University of Illinois labor and employment relations professor Michael LeRoy is an expert on immigration and employment policy. In an interview with News Bureau business and law Editor Phil Ciciora, LeRoy discusses his research about confronting a resurgent white supremacy movement.
What is your paper about?
It looks at the ways to update the Ku Klux Klan Act of 1871 in order to hold hate groups accountable for damages, and also to subject them to restraining orders.
I focus on extreme cases of racial intimidation in the workplace. One involves The Daily Stormer, an online hate news site that recently orchestrated an online troll campaign against a Jewish real estate agent in Whitefish, Montana. It was a conspiracy that arose from erroneous information about the real estate agent pressuring the mother of alt-right leader Richard Spencer into selling her property in Whitefish after Spencer gained notoriety for a Nazi-style gathering in Washington, D.C.
Another involved Ku Klux Klan activities that transformed a steel mill in Pennsylvania into a de facto segregated workplace. For years, the mill was permeated with racist symbols such as graffiti, nooses, insults and other types of racial intimidation, and starkly unequal treatment of whites and blacks. Then, a black employee of the steel mill saw several white co-workers huddled in a break room watching a Ku Klux Klan video on the induction of a young woman. The witness later learned that the woman was the daughter of an employee who was also the grand dragon of the Pennsylvania Klavern of the Klan.
The employer was sued for race discrimination, and was held responsible under Title VII of the Civil Rights Act of 1964. But the Pennsylvania Klan and its leaders got off without any consequence. The white employees who conspired to drive minority co-workers from their workplace were not held accountable.
My study shows how a surviving remnant of the Ku Klux Klan Act of 1871 – section 1985(3), the civil component of the law – could hold the individuals involved in these incidents responsible.
What is the history behind the Ku Klux Klan Act of 1871?
The law was passed after 125 witnesses came before Congress to testify. Many were ex-Klan members. Some testified anonymously. Although they were white, and many were former Confederate soldiers, the Klan’s violence shocked and terrified them. Based on their testimony, Congress passed the Ku Klux Klan Act of 1871, which contained both a criminal and a civil section.
In 1882, the U.S. Supreme Court, in U.S. v. Harris, struck down the entire criminal law part – basically, half the statute – saying it usurped state criminal laws. This outraged many Northerners because they realized that Southern states would do nothing to bring the Klan to justice. The Northerners made an accurate prediction.
After the law laid dormant for nearly 90 years, a Supreme Court ruling in 1971 revived its civil element. I argue that you could apply that civil component to localized, racially motivated incidents that show white supremacists attempting to segregate a specific workplace or small labor market.
How does your research relate to what happened in Charlottesville, Virginia?
My research shows how the Justice Department will be hampered in pursuing federal criminal charges against any potential suspects.
We now have a replacement law for the Supreme Court’s unfortunate ruling in 1882 – the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which passed in 2009. But that law is far narrower than the Ku Klux Klan Act of 1871. The criminal section of the Klan Act was tailor-made for the Charlottesville violence, but it won’t be available because of the unfortunate Supreme Court ruling back in 1882.
How can we improve the enforcement of bigotry laws?
My research paper does not aim to silence the KKK or neo-Nazis. They have constitutional rights, no less than anyone else. But the constitutional freedoms of white supremacists do not give license to racial conspiracies that deny persons equal protection of the laws.
As hate groups attempt to resegregate America through violence and intimidation, I contend that it’s time to use the remaining civil law component of the Ku Klux Klan Act to forge new uses of the law. Prosecutors could use it not only against the perpetrators, but also against the broader hate community that is tied together by technology such as videos, internet sites, emails and the like.