On May 17, 1954, the Supreme Court issued its opinion in the case of Brown v. Board of Education of Topeka, Shawnee County, Kansas et al, ostensibly halting racial segregation in this country. Fighting for the plaintiff was the NAACP Legal Defense and Educational Fund, Inc. (LDF), the group founded by Thurgood Marshall in 1940 to provide lawyers for black Americans. Marshall himself acted as lead counsel.
Later that year, on the morning of November 24, Theodore Michael Shaw was born on Governor's Island in New York Harbor. As he grew up, the country's racial tensions grew, too, even after the landmark ruling. Shaw went to Wesleyan, then Columbia Law School, and worked as a civil rights trial lawyer for the Justice Department. Since then, with the exception of a three-year stretch as a professor at University of Michigan Law School (yes, the site of last year's affirmative action battle — we'll get to that later), Shaw has spent his entire career at the LDF. On May 1, he'll take over as president and director-counsel. As he prepared for the challenge, he spoke to Jungle Law about the November election, why the affirmative action stakes are so high, and how big firms can be more diverse.
Jungle Law You're about to step into a role created by Thurgood Marshall. Those are some big shoes to fill.
Ted Shaw Well, I'm no Thurgood Marshall, and thankfully, no one is expecting me to be. It is an important position and one that should inspire some awe, in the best sense of the word. I have been at the Legal Defense Fund for all but three of the last 22 years, so I'm ready for this.
JL Are politics a significant factor in the job of president of the legal defense fund?
TS Not politics with a capital "P". Our field of play does not include partisan politics, though I'd be disingenuous if I didn't say that we follow partisan politics, because it affects us. For example, we have a very different relationship with the Justice Department on issues like affirmative action. In the Michigan case last year, the Bush administration was on the other side of the issue. When the president of the United States holds a press conference to state the government's opposition to affirmative action, this has a significant impact on our case. We don't endorse candidates or get involved in elections, but we make sure the electoral process is fair, just, and nondiscriminatory.
JL Does it matter to the LDF who wins the election this November?
TS Yes. The election will determine who gets to appoint judges to the federal bench. And this next presidential term may yield as many as three Supreme Court nominees.
JL How have the current administration's conservative judicial appointments impacted the work of the LDF?
TS The federal bench is where we present most of our cases. Its tone, tenor, and makeup affect us. When I was a young litigator, I thought I would love to be before judges who were very liberal and who would bend over backwards to rule in favor of my clients. Unfortunately, I was hard-pressed to find more than a handful of liberals on the federal judiciary. I've learned that often the best judges are those who are skeptical of our cases — even mildly hostile. They're fair-minded, and when presented with the best evidence, they're willing to rule in accordance with the facts of the law.Our professor calls for the High Court to check on Bush.
I remember hearing Judge James McMillan of the U.S. District Court for the Western District of North Carolina testify before Congress. He had presided over the Charlotte-Mecklenburg, North Carolina, school desegregation case that sanctioned the use of busing in the late 1960s and early '70s. He was vilified and had his life threatened. He spoke about how he came to his decision and explained that he was not one who came to these cases disposed to rule in favor of the plaintiffs. After he heard the evidence and saw the underlying causes of segregation, he began to understand what the plaintiffs had experienced. He ruled in favor of the plaintiffs in the school desegregation cases. He turned his life around. This is a son of the South who grew up with segregation and never really thought about it a whole lot. There are many fine judges in the federal courts, but the problem with judicial appointments over the last 25 years is that many of the judges are ideologically conservative as opposed to intellectually or instinctually conservative. I don't mind dealing with people who are intellectually conservative and open-minded. I do mind trying cases before ideologues.
JL Times have changed since the Brown decision. Has the role of the Legal Defense Fund been altered in any way that's distinct from the way society itself has changed?
TS I'm not sure I can separate the two. When Thurgood Marshall was director-counsel of the LDF, litigating Brown and many other cases that preceded it, the fight against discrimination was more straightforward. It was a system of segregation in which the evil was much clearer. It is always easier to fight against a clearly defined adversary or enemy. These days the picture is more subtle, and that can be more difficult. Thousands of African Americans in this country are disenfranchised as a consequence of felony convictions. Many people are convicted of nonviolent drug offenses. But the notion that because somebody does something wrong for which they are paying a penalty they should be disqualified from civic participation has a devastating impact on that individual and on the entire community. You lose the voting rights of the African-American community.
JL In February you participated in a ribbon-cutting ceremony at Harlem's Thurgood Marshall Academy and said that the school would be a "segregated" one. What does segregation mean now that it's no longer the legally defined enemy? How do you fight a legal injustice?
TS Thurgood Marshall Academy is a wonderful school with wonderful students and faculty, but it is a segregated school-it's virtually all black. The school's demographics reflect how much we as a society still are impacted by the discrimination and segregation that created the living patterns, school patterns, employment patterns, and criminal justice patterns that we continue to see around us today. Brown ended the segregation and discrimination that were sanctioned by law. It did not end segregation and discrimination.
JL In an address at Columbia University in February, President Clinton acknowledged that Brown changed us for the better, but asked if the decision created a false sense of security.
TS President Clinton's point is a good one. Brown didn't solve all the problems of the world-it didn't cure cancer and it didn't end all racial inequality. To have thought that Brown's legacy would be a self-perpetuating one is shortsighted at best. The question now is, while we honor Brown in principle, do we honor it in practice?
Most people today have given up on the notion of desegregation. To them, integration sounds like some 1960s fairy tale goal or philosophy that a few old-timers still talk about. Sophisticated people in 2004 talk about political empowerment and economic development. Nothing in our national experience has taught us that segregated communities produce anything that approaches equal opportunity.
I've lived, and live, in a mostly black community. I went to Catholic school, and it was because of my Catholic school experience and the kind of education I got and that I saw my peers get in public schools that I was able to recognize the difference in terms of expectations. I had a better sense of how I could compete with white students academically. When you go to a majority white school there are times when you are going to be called a racial epithet, and I certainly experienced that. But even though I grew up in a public housing project, I ended up relatively privileged compared to my peers. That's why I believe the mainstream avenues of opportunity, especially when it comes to education, ought to be open to all. That's still the work of the Legal Defense Fund.
JL Is Brown being commemorated appropriately?
TS Any consciousness of Brown is worthwhile. If I chuckled in response to the question, it was because I was thinking about how many people with agendas that are in conflict with ours are trying to appropriate Brown and claim it to advance their own causes. We have been engaged for quite some time in a series of battles with radical conservatives who claim that any programs, whether they're scholarships or affirmative action admissions policies, targeted to minorities — particularly to African Americans — are racially discriminatory against white folks. The stakes couldn't be higher.
JL What role should affirmative action play in the fight against racial inequality?
TS Affirmative action is a huge part of the fight. Our adversaries say that affirmative action is discriminatory because it's race conscious. They equate it with the invidious discrimination Thurgood Marshall fought against in Brown. But it is just not comparable. I'm not saying that people cannot have good-faith questions and disagreements about affirmative action. But this is a well-thought-out, planned attack that steals the rhetoric and heroes of the civil rights movement and uses them against their own legacies.
JL In reviewing the admissions policies of the University of Michigan's undergraduate college and law school, the Supreme Court last year permitted the use of race as a factor in admissions. What, exactly, does that mean?
TS This means that if I were deciding between a black student from a solid middle-class background who had not stretched himself academically and a white working-class student who worked very hard in high school, I'd take the white working-class student. That is how the system is meant to work. But to bar efforts to voluntarily include more minority students-given the legacy and the history we have, and the inequality we still have in elementary and secondary schools-would have had tragic consequences. That's what the Michigan case was all about. I wasn't bothered at all that the undergraduate system was struck down. We won Michigan.
JL Are the class — or hardship-based policies at some schools effective?
TS I applaud schools that rely on class-based affirmative action as a means of addressing what I consider to be the growing gap between the haves and the have-nots. But this isn't a substitute for race-based affirmative action. Most poor people in this country continue to be white, even though African Americans, Latinos, and Native Americans are disproportionately poor. If you have race-blind, class-conscious policies, I think you end up reaching mostly white folks. If we are serious about remedying racial inequality that is rooted in hundreds of years of racial discrimination, segregation, and slavery, then why should we blindfold ourselves and try to hit that target serendipitously? I'm not interested in color blindness. I'm interested in seeing race or color and doing justice.
JL You've always worked in the public sector. Have you ever considered fighting this fight in private practice?
TS I went to law school because I wanted to be a civil rights lawyer. And there were two places I wanted to work: the U.S. Justice Department and the Legal Defense Fund. Thankfully, I have done both. Tempting offers have come along, but I have never wanted to be anywhere else.
JL Is it possible for a private-sector lawyer to make a difference?
TS Absolutely. We work with lawyers and law firms all the time. We have great partners in law firms in much of our civil rights litigation. It's possible to do good and to do well.
JL If the chairman of a large firm walked into your office and asked you to help him make his firm more diverse, what would you tell him?
TS The commitment has to come from the top — from the senior partners at the firm. I don't think you do anybody a favor by finding people who are not strongly qualified, because eventually they'll get washed out. At the same time, once you find qualified people-and they are out there — you must provide them with the mentoring relationships that are so important in a law firm. Very often minorities feel like they miss out. And it isn't always that anyone is wearing horns, but a lot of these big firms are not friendly places for anyone, regardless of race. When you add to an overall difficult environment the experience or the layer of race, it becomes even more difficult. That's why the mentoring and developmental relationships are crucial.
The message these firms must stand behind is simple: Diversity is a strength, we value the fruit of the struggle of the civil rights movement, and the firm wants to be, generally speaking, on the right side of these issues. The older I get the more I believe that these things, on some level, are not all that difficult. If you want to do this stuff, then you do it.
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