Politics

Drew S. Days III, first African American to lead civil rights division at Justice Department, dies at 79


His death was announced by Yale Law School, where Mr. Days was a professor emeritus. The cause was complications from dementia, said his wife, Ann Langdon-Days.

Mr. Days spent decades seeking to advance the cause of civil rights from positions both inside and outside the government. He was a lawyer for the NAACP Legal Defense and Educational Fund before Griffin B. Bell, President Jimmy Carter’s first attorney general, tapped him for a post in the Justice Department in 1977.

A former federal judge, Bell knew Mr. Days from his NAACP work. As he assembled his staff for the Justice Department, he asked the 35-year-old lawyer if there was a job in the department that might interest him.

“I would like to head the civil rights division,” Mr. Days, who described the conversation in an oral history with the Touro Law Review, recalled telling him.

“I don’t know about having a Black person heading the civil rights division,” Bell replied, the implication being that some African Americans might take offense at the appointment of a Black official to a job whose portfolio was perceived as limited to racial matters.

“Judge Bell,” Mr. Days responded, “no Black person has ever headed any division in the Justice Department, so I don’t think that’s a major problem.”

Mr. Days took office in 1977 and served until shortly after Carter’s defeat for reelection in 1980. He told The Washington Post early in his tenure that he hoped “to get America to where it sees subtle forms of segregation” but at times found himself contending with more blatant ones.

He took on cases including what he described as the “egregious constitutional violations” occurring in schools in Charleston County, S.C., where he said a “dual system of public education” for Black and White students persisted more than a quarter-century after the U.S. Supreme Court decision in Brown v. Board of Education that outlawed segregation in public schools.

On matters of law enforcement, he argued that police departments had not effectively confronted officers who abuse their authority. “The tendency is more to shield those people,” he said in 1980, “than to offer them up for appropriate discipline.”

Mr. Days joined the Yale Law School faculty in 1981 and taught at the university until his retirement in 2017, with a leave of absence to serve as solicitor general from 1993 to 1996. The third-ranking official in the Justice Department, the solicitor general is sometimes described as the tenth justice of the Supreme Court because of their prominent role arguing the government’s case in the chamber.

Mr. Days appeared on shortlists of possible contenders for a Supreme Court nomination during the Clinton administration but never received the nod, reportedly because of his role in a child pornography case early in his tenure that became a political cause celebre.

The case involved a defendant, Stephen A. Knox, who had been convicted on federal child pornography charges. The law in question prohibited the possession of photographs or videotapes depicting “a minor engaging in sexually explicit conduct,” as defined as sexual acts or “lascivious exhibition of the genitals or pubic area.”

Until the Knox case, the law had been applied only to pornographic materials depicting nude children. In the materials Knox possessed, the children, although scantily clad and photographed in suggestive ways, were clothed and were not engaged in sexual acts. This point became a central argument in Knox’s appeals.

The case arrived at the Justice Department during the administration of President George H.W. Bush, whose officials argued the law had been properly applied in Knox’s case. Mr. Days issued a so-called “confession of error” — arguing that the appeals court, in upholding Knox’s conviction, had relied on “an impermissibly broad” interpretation of the anti-pornography law.

His argument, which was intended to preserve the anti-pornography law by preventing its overuse, touched off a political firestorm. Within a week, Mr. Days said in the oral history, 40,000 calls to the Justice Department took down the telephone system. All 100 senators — Democrats and Republicans — voted for a resolution that condemned his interpretation of the statute.

The Supreme Court returned the case to the lower court, which again upheld the conviction. When Knox appealed a second time to the Supreme Court, Attorney General Janet Reno filed her own brief arguing that the appeals court had ruled properly — a highly unusual departure from the argument of her own solicitor general. At that point, the Supreme Court denied further review.

The incident, which proved a political nightmare for Clinton, was said to have eliminated Mr. Days from consideration for an appointment to the high court. He retained his defenders, however, among them New York Times columnist Anthony Lewis.

“Not one senator bothered with the facts. Not one understood that Solicitor General Days and the Justice Department were doing their job in lawyer-like fashion: representing the Government and trying to save a statute from constitutional failure,” he wrote.

“President Clinton paid no attention to the facts either. Like the senators, he cared only about running away from a fake, hypocritical charge of ‘softness on child pornography.’ . . . It was sleazy politics, soiling the law.”

Drew Saunders Days III was born in Atlanta on Aug. 29, 1941. His mother was a teacher, and his father worked for an insurance company where Mary McLeod Bethune, the women’s and civil rights activist, served on the board. Mr. Days met her as a child, an experience that he said “pointed me in the direction of doing something in civil rights or individual liberties.”

He grew up in Tampa — where as a lawyer he would later help bring about the desegregation of public schools — and later in New Rochelle, N.Y. After receiving a bachelor’s degree in English literature from Hamilton College in Clinton, N.Y., in 1963, he received a law degree from Yale in 1966, where he said he was one of five African Americans in a class of nearly 200.

Mr. Days briefly practiced law in Chicago, then served in the Peace Corps in Honduras before joining the NAACP.

Throughout his career, he argued in favor of affirmative action, a policy, he told the Times in 1983, that “does more than simply prohibit discrimination in the future. It actually attempts to make up for the effects of discrimination that occurred in the past.” He testified in 1991 against the nomination of Supreme Court Justice Clarence Thomas, an opponent of such programs.

Besides his wife of 53 years, of New Haven, Conn., Mr. Days’s survivors include two daughters, Alison L. Days of El Paso and Elizabeth J. Days of New York City; a sister; and two granddaughters.

The pornography case was not the only sensitive issue that came before Mr. Days as solicitor general. Speaking to Newsweek in 1994 about another matter, in which he and other Clinton administration officials wrangled over a politically palatable solution to a question involving federal treatment of money tithed to a church, he seemed to articulate an overarching philosophy.

“I did what I had to do, to the best of my ability and to my conviction,” he said, “and the president exercised his authority.”


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