of the NAACP. During the first quarter of the twentieth century, the NAACP firmly established itself as the preeminent civil rights organization focused on the protection of black lives from racial violence. At the time, lynching and mob violence were at the top of the NAACP's issue agenda since racial violence was believed to be the greatest obstacle that African Americans in the North and South faced to gaining equality in America. The original NAACP platform in 1909 stated, “We regard with grave concern the attempt manifest South and North to deny black men the right to work and to enforce this demand with violence and bloodshed.” Seven years later, racial violence remained high on the list of NAACP's concerns. As explained by Secretary Roy Nash, an African American, in 1916 in response to criticism from a white NAACP founding member Mary White Ovington that the NAACP's program of advancement was not radical enough, “All he [the American Negro] wanted was a chance to live without a rope around his neck ...”. From the viewpoint of the NAACP, before the organization could appropriately address other problematic areas of civil rights such as voting, labor, and housing, it was necessary to focus on ending lynching and mob violence so that African Americans could live to enjoy the benefits of their struggle.

The importance of a social movement focused on the protection of black lives stemmed from the NAACP's core belief that the right to life--to have one's body protected--was one of the central tenets of American democracy and liberal theory. However, the NAACP shifted its agenda to a now-celebrated campaign against segregated education after 1930. We know much about the evolution of the NAACP's education litigation campaign, but surprisingly we do not know why the NAACP pursued the issue of education. In the voluminous literature written about the civil rights movement, there is not one account that explains why the NAACP abandoned its earlier radical campaign against racial violence and pursued an education-centered approach in the mid-twentieth century. To understand this substantial agenda shift inside the NAACP, I believe we need to focus more attention on the actions of its biggest funder: the American Fund for Public Service (most often referred to as the Garland Fund after its benefactor Charles Garland).

Fundraising is critical to the operation, professionalization, and survival of rights organizations . Today, the largest civil rights organizations in the United States receive the bulk of their financial donations from foundations and philanthropies. Yet, despite the importance of funding to the execution of successful litigation campaigns, there is little systematic attention in the law and social movements and cause lawyering literatures on the relationship between funders and grantees. For the most part, legal mobilization scholars view external funding and additional resources as overwhelmingly positive and indispensable to successful rights litigation.

Not all agree. A number of noteworthy accounts have challenged this dominant approach by drawing attention to the deceptive underbelly of foundation/grantee relationships as it relates to legal mobilization. Through rich case studies of civil rights organizations, these scholars demonstrate that funders influence can be more serpentine: funders co-opted litigation strategy and attempted to de-radicalize militant black and Latino organizations. I contend that these convincing accounts are important first steps in theorizing the relationship between funders and legal mobilization. However, this work is underspecified and still lacking a theoretical framework for understanding the mechanisms that lead to greater funder control over the agenda setting of cause lawyering.

Drawing on economic theories of regulatory and state capture, I use capture as a way to understand how private funders operate like interest groups or private firms, to buy influence over the goals and strategies of activists and cause lawyers. In this article, I propose the concept of movement capture-- the process by which private funders leverage their financial resources to apply pressure and influence the decision-making process of civil rights organizations. The movement capture framework hinges on the power imbalance between those that have resources and those that need them. In this way, movement capture relates to work that highlights the power asymmetries embedded in the relationship between community organizations (international and domestic) and funding from NGO's and businesses who take a “corporate social responsibility” approach to governance (. The institutional environment matters and funders are most likely to maximize their influence over civil rights organizations during the early stages of organizational development when funders are scarce or during a period of considerable financial instability. According to this framework, funders are self-interested actors that can exploit their elevated financial position by linking provision of funds to the pursuit of new goals or by shifting the salience of existing agenda issues.

Utilizing this framework of movement capture, I analyze the NAACP's interaction with the Garland Fund. Although the focus of this article is directly centered on the NAACP/Garland Fund dynamic, this movement capture framework could be applied to other cases. Specifically, I argue the Garland Fund was a principal cause in the shifting of the NAACP's agenda away from racial violence to education. The NAACP's landmark campaign against segregated education did not develop independently nor was it a collaborative endeavor with the Garland Fund. Rather, the NAACP's early civil rights litigation agenda was captured by the Garland Fund and redirected away from the issue of racial violence to the issue of education segregation. The NAACP, who viewed safety from mob violence and lynchings as the pinnacle civil rights struggle of the twentieth century, was severely underfunded by 1925 and without any viable prospects of big donors to support its anti-lynching activism. In this dire funding climate, the Garland Fund tied the biggest donation the NAACP had ever received to the pursuit of a different civil rights issue: education. I also find that an unintended consequence of this capture was the NAACP (and later the NAACP-LDF) moving away from the linked issues of racial violence and criminal justice and adopting a dominant focus on education (desegregation litigation) in the rest of the twentieth century.

The periodization of civil rights law has helped to conceal the capture of the NAACP's agenda by the Garland Fund. The main thrust of the literature documenting the NAACP's civil rights litigation has focused on the post-Brown period and the formal equality apparatus it constructed. Although these accounts of the NAACP's Brown decision acknowledge the complicated racial terrain in which NAACP lawyers and reformers operated, they primarily focus on the unsatisfying aftermath and the ill-fated attempts of a multiracial coalition to bring about equality in education. In recent years, this focus on courts, lawyers, and outcomes has been critiqued by a number of scholars whose research has decentered this elite-driven Brown narrative and expanded the chronological boundaries of rights making and NAACP organizing to the period before Brown was decided. An influential entry in this pre-Brown scholarship is Risa Goluboff's (2007) work, which forces us to reckon with the NAACP's efforts to bring cases on behalf of black workers to the courts throughout the 1940s. Highlighting the indeterminate nature of the NAACP's agenda during this period, Goluboff writes “the world of civil rights was conceptually, doctrinally, and constitutionally up for grabs.” These scholars emphasize the importance of focusing on paths not taken and the role of lawmaking outside of formal legal arenas.

Despite the wave of pre-Brown scholarship, this time period is still significantly underdeveloped. An economic-centered civil rights movement was not the only lost promise of civil rights. A preceding movement that focused on the protection of black lives was also lost. The analysis in this article goes beyond existing studies of civil rights legal mobilization because it focuses on an earlier period and a new cast of actors: black NAACP leaders and white funders. In doing so, it denaturalizes the formation of the education desegregation campaign and helps to focus attention on the way power inequalities becomes embedded, at the very inception, in legal mobilization campaigns.

Often, the NAACP's campaign against racial violence is either overlooked or dismissed as unrealistic in the context of Jim Crow America. To be clear, I am not asking a retrospective question about the feasibility of a racial violence campaign today; I am asking what looked possible from the standpoint of black leaders at the NAACP in the time period before a formal legal campaign against segregated education was launched. My aim is to reconstruct the struggles between the NAACP and the Garland Fund as they experienced them--using the actors' own language. It is to understand the NAACP's leadership as activists trying to chart the course of civil rights--rather than cast them as willing participants in an education-centered civil rights movement from the outset. Widening the analytical lens helps to illuminate not just movement capture but also the broader framework of the workings of racial power and how it structures the actions that elite actors from the Garland Fund to the NAACP took in trying to negotiate the future of civil rights. The focus on racial power owes to seminal scholarship in the field of critical race theory which has long argued that the exercise of racial power is “systemic and ingrained” in legal institutions, discourse, and society. Critical race theorists have made plain that racial domination can be reproduced in liberal institutions by well-meaning actors.

Today, under the banner of “social justice” and “social innovation” campaigns, philanthropic institutions have expressed renewed interest in funding black emancipatory movements. Indeed, the growth of the Black Lives Matter movement has led to a circling of foundations and private funders. A focus on movement capture sheds light on the difficult strategic decisions faced by marginalized groups as they navigate their political and legal agendas in a funding environment where interests mostly conflict and only sometimes converge. In particular, the NAACP's interaction with the Garland Fund shows that scholars cannot fully understand the civil rights movement unless they examine the deep tension that often existed between its many funders and the numerous groups that were supported.

The rest of this article will proceed as follows. The “Data and Historical Method” section provides detailed information on the source data from the archive repositories. The following section, describes the background and goals of the Garland Fund. The third section documents the NAACP's campaign against violence and the organization's agenda in the time period before the Garland Fund grant. The fourth section explores the interaction between the Garland Fund and the NAACP and the process of movement capture. And in the final section, I wish to emphasize that an analysis of racial hierarchies is critical to any study of legal mobilization during the civil rights era.

[. . .]

In the end, the education desegregation campaign proved to be both more and less than the Garland Fund or the NAACP envisioned. The focus on education sidelined concerns of criminal procedure, siphoned resources away from the campaign around workers' economic rights, and undermined the concerns of black labor. However, the campaign also had the effect of dramatically transforming constitutional law with the momentous Brown v. Board of Education decision. And even if it did not bring about direct change in education as many have alleged, it did have “cultural significance” which invigorated a new world of court-centered and legislation-centered civil rights claiming.

Megan Ming Francis is an Associate Professor in the Department of Political Science at the University of Washington and is also the Director of the Washington Institute for the Study of Inequality and Race (WISIR).

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