Not There Yet

A conversation with six Fordham Law professors about civil rights.

While it has been more than 50 years since the last Civil Rights Act was passed, the United States still has work to do to fully realize the equality of all persons. To plot where we are on the long road of civil rights, Fordham Lawyer spoke with six professors: Elizabeth Cooper, Tanya Hernández, Leah Hill, Joseph Landau, Robin Lenhardt, and Kimani Paul-Emile.

Martin Luther King Jr. dreamed of a nation where his children would be judged not by the color of their skin, but by the content of their character. What is the ultimate goal of civil rights law?

Cooper: I think that, as much as we want the human condition to be one of respecting the dignity of one another, that doesn’t always happen. I think that civil rights laws are a way to try to enforce that dignity, and for the state to say that the dignity of each individual is worthy of respect. I’m not sure if it always accomplishes that goal, but to me that is an important part of why civil rights laws need to exist.

Lenhardt: I endorse the dignity perspective and would emphasize belonging and a level of respect and acceptance within the community as well. I love and admire Martin Luther King Jr.’s words and contributions, but I would push back on his rhetorical turn on hopes and dreams. I think that this language has been co-opted in a way that suggests that we should endeavor to get to a place where race not only doesn’t matter but is not seen anymore, a kind of post-raciality. I think that the very formal conception of equality that underlies that aspiration is something that we should resist. A much more substantive conception of equality that emphasizes history and context is really what we should be aiming for at this point. To that extent, I do not think that the goal is to be blind to race, as some suggest. Rather, I think that it should be to recognize the way that race operates in our society and to think systemically and structurally about rooting racial inequality out. On this account, the goal becomes not ignoring race and its realities but really grappling with it in a meaningful way.

Landau: The idea of a color-blind Constitution originates with the first Justice Harlan’s dissent in Plessy v. Ferguson [1896]. Plessy upheld overt state-imposed racial classifications in the operation of railcars, announcing the “separate-but-equal” doctrine that persisted through the Jim Crow era until Brown v. Board of Education overturned Plessy and retired “separate but equal.” Justice Harlan’s Plessy dissent articulated the idea that our Constitution is color-blind. At the time of Plessy, color blindness was likely expressed as a kind of anti-subordination principle. But, today, color blindness is often invoked as a reason to oppose governmental efforts to remedy past discrimination.

Paul-Emile: Right. Now color blindness is seen as a justification for getting rid of any race-conscious remedy for discrimination, regardless of whether the original action was designed to perpetuate discrimination or to remedy historic discrimination. Today if a municipality that has discriminated against its police officers decides to institute an affirmative-action program to make up for its past state-sanctioned discrimination, there will be those who say, “You can’t do that because it’s not color-blind.” So now this idea of color blindness is getting in the way of justice even though at one time it was advancing it.

Hernández: Often what gets lost with conservative shifts to reconceptualize civil rights law is that social justice movements, political actors, and legal actors committed to civil rights law were also focused on material inequality. So it’s not just simply about law as a way of maintaining dignity, a way of maintaining respect and tolerance; it’s also about trying to further democracy by truly equalizing material access to opportunities.

Hill: We need more than lawyers in this quest for civil rights and for equality. I’m a big believer in working across disciplines and making sure that we involve the people who are most affected—in other words, creating participatory government models. We have to build alliances and fight at every level.

Landau: Of course, social movements are not a necessary condition for legal change. While social movements can rally around a particular issue or problem, there can be other civil rights issues that lack the kind of movement politics or majoritarian gains, making the matter all the more pressing. This is another reason why context and history can be so important and why open-mindedness to emerging civil rights questions—especially those that get less attention—can be so critical.

Where are we now in this history of civil rights?

Hill: We’re in a troubling context. There appears to be a welcomeness to rolling back some of the gains that have been made, and very divisive conversation going on nationally that ignores a lot of history. I think there was some measure of belief that we had become this color-blind or post-racial society. That has been debunked. On the other hand, the divisive public discourse might actually provide an opportunity to draw attention to inequality and other civil rights issues across intersecting identities of race, class, gender, religion, and sexual orientation. We are witnessing an unprecedented departure from traditional norms of civility in the executive branch, and increasingly, hate-filled rhetoric among some in the public. The resulting international attention can offer a platform to activists. The women’s march on inauguration day was a prime example of how activists can use this time to redouble efforts to draw attention to civil rights issues.

Paul-Emile: Some of our civil rights laws have not kept up with the way discrimination is manifested. The laws were created during a time of overt, blatant discrimination—cross-burning, for example—and the laws of the time were created to address the people who perpetrated these acts. Now, race discrimination tends to be more subtle and nuanced. We have implicit bias and structural inequality, which are more difficult to grapple with.

We’re at a kind of crossroads. At one time our civil rights laws were very muscular, and we could see they were getting a lot of work done. Today, there’s still a lot of discrimination and yet people are left without a remedy because the laws have not adapted to address racism as it operates right now.

Hernández: My perspective diverges somewhat; I still consider our civil rights laws quite robust. In fact, the origins of Title VII’s disparate impact cause of action—where statistical proof of racial disparity rather than explicit words of bias is the analytical focus—were rooted in the understanding that racism could be manifest even when not explicitly announced. Modern ideas of implicit bias can fit quite well into a disparate impact claim, and some courts have done that. The difference in the efficacy of our laws over time is less about the challenges of reaching subtle and nuanced discrimination and more about the shift in judicial willingness to fully enforce the laws. The commitment of judges and enforcement agency officials is the key to seeing a transformative effect from our laws.

Lenhardt: One reason for hope is we have a much more complex understanding of race, civil rights, and the sources of inequality. We are, for example, increasingly intersectional in our thinking about identity: about the social location and stratification that exists, about race and LGBT rights, about gender and race. I think that these sorts of innovations in our thinking are important, and they are going to be key both to instituting lasting change and responding more generally to the moment that we find ourselves in now.

Cooper: To me, we’re in a time of paradox. There are people asserting that we are in some sort of post-racial environment, but that is just not so. Laws may prohibit discrimination, and discrimination may be less overt, but race-based bias still persists in education, housing, employment, and in all of our institutions. Why is this? Where is the genuine equality? The material equality? When we look at differences in, for instance, income—and most particularly wealth accumulation— there are huge divides that still track racial lines. The hatred and the oppression feel much more insidious, and we have to work much harder to be able to name them and draw attention to them in a way that allows us to attain true social justice.

Paul-Emile: We need a more robust conceptualization of what inequality means. Racial equality is often framed as a zero-sum game. People begin to think that my rights come at the expense of your rights; that kind of thinking just brings us to stalemate.

Affirmative action, for example, is often conceptualized as conferring special rights on certain groups and so it ends up fomenting rancor in the population.

I think the next movement needs to get at this idea of anti-subordination as opposed to formal equality. There was a time when we were just looking to be able to sit at the front of the bus—that’s formal equality. Now, so much of the structural inequality that people of color experience is a form of subordination. We need to start accepting the idea that meaningful equality often means not the same, but differential treatment. That’s a big idea that some Americans aren’t ready to grapple with, but I think that’s where we need to go.

What’s the best way to change ideas of equality?

Lenhardt: I think there’s an opportunity for norm creation on the ground that leads to more robust conceptions of equality and belonging. Some of the work that is being done here at Fordham—through the Center on Race, Law, and Justice as well as the Urban Consortium—around participatory democracy and engaging people in diverse communities is a way of achieving the needed shift in understanding.

There are a lot of people at Fordham who are very committed to finding ways to support and, where necessary, create opportunities for that kind of thinking. I’ve talked about it in terms of race audits. Sheila Foster is working with incubators in the Bronx. Olivier Sylvain is exploring equality as it relates to broadband internet access. These are not the typical examples one might think of for creating legal change. But they can begin to move the needle in important ways. Given the current administration’s express commitments, a lot of action is going to take place in cities and states, not at the federal level. These are the sites where many of the problems originate. But, on the flip side, they are also the sites where we might be able to do something innovative and useful.

Hill: I think a lot about the access-to-justice movement—the civil justice movement that seeks to ensure that individuals who might not be able to afford attorneys have access to them to enforce their rights. Any success we achieve in pushing legislation doesn’t mean very much if people can’t access attorneys to enforce their rights. I’ve worked for many years in family court, where many people are unrepresented. These individuals are dealing with a basic, fundamental right: to raise their children as they see fit. Being on the ground helping people who are directly affected by civil rights rollbacks can also feed this larger movement for equality. I think that’s a critical piece.

Lenhardt: I’m glad you mention access to justice. We don’t tend to talk about systemic discrimination or structural inequality in the same breath as access to justice, but they are, of course, very much intertwined. With the School’s Access to Justice Initiative, I think there’s a lot we can do around those issues. One critical thing is to infuse this idea of justice with race, gender, sexual orientation, and class concerns. We talk about access to justice sometimes as if it were a neutral concept—the idea that people just need lawyers. But the people in the communities that need those lawyers are often experiencing problems linked to matters such as race. The low-income family who lives in a heavily policed, minority area of the Bronx, for instance, is going to get different treatment than somebody who lives in an affluent, predominantly white neighborhood in Brooklyn. We need to be attentive to that when we make the call for greater access to justice. Access to justice can reinforce racial justice initiatives in ways that we should explore more deeply.

Hill: All it takes is a trip to family or criminal court: All you see are black and brown people. That, in and of itself, speaks to how structural inequality plays out—from who gets arrested to whose children get taken away. Those issues have to be dealt with on the ground as well as in the larger conversation about civil rights and structural inequality.

What is the effect of poverty on people’s civil rights?

Paul-Emile: We need to think about how our socioeconomic system—something that we hold as sacrosanct—might be undermining our idea of civil rights. Consider stop-and-frisk policing. People of color are more likely to get stopped by the police and arrested. An arrest has so many downstream effects, even if all charges are dropped or no charges are brought and the person is let go. For example, in many states an arrest leads to the creation of a criminal record. Having that record can prevent a person from holding a job, receiving welfare benefits, securing subsidized housing, obtaining student loans, voting. That initial police stop can have a significant effect on a person’s social and civil rights.

Cooper: In terms of LGBTQ rights, there is now the right to marry, but LGBTQ people still can be legally discriminated against in over 25 states in the country. We do not have any kind of federal statute protecting LGBTQ individuals from discrimination. The fact that we don’t have such a statute is unthinkable.

How does the United States measure up against Latin American countries with our same history of slavery and racial inequality?

Hernández: It’s somewhat of a mixed bag in Latin America. There are examples of very impoverished understandings of race—a sort of denial that there is any problem with racism because of the extant mythology across the region that perpetuates the idea that racial mixture equals racial harmony. At the same time, there’s a lot of social justice activism on the part of Afro-Latinos; in fact, they have garnered significant traction with political administrations that have been amenable to them. For example, in 2012 Brazil had a significant Supreme Federal Court ruling that held that race-based affirmative action was constitutional. Notably, the opinion was rooted in the idea that neutrality was not enough—that it was not enough for law to be neutral if they wanted to achieve equality. That’s pretty remarkable. It contrasts with what has been happening with the U.S. Supreme Court in this area. Since the Reagan years, there has been this shift to a jurisprudence that is all about color blindness: Equality is viewed as simply being neutral. The Court doesn’t look at the material effects of people having different starting points and, consequently, different needs. That particular comparison shows a kind of enlightenment in the Latin American sphere that we have not seen in a while in the United States.

About a year or so after this Federal Supreme Court decision, new legislation called the Law of Social Quotas was passed in Brazil. What this did was mandate that there be race-based affirmative action within all the public federal universities. What’s significant about this is that there are actual quotas—numbers that can be measured and monitored. Institutions can be held accountable. There’s none of this discomfort with the idea that having accountability means that you’re demeaning someone by only viewing them as being a race. Instead, it’s a notion that the numbers matter because the numbers inform the direct way to integrate an institution.

This type of attention to race stands in marked contrast to the United States, where the use of affirmative action is sometimes misdescribed as being the most radical. But what is often misunderstood is that the United States has forbidden quotas since 1978 with the Bakke case [Regents of the University of California v. Bakke]. Thus, we don’t have authorization to use direct numerical set-asides. We can have targets and wish lists, but there can be no hard number. Without a hard number, how do you hold the institution accountable?

How do your students perceive civil rights?

Hill: I feel that I’ve seen an uptick in student consciousness and activism more recently related to specific events. For example, the protests in Ferguson, Missouri [following the fatal police shooting of Michael Brown], seemed to create a movement around the Law School and a level of student activism that I hadn’t seen in a number of years: students forming groups, holding panel discussions about issues of inequality, requesting meetings with the administration about particular issues of concern for students of color. With regard to the new presidential administration, I’m also seeing quite a bit of activity among students who are forming coalitions across institutions and disciplines. I don’t know if that activity is solely related to recent events or if we’re seeing a different generation of more activist-students. It feels like this is one of those times where the students are moving the larger culture to address inequality and civil rights more significantly. That is very encouraging.

Lenhardt: Many of us are teaching our classes in different ways. For example, I have my students take the implicit bias test before we start talking about Washington vs. Davis, a major race case in the U.S. Supreme Court’s race jurisprudence. Fordham Law professors are introducing ways to challenge assumptions about inequality and issues of race and sexual orientation that support student action and give them a language to talk about change as well as a vision for what it means to be a 21st-century lawyer.

Cooper: In the very first class session with my students in the Legislative and Policy Advocacy Clinic, I conduct an exercise in attention diversion, where I use a couple of different videos to help them understand that we tend to see what we’re told to look for, or what we’re used to seeing. We frequently miss seeing things that happen in plain sight. What does this mean for our ability to see racism, sexism, or homophobia? I want my students to understand this flaw in how our brains perceive events, to challenge their assumptions, and to pay more attention to what they see and how they see—and how it might be informed by their lives and by the mainstream culture around them. I want them to step out of their own comfort zones to try to understand better how other people experience that very same world.

Landau: Students have also been galvanized by major events in civil rights enforcement that have taken center stage in media and public conversation. The Obama administration’s actions on immigration—particularly the Deferred Action for Childhood Arrivals program that provided a reprieve for millions of undocumented individuals who came to the United States as children—have elevated a number of immigration-related issues in ways that have been meaningful and transformative for students, many of whom feel an urgency to contribute by working on behalf of others who lack the kind of legal and financial resources that can make such a difference in avoiding dangerous conditions or, in the asylum context, avoiding persecution in their countries of origin.

Paul-Emile: There seems to be a deeper understanding of how civil rights operate and the buttons that students need to push to make things happen. People can enforce their own civil rights, but often we need the government to enforce our civil rights. There are specific provisions under the Civil Rights Act where there’s no private right of action. For instance, Title VI of the Civil Rights Act prohibits race-based discrimination in programs receiving federal financial assistance, but an individual can’t bring a suit against an entity that may have run afoul of this section of the act. The government has to bring suit. So if the Civil Rights Division of the Department of Justice decides not to enforce Title VI, many people will be left without a remedy. This possibility is galvanizing students to action. They are taking their legal education out of the confines of the School, getting out there, starting a movement, educating people, and making change happen. It feels good to be educating the next generation of social movement leaders and civil rights lawyers.