The courts have changed in such a way that it’s hard to bring affirmative [racial] claims, which is why I think one of the things that 21st century proponents of equality have to be willing to do is to advocate and litigate around issues such that they are not, in the first instance, making race-based claims. [They must] fashion race-neutral claims. Talk about the environment, talk about food justice, talk about educational dollars, talk about inequality in ways that can help to build coalitions and that can avoid triggering some of the pathologies around our racial conversations—some of the deep resistance to focusing on race qua race.
– Tomiko Brown-Nagin
Alyssa Richardson and Elizabeth Hadaway present a lively conservation with renowned constitutional law scholar and constitutional historian Tomiko Brown-Nagin on the momentous 2013 Supreme Court decisions, civil rights in the 21st century, and advice for students eager to contribute to modern civil rights lawyering.
NB: This interview has been edited for length and clarity.
Elizabeth: We want to thank you on behalf of CR-CL for agreeing to share your wisdom and experience with us and to be our first interview for this series: “What does it mean to be a civil rights lawyer in the 21st century?” So many of our generation are asking this question, especially for those of us facing choices about how to use our time at Harvard Law School and start careers that will contribute meaningfully to social change.
The 2012-2013 Supreme Court term’s docket has attracted a lot of popular attention to major civil rights issues, including gay marriage (in U.S. v. Windsor and Hollingsworth v. Perry) and affirmative action (in Fisher v. University of Texas at Austin). Should we think about these cases in relation to civil rights movements of the last century?
Brown-Nagin: Yes, you certainly can think about both of those cases in relation to the Black freedom struggle. The movement for marriage equality has explicitly made analogies between exclusion of gays from the rights of marriage and exclusion of African-Americans and other minorities from education and employment. Therefore the members of the movement themselves seem to see a linkage between the civil rights struggle and the struggle of gays, and I think that that is a very valid comparison. Others have noted the connection between marriage equality and Loving v. Virginia, the case in which the Supreme Court struck down laws banning interracial marriage—here again, I do think that is a very credible connection to make. And of course, just the idea of the struggle for inclusion and dignity are very much present in both movements.
There are some who would prefer to emphasize the differences. They would talk about how, in contrast to the case of race, sexual orientation is not immutable. Therefore, [they claim], we should see those two as distinct. However, it’s never been the case in the law that it was necessary to have absolute parallel experiences for the courts to find some utility in reasoning by analogy. So I think it’s fine [and] good to focus on commonalities.
As to Fisher v. Texas, the affirmative action policy and the top ten-percent race neutral policy that seeks inclusion and seeks to remedy a history of exclusion . . . should be understood as a part of the long struggle for civil rights in higher education. I, along with my colleague Lani Gaunier, wrote an amicus brief in Fisher v. Texas that argues that the history of exclusion in Texas actually makes this case very much a part of a longer narrative about exclusion — very much connects this case to the Jim Crow era in a way that prior affirmative action cases have not — and should mean that the Court should consider that there is a desegregation rationale for the affirmative action policy that supports the diversity rationale for the policy.
And in fact, one other thing that I will say is that students should know — and certainly this is what I teach in my history courses and my law courses that speak of the history of civil rights — they should appreciate that the wonder of the civil rights movement [and] Brown v. Board of Education is that they inaugurated a movement of movements. So, when one thinks about how the Civil Rights Movement changed America, you shouldn’t just think of it in terms of race, you have to think of ethnicity, you have to think of gender and disability and religion and all of the ways in which other status groups were able to grab hold to the legacy, to the law created by the civil rights movement, and press their cases for inclusion. So the civil rights movement is much more than just about race. It’s about equality for all Americans.
[After Fisher], contrary to the predictions of most commentators — a robust majority of the Supreme Court left holistic, race-sensitive affirmative action undisturbed. Proponents of affirmative action avoided the worst-case scenario. However, the decision leaves open the possibility of litigation over whether universities actually need to resort to race-conscious policies in instances where effective race-neutral alternatives are available. In those cases, the Fisher Court states, the federal courts are the final arbiters of whether race-based affirmative action is justified. Within this legal environment, it is vital for proponents of racial diversity in higher education to embrace race-neutral proxies for inclusion.
Alyssa: Just to dig a little deeper, I know you said, basically, [there must be] a holistic approach to solving this issue, but do you think that there is some particular way of going through the courts, in terms of equal protection? Or substantive due process? What would be the avenue?
Brown-Nagin: So there are 50 states and they have different constitutions. I think different strategies may work depending on the state and the political and social context in those states. [I]t might be easier to argue on equal protection grounds in a state that’s relatively poor where there are reasons independent of the legal claim asserted for a state legislature to supportincreasing levels of funding. [I]n a different state, that courtroom-based advocacy might not work because those external factors are absent. In other words, I really don’t think that — and this gets to the question of how we should think about the Civil Rights Lawyer in the 21st century — I don’t think that there is any particular legal strategy that should be thought of as a magical, all-encompassing strategy that is going to save the day for your client group.
That is one of the lessons of Brown v. Board of Education — a one-size-fits-all approach is going to be difficult [to find] for the entire group. [W]here Brown was actually implemented, it probably worked fairly well for the students who were best prepared to attend integrated schools. And when I say “best prepared,” I mean students who could do well on tests, I mean students who could, if they were in an overwhelmingly white environment, could navigate those environments very well. But for students who were not so well-situated, I think there is a lot of evidence to show that the Brown strategy was quite detrimental. I’m thinking of things like ability-grouping that became much more prominent after Brown. I’m thinking about even the use, the proliferation of standardized testing, which coincided with the desegregation movement. Standardized testing, on the one hand, can be useful to identify problems, but mostly, it’s been used to say that certain students can’t learn or they’re a problem. And I don’t think it’s useful in the educational context to be considered a problem.
So I would say that a variety of approaches can work, and a part of the task for a lawyer is to be creative. If nothing else, be creative. Study the landscape; do the groundwork that’s required to suggest what will work in a particular locale.
Elizabeth: One thing you said really struck me as a former English teacher. At the charter school where I taught, we taught Advanced Placement to all the kids. So I’m wondering, is there any type of legal challenge that you think can be raised on the grounds of tracking or ability grouping?
Brown-Nagin: Well, some cases have been litigated, and the difficulty is that courts don’t want to second-guess an educator’s judgment about what’s best for students. In the [few] cases that have been successful, the patterns of placement can’t be explained by a disinterested exercise of discretion. [For example,] a Black student who performs very well on standardized tests, such that he or she [should] be placed in Advanced Placement ends up getting placed in College Placement, whereas a white student who performs the same way is placed in AP. [That example shows that] there are soft variables that tend to influence how a teacher thinks about a student’s ability to succeed. And yet, most courts have said that the exercise of discretion by teachers does that amount to invidious discrimination. That’s what teachers do all the time. And courts are very skeptical of taking away that discretion.
Moreover, in some of the cases, there are a few students in the AP courses who are students of color, and when it’s been argued that the solution to tracking [to underrepresentation] is to do away tracking, judges will say, “Well, but the studies show that tracking can be useful or at least its not harmful.” And if it’s useful, including for those minority students, why would the courts intervene? So, what I’m saying is, yes, claims can be brought but they are very, very difficult. But I’m really happy to hear that you were working for charter schools that taught that curriculum to everyone. It think that’s the kind of thing that needs to happen. Inside-of-school reform.
Alyssa: To change gears here, how does constitutional lawyering look different, and do you think that the differences in legal strategies can be attributed to a shift in the political make up of the Court?
Brown-Nagin: Well most of the constitutional lawyering in the last 20, 30 years has been defensive, so defending the voting rights act from attack, defending affirmative action policies. It hasn’t been affirmative litigation at all in most areas. And the defensive postures certainly are born of the changing makeup of the court. The courts have changed such that — on the Supreme Court you have someone like Justice Scalia who views the voting rights act as racial entitlement. On the other hand, although they’re often coupled, I think they’re very different, you have someone like a Justice Thomas who is very aware of racial inequalities, who is, I think, concerned about that race-conscious measures [are] stigmatizing *Alyssa laughs* I know you’re skeptical, but I do think we have to try to see that there is a difference.
[T]he overall point that I’m making is that, yes, the courts have changed in such a way that it’s hard to bring affirmative [racial] claims, which is why I think one of the things that 21st century proponents of equality have to be willing to do is to advocate and litigate around issues such that they are not, in the first instance, making race-based claims. Fashion race-neutral claims. Talk about the environment, talk about food justice, talk about educational dollars, talk about inequality in ways that can help to build coalitions and that can avoid triggering some of the pathologies around our racial conversations— some of the deep resistance to focusing on race qua race.
Alyssa: Would you say that the task of the 21st century lawyer is going to be on the defensive — are we trying to make sure we aren’t retreating on issues? Or, do you think that maybe the 21st century lawyer, their task is going to move towards something more like the gay rights movement or the things that we mentioned earlier?
Brown-Nagin: The 21st century [civil rights] lawyer is a lawyer who works on healthcare reform, who, yes, is maybe involved in gay rights, who’s involved in the environmental movement, who is concerned about all of the issues of the day where 9 times out of 10, communities of color are worse off than any other community. The environment they live in is the most polluted sections. They have the worst healthcare. Working on all of these issues will help to impact the world for the better for these communities, all without using language that necessarily is racial in nature. This de-racialized approach may not be as satisfying when one knows that race is at the heart of an issue. But I do think it’s necessary to be less direct in this historical moment.
Alyssa: I’m gonna go home and think about that one.
Alyssa: Our last question is, what advice can you give to law students who are interested in careers in civil rights advocacy?
Brown-Nagin: Advice? Consistent with my advice about what civil rights lawyering should look like in the 21st century, I encourage you to take corporations, environmental law, constitutional law. Don’t just have Civil Rights I, II, III, IV on your transcript! Take Administrative Law; that’s probably one of the most important courses to take. Cover your bases.
You also need to know and be comfortable with thinking like the advocate on the other side. Now this is sort of a pet peeve of mine. I will concede that it can be difficult sometimes to appreciate the alternative arguments when it comes to some issues. But it’s not enough to be righteous. You have to be smart and hardworking and be able to anticipate alternative arguments and do your homework. Passion is good but it needs to be accompanied by being able to make effective and good arguments. You need to know how the law works. You need to understand Justice Scalia and Justice Thomas as well as Justice Breyer and Justice Ginsburg. Be very clear about that.
Alyssa & Elizabeth: Great advice!
Brown-Nagin: Strong medicine. But it’s good for you.
Alyssa & Elizabeth: Thank you.