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Thursday, April 09, 2015

Critical Consciousness & Law as an Engine for Social Change: 60 years to Brown

This week at USD law school we held an event celebrating 60 years to Brown v. Board of Education. Building upon my article The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics published a few years ago in the Harvard Law Review, I spoke about the debates in the decades post-Brown about the role of law and lawyers in representing social movements and bringing about meaningful and sustainable social change. I tried to explore the importance of Brown not only for racial equality but more broadly for contemporary social movements and lawyers in their struggles justice and progress. I argued that Brown tells us much about both the promise and the limits of litigation and the broader role that lawyers can and must play in social movements. I tried to link the questions about the limits of law and legal cooptation with the contemporary challenges facing legal education as well as recent cases, such as Elaine Pao vs. Kleiner Perkins. Below the jump I included my remarks from last night.


While Brown was hailed the great victory of the 1950s civil rights movement, soon after it was decided, lawyers and scholars began to argue that much like the legislative victories of the labor movement during the New Deal, the judicial victories of the civil rights movement are, what we could call, “failed successes”.

 While the litigation strategies led by the NAACP and the LDF were emulated by other movements — including the women’s rights movement, the gay rights and the disability rights movements — which increasingly organized around similar patterns of identity rights and antidiscrimination claims, attorneys and critical race theorists gradually began to challenge the apparent success of judicial victories, above all the seminal case of Brown v. Board.

 10 years ago, as Brown celebrated its fiftieth anniversary, Harvard law professor Derrick Bell delivered the plenary lecture of the Annual meeting of the national Law and Society Association. His article was entitled “Brown v. Board of Education as Miraculous Mirage.” (or as another writer using another alliteration called it, The Hollow Hope). Bell’s longer book about the civil rights movement was entitled  AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE.

The critique of Bell and other new leaders of the civil rights movement was that the efforts leading to Brown concentrated on issues that were more susceptible to remedy by litigation, such as school segregation and workplace discrimination, without attacking redistributive problems that were in reality of greater importance to the people they were supposedly serving.

 Critics also began to express disappointment with the narrow scope and ineffectiveness of the hailed judicial victory which seemed, ex post, to accept merely symbolic changes. For example, in 1989, prominent NAACP leader Tyrone Tiller strongly expressed his views about the limited focus of legal reform:

 “One of the glaring failures of the civil rights movement was to provide a mechanism for economic equality . . . . The civil rights movement, historically, has always failed in that area because it was always the most difficult.

Taking the critique a step further, Virginia law professor Risa Goluboff described how the equal protection–based strategy of Brown was deliberately divorced from economic and class-based claims:

“The NAACP lawyers marginalized, cabined, and outright repudiated class issues through the complaints they pursued and those they ignored. By the 1950s, when the anti-segregation strategy that eventually led to Brown coalesced, they had succeeded in writing class out of their story.”

Furthermore, in the years after Brown was decided, it became evident that there was little commitment on the part of the legal system to monitor decisions regarding its implementation. Courts were reluctant to assume administrative roles, and administrative agencies were not carrying the burden. Just today, in fact, in a new article published in Slate about the limited ability of the Supreme Court to bring about meaningful change, journalist Mark Stern writes “Brown v. Board of Education, the greatest decision of all time, had hardly any immediate effect on segregated schools; widespread integration only occurred after Congress stepped in 10 years later with the Civil Rights Act.”

But perhaps the most devastating critique post-Brown was that the focus on legal reform diluted the struggle for equality. With the turn to law, legal theorists claimed that social causes were narrowed and the goals of the social movement were coopted by legal interpretation. UCLA law professor Kimberle Crenshaw for example claimed that the focus on a rights discourse with a declaration that now school segregation was unlawful had the effect of legitimizing the continued, de facto, segregation as a product of markets rather than the state and the legal system.

In other words, the legalistic language of rights in which the civil rights movement became invested made it possible to explain vast ongoing racial inequalities in terms that seemed natural and neutral. Once rights are legally codified and symbolically declared as granted by the state, existing ongoing inequality and segregation are then assumed to be part of the inevitable consequences of private relations. Or to quote myself, which is increasingly becoming an occupational hazard the longer I am in this business, the legitimation effect can be understood as “the process through which systematic losers come to understand themselves as part of the system, as self-governing, and as having willed their losses and their subordinate status.”

Accordingly over the past few decades post-Brown a new orthodoxy emerged that was deeply skeptical of the usefulness of litigation to promote social change. Now civil rights activists were warned against “the leaky boat” of litigation and scholars argued that “real progress can come only through tactics other than litigation.”

So far the critique. What does this all mean for all of us and especially for the future lawyers here in the room today. I have actually argued against these strong critical accounts of the earlier failed successes of the civil rights movement. Instead, I have suggested an integrated vision of social activism in which lawyers play a role throughout all of the stages of the legal process.

First, although initially the success of the civil rights movement was understood in terms of their judicial and legislative victories, a key success was the way Brown triggered campaigns, organizations, community coalitions, and long lasting social movements.

Second, the fundamental victory of Brown was the triumph of the principle of equality and the message the Supreme Court decision sent throughout our society. From that perspective, I want to note that even losses in court can trigger change and increase awareness about injustices. For example, just last week, Elaine Pao lost her gender discrimination case against VC firm Kleiner Perkins but in the court of public opinion, the new forms of gender inequality that pervade Silicon Valley were brought to light through the coverage of the trial and triggered positive debates and initial structural changes within these very firms that were involved in the lawsuit.

Third, and most importantly, the role of the lawyer doesn’t end with courts. Indeed in my opinion, this has long been a great limitation of legal education. The 21st century lawyer is one who represents clients and causes on all fronts, in court but also in the administrative, economic and political processes of our society. Today’s lawyers need to understand the full range of the legal process and to be creative in organizing, mobilizing, campaigning, lobbying, negotiating, forming alliances, contracting, planning, monitoring, and enforcing. They need to become institutional and transactional leaders, not just litigators.

In the end we need both: we need Supreme Court victories like Brown to establish the basic principles of our society and we need ongoing processes to ensure that these victories translate into sustainable and meaningful reforms.

And so I will end by saying that this I believe is the most important and lasting message of Brown: that social structures and systems are not fixed and that in every space – be it education, work, corporate governance, welfare, health, criminal justice, lending and banking, the guiding principles of equality must be embedded. And it is the lawyer who will take a leading role at every stage of the democratic struggles for such equality.

Rather than experiencing disenchantment with the legal system, our students learn from both the successes and failures of past law reform models, with the aim of constantly redefining the boundaries of legal reform and making visible law’s broad reach.


Posted by Orly Lobel on April 9, 2015 at 12:42 AM | Permalink


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