What is going on in Missouri?

Mark Levison, The Levison Group

When it comes to media attention, heck, when it comes to the attention of the country period, there is a general feeling that what happens on the East and West coasts is important. What happens in the center of the country, well, blah, blah, blah.
Still, something odd is happening in Missouri. A little over a year ago, Ferguson police officer Darren Wilson shot Michael Brown. A mantra: “Hands up, don’t shoot” was born, and a group: “Black Lives Matter” gained steam. The media was immediately filled with Missouri lawyers like Prosecutor Bob McCullough and Police Officers Association Attorney Neil Bruntrager. The country’s dialogue concerning the Ferguson police shooting spread to Staten Island, South Carolina, Baltimore and beyond.

Just a few days ago, the president (and chancellor) of the University of Missouri resigned after Missouri’s student body president raised issues of racism, a graduate student stopped eating, and perhaps more significant still, the football team went on strike.
As an attorney, I do my best not to draw conclusions until I feel I have a good grasp of the facts – I let my clients do that. Although I didn’t have many facts in the case of the University of Missouri, I was astounded at how quickly University heads fell. My reactions were: one, the president must have had other troubles; and two, this is going to embolden students at colleges all across the country. I know, I was there in the 60s.

In fact, the activism at the University of Missouri spread quickly and the dean of students at Claremont McKenna College resigned when students lodged similar complaints. At Yale University, a “guidance letter” was sent urging students to avoid insensitive
Halloween costumes using blackface, turbans and Native American headdresses. When a professor reacted negatively to such “guidance,” and suggested the importance of the right to be inappropriate, some students got upset. Stay tuned, lots more to come at Yale and across the country.

From its geographic location in the middle of the country, Missouri is now in the middle of the crosshairs of America’s politicians. Our president, and the bevy of presidential candidates, often refer to Ferguson and the “Ferguson effect.” The same pols are commenting about the University of Missouri. Democrat candidates have expressed general support for the students, Sanders tweeting that it was time to address structural racism on college campuses and Clinton re-tweeting that, “Racism has no place anywhere, let alone an institution of learning.” No surprises there. Some Republican candidates, again not surprisingly, have taken a different approach.

According to Trump, “…it’s just disgusting. I think the two people that resigned are weak, ineffective people.” He then suggested that he should have been the president of the university because he would have been really tough. Perhaps not to be outdone, Carson claimed that if university officials don’t regain control, “We’ll move much closer to anarchy.” He added the time worn refrain, that the students were being manipulated by outside agitators.

Predictably, positioning himself in the middle, “Jeb!” said he heard the Missouri University president may not have responded to legitimate concerns, but since he hadn’t followed it carefully, he didn’t know if the resignation was appropriate. Meanwhile, Christie took the opportunity to blame the president for making race relations worse in America.

Rubio and Paul, while seemingly side-stepping the specific issue, harkened back to the guarantee of free speech in the First Amendment. Rubio suggested that freedom of speech on campus seems to be under assault, and Paul pointed out that people will say things that we don’t agree with, but free society gives them a place to make their argument – a position reminiscent of a fellow with a similar hairdo, Voltaire, who purportedly said, “I disapprove of what you say, but will defend to the death your right to say it.”

So how is it that a place as insignificant as Missouri is on the cutting edge of today’s legal, political and social issues? Well, maybe we’ve forgotten about American history. Maybe we’ve overlooked the inscription carved into the ediface of our National Archives Building: “What is Past is Prologue.”

At least until the recent advance of conservatism from the “solid South” into the Midwest, Missouri led the country in political prognostication. From 1904 through 2004, Missouri, the so-called Bellwether State, picked who was going to be president in every single election other than in 1956, when Eisenhower was re-elected, but Missouri voted for Stevenson, the Senator from its bordering state of Illinois.

Turning from politics to the law, it was a quarter of a century ago in 1990 when the U.S. Supreme Court issued its first right-to-die case in favor of Missourian Nancy Cruzan. After a car accident left her in a “persistent vegetative state,” the court held Cruzan (and her family) had a right to have her feeding tubes removed based upon clear and convincing evidence that she would have wanted that. Thereafter, living wills became the estate planner’s staple across our country.

About a half century before Cruzan, in 1948, the high court announced Shelley v. Kraemer. That landmark decision held the action of the Missouri Supreme Court enforcing a racially restrictive housing covenant in St. Louis deprived the Shelley petitioners of their Fourteenth Amendment rights to equal protection.

Looking back further, the same University of Missouri was, in fact, involved in one of the most important court cases in the American civil right movement. African American Lloyd Gaines filed suit because the University failed to admit him to its law school due to his race. In the 1938 Missouri ex rel. Gaines v. Canada decision (Canada was the registrar at the university), relying in part on the 1896 Plessy v. Ferguson separate but equal doctrine, the high court held the University of Missouri Law School had to admit Gaines or establish a law school for him. Missouri chose the later course, and established Lincoln University School of Law. Gaines disappeared in Chicago before he could begin classes – never to be heard from again – but Lincoln graduated 79 students before merging with the University of Missouri in 1955.

Additionally, we ought not forget the 1857 Dred Scott decision, which was an appeal from the Missouri Supreme Court. That case, viewed by some as the Supreme Court’s worst ever decision, held that the Fifth Amendment barred any law that would deprive a slaveholder of his property (A/K/A his slaves) even if a slave had migrated to a free state.

Finally, lest we forget even more of the history that brought us to where we are today, consider the Missouri Compromise. It was 1819 when Missouri asked to become a state. It wanted to keep its slaves, but New York legislators proposed admission of Missouri conditioned only upon it’s admission as a free state. There were twenty-two states in the Union at the time, eleven were slave states, eleven were not. In 1820, the Compromise allowed Missouri to enter the Union as a slave state at the same time Maine entered the Union as a free state. Putting aside issues of right and wrong, and the moralities of today or yesterday, the Compromise worked – at least for a while. Missouri and Maine are still states, and we’ve added a few more since then.

So what does the middle of America contribute to all of us? Probably different things to different people. Perhaps we ought to pay a little more attention to Missouri and other states not fortunate enough to be bordered by oceans. Just maybe the odd things that have been happening in Missouri aren’t so odd after all. It could be that history teaches that the middle of the country offers us more lessons, problems and precedents than merely the news of tornadoes ripping through trailer parks.


Under Analysis is a nationally syndicated column. Mark Levison is a member of the law firm Lashly & Baer. You can reach the Levison Group in care of this paper or by e-mail at comments@levisongroup.com.
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