- And Good evening, I'm Trevor Morrison.
I'm the Dean of this law
school and I'm really thrilled
to welcome all of you to the
20th Derrick Bell lecture
on race in American society.
It is an honor to participate
in this fantastic tradition.
This is my third lecture, and
it's already become something
I look forward to starting
tomorrow for the next one.
I'm really delighted to see so
many people here this evening
that were part of Derrick's life,
former students, colleagues, friends
and family were especially honored
to welcome his sister Janet bell.
His sons Carter, and Derrick
Bell, the third and his widow,
Janet Dewart Bell and her
brother, Dr. William McCoy.
Where's William?
I haven't seen him yet,
there he is, hello!
(audience applauds)
While I did not have the privilege
of knowing Derrick during his life,
and or being a colleague
of his on this faculty,
I certainly can attest
to the profound impact
that he has had and continues
to have on this law school,
and indeed on the law
and society more broadly.
And I know that many of you
can attest to that, as well.
It is not an overstatement
to say that Derrick was
and is a colossal figure
in constitutional law,
in civil rights law, really as one
of the consciences of this country.
His leadership, as a scholar, as a teacher
and as an activist help to
foster a dialogue on the progress
or lack of progress of racial
reform in the United States,
a dialogue that continues today.
His steadfast sense of
integrity, permeated every phase
of his celebrated career
from his early role
as the only African
American among hundreds
of lawyers working in
the Civil Rights Division
of the Justice Department, to his role
at the NAACP Legal Defense
Fund under Thurgood Marshall.
And of course later in his career,
Derrick challenged law
schools across the country
to embrace diversity in
their hiring practices
and he held them accountable
when they did not.
We are so fortunate that
Derrick eventually chose NYU Law
as his academic home, where he was admired
by faculty and students alike.
In 2012, Derrick posthumously received one
of our distinguished teaching awards
for his outstanding achievements
as a constitutional law teacher.
And that's just one of
innumerable examples I could list
of his well deserved honors.
And tonight, we gather to
celebrate Derrick's extraordinary
legacy and to remember the countless lives
that he touched, the debates he provoked,
the causes he championed.
But today is not just about
looking back on Derrick
with respect and admiration,
of course we do that today
and in all days, today is also
about carrying his legacy
forward to continue
to enhance and expand the
important work he set forth
for racial reform in the United
States and around the world.
That's the mission of this lecture series,
is to examine the role of
race in American society.
It has served as truly a critical platform
for leading scholars and
activists to share their work
on racial justice and civil rights
and we continue that tradition tonight
with our own graduate,
Sherrilyn Ifill, graduate
of the class of 1987.
Now President and Director counsel
at the NAACP of legal
defense and Education Fund.
She will continue the
tradition of the Bell lecture
with her talk entitled America Divided,
Brown's predictive power
and the urgent moment
for racial equality.
We're really thrilled to
welcome Sherrilyn back
to the law school.
She will be introduced
formally just a moment
by our Vice Dean Randy
Hertz, but first I want
to introduce Janet Bell who
has been an integral member
of the law school community
for so many years.
Indeed, the Derrick Bell
lecture series was conceived
by Janet, many of you may know this,
as a gift for Derrick 65th birthday.
And it's not surprising
that Janet would think up
such a compelling event
given her own professional
and personal commitment to education
and communication and social change.
Her own career has, again unsurprisingly,
been marked by an enduring
dedication to volunteer service
and to promoting initiatives
that increase diversity
and equal rights for all.
Now before welcoming her to the stage,
a word of congratulations for her,
there's been an important
milestone reached
because just earlier this
year, Janet earned her PhD.
(audience applauding and cheering)
I think I have this
right, her dissertation
is titled African American women leaders
in the civil rights movement,
a narrative inquiry,
an enduring leadership
legacy of authenticity,
courage and purpose.
She literally embodies her
own scholarship in this sense.
We are so grateful to
have Janet Dewart Bell
with us tonight.
Please welcome Dr. Janet bell.
(audience applauding and cheering)
- Ha!
Thank you,
I travel across this
country and with Derrick,
I've been to many, many law schools
and the love at NYU law
school can't be beat,
don't you love this Dean?
(audience applauding)
Derrick lived to teach and
teaching kept him alive.
For him, it was always students first,
it was a mantra in our household.
I too want to say that
in Derrick's background,
in that universal encyclopedia,
his portrait is next
to the definition of mentor.
For him, there was no
higher calling than teacher.
It is always gratifying
and humbling that students
who never met him in person
are very much his students,
continuing to carry on his work
with integrity and dedication.
Let me acknowledge the three Bell sons,
Derrick Bell the third,
Douglas Dubois Bell
and Carter Robeson Bell.
Yes, you note the
significance of those names.
Our family wit, Carter says
that he has three last names.
Carter, being an honor of
one of Derrick's mentors,
Judge Robert L. Carter,
and his wife Gloria.
The late Judge Robert
Carter argued the first
Brown v. Board of Education
case before the Supreme Court
and taught at this law school.
By the way, Derrick's other
mentor was the late civil rights
attorney and Judge Constance Baker Motley.
There are many people
to thank, thanks must go
to our adopted daughter,
Lisa Marie Boykin, NYU 95.
Y'all can stand up, raise your hand.
(audience applauds)
A first among equals,
who remains a faithful
and incomparable standard
bearer of the Bell legacy.
Other adopted first among
equal daughters here tonight
include Lisa Jones, and Linda Singer,
here with her daughter
and Derrick's goddaughter
Erin Sternlieb, please stand up Erin.
(audience applauds)
Oh, come on do better than that!
She's 18, she became Derrick goddaughter
when she was 13 for her bat mitzvah.
I especially want to lift up the memory
of Derrick's first wife,
a truly phenomenal woman,
Jewel Hairston Bell, who died
before Derrick and I met.
As partners, she and Derrick
blaze trails together.
20 years ago, the Bell lecture
co-founders shared a dream
with me. Judge Robert L.
Carter, Paulette Jones Robinson
and Valerie Cavanagh
and William Kerstetter,
who are here once again from California,
where are you?
(audience applauds)
Bill and Valerie represent an
illustrious and fierce group
of social justice and legal advocates.
Joining our village is
the international lawyer,
Alice Young, one of Derrick's
first students at Harvard.
She, along with Harvard professor
and former Bell student
helped endow this series
and their major assists
recently from Dr. Kitty M steel
and Lewis steel and
from Ted and Nina Wells,
the Steels and Nina Wells
join us this evening,
and why are people so
shy, don't make sense.
(audience giggling)
Okay, now Bell lectures have
been consistently wonderful.
Stellar academics who also
have social justice advocacy
in their DNA.
Their tradition continues tonight
with the wonderful Sherrilyn Ifill.
Also with us, are previous Bell lecturers,
William Chip Carter, professor and dean
at Derrick's alma mater,
the University of Pittsburgh
and Kendall Thomas, professor
at Columbia Law School.
Deep personal thanks goes to former dean
and university president John Sexton,
a Bell student at Harvard, who
champion this lecture series
from the very beginning.
To his successor, Ricky Rivas
and also enduring thanks
to BLAPA, the Black, Latino,
Asian Pacific American
Alumni Association, say that
three times without stumbling.
(audience giggling)
And to its president, Rafiq Kalam Id-Din.
Very Special Thanks must go to the staff
of the Office of Development
and Alumni Relations
for their care and attention
to this lecture series,
year after year.
With grateful acknowledgement to the shy,
I hope she's in the room, Kelly Spencer,
for going above and
beyond the call of duty.
On behalf of the Bell extended family,
I again pledge our continued commitment
to this wonderful law
school, represented in part
by this lecture series
and the courtyard bench
with a plaque in Derrick's honor.
I urge you if you've not done it already,
but if you have do it
again, go to that bench,
reflect and renew your
commitment to the law
and social justice.
Lastly, I love this part, I'd
like to thank the brilliant,
kind and humble Vice Dean Randy Hertz,
who gets very embarrassed
quickly, the faculty liaison
for this lecture series
since Derrick's passing,
students love Randy as
do I, as with Derrick,
Randy is student focused, I
call him student obsessed.
He is truly a gentleman and a scholar.
He will introduce tonight's lecture after
what has also become a
tradition of these series.
I'm calling Ross Borough back
to the stage for a second.
Now Derrick loved music,
almost every Bell program
includes music and tonight
you've heard the wonderful
Rosslyn Borough accompanied
by Brian Ridden.
(audience applauds)
They are world class
musicians and friends.
Ross has only done 17 Broadway shows.
Now every year, some of you
apparently do not get the memo
that we're doing this
Stevie Wonder version.
So fasten your seats, tonight
is more than a lecture.
It is a celebration of
Derrick's exemplary life
of meaning and worth and
it's also his birthday.
So with that...
♪ Happy Birthday to ya ♪
♪ Happy Birthday to ya ♪
♪ Happy birthday ♪
♪ Happy birthday to ya ♪
♪ Happy birthday to ya. ♪
♪ Happy birthday ♪
♪ Happy Birthday ♪
♪ Happy Birthday ♪
♪ Happy Birthday ♪
♪ Happy Birthday ♪
♪ Happy Birthday ♪
♪ Happy Birthday ♪
♪ Happy Birthday to ya. ♪
♪ Happy birthday to ya ♪
♪ Happy Birthday ♪
(audience appauds)
- Thank you, Dr. Bell.
(audience giggling)
So one of the greatest perks
of being the faculty liaison
to this program is having
the privilege and pleasure
of being able to stand up here each year
to welcome the greatest
scholars in the country
on the issues of race and law.
It's an especially wonderful joy for me
to do that this year,
because I knew Sherilyn
when she was a student
and I've watched her
incredible career develop and flourish.
So when Sherrilyn was a student,
it was clear she was going
to great places. I remember, I
remember, you won't remember,
I remember being a judge
at a simulated argument
that you did, oh, you remember!
(audience laughing)
And I'm sitting there watching
this young law student argue
and I'm thinking to myself,
"Wow, she is a powerful oral advocate."
And I thought, "I don't know
where she's going to end up,
"but she's going to do great things."
And of course you have.
So I've seen after that you
went on to the fellowship
with the ACLU and then Sherilyn
followed in the footsteps
of the great Derrick
Bell, by going to become
an assistant counsel at
the Legal Defense Fund,
where she worked for five
years as an assistant counsel,
focusing on voting rights
and making a name for herself
as one of the best civil
rights lawyers in the country.
And then after that, she
went on, again following
in the footsteps of the great Derrick Bell
and went into academia.
And those of us who knew her at the time,
well actually, I knew
at the time and I tried
to convince him to come
here, but she wanted
to go to the University of Maryland,
which was a mistake, but I understand.
I understand there were reasons.
But she went on there to do
great things in the field
of race in the law, civil
rights, voting rights.
She wrote amazing
groundbreaking scholarship,
a widely acclaimed book and
she became one of the leaders
in the country of legal
pedagogy, creating a clinic
and also revamping the first year
of the University of Maryland
Law School's program so that
it would integrate real life perspectives
and provided greater and
broader perspective on the law.
And then after doing
that for several years,
and being one of the best
academics in the country,
then she returned to the
Legal Defense Fund in 2013
as the leader of the Legal Defense Fund.
and it's no news to
anyone who's in this room
that these have been troubled
years in racial relations.
Of course, we've had too
many year, too many decades
of trouble times racial relations.
It is wonderful for the Legal Defense Fund
and wonderful for our
country, that we have someone
with Sherrilyn's brilliance and creativity
and steady hand at the teller
to lead the organization
and all of us through
these troubled times.
So, Janet talked about this
event as bringing together
an extended family and
she mentioned a number
of the Carter kids and also his students
who of course part of his family.
I like to think that
we are all spiritually
and philosophically
part of the Bell family.
So, I would like to welcome Sherrilyn here
as part of the bell family but also
as part of the NYU family
and we are welcoming back one
of our kids and we're so happy
to have you back, so join me.
(audience applauding)
- Thank you.
When my kids come home,
they usually want money and food, so...
(audience laughing)
So first of all, thank you.
This is in no particular order,
but thank you to Dean Morrison
and to the NYU faculty, to all of you
who came out tonight,
especially to the students.
As I recall from my days
living on Mercer street,
Thursday night was a
kind of big party night.
So I appreciate your being here.
(audience giggling)
I want to thank the Bell family.
This is just truly an honor.
And I want to thank the
lawyers and staff members
from the Legal Defense Fund
who came to support me tonight.
Where are you?
Woo!
(audience applauding)
Appreciate that.
Also my best friend and former law school,
NYU law school roommate and partner
in all manner of shenanigans
down in the village back
in the day, Gemma Solimene
and her husband Pedro Morales.
(audience applauds)
And my husband Ivo Knobloch,
for being here with me.
(audience applauds)
I just want to say a quick word
and I don't wannna be too
long, but just when you talked
about Derrick being a mentor,
I'm going to talk about Janet
in a minute, but just
want to say something
about Derrick being a mentor
because he was a mentor to me,
he convinced me that I
could get a fellowship
at the McDowell Writing
Colony to finish my book.
He said you could do it, apply
and I thought that's crazy,
there's no way that
looks at me and I did it
and I was accepted and did
some of my best writing there
and always was a great
sounding board and what I loved
about Derrick is he was
never congratulatory
about anything I did.
(audience giggling)
No, he was all always
pushing me to the next level
and that's really true
and honest mentorship.
But I think many of us
think of the mentees
of Derrick Bell as being
students that he taught.
As Randy Hertz mentioned,
I've lived in Baltimore
for 20 years teaching at the
University of Maryland Law
School and much as I love
NYU, it was not a mistake,
it was a lovely decision.
(audience laughing)
And the place where I have worshipped
for the last 15 years is a
church called Mount Calvary
AME church.
The pastor of that church
is a woman named Dr. Ann Lightner-Fuller.
And she often would tell
a story about how she got
her degree, her college degree.
She was a secretary at
Harvard, and the person
that she worked for was a lovely man,
by now you can probably
guess it was Derrick Bell,
who told her that he was going to fire her
if she did not apply to college.
She had a young son, she
wasn't college educated,
but wanted to be and he took
her to the admissions office
at Boston College, which is
where she wanted to attend
and then had her pick up the application
and write the application.
And she attended Boston
College and you just heard me
describe her as Reverend
Dr. Ann Lightner-Fuller.
She later received her doctorate
and has been listed as one
of the 15 Greatest Women
Preachers in Ebony Magazine.
And when she would tell the
story, the first few years I was
at the church, she never
mentioned the name of the person
and then one year she just
said that it was Derrick bell.
And I share that story with you
because I just believe we will never know
how many people's lives
Derrick seeded into.
And it's not just the people
that we meet at Harvard
and the people we meet at NYU,
but it's just people
all over this country.
So this is number three
on my NYU bucket list.
Number one was being the speaker
at the law school
convocation two years ago,
Dean Morrison invited me.
Last year I gave the
university commencement address
at Yankee Stadium, come on, I mean,
that was number two.
(audience laughing and applauding)
Awesome, it's awesome!
But number three is definitely giving
the Derrick Bell lecture.
The other two opportunities
I didn't pursue.
I was pleased and
surprised to get the call,
but to be honest with
you, I have been angling
to give this Derrick
Bell lecture for years.
(audience laughs)
I dropped hints, I've looked longingly
at Janet from the audience.
I think I straight out
offered myself for the lecture
to Lisa Boykin a few years ago,
I wanted this and here I am.
And I have to say I did not imagine myself
as director counsel of the
NAACP Legal Defense Fund
when I imagined giving this lecture.
And so this really adds
a surreal dimension
to what is already a dream come true.
I have to say a special word
of thanks to Janet bell.
Janet, as you know, is a force of nature.
The woman to whom you
absolutely cannot say no
and I want to celebrate
Janet for keeping the spirit
of this lecture alive.
You know, Derrick was an unusual man
and extraordinary lawyer
and scholar and teacher,
we all know this.
But often when even
extraordinary people leave us,
no matter how much we
love them or admire them,
we lose sight of them.
They move slowly to that
other shore called memory.
They lose their potency and power.
But Derrick is still with us
because of his extraordinary spirit
and because of the fourth
force, truth, imagination
and brilliance of his scholarship.
Because of the example he said,
Of uncompromising conviction
because he was strong and still gentle
and a great intellect and a man of faith
because he was serious about
justice but wore it lightly
and made us smile.
And Derrick lives because of
Janet Bell, who works so hard
to keep the spirit of
Derrick and the example
of his leadership alive. This
lecture plays a vital role
in that project, not only
because it keeps Derrick
memory alive, but because
it pays him forward
by providing a platform
for serious, honest,
scholarly engagement on
one of the most important,
most potent and most vexing issues
in our country since its very
beginning, the matter of race.
And this lecture calls upon
those of us who are activists,
scholars to remain true to
the standard set by Derrick,
one of uncompromising truth telling,
meticulous research, clear vision.
I hope that many of you
will support the lecture
with your contributions to keep it going.
We need to support the
intellectual development
and scholarship of our study of race.
It's a complicated subject.
I say this all the time
because I, we very often face
a Supreme Court that treats
race very simplistically.
But those of us who engage
with this issue know
that it takes an understanding
of history and psychology
and social science and
demography, and economics,
and labor patterns and every
discipline you can imagine
and every day you're
learning and you're learning
how much you don't know.
And so I hope you will support
this extraordinary space
where every year scholars
can come and share
with you their thinking
and writing about race.
So thank you, Janet.
So I've been wanting to
give this talk so long
that I have about three
Derrick Bell lectures in me.
(audience laughing)
And I played around with
this and I think I decided
I'm just gonna give all of them tonight.
I'm gonna weave them into one lecture,
but it's actually a series of things
I've been thinking about,
one of which is the focus
of a book that I was
writing in the fall of 2002,
when I was asked to take the helm
of the Legal Defense Fund
and had to put on hold.
So I hope you won't see all the places
where I stitch this together,
but I really do think they are
of a piece because in my line of work,
I'm compelled to try
and understand something
of where we are today on race.
Last night we had a huge Gala celebration
of the 75th anniversary of
the NAACP Legal Defense Fund,
75 years, that's huge, huge.
(audience applauding)
And I'm always proud to say
there's not a room in America,
including this one, that would
look like it looks right now
were it not for the work of the
Legal Defense Fund, not one.
And to lead an organization that has had
that kind of profound effect
on reshaping this country
is an honor and a privilege,
but also an enormous responsibility,
the responsibility to try and understand
where we've come from, where we're headed,
and to try to push us in the direction
of equality and justice.
And so I've been doing a lot of thinking,
every time a police officer
kills an unarmed African American
when I see the video of
an officer killing a child
or punching a woman in the face
or choking an unarmed man to death,
I spend time thinking about
where we are as a country.
After the Supreme Court's
devastating decision
in the Shelby County,
Alabama voting rights case,
a case we painstakingly litigated
or when the state of Texas
imposed a new voter ID law
that no longer allowed students
to use their university ID to vote
and no longer allowed Native Americans
to use their tribal ID to vote,
but does allow for the use of
a concealed gun carry permit
as valid ID to vote, I spend time thinking
about where we are, not
just about how we would
challenge the law, for example in Texas,
we did challenge the law and
won although the federal courts
refuse to suspend the voter ID
law for last week's election,
but I spend time thinking
about where we are
on race in America, how we got here
and how we can do the extraordinary work
of pushing us to where we need to go.
A lot of my thinking
really begins from 1954
because of course, that's
the beginning of our country
as a nation free from legal apartheid.
Last year, we celebrated
the 60th anniversary
of Brown versus Board of Education
and so I spend even more time thinking
about the road since Brown.
Being a scholar and something
of a legal historian,
leading LDF for me, to be
honest, is like being a kid
in a candy shop because we have
about 6000 boxes of archives,
several of hundred of which
will be cleared and available
for scholarly review next year
when we launch our Thurgood
Marshall Institute at LDF.
So my fun time and I don't
know if our archivist is here,
Donna Gloeckner are you here?
Donna Gloeckner right there.
We have like really fun times,
rubbing our fingers over
tasty things that she
finds in the archives
and so I've been reviewing materials
and looking for clues that
can help me understand
where we are today in this country
on the great issue of
race, how we got here.
And of course, always seeking insight into
where we might be headed
and how I might lead.
So spoiler alert, I haven't
figured everything out.
But I want to share with you
tonight some of my thoughts,
and I particularly like to talk
about what I'm calling the
Predictive Power of Brown.
Because what I've discovered is this,
that much of how we respond
to issues of race today,
much of our legal and political discourse,
certainly much of even
our physical landscape
has been shaped not by Brown,
but by our reaction to Brown.
And much of what we're
seeing today was born
and shaped in that crucible.
So I want to talk tonight about Brown,
about what we knew, and
about what we feared
and about how this country has been shaped
by our responses to what
we knew and what we feared.
So first, let's talk about what we knew.
This is important because so
much of what we understand
about Brown, what we teach about Brown,
what law students learn about
Brown is the opinion itself.
And I want to spend a little time talking
about what is unsaid in the Brown opinion.
But what was very much part
of the LDS presentation
to the court in that case.
In the Brown opinion as you all know,
Chief Justice Earl Warren
and the entire court,
together united behind
a singular decision,
and it was a monumental decision.
The court powerfully rejected
the notion of segregation
as a custom of preference, but
instead recognize segregation
as an affront to black citizenship,
as a form of racial subordination.
One of the most important aspects
of the opinion is the courts recognition
that education is one of
the most important functions
of state government, and
that prepares young people
for citizenship.
The story told by the
court in the Brown opinion
became the dominant
narrative about segregation
and so it's worth remembering
the court's conclusion
about the harm of segregation.
What the court said is,
"Segregation of white
"and colored children
in the Public Schools
"has a detrimental effect
upon the colored children."
Let me say that again,
"Segregation of white
"and color children in the Public Schools
"has a detrimental effect
upon the colored children."
So let's sit with that for a moment
because it's a powerful statement,
and yet it's so glaringly asymmetrical.
There's a missing part to the equation,
a narrative that was and is as important,
and I would argue today
with 2020 hindsight,
more important than the narrative
about how segregation harm black children.
The missing narrative is about the way
in which segregation harmed
and harms white children.
There's no discussion of this
harm in the Brown opinion
and yet it was part of the
presentation of the case.
In fact, the now famous
appendix to our brief signed
by 30 social scientists,
including the great
Kenneth and Mamie Clark,
the creator of the doll test
whose work was cited in
footnote 11 in Brown.
That appendix included
the social scientists'
powerful conclusions about
how segregation harms
white children.
And I think today,
60 years later, we have to
return to what they found.
They warned and I'm quoting
now from their submission.
"Children who learned the prejudices
"of our society are also being taught
"to gain personal status in an unrealistic
"and non adaptive way.
"When comparing themselves to
members of the minority group,
"they are not required
to evaluate themselves
"in terms of actual personal
ability and achievement.
"They often develop
patterns of guilt feelings,
"rationalizations, and other
mechanisms which they must use
"in an attempt to protect themselves
"from recognizing the essential injustice
"of their unrealistic fears,
and hatreds of minority groups.
"White children may
experience," they said,
"confusion, conflict, moral cynicism,
"and disrespect for authority may arise
"in majority group
children as a consequence
"of being taught the moral, religious
"and democratic principles
of the brotherhood of man
"and the importance of
justice and fair play
"by the same persons and
institutions who in their support
"of racial segregation
and related practices seem
"to be acting in a prejudice, prejudiced
"and discriminatory manner."
And they warn some individuals may attempt
to resolve this conflict by
intensifying their hostility
toward the minority group.
Still, others react by
developing an unwholesome,
rigid and uncritical idealization
of all authority figures,
their parents, strong
public and economic leaders.
They despise the weak,
while they obsequiously
and unquestioningly conform
to the demands of the strong,
whom they also paradoxically
subconsciously hate.
From the earliest school years,
children are not only aware
of the status differences
among different groups
in the society, but begin to react to the
patterns described above.
This is powerful stuff.
The court reviewing the
Brown cases were well aware
of this data and yet none of it shows up.
In the opinion, we all
know is Brown versus Board
of Education, which is
premised on the harm
of segregation solely to black children.
And it was ignored by most of the judges
in the cases leading up
to the Supreme Court.
One judge did not ignore this
data Judge J. Waties Waring,
who was a Federal Judge in South Carolina.
And he was part of the three-judge panel
that heard Briggs vs.
Elliott, the South Carolina
contribution to Brown.
The South Carolina case
in many ways had the most
compelling facts of all the Brown cases
because of the conditions
of segregated schools there.
And the plaintiffs in
that case suffered perhaps
the worst reprisals, death threats
and economic devastation
as any of the black parents
in all of the Brown cases.
In fact, Mr. and Mrs. Briggs
lost their jobs and livelihood
and were destitute and
under threat of violence,
left South Carolina never to return.
Judge Waring had an
interesting story of exile
from South Carolina after
the Briggs case as well,
but that's for another day.
In any case, he was an
eighth-generation Charlestonian,
a southern blue blood.
But beginning in the late
1940s, he presided over a series
of cases litigated by Thurgood Marshall.
Marshall described his
first trial before Waring,
which was in a teacher
pay case, as the only time
that Marshall said he tried a case
with his mouth hanging
open most of the time
because Judge Waring was so fair
in allowing Marshall to present his case,
and it unlike any experience
Marshall had ever had
in the southern courtroom
up to that point.
But by the time he sat as part
of the three-judge panel hearing Briggs,
Waring had decided several
cases in Marshall's favor,
including a case
challenging the whites-only
Democratic primary in South Carolina
that mirrored Marshall's
Supreme Court win,
challenging the Texas all-white primary,
Smith versus Allwright in 1944.
And in each of the cases
that Marshall tried
before Waring, Waring
grew increasingly critical
and some would say strident, appropriately
so I would say in his criticism
of Southern white supremacy
and Briggs was no exception.
Remember, the three-judge
court in Briggs upheld
segregated schools in South Carolina,
but Judge Waring dissented
and his dissent was regarded
as a scathing denunciation of the society
in which he was born and
in which he flourished.
And the reprisals that
he faced were so strong
that he retired from the
bench and moved to New York
and never returned to South Carolina
until he was buried there.
But I wanna read to you a little bit
of what Judge Waring said in his dissent,
describing the evidence
presented by the plaintiffs
in the Briggs case about
the effects of segregation.
He said that the mere
fact of segregation itself
has a deleterious and warping effect
on the minds of children.
These witnesses testified as
to their study and research
and their actual tests with
children of varying ages
and they showed that the
humiliation and disgrace
of being set aside and
segregated as unfit to associate
with others of different color had an evil
and ineradicable effect
upon the mental processes
of the young, which would remain with them
and deform their view on life until
and throughout their maturity.
And then he said, I
think the powerful line.
This applies to white as
well as Negro children.
These witnesses testified
from actual study and tests
in various parts of the country,
including in the Clarendon County,
South Carolina School
District under consideration.
They showed beyond a doubt
that the evils of segregation
and color prejudice
come from early training
and from their testimony as
well as from common experience
and knowledge and from our own reasoning,
we must unavoidably come to the conclusion
that racial prejudice is
something that is acquired
and that that acquiring
is in early childhood.
When do we get our
first ideas of religion,
nationality and other basic ideologies?
The vast number of
individuals follow religious
and political groups because
of their childhood training,
and it's difficult and
nearly impossible to change
and eradicate these early prejudices,
however strong maybe the appeal to reason.
There is absolutely no
reasonable explanation he said
for racial prejudice, it is all caused
by unreasoning emotional
reactions, and these are gained
in early childhood.
Let the little child's mind
be poisoned by prejudice
of this kind and it is
practically impossible
to ever remove these impressions,
however many years he may have
of teaching by philosophers,
religious leaders or patriotic citizens.
If segregation is wrong,
than the place to stop it,
is in the first grade.
And then he concluded in what
became the most famous line
of that opinion, segregation
is per se, inequality.
It's worth reading the entire opinion
as part of the materials
for tonight's talk
and it's available on LDS website.
It's often been said that
Chief Justice Earl Warren
followed the template of
Justice Waring's decision
in Briggs, except for this one segment.
He carefully adopted a more moderate tone
and carefully walked around
Judge Waring's discussion
about the harms of segregation
falling on white children.
Just as Justice Warren
walked around the testimony
of social scientists on this point
in his footnote, citing the
work of Dr. Clark and others.
So both the presentation of
Brown and the dissent by a judge
and perhaps the most
compelling of the Brown cases,
talks about this phenomenon,
but that narrative
doesn't make it into the Brown decision.
And this I believe, is
not inconsequential,
in fact, I think it's monumental.
The result is that the entire
project of desegregation
and of integration is described,
understood and internalized, as a project
to help black people, to
help little black children
with their self esteem,
to restore the dignity
of black people and
certainly that is part of it.
But it was never understood as critical
to saving white children,
to preparing white children
for citizenship in a pluralistic society
or as critical to the future
of our United country.
And I believe that 60 years
later, we are still living
with the fruits of this omission.
We have never truly confronted
how segregation harmed
generations of white children
and failed to prepare them
for the pluralistic society
in which we find ourselves.
And as we watch these astonishing
displays of indifference
and violence and inhumanity
in some of the videos
that we have seen over the last year,
I believe we must reckon with the reality
that the record and Brown
predicted with clarity,
not only what would
happen to black children,
but what would happen to
white children if we fail
to reckon with segregation.
And I believe it's time for
us to reengage the truth
and the unexamined portions of
the litigation we call Brown.
So that's part of what we knew.
What did we fear?
Fear was palpable and toxic after Brown.
And our response to that
fear was truly extraordinary
and must be examined as well.
It shaped every institution
in this country,
from schools to courts, many of you know
about massive resistance, the effort
by members of Congress and by leaders
in southern states to
resist Brown at all costs.
You know about the closing
of the Prince Edward County
Schools for five years just
to prevent integration.
And I really believe
that those were the years
in which we broke our covenant
to provide quality public
education for all of our children,
don't believe we ever returned from it.
But I actually want to talk
about a particular case
that demonstrates the
kind of fear that existed
in the year after Brown.
And I think that shows how
pervasive this fear was
all the way up to the
United States Supreme Court,
which after all, had just decided Brown.
So it's important to
remember that in 1955,
the year after Brown, it wasn't clear
how fast these changes might come.
In fact, as you know, we had Brown one
and then we had Brown two
and Brown one is the opinion
that with the soaring
language full of promise,
sadly with the omission
I've just described
and Brown to was a little
pump of the brakes.
That was the decision in
which the court hedged
bets a little bit and said that
desegregation would proceed
with all deliberate speed, and
suggested that local courts
and jurisdictions would be
given the ability to determine
how to begin to proceed
in a graduated way,
with desegregation and
many as many of us know
what the outcome of
that was, and gave time
for Southern jurisdictions
to marshal their strength,
to develop massive resistance, to create
private white academies,
and to essentially create
shadow school systems for white children
in many jurisdictions, but
it wasn't clear in 1955,
what Brown would really
mean, we look back on it now
and we see how it began to
unravel legal apartheid.
And so that year, 1955,
the subject of race
and Brown's reach was the text and subtext
of a lot of cases that
were making their way up
to the Supreme Court.
And in fact, in 1955, this fear
about what Brown might mean
became the focus of that
year's Supreme Court
confirmation hearing of
Justice John Marshall Harlan
the second.
In fact,
in the book that I'm writing
that I referenced earlier,
my thesis is that the modern Supreme Court
confirmation hearing was
in fact born of Brown.
Prior to Brown, confirmation hearings
were fairly routine affair.
There were one or two notable
exceptions, Judge John Parker
in 1934 had to answer
questions about racist remarks
he made during his run for
governor of North Carolina
and he ultimately withdrew,
later to sit on that Briggs case
that upheld segregation.
Justice Brandeis faced and ugly
and drawn-out set of inquiries
about his law practice
and potential conflicts
and certainly the hum
of antisemitism vibrated
below the surface,
but was never explicitly expressed,
but these were aberrations.
Supreme Court confirmations
were routine affairs.
Normally the candidate, the
nominee didn't even appear
before the Senate Judiciary Committee,
it was kind of all done on paper.
What we've come to know as
the modern Supreme Court
confirmation hearing,
when the nominee comes
before the committee and
answers questions over days
about a range of their views
on controversial topics,
that was born out of
racial anxiety about Brown.
Now Justice Harlan the second
was no radical to be honest,
he was no real profile in courage.
He paled in comparison to the conviction
and courage of his grandfather,
the first John Marshall Harlan
who wrote the famous dissent
in Plessy versus Ferguson in 1896.
He was what what they
call, which I call damning
by faint praise, an able lawyer.
(audience giggling)
But Brown had been decided the year before
and there was some anxiety,
and some might say hysteria,
in the air and on the Senate
Judiciary Committee led
by Senator Harley
Kilgore of West Virginia,
the post Brown anxiety centered itself
on a case making its way up
to the United States Supreme Court.
Senators and we later learned
some Supreme Court Justices
feared that this case would
get to the court too soon
and forced the court to
take on a broad range
of segregation issues in American life,
parks and swimming pools and hotels
and in the subject of
this case, cemeteries.
The case was Rice vs
Sioux City Memorial Park
and it involved the burial
of a man named John Rice.
John Rice was killed in Korea in 1951
and actually was killed in 1950
and his body was flown
home for his funeral.
Rice was killed in action,
he received the Purple Heart,
Bronze Star and many other
awards for his bravery.
And on the day of his
burial, his wife Evelyn Rice,
several weeks before had signed a contract
with Sioux Memorial Park
for a plot in the cemetery
where she would bury her husband.
And they all assembled,
she and her three children,
Pamela and Tim and Gene and
members of the extended family.
And they assembled to bury John Rice
and after they had the
ceremony at the burial site,
but before they lowered
him into the ground,
she returned home with the children.
And about an hour later,
there was a knock at the door
and it was the owners of the cemetery.
And they came to tell her that now
that they had seen the people
who came to mourn John Rice,
they realized that they
could not bury him there
because in fact, it was apparent
that he was Native American.
She Evelyn Rice was white
and of course her children
were there and I've met
and talked with the family
and even though they were
very young, the children,
they remember this very vividly, the fear
and the confusion and the embarrassment
when they told her that
they would not be able
to put her husband in the ground.
But because he was a soldier,
and there were military men
at the funeral, something
different happened.
They were actually quite
disturbed and angry
that the cemetery
refused to bury John Rice
and they called Washington DC to talk
about this terrible thing that
had happened in Sioux City.
And the word got to the
President Harry Truman,
who was outraged and he sent a cable
to Mrs. Rice the following day
telling her that her husband
could be buried in
Arlington National Cemetery
and ultimately, he was buried there.
But before that happened, the members
of the Sioux City Memorial
Park came again to visit
with Mrs. Rice and told
her if she would just sign
an affidavit saying that he was white,
they didn't care that he wasn't white,
if she would just sign it,
they would be able to bury him.
And Mrs. Rice was not
a civil rights pioneer.
She was not an activist,
she was a devastated widow.
But she refused to sign, she
said she could not understand,
she had no shame about
him being Native American
and she couldn't understand
why she would deny
that he was Native American,
in fact she had grown up
near the same reservation as he,
she and her sister married two brothers,
John and his brother.
She'd known him since she was a young girl
and he was truly the love of her life.
So she refused to sign
and her brother-in-law,
John's brother convinced
her to go see a lawyer
and although she was very
reluctant and actually quite shy,
she went and they filed the case.
So the case made its way up
to the Iowa Supreme Court.
The Iowa Supreme Court
did not rule in favor
of Evelyn Rice and now the case was headed
to the United States
Supreme Court and in fact,
when the confirmation hearing
of John Marshall Harlan
was happening, the case
had already in fact,
gotten to the United States Supreme Court
and the Supreme Court on November 15 1954,
this is the same year as Brown,
essentially upheld the decision
of the Iowa Supreme Court
by splitting four to four.
This is the same year's Brown
and they uphold the decision
of the Iowa Supreme Court that Mrs. Rice
did not have the contractual right
to bury her husband in that cemetery.
So this was in the air,
and many of the senators
were very distressed about the possibility
that this case would go to the
Supreme Court again, somehow
and wanted to know where do
you stand John Marshall Harlan
on this set of issues.
In fact, Senator Hart on the committee,
Judiciary Committee, you
know described it this way.
He said one of the country's
greatest needs today
is restoration of the Supreme
Court to its historic stature.
Its prestige has fallen to a low ebb.
Too often in the past
20 years, the court has
become a political body.
One example is the segregation
decision, which the court,
in which the court usurped
the functions of the Congress,
every nomination to the
Supreme Court should therefore
be considered in light of this need.
And I actually believe every nomination
to the Supreme Court has
been considered since then,
in light of that concern.
So I came to understand, to
learn about the Rice case
because I was writing about Supreme Court
confirmation hearings, and
so many of the questions
of Justice Marshall were
about the Rice case.
Now, I should tell you that, you know,
you might wonder since I said
he was just an able lawyer
and not a profile encourage,
why were they asking
him all these questions
about the rice case?
Well, in the rice case of
brief had been submitted,
suggesting that the actions of
the Sioux City Memorial Park
in addition to violating
the 14th amendment
also violated the recently
ratified UN charter.
And Justice Harlan had
nominally made himself a part
of an organization that was focused
on promoting the UN Charter,
when I say nominally,
as he testified, he just signed a sheet
that somebody put in front of his face,
he'd never attended any
meetings, he didn't mean to,
but this, this was enough to suggest
to them that he might
be one of those people
who was interested in,
you know, one world order,
and so that was the focus
of their questioning.
Meanwhile, inside the Supreme
Court, there was an effort
not to deal with this issue.
So the court had had split four-four.
But they understood
that the case was going
to come back to them
because there was an effort
to seek a rehearing.
And behind the scenes, and
I'm still learning more
about this, Justice Frankfurter
was deeply concerned
about the court getting, what
he would call ahead of itself.
He really believed that there needed
to be moderation post Brown,
and he did not want the court
to step into this next phase of dealing
with the issue of segregation.
And so many efforts were made to try
and find procedural grounds on which
to not hear the Rice case again.
Nevertheless, the case made its way there,
John Marshall Harlan was
concerned in March of 1950,
confirmed in that March of 1955.
There was a petition for rehearing
of the Rice versus Sioux
City Memorial Park case.
And the Supreme Court did
something kind of interesting
in May 1955, this is
almost, it's almost a year
to the day, May 9, 1955, almost a year
to the day after Brown won
and the court does this.
They grant the petition
for rehearing in Rice
and then they vacate
their earlier decision
on the grounds that cert had
been improvidently granted
the first time.
And the basis of cert having
been improvidently granted
was that there was
something happening in Iowa
and it was a furious effort
to pass a state statute
that would make the case go away.
In other words, a state statute
that would end segregation
in cemeteries, which they did,
they did pass that statute.
That statute had already
been passed the first time
the Supreme Court heard the case however,
and they heard the case
is split four-four,
but now this time around, the court said,
you know, we didn't we didn't
really notice the first time
that we shouldn't have heard
it. But now we can really see
that cert was improminently
granted and so they were able
to remove themselves from
this very volatile situation.
There was a dissent from
Chief Justice Warren,
Justice Black and Justice Douglas.
But this case shows you
how fearful the country was
and even the justices were about
what integration might mean
and about how quickly it might move.
This fear of integration
also changed the landscape
of our country.
As you know, it set off a kind
of great migration of sorts,
an ignoble one I might
add, but still an exodus
of whites from cities across the country,
unlike African Americans
who fled the South,
seeking opportunity jobs
and fleeing the terror
of lynching and violent white supremacy,
the white migration to the
suburbs involved opportunity.
Yes, the creation of the
white suburbs supported
by massive government
investments coincided
with the end of legal segregation,
but also involved a flight from the terror
of the imagination, a terror
conjured from ghost stories
about integration and miscegenation
and the loss of white power and prestige.
White flight changed
northern cities as powerfully
as the Great Migration did
of blacks from the south.
In fact, for a brief
period of 20 years or so,
both migrations were
happening at the same time,
blacks were still coming up from the south
to seek opportunity in northern cities
in the 60s and early 70s as
whites were leaving cities,
for the suburbs to avoid integration.
The fear of integration began
what became the abandonment
of the public school
system in this country,
first through massive resistance
as I described earlier
and then the busing wars of
northern cities in the 70s
and ultimately, as a
matter of public policy.
Truly integrated schooling happened
for a brief 15 year period that coincided
with the period after the
passage of the Civil Rights Act
of 1964 and ended soon after
the Supreme Court's decision
in Milliken versus Bradley in
1974 when the court decided
that city integration
plans could not extend
into the suburbs.
I and perhaps many of you were bused
to integrated schools
during that brief period,
and perhaps someday
our story will be fully
or should be fully told.
The contemporary landscape
of America hypersegregated,
with development and white
flight reaching further
and further out as blacks
moved into the suburbs,
moments of intense gentrification
pulling whites back
into pockets of major cities,
with racially segregated,
deeply distressed, poor black communities,
public schools that are almost all,
often almost upwards of 90% black
or 90% white in cities and suburbs,
this landscape is the
result, not of Brown itself,
but of the irrational and destructive fear
of what Brown would mean.
So what shall we say to these things?
I believe that we must
return to the project
of understanding integration,
a word that is old fashioned
and perhaps sounds irrelevant these days.
But if we're honest with ourselves,
segregation is killing the
fabric of this country.
We do not know each other.
We stand apart from each
other, our experiences
are often two different.
We don't understand the
experiences of one another.
And the integration I
speak of is urgently needed
because if we're ever
to prepare our children
for the exercise of
responsible citizenship
in a country that's increasingly diverse,
it is urgent and essential
that we deal with this.
Because economic integration
follows racial integration
and we cannot continue as a
democracy with the vast chasms
of income and wealth
inequality in our country.
The project is urgently needed
or else we will continue
on this endless loop, this recurring reel
from Detroit to Watts and
1966 and 1968 to Los Angeles
in 1994, in Baltimore in
2015, from the killing
of 10-year-old Clifford
Glover and this city
by the NYPD in 1972, to the killing
of 12-year-old Tamir Rice
by Cleveland police in 2014.
And after all, it's not only
the killing of Tamir Rice,
It's the officer who shackles
Rice's teenage sister
when she cries and screams as
she sees her brother dying.
It's when he says to the
mother, I'll arrest you too
if you don't stop screaming.
So what should be the
elements of this project?
First and foremost, we must
return to the issue we grappled
with before Brown I believe,
housing segregation.
In the years before
Brown, housing segregation
was as much a preoccupation
of LDF as education became
in the years after Brown.
It was in Hurd versus
Hodge, the case brought
by Charles Hamilton Houston
successfully challenging
racially restrictive
covenants in Washington DC,
that we filed the first
Hurd brief, a complex
and detailed 80 page brief
that included economic
and sociological data about the effect
of racially restrictive
covenants and housing deeds
on the health and economic conditions
of blacks living in the
cities, on the strength
of black families on attitudes about race
and racial prejudice,
and on what was described
in the brief as the
international, national
and moral implications of this
form of housing segregation.
That Hurd brief became
the template for the brief
of the sociologists in
Brown and for hundreds
of amicus briefs that we now
file as a matter of course
in the United States Supreme Court.
Hurd of course led directly
to Shelley versus Kraemer
which dropped down to disallow enforcement
of racially restrictive
covenants and state courts
and when Shelley was decided in 1948,
it was a great win for LDF.
Marshall received telegrams
from around the country
and all signs pointed to a continued focus
on housing segregation.
But in 1950, Marshall and the
LDF team won a monumental case
in the Supreme Court
Sweatt versus Painter,
in which the Supreme Court
rejected Texas' efforts
to hastily establish a separate law school
for black students,
Texas School for Negros,
they called it and instead
the court determined
that a separate law
school for black students,
and the law school at
the University of Texas
could not ever be equal, that
they were per se unequal.
And the LDF lawyers now saw
that winning a challenge
to segregated public school education
in k through twelve was insight.
In 1951, Barbara Johns, in the 11th grade,
led her fellow students in a walkout
from her segregated High
School in Prince Edward County,
Virginia and that courageous
act of civil disobedience
by a 16-year-old girl and her peers,
pushed attorneys Oliver hills,
Spottswood Robinson and LDF
to file Davis versus County School Board
of Prince Edward County, the Virginia case
that became part of Brown and the rest,
as they say, is history.
It took nearly 30 years
and the assassination
of Martin Luther King for a
concerted civil rights focus
to return to the attention, to the issue
of housing segregation.
The Fair Housing Act was passed in 1968,
just six days after the
assassination of Martin Luther King,
while cities all over the
country burned in the wake
of that terrible, terrible assassination.
Nevertheless, we remain deeply segregated
and I regard the segregation
issue as one that is not only
about law, but also about
investments and infrastructure,
transportation policy
and so many other areas
that we traditionally ignore
or give little attention to
in the Civil Rights space.
But the creation of the
Interstate Highway System
was a civil rights issue.
We didn't know it at the
time, but it made the creation
of the white suburbs possible.
It was an investment in the creation
of the white and segregated middle class
and that investment, while a
good thing in the abstract,
that investment made at the time
that the FHA still supported
and encouraged the development
of all white enclaves like
Levittown had as much to do
with awarding the promises
of Brown as the foot dragging
of timid Federal Judges.
So we need a broader lens for
understanding civil rights
challenges, like segregation.
We also need a candid and clear evaluation
of how this country has benefited
from even our tentative
steps towards equality,
the wealth that the US has
amassed, its leadership
in the world, especially
during the Cold War,
as Derrick Bell wrote about
in his interest convergence theory,
the leadership of business
people and political leaders
in the world has been enhanced
by the story of America
as a place of equality and
promise, the very terms
in which we describe ourselves
as a nation were created
by the civil rights movement
and by civil rights litigation.
And we've marketed those words
and that image of our nation
to leverage our economic,
political and military might
all over the world and
at great profit too many.
Civil rights lawyering
and activism created a 20
and 21st century narrative about America
that has quantifiable value.
The Case for equality
should be made on the basis
of what it will do and
has done for our country,
not just as a gift to racial minorities
or free stuff, as they call it.
Derrick began this work with
his interest convergence
theory and I'd like to see scholars do
even more detailed work
quantifying the equality dividend
for our nation.
This is what we gave America
and we get very little credit for it.
And if we truly do care
about our children,
we must return to the conclusions reached
by the social scientists in Brown.
Even if we don't agree with
all of the methodology,
we must certainly admit
that not just black people,
but white people, the soul of our country,
the health of our democracy, the integrity
of every institution, all of
these things have been harmed
by segregation and as
they said in the brief,
related practices.
As we deal with the
ongoing and stubborn issue
of racial discrimination as we
grapple with police killings
of unarmed African men, women and children
and voter suppression, as
we look at the vast economic
equality gap between blacks and whites
as we wonder why the racism
that we see today seems
to be so stubbornly and
disappointingly similar
to the racism we encountered
and thought we defeated
years ago, I hope that we
will reexamine Brown not only
as a beginning of our democracy,
but also as a crossroads.
As a moment when we failed
to take the necessary step
of confronting the full
measure of segregation's
corrosive effect on our society
and when we allowed fear to
overcome hope and possibility
and the danger of doing that once again.
My work and our work at the
Legal Defense Fund is focused
on completing the unfinished work
of Hurd and Shelley and Brown and on using
that broader lens I talked
about to demand investments
and infrastructure and
supports that accompany
our legal wins, to win cases,
but also to follow the money
and to take care that we
attend to the narrative
that we shape in our
cases and that narrative
that gets reshaped or ignored by judges
and scholars and the media.
I think often about
the dignity and heroism
of John and Evelyn Rice
and their three children
who are some of the most
extraordinary people I've ever met.
A dignity that was challenged by fear,
the fear of what integration would mean,
the fear of true equality,
the fear of a true democracy.
But having met that extraordinary family
and having heard them and talk with them,
I still believe they won.
But I also believe that
their courage and the courage
of the Briggs family and countless others
who created the sacrifice
for us, of participating
in these extraordinary cases
and taking these extraordinary
actions, standing
against fear, requires us
to be brave enough to
return to that which we know
and knew and this time to win, thank you.
(audience applauding)
- That was fantastic.
In keeping with tradition,
we will take some time now
for questions from the audience.
We have microphones in each aisle.
Please identify yourself and
feel free to ask our lecturer.
- [Crowd Member] Thank you very much.
So I'm Nigerian, and many
of the stories about racism
in Nigeria, in America
are pretty, well not new,
but it's very interesting to see
how they play out in reality.
And I guess there's been sort of a move
from attacking people's
blackness, to attacking something
that could be related to their blackness.
So we're not saying, you
know, you're subhuman
'cause you're black, but
we're saying, you know,
you're subhuman because you're violent
or you're incompetent, I'll
just give a very short example.
I lived in Cairo for about two years
and I remember just
after I moved to Cairo,
I was walking down the street one day.
And this woman sort of slaps
me in the face like this
and just walks on and you know what,
like, many of the Americans
I met were really shocked.
Like, why would she do that?
But my Egyptian professor
was, Oh, yeah, you know,
like Egyptians are, their
racist, so that's why,
it was 'cause you were black.
So it was a very direct
attack on my blackness.
But it's, that wouldn't
happen here in America.
Yesterday, I sat in a
class and we discussed
Richard Sanders' paper
on affirmative action
and it's a different kind of attack.
And I remember listening to
a student in that class ask
and I paraphrase, you know,
so why do the black students
go to the elite schools,
like don't they realize
that they're not going to,
you know, make it there?
And I remember thinking,
Okay, that's sort of worse
than somebody sort of
slapping you in the face
and saying it's 'cause you're black,
'cause they're not saying
the blackness is the problem
and so you can't immediately
call it being racist.
And so my question is, how
would you react to that,
you know, to the Sanders
paper and to the Fisher case
that the Supreme Court now has to hear.
It's a different kind of
racism that you're having
to deal with than in Brown.
- Thank you very much
and I'm sorry for both
of those experiences that you
had, which are both awful.
So we just filed a brief on
Monday in the Fisher case
and you can go on our website
and read our amicus brief,
but your point is well taken.
One of the difficulties
of course of dealing
with race is that it changes so much
in how it manifests itself and sometimes
loops back on itself.
And of course, we do have a whole lexicon
in our country now that manages to talk
about race without ever
talking about race.
And we were just talking about this
at a conference a few years ago.
I mean, we can use words
like inner city or urban
or, you know, tax increases
or whatever other words
that you can use to infuse
race into a conversation
without ever really dealing
with the issue of race.
And in some ways, it makes it harder
because now it's buried two levels down
and you have to do the two
levels of argument at the top,
which are actually irrelevant to even get
to the bottom argument,
which is really the argument
and you have to deal with
the conviction of many
that they're not talking about
race, and the genuine belief
that they're not talking about race.
And this is a little bit
what I was talking about
when I was talking about making
sure that we're attentive
to the narrative, which I think
sometimes we haven't been.
we have been, we have not
been sufficiently careful
about protecting our
language and our story.
And I think that's what I was also trying
to say in this paper,
that that story in Brown,
I mean, we won Brown,
so we're happy we won.
And when you when you don't
go back and question the judge
about, you know, how he said,
or how she said what she said,
you're so happy you won.
But you know, it matters,
that Brown talks about,
you know, this idea of
harm of segregation,
just in the realm of black people
because part of what it
does is it constantly talks
about black people as having
the problem, either the problem
of victimization, or the problem
of some kind of pathology
and it never examines the
problem of white people.
And, frankly, in the
history of this country,
the problem of race is largely
a problem of white people.
So it situates the problem in a way
that we have been
building from ever since.
So even the premise that
we're starting from is flawed.
And we just keep kind of
responding to that set
of arguments and so it's
very, very difficult.
But I do think that we
have to be attentive
to unpacking the layers
that you're talking about.
And it takes patience, and it takes time,
but it has to be done.
And of course, the affirmative
action debate is one
of the places where, you know,
race hides out so effectively.
And I think it's really important
to be forthright about it.
What I should also say is
that the Supreme Court has,
by their decisions, also
pushed the race conversation
into a corner.
And, you know, we're
lawyers were litigating,
we have to accept, in some ways, the terms
as the Supreme Court has set.
And so we we start, you
know, having a conversation
in a way that's not fully robust.
So there's a lot of this
part about the language
and about the use of
language, that we have
to be much more attentive
to and careful about
and consider that part of
the win that we're trying
to get as well, that there is a legal win
and there's also a narrative win.
- [Chuck] Hi, my name is Chuck Warren
and I have a question about
Earl Warren, no relation.
But he went to great
lengths to make it a nine
nothing decision because he thought
that was extremely important.
Do you think he could have
gotten to that nine zero
if he had tried to bring in the issue
of the impact on whites, which
I think it's a very important
point you're making on
that, I agree with it,
but do you think he could
have gotten to that?
And if it had been a much
more divided decision,
would that have had the
same kind of impact?
So let me say, I can answer
that question very easily.
No, he couldn't have gotten
to the nine, I think.
And I think this was a
pragmatic decision that he made
and completely understandable.
So it's actually not as
much a critique of him
as it is an understanding
of the kinds of decisions
that get made made and the
consequences of those decisions.
I also have often
complimented Justice Warren
for his understanding of the importance
of the unanimous decision.
And that's actually one of
the things I've criticized
our current Supreme Court about
because I do think that
there have been moments
in which the Supreme Court even
in decisions I didn't agree
with understood the importance
of a unanimous decision
in a controversial,
particularly controversial political case.
They did it with the
Nixon Watergate tapes.
They did it with Jones versus Clinton,
which was I think, eight zero.
And I have, you know, said
it's one of the worst things
about Bush versus Gore was,
you know, the fact that you had
in this very important political
case, this divided court.
So, you know, Cooper versus
Aaron was a unanimous decision.
I think that's really important.
There's no question that
Earl Warren believed
that he could not get a
decision with this other piece.
It's also worth remembering
that Judge Waties Waring,
who I spoke about earlier, who
wrote that Briggs decision.
You know, Warren wanted
to use it as a template,
but everyone understood that you needed
to distance yourself from Waties Waring,
who was seen now as a
bomb thrower, you know,
in terms of the kind of rhetoric
that he used in his opinion.
So Warren wanted to get to the core of it
without all the stuff that
would be most incendiary,
and I think that's the
Brown decision that we see,
which by the way, was still monumental
and quite incendiary in 1954.
- [Anara] Thank you so
much for your lecture.
My name is Anara Gupta. I'm
a graduate of this law school
and also a former student
of Professor Bells.
And I work in the field of racial justice.
and something that I've
been kind of contemplating
for a while and your lecture
really brought forward some
of these issues was, of
course, Judge Waring's decision
that wasn't incorporated
in the Brown decision,
but also thinking about the
narrative aspect of race
and what race actually means
and what whiteness says, as
opposed to non-whiteness,
Native American, Latino, black whomever.
And in terms of the
elements of integration
that you talked about towards
the end of the lecture
in terms of solutions, you
said that we must start
at housing and then, but
for me, like I always wonder
how can we litigate or
actually force people
to have intergroup contact,
interracial contact,
when that fear, that racial
anxiety is so prevalent
and pervasive in the mind of everyone?
And then it's pretty much perpetuated,
and without any regulation by our media.
So is there any role of, you
know, innovative legal thinkers
as well as litigators in thinking about
how we can correct the
story of the falsity
of biological race and all
sorts of negative stereotypes
that are associated with that?
- Well, I think I want to
answer the part of the question
about housing and how
we deal with, you know,
this fear that people have of
one another because, you know,
I've been doing a series of
lectures with Richard Rothstein
who was a fellow at the
Economic Policy Institute
about housing segregation.
And I would say, you know,
we do almost like a dog
and pony show and I would
say the core of it is to try
to help people understand
that the landscape of America,
the segregated landscape of America,
has very little to do,
has something to do with,
but on scale, very little to do
with the individual prejudices
of individual people,
like white people not wanting
to live next to black people.
But that in fact, the
landscape of this country
in its segregated form
is largely the result
of government policies
and massive investments.
And this is the part I was talking about
when I say we very often leave this off.
So the landscape that we see
today, including the creation
of the white suburbs that I talked about,
the interstate highway,
think about all the things
that created the white middle class.
These were massive investment,
I might say entitlement,
but investment programs,
the G.I. Bill, you know,
the interstate highway
system, the credits,
the development credits and the tax breaks
that were given to these
all white enclaves.
The fact that the FHA from the 1930s,
when it started providing
mortgage insurance
until the 1960s, required
racially restrictive covenants,
they required segregation.
Public Housing was required to be built
on a segregated basis by
the federal government.
It was created by you just
can't explain it any other way.
It's not just these
individual interactions
and I think part of our problem
is not, now I want to talk
about racism and not race,
which is that we think
about racism as a
personal emotional thing,
as opposed to as a set
of, expressed in a set
of structural policies that
are, that affect the landscape.
And so that's why I've been talking
about the issue of investments.
When we decide that we want
to invest in something,
we do it and we find the money to do it.
You know, we've invested in young people,
we've invested in mental health
and we've invested in, you know,
jobs in a massive way
over the last 30 years.
And you know what that
investment is called,
mass incarceration.
It's money that we decided
to put in to dealing with young people,
and dealing with our,
you know, our job issues
and dealing with people
with mental illness,
and that's how we decided to do it.
We could have done it another
way, but that's what we did.
But we should remember
that that's an investment,
We shouldn't just talk
about mass incarceration
as though it's just about a
set of civil rights policies
and so forth and that's,
again, I guess what I'm trying
to suggest, that even
as we unpack and talk
about the narrative, we should be mindful
of the fact that race exists or racism
or racial neglect exists
in the investments
and the infrastructure
and so forth that we make.
And the reason it's so
important is because that's
what your kids and your grandkids
are gonna live with, right?
You know, you're driving on
the same streets that you know,
that your grandkids would be on.
And so when we allow these investments
and this infrastructure
to just go forward,
we're really solidifying for
generations to come, right,
what the landscape is going to look like.
So I just would answer
your question by saying
that I think we need
to focus more on that,
focus more on the way
in which it's expressed
through investments and policies.
And when we decide that we
want to give investments
to have an integrated society,
I'm pretty much betting
we can do that too.
- [Anara] Thank you.
- [Yola] Good evening, I
actually, like your pastor,
my name is Yola Nicholson
and I'm one of those people
that Dr. Bell touched just for a moment.
I was a third year at Columbia.
And I think it was in
I think 1989 when he,
I think he was just
coming back or coming here
from Harvard and he gave a lecture.
And if I remember the story
correctly, and then I'll ask it,
I'll tell you my question because
it's related to the story.
And I think it's probably
in one of his books,
an anecdote of, you know, a big meteor
or whatever the equivalent
was, at the time
that he would have described
it, hitting the earth
and we're all being put on
spaceships to get off this land.
And, you know, all the suburbs
and all the people got there.
And when the people from the inner city,
which are the black
people showed up, they go,
"Oops, sorry. There's no
more room on the ship.
"It's not you know, we didn't
really mean to leave you out."
So it's not really racism, but it was just
that the ship is already filled.
And I say that story to
say that you've touched on
you know, racism and investment
and I wanted your thoughts
on the following.
As we know, after World War Two,
there was a huge investment
made, as you as you pointed out
in housing to create a white middle class,
and the black middle
class in the alternative,
had to really build this up on their own,
work as civil servants and save
and nobody gave them mortgage insurance.
And then we ended up having
an economic and housing crisis
and they got blamed for
it and they got blamed
for being deadbeats and for taking out
too many subprime loans.
And there's a celebrated policy
from the federal government
to divest all these, you
know, poor black people
who should not really have been able
to own their homes because
they just don't know how
to pay a mortgage and in the process,
they're divesting our communities
of, I think it's something
like billions of dollars,
three times the divestment,
and from, my question is
from the Legal Defense Fund's
perspective, how do you
think we should approach this
because it's a racism a
divestment versus a lack
of investment, but it's
still institutional racism.
And everyone has come on
board, the courts have come
on board, the financial
industry has come on board,
the public has come on
board to say, you know,
it's okay that these black
people should really lose
their homes and turn into
renters, that's my question.
- Well, it's a heavy question.
So let me just say two quick things
without taking too much time.
The first thing is that
this is the perfect example
of where there was a
narrative moment that we did
and we allowed it to be taken over, right?
So when, you know, I just said
urban, inner city subprime
is one of them, right?
You don't say race, but
everybody knows what you mean,
where this this housing crisis,
which was a direct product
of the financial crisis,
and which had lots
of complicated reasons for
its creation, was described
in ways that just as you explained,
as though this was really
more about black people
not being responsible,
about affirmative action
in housing loans and the result of it.
And I would have to say that
that was allowed to happen.
Here was a moment when the entire country
was questioning the economic policies
that underlay you know, our society.
And it was an opportunity
to really come together
with many others who
were questioning as well
and to really create a
united multiracial coalition
of people who had real questions
and wanted real answers.
I mean, the housing crisis was devastating
for the African American middle class.
25%, a full quarter of the
African American middle class
found itself in foreclosures
or in imminent foreclosure
during that period.
It was a huge wealth drain
from the African American
community that has not recovered.
And so there was a moment but
I, sadly that moment turned
into one in which the
rhetoric is precisely
as you described, and that's
part of why I suggest today
that as we look at issues
around fair housing,
we worked a lot on the
Fair Housing Act case
that the Supreme Court decided last year.
And we look at some of
the litigation one does,
you have to be looking at it in concert
with the issue of investments
and infrastructure,
and those are policy issues
because that's where that,
you know, that big money
is gonna make decisions
that are going to lead
us in one direction.
And so when I talk about
broadening the lens,
that's what I'm talking
about is making sure
that the litigation is accompanied
by attention to the
narrative and the story
that you're telling, but also attention
to the policy dimension and the investment
and infrastructure
dimension that goes along
with the litigation.
- [Yola] Thank you.
- [Crowd Member] Thank you
for lectures, fascinating.
I was wondering if you could
just give any thoughts you have
on the interaction between
the Brown decision's
omission of the harms done to white people
by segregation and the
cases that essentially state
that affirmative action is only acceptable
if it benefits white people
or not, doesn't only benefit
black people, or whatever
the racial minority issue is.
- I'm not sure I quite
understand that thesis.
- [Crowd Member] I'm talking about the,
basically the justification
of the affirmative action
not being race discrimination is
that it benefits everyone.
And that sets a requirement
for affirmative action
to be accepted and so I'm
wondering if maybe there's some
in there for to kind of get
the benefits of desegregation,
you know, stated more
clearly by the Supreme Court.
And yeah, any thoughts
you have on that topic.
- Well, I think they're certainly
and many education leaders, you know,
would and do support
the idea that, you know,
and that I think should be advanced,
that affirmative action is not simply
about giving stuff to black people.
- [Crowd Member] Right.
- And that's part of why I so dislike
the word racial preferences.
If we're to accept the
Supreme Court's doctrine
in the Grutter case and Fisher one,
that educational institutions
can pursue diversity
in building their in
building their classes,
they're pursuing it not to benefit
individual particular students,
but to benefit the entire student body,
to benefit the atmosphere
at the institution
and particularly to benefit
the leadership possibilities
of those students and that, in that sense,
I think it does connect
with some of the stuff
that was discussed in Brown,
right, the ability to,
obviously we're talking,
you know, Brown was talking
about grade school, and this is talking
about the university system.
But the idea that part of
your development of yourself
as a citizen and as a leader requires
that you have the ability to engage
with people in your society
in ways that are rational.
And I think Brown was
queuing to us that, you know,
by kicking the can down the road,
we will be kind of fostering
this continued irrationality
that happens with young school children.
In the affirmative action
context, I think what many
of the educators were telling
us and I talked about this
a lot in the context,
particularly of state schools,
where I think state schools
really have a very clear mission
to create the leaders for their state.
I mean, I know this because
I made that really great
decision to go to University
of Maryland Law School,
(audience laughing)
where we know that we
are literally educating
the next leaders of the
state of Maryland, right?
If we look at the legislators,
and we did a little study
on this and you know, 90, upwards of 90%
of all the appellate judges in Alabama
went to the University of Alabama system.
78% of the legislators
in Florida, graduate
from the University of
Florida same would be true
in Maryland and so forth.
We're literally educating
the leaders of the state
and it makes sense for
university be saying
I want the leaders of this state
to not be bedeviled by
what is described right
in the social scientists
brief, I want them to be able
to grapple with and be leaders
of this pluralistic society
and to be able to engage
with people across race
and background and thus, my
mission to create these leaders
is aided by affirmative action.
And in fact, creating a
diverse class is essential
to our leadership function.
And I think that's what
educators are trying
to say in those cases.
And I think actually, if
we understood what Brown,
what the the litigation
and Brown was suggesting,
is the harm of segregation across race,
black and white, then it would be easier
to understand the argument
that educators are making
about how you prepare leaders,
or how you prepare citizens
to engage in a pluralistic society.
- [Crowd Member] Is the conservative wing
of the court then, you think in there--
- I'm sorry, is what?
- [Crowd Member] Is the conservative wing
of the Supreme Court, is
there kind of skepticism
about the value of affirmative action,
do you think it's related to--
- Skepticism is such a nice way to put it.
(audience laughing)
Oh my, Yes!
- [Crowd Member] Do you
think it's related to this,
to a total rejection of that benefit,
are they kind of one in the same?
- Yeah look, I would
not call it skepticism.
It's very clear that
there are four Justices
on the court who do not believe
in affirmative action at all.
But I think they're also,
you know, four Justices
on the court who don't
believe in the issue of race,
you know, as a real issue.
This is this goes back
to what I talked about
at the very beginning.
So much of what they say,
treats the issue of race
and its connection to law
as something very simple.
You know, you remember, in
the parents involved case
in 2006, when Justice
Roberts said, you know,
the only way to stop
racial discrimination is
to stop discriminating
based on race, you know,
Oh, there you go, so it's all very simple.
When we when we argue the Shelby
case, Justice Scalia said,
you know, I understand what
the Voting Rights Act about,
you know, it's a racial
entitlement and nobody wants
to vote any, vote against anything
called the Voting Rights Act,
that must be it, you know.
We have a whole record
in the case, you know,
but that I don't want
to focus on the record,
I think I know what's going on.
So one of the things I
think is really important
and that actually differs
from where we were
in the Brown case is that,
you know, we have to talk
about the willingness of Federal Judges
and certainly Justices
on the Supreme Court
to allow us in the crucible of litigation
to educate them about
what they do not know.
And particularly as we
have a Supreme Court
that is increasingly homogenous,
notwithstanding the fact
that we have, you know,
three women and a Latina
on the Supreme Court, which is lovely.
We, you know, it is like
two law schools, you know,
all former prosecutor, I mean,
it's a pretty narrow slice
of even the legal profession,
let alone of life.
So I think that one of the
struggles we have as litigators
in the space is the increasing
unwillingness of the court
to have the humility
To recognize what they
don't know, and to allow us
to do our job as litigators
to build a record,
litigation as an educated function.
And if a judge is willing
to be open and allow him
or herself to be educated, we
can show you how race works
in the lives of the
people that we represent.
But you have to be open
enough to recognize
that you don't know everything,
and that it's not going
to be subject to a
simple bromide or formula
that makes you feel better
about how you can solve
those problems, so that's
just an ongoing challenge
we face as civil rights lawyers.
- [Crowd Member] Thank you.
(audience applauding)
- This has been an important evening.
This is a deep and profound lecture.
I've taught Brown against
board of education
about 20 times, the 21st time
I'm gonna teach it differently
because of what I learned
tonight, thank you.
(audience applauding)
I think it is in the best tradition
of what Derrick continues to teach us,
that Sherrilyn has reminded us tonight
that as we confront deep and troubling
and deeply upsetting
problems of race today,
we cannot forget what we know already.
And he demands that we not forget that
and that we act on it and I
think Sherrilyn's call tonight
is precisely the same, thank you for that.
Thank you to all of you for being here.
I hope you'll join us for a reception
in Greenberg lounge after this.
(audience applauding)
