Episode 202: A Conversation with Sherrilyn Ifill
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On This Episode
In June 2023, a US Supreme Court ruling on two cases essentially ended affirmative action in higher education. In a 6–3 ruling, the court decided that accounting for race in admissions violates the Equal Protection Clause of the 14th Amendment. In this deep dive into the ruling, the civil rights lawyer and legal scholar Sherrilyn Ifill and our dean, Tomiko Brown-Nagin—herself an award-winning legal historian and an expert in constitutional law—unpack the issues underpinning affirmative action and provide analysis of the decision for the layperson.
This episode was recorded on October 18, 2023.
Released on February 29, 2024.
Guests
Sherrilyn Ifill is a civil rights lawyer and the inaugural Vernon E. Jordan, Jr., Esq. Endowed Chair in Civil Rights at Howard University, where she leads the 14th Amendment Center for Law & Democracy in collaboration with a variety of institutions in law, business, and the arts, including the Charles Hamilton Houston Center at Harvard Law School. She was the 2022 recipient of the Radcliffe Medal, the Institute’s highest honor.
Guy-Uriel E. Charles is the Charles J. Ogletree Jr. Professor of Law at Harvard Law School where he also directs the Charles Hamilton Institute for Race and Justice. He writes about how law mediates political power and how law addresses racial subordination. He leads the audience Q and A in this episode.
Guest Host
Tomiko Brown-Nagin is dean of Harvard Radcliffe Institute, the Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School, and a professor of history in the Harvard Faculty of Arts and Sciences.
Related Content
Sherrilyn Ifill Howard University Announcement
Tomiko Brown-Nagin: Leadership Biography
Credits
Ivelisse Estrada is your cohost and the editorial manager at Harvard Radcliffe Institute (HRI), where she edits Radcliffe Magazine.
Alan Catello Grazioso is the executive producer of BornCurious and the senior multimedia manager at HRI.
Jeff Hayash is a freelance sound engineer and recordist.
Marcus Knoke is a multimedia intern at HRI, a Harvard College student, and the general manager of Harvard Radio Broadcasting.
Heather Min is your cohost and the senior manager of digital strategy at HRI.
Anna Soong is the production assistant at HRI.
Special thanks to Kevin Grady and Max Doyle from Radcliffe’s event streaming team for their invaluable contributions to recording this podcast episode.
Transcript
Ivelisse Estrada:
Welcome back to BornCurious, which is like its home, about unbounded curiosity. I’m your cohost, Ivelisse Estrada.
Heather Min:
And I am your cohost, Heather Min.
Ivelisse Estrada:
Coming to you from Harvard Radcliffe Institute, one of the world’s leading centers for interdisciplinary exploration. This podcast brings together scholars, students, artists, and doers. Our conversations traverse current affairs, scientific breakthroughs, cutting-edge research, art-making and storytelling. Heather, what do we have for our listeners today?
Heather Min:
Well, Ivelisse, folks may remember that last summer, a US Supreme Court ruling on two cases essentially ended affirmative action in higher education. In a six-three ruling, the court decided that accounting for race in admissions violates the Equal Protection Clause of the 14th Amendment.
Ivelisse Estrada:
Today, we are sharing a deep dive into the ruling with a conversation between Sherrilyn Ifill, a civil rights lawyer and legal scholar who served as the president counsel of the NAACP Legal Defense and Educational Fund, and our own dean, Tomiko Brown-Nagin, who is also the Daniel P.S. Paul professor of Constitutional Law at Harvard Law School, a professor of history in the Harvard Faculty of Arts and Sciences, an award-winning legal historian, and an expert in constitutional law.
Tomiko Brown-Nagin:
Well, hello, Radcliffe. I’m delighted to be in conversation with Sherrilyn Ifill, our Radcliffe medalist and all of the things that Guy mentioned. Just a brilliant path-breaking lawyer and thinker on equality. We are here to talk about the Supreme Court decision on affirmative action students for fair admissions versus Harvard and UNC and its aftermath. And I have to say, there’s so much that one could talk about. A lot of food for thought and fodder, but I want to start us off talking about history. Now I have to say, I spent quite a few years, nearly a decade, as a doctoral student in history, and so I know a bit about how to do history and I’m just—what do I call it? Tickled that there are so many justices who want to play in our lane. And in this Supreme Court decision, what we found were starkly different understandings of the meaning of history, the 14th Amendment in particular, with the majority, which struck down the race-conscious policy arguing that the 14th Amendment demands colorblindness.
And dissents arguing that no, the 14th Amendment is a part of the legal architecture of this country that commands the pursuit of equal opportunity. And so, Sherrilyn, I would love to know your thoughts about how history mattered in that case, how it should have mattered, and how it should matter as we think about where to go from here in higher education.
Sherrilyn Ifill:
Yeah, thank you so much. I’m thrilled and delighted to be here. Thank you all for coming on this beautiful day. You could be sitting outside. I think it’s a great place to start. And I actually think you’re being much too charitable in your description of, A, being tickled, because I’m really annoyed. And B, suggesting that it is different approaches to history. I think there’s an approach to history that has integrity and there’s an approach to history that does not. And the reason that I think the majority of the justices can get away with what I think is a very warped presentation of the history of the 14th Amendment is because so few people actually understand the 14th Amendment. And I’m teaching a 14th Amendment seminar here at the law school and we’ll be opening a 14th Amendment center for law and democracy at Howard Law School in the spring.
And one of the reasons I’m doing it is precisely because this amendment that I consider to be maybe the most important provision of our constitution, that probably is the provision that governs our sense in contemporary America of how we think about our rights and our guarantees and our protections, is so little understood. It’s the reason why we’re having conversations right now about the litigation that’s challenging the inclusion of former President Trump on the ballot in a number of states. The reason that we’re having this controversy among legal scholars is because so few lawyers ever learned about section three of the 14th Amendment. We all learned about section one, which has all the rights and the guarantees, and then we learned about section five, which says that Congress has the right to enforce the provisions of the 14th Amendment. But section three, which says that no one who has formerly taken an oath but then participates in insurrection and rebellion against the constitution can hold federal or state office or serve in the military. Period.
It doesn’t say if that’s the leading candidate of one political party, then it doesn’t apply. It doesn’t say if it would be bad for politics. It doesn’t say if you would “own the Libs.” There’s no caveats to it. And it was a very deliberate choice. Likewise, we hear people say things like, “In the political space, if we get elected, we’re going to end birthright citizenship.” Birthright citizenship is the first sentence of the constitution that provides that every person born or naturalized in the United States is a citizen of the United States and of the States. It was created for the purpose of ensuring that black people both formerly enslaved and free would be citizens and was meant to overturn the Dred Scott Case. It had the collateral effect of creating what most of us know as 20th-century America because, of course, “give me your tired, your poor,” and people arriving at Ellis Island, maybe some of your grandparents, great-grandparents, or their parents could become naturalized citizens and their children immediately upon birth would become citizens.
In other words, you were now breaking the tie between parent and child. And I was talking with the scholar, Martha Jones, about this earlier this week that you could disparage the parent, but it would not be inherited by the child. The child would be a citizen. And that was a powerful statement. And birthright citizenship perhaps could be done away with, but it would take a constitutional amendment or a reinterpretation by the Supreme Court of what they meant. But when people just say it like it’s a policy choice, it’s part of the undermining of the power of the 14th Amendment that I think is so corrosive and so toxic. So back to the Supreme Court and SSFA and the contention that our constitution is colorblind. I want to first acknowledge our own complicity in this. And by our, I mean people who have been litigating in the civil rights space and using the 14th Amendment certainly 30 years ago would’ve acquiesced to that statement in litigation that our constitution is colorblind. Our constitution is not colorblind. Our constitution has never been colorblind, which is so interesting.
As you probably know, that statement comes from the dissent written by a first Justice Harlan in Plessy versus Ferguson, in which the Supreme Court upheld separate but equal. In other words, racialized segregation by law as being constitutional. And Justice Harlan’s dissent is largely seen as very prescient and something that reminds us that even justices then knew that legal segregation was wrong, and it’s often taught in law schools, and I think that’s wonderful. And he said in that dissent, our constitution is colorblind. Now he is wrong. Our constitution was never colorblind. We know our constitution is not colorblind because it created a mathematical formula for counting people for purposes of representation in order to address the issue of black people who were enslaved in the South. And that’s where we got the Three-Fifths Compromise. That you would count white people as a whole person and black people would be counted as three-fifths, all other persons. We know it was not colorblind because it provides for the importation of persons up until 1808.
I mean, I don’t know what other people were imported into this country, but it’s very clear what they were talking about. So we know the original constitution was not colorblind. We certainly know that the Civil War Amendments the 13th, 14th, and 15th Amendments suggest to us that the constitution was not colorblind. The 13th Amendment ending slavery. Why were they ending slavery if it didn’t exist? And who were the people who were enslaved? Black people. The 14th Amendment, which I just told you, we needed the first sentence to ensure black people could be citizens. Because in the Dred Scott decision in 1857, Chief Justice Roger Taney and the entire Supreme Court said that black people had no rights that the white man was bound to respect and could not be citizens whether they were enslaved or free. So that’s the first sentence of the 14th Amendment as well as of course, the guarantee of equal protection of laws. And so, we know that the constitution was not colorblind that especially the Civil War Amendments, the 15th Amendment, of course, outlaws any abridgment of the right to vote based on race or color.
So the constitution is not colorblind. The Civil War amendments were deeply concerned with and engaged with the question of racism and more importantly white supremacist ideology. And if you read the reports that were relied on by Congress in creating those amendments, if you read the report of Carl Shirtz, who was sent by then President Andrew Johnson after the assassination of President Lincoln, to report back on the conditions of the South. And if you read the joint report of the committee in Congress that also reviewed conditions in the South, they were deeply concerned with two things. With what they saw as the stubbornness of insurrectionist ideology in our country and the stubbornness of white supremacist ideology. That’s what they were motivated by. So our constitution is not colorblind.
One last thing. It’s ironic that in a case that was brought suggesting that Asian-Americans were harmed by Harvard’s race conscious admissions program that Justice Thomas would hang his hat on our constitution is colorblind and say it with his full chest as though he was saying something so wonderful. But if you’re reading Justice Harlan’s dissent and you read the part where he says our constitution is colorblind, we have no caste in this country, recognize no caste. That sounds lovely. It all sounds lovely. In the next paragraph he says, “But there are people in our country who are so different from us that we would not hesitate to discriminate against them, and yet these people would be allowed to sit on the train car with white people.” And there he then goes on to speak about the Chinese. So I’m not sure why we would be elevating this dissent as though it is so wonderful, pulling out this sentence that is followed by—it’s lovely that he was not prejudiced against black people in the way of the majority, but he certainly was against Chinese people.
And so in a case in which the very claim was that Asian-Americans are discriminated against, to lift up Justice Harlan’s dissent as though it is now the law of the land struck me as not just an alternative interpretation, but a very cynical one. And so I think that’s the point of history is that you can’t just make it up, but you can make it up when there are not enough people who are versed in that area to appropriately challenge you. Of course there are many historians and there are many law professors who’ve studied this. But in the body public, right? It’s not well known. And so they feel they can take liberties with it.
Tomiko Brown-Nagin:
So let me ask you a follow-up question, Sherrilyn. You said that for 30 years, civil rights litigators would’ve acquiesced in the notion that the constitution is colorblind. Can you just clarify what you mean by that?
Sherrilyn Ifill:
Well, I think that there were legal scholars like Neil Gotanda writing about this in the ‘80s, that it was a fallacy that our constitution is colorblind and actually doing a really deep dive about Justice Harlan. But I also think that there was the embrace of colorblindness. It’s a compromised position, I think, around a lot of our conversations about race. In fact, it has been presented as an ideal. People say all the time, “I don’t see race.” Which I think is lunacy. I mean, I’m looking out right now, I see it. I can’t pretend I don’t see it. Now you can say, “I see it, but I don’t judge people on that.” You could say a whole lot of things after that. But saying you don’t see it is such a hysterical approach to something that is so plain to see that it’s become ideal. And I think that in trying to find a dialogue about being anti-racist, there has been acquiescence to this idea that we shouldn’t see race, we should, dare I say, judge people by the content of their character.
But I do think that there is a way in which we did not vigorously challenge that conception in litigation in a way that I think the current moment compels us to do. And I do think that my own belief is that if you leave things available to be interpreted or misinterpreted or used by others, they will be. And I think we’re being called down to more vigorously engage the 14th Amendment, which after all was created for the purpose of resetting American democracy to potentially be, for the first time, a true multiracial democracy, which is a very ambitious thing and a very difficult thing. But that was the attempt of the Civil War Amendments. So, we’re here now grappling with the consequences of that promise having been hijacked. And so I think we have to return to it. I think we now have to say the truth. We cannot accept the compromise. We should not consider the compliment if people say, “I don’t see race.” Because it’s not.
Tomiko Brown-Nagin:
Right. And I will mention that in some of the prior cases by conservative majorities, they’ve actually cited to the Supreme Court arguments in Brown, and I want to get around to Brown, where the lawyers were using what they had to use, right? They were using the tactics available to them. And what, Sherrilyn, I take you to be saying is that that utility is no longer with us and so it’s time to have a deeper conversation about the real true meaning of a constitution and that project during reconstruction. So let’s get around to Brown because it’s another place in this opinion and in prior opinions where there is a divergence of understanding about what Brown really means, even about the precedents after Brown. With the majority, again, holding up Brown as a totem to colorblindness and dissents articulating the view that no, Brown is the way that through race consciousness we can get to equal opportunity.
I suppose the question that I have, Sherrilyn, is how have we arrived at this point where there are such different understandings of what Brown means and where the majority, again, makes these claims that make sense to a lot of people, even if they’re not true to history?
Sherrilyn Ifill:
Yeah. I mean, I think it’s a bad faith take on Brown. So I’ll just be honest about that. I don’t think it’s mistaken in any way. And I mean, I think something has gone on that’s quite interesting. There was a period in 2021 when, you may recall this, a number of judicial nominees for the federal bench at their confirmation hearings were asked whether Brown verses Board of Education was correctly decided, and for the first time, a number of them, 29 and all said, “I can’t answer that question.” Brown has become what we call canon, right? Canon means these are decisions that are unassailable, these are decisions that within the profession we recognize as being untouchable, as being unassailable, as having been correctly decided as setting out a powerful principle around which many other legal principles are developed. And so we might think of McCulloch versus Maryland. There’s a number of decisions that we think of as being canon, and Brown is one of them.
So it was a fairly non-controversial question that suddenly became controversial. And a number of us began to point it out and then we began to see a pivot in 2022 where nominees started to back off of the, “I can’t answer,” and say, “Yes, Brown is canon.” I think what happened is that Brown became very useful to people. Again, this goes back to your first question about history. For people who only know that Brown stood for the proposition that legally enforced segregation, that separate but equal is unconstitutional and that racial segregation is unconstitutional. It is a powerful moment in our legal history but in our nation’s history. And almost like people who have decided that they all loved Martin Luther King and listened to the speech at the march on Washington, but only know one line of it, Brown has conveniently become that kind of symbol that allows people to say, “Yes, there was a time when it was bad, but then this wonderful thing happened and it all got better.”
So there’s a part of it that’s that, that Brown stands for that principle for some people. But I also think Brown became useful to a court that very much appears to be focused on overturning a number of deeply embedded precedents. We saw this with Dobbs, the abortion case. And obviously stare decisis and precedent is vitally important to our legal system. And I will speak now as a litigator, it’s impossible to litigate if you don’t know what is law. If every time you litigate a case, you know that if it gets to the Supreme Court, it’s likely to be changed. You actually don’t know what series to operate on. You don’t know what kind of plaintiffs, you don’t know what kind of claims, you don’t know where to file it. You do all of that because you know that there’s a stability to the law and even when you don’t like the decision that the Supreme Court made that you’re stuck with it for a minute.
Of course, Brown overturned a powerful precedent and overturned Plessy versus Ferguson, which was decided in 1896. Brown was decided in 1954. And so what had become this kind of colloquy that we would regularly engage with members of the court and more conservative legal practitioners and scholars, when you would talk about stare decisis and you would talk about the importance of precedent and adhering to precedent at least in some organized fashion, and the court itself had laid out a series of conditions that should be in place before precedent is overturned. And we as litigators operated within the principles that the court gave us for when it might be likely that a long-held precedent would be overturned. But the court started to lay the groundwork for that no longer being the way precedent would be overturned and we began to hear it at confirmation hearings. We began to hear justices say, “Well, stare decisis is not sacrosanct.” What about Brown?
And lots of people started to say that, and you saw it in the Dobbs opinion and other opinions from the court recently in which Brown becomes the case that they cite for the principle that stare decisis is not sacrosanct. So Brown is too useful to jettison because it provides an unassailable example of when we would all agree that precedent needed to be overturned. So that was really important. Then, and I think this is where SSFA becomes important, the court has taken the next step of reinterpreting Brown in this colorblindness mode, which is not the direct way the court has talked about it in the past. They came close with parents involved the idea that merely noticing race in an educational context violates Brown, which is insanity of course, and that couldn’t possibly be true. Or you couldn’t have had a remedy in Brown. You couldn’t have had busing. You couldn’t have had the Little Rock Nine case, Cooper verses Aaron. You couldn’t have had any of these things happen if in fact Brown was about colorblindness.
It was not about colorblindness. It was about access and opportunity. It was about democracy. It was about citizenship. It was the court saying in Brown that education is the most important function of state and local government, which is the part I think most people don’t remember about Brown. “Education is the most important function of state and local government,” said the Supreme Court in Brown. “It is,” said the court, “the very foundation of citizenship.” And that is why segregated schools could not be maintained. “It is doubtful that any child without education can become successful in our country in contemporary times,” the court said. That is why segregated schools were unconstitutional because segregation was meant to be unequal, because segregation was meant to carry a message of white supremacy and racial subordination. That’s what Brown stood for. But in SSFA, now the court has decided that Brown stood for the principle of colorblindness and that therefore merely to notice the race of a student in an admissions process does violence to Brown.
Tomiko Brown-Nagin:
And we should note that one of the ways that the majority opinion is able to sustain this argument about Brown is that it doesn’t talk about any of the remedial decisions. It just goes right from Brown to Bakke, right? And those remedial decisions are the ones where district courts are taking note of the races of kids and moving them from school to school based on race in order to comply with equal opportunity. That is what those cases do. And the Chief Justice just didn’t talk about them.
Sherrilyn Ifill:
Which is ironic because many of those cases still exist at LDF, the organization I led until two years ago. We have maybe 50 desegregation cases still on our docket. We won a case in the 11th Circuit out of Alabama, Jefferson County, Alabama, the Gardendale school case, in which white parents sought as the district became more integrated and actually had a state-of-the-art High School, and was actually lauded as a really good school system, decided that they wanted to secede from the Gardendale school system and create their own school system and take the award-winning high school with them into this new school district. And they lost a trial and they lost it at the 11th Circuit with a conservative panel saying this was clearly an effort to violate Brown, to segregate and to remove white students. So the conversation about race is happening in these cases, even as we speak, it’s not even just about the Green case. It’s not even just about the cases that were the progeny of Brown. This is actually what happens right now.
And so it’s just absolutely false. This is the part that I think is most troubling. They’re not mistaken, they’re just wrong. And I don’t know that it can be by chance given the wealth of information that’s out there, they have law clerks who work for them. And so it can’t be that it’s not possible for them to know this. It is that they are recreating a story. They are creating a narrative that they believe will shape how we approach this and how we think about these issues. And it happens to be not one based on the truth.
Tomiko Brown-Nagin:
Briefly on Bakke, the case where the court, originally Justice Powell, endorsed the idea of race as one factor in holistic actions. You have said that that case was a compromise. Can you explain what you mean by that?
Sherrilyn Ifill:
Well, affirmative action in its earliest form, which began in the 1960s, was designed to be a remedial program. It was designed to confront and address 150, 200 years of racial exclusion. It was designed to provide an opportunity to accelerate the integration of black people into places of opportunity, which are universities and colleges. That was the purpose of it. In the Bakke case, the Supreme Court said, “Well, you can’t do that. You can’t just create a program that is trying to remediate societal discrimination.” Now, if you want to prove that this particular university engaged in a particular kind of discrimination, and that’s the remedy, you can do that, but you can’t just do it in general. What Justice Powell said in his dissent that became the law of the land was that affirmative action was a right held by universities, their first amendment right to create the kind of universities they want, to create the educational program they want, to decide what they need in the environment, in the classroom, to be able to create the learning environment and to fulfill their mission.
And I can remember, I was a senior in high school. We thought Brown was a terrible loss. I mean, Bakke was a terrible loss. Newsweek, Time magazine covers, it was not seen as a win. But then we do what we do, which is we adjust. Affirmative action wasn’t struck down, it simply was maintained, but for a different reason with the right held by universities. And so that’s how the diversity rationale was born. And we all said, “Well, that’s something at least. And we do think that’s important.” And universities began engaging their program. And of course in the Bakke case, what Justice Powell upheld was the Harvard plan, was the way in which Harvard engaged in a holistic review and so forth. So it’s important to just remember that at the time, Bakke was not considered a win. The other thing it’s important to remember is that most of the early affirmative action cases were cases decided between a white plaintiff and a predominantly white university.
So the people who were likely to be affected, particularly black students, were not in the cases and had no voice in the cases. And in fact, a black student organization tried to intervene in the Bakke case and was denied. It’s actually a really interesting meditation on Rule 24 Intervention. But they were denied the right to intervene. And it really was not until Grutter that we started to get student voices and we started to get organizations like LDF having the ability to intervene in these cases and make a different kind of presentation. It’s important to remember also that the universities that have fought to maintain affirmative action and for which I’m grateful and appreciate it, were embracing diversity. It remains to be seen whether they would embrace an affirmative action challenge premised on the historical and longstanding discrimination of that university itself and seeking affirmative action as a remedy for demonstrated discrimination.
Tomiko Brown-Nagin:
Right. Well, I will say, we certainly have a lot more evidence now. These reports documenting legacies of slavery at these universities, and there are many of them. Harvard’s report just came out, but these investigations started back in 2006. There’s actually a consortium of universities that have issued reports documenting the university’s own discrimination, not just slavery, but exclusion through the 1960s really. And so Justice Sotomayor and Justice Jackson cited these reports trying to make the argument that this history matters. It matters. And yet, actually as a technical legal matter, under the diversity rationale, it’s not the case that the history is highly relevant. Let’s see. I have so many more questions. Let me ask you this one. So going forward, now that we have this decision, the question is what kinds of policies can universities use that could survive scrutiny? What kinds of policies would be considered in the language of law race-neutral or at least not race-conscious within the meaning of the court? So there are many options—top 10 percent plans, adversity scores, class-based, affirmative action. There are many options. What do you think?
Sherrilyn Ifill:
Well, I feel like if I had the answer to that, I would be a very highly paid consultant because I don’t think we know with this court, right? What will pass muster with them. I think we will learn more in time. We have a case percolating up that the Supreme Court is likely to take up or have they already decided on the Thomas Jefferson High School case out of Virginia?
Tomiko Brown-Nagin:
Yes.
Sherrilyn Ifill:
This is a case that involves a magnet high school in Virginia largely considered the best public school in the country. They changed their admissions policies in some measure to achieve greater racial diversity, but also geographic diversity. You could imagine that people from all over the state want to go to that school. Socioeconomic diversity, they created a four factor score. They removed the test. You do have to have a minimum GPA. And the Asian-American population reportedly was reduced from 70 percent to 50 percent. And so that case is likely to be decided by the Supreme Court. And that will, I think, bring us to the top 10 percent kind of program, right? When you create a program that doesn’t look individually at race but does try to create a set of factors that will meet many kinds of diversity as the Thomas Jefferson program does, how will the court react to it? We don’t know. There’s some weird language from a Chief Justice Roberts that I don’t think is necessarily particularly helpful in guiding us.
But unless the Supreme Court is prepared to monitor the admissions process of every institution of higher learning in this country, institutions of higher learning have to do what they have to do, which is they have to create an institution that is true to their mission and to their vision. And so I think, I don’t believe in overcorrecting for Supreme Court decisions. I think you have to comply with Supreme Court decisions, but I don’t think you have to overcorrect. And so I think all the things that you mentioned are on the table. Top 10 percent plans have not been struck down. The idea of looking at the most disadvantaged zip codes in the country and socioeconomically disadvantaged zip codes and deciding that you want to do special recruitment in those zip codes. I mean, I think there are all kinds of ways. And of course we see some institutions deciding to make wholesale changes ending legacy admissions, for example.
I mean, we know the evidence in the Harvard case that legacy admissions, children of alumni, deans, special folks and other special faculty call-ins, that’s 41 percent of the class. That’s 41 percent off the top. And the rest of us are just scrabbling for the other stuff. So there are lots of changes that can be made.
Tomiko Brown-Nagin:
Well, let me follow up on your reference to legacies. What do you think about the argument that some people make that no, it’s not a good idea to end legacy now that the alumni basis of these highly selective colleges and universities are more racially diverse than they’ve ever been? So the argument is that it is a way to preserve at least some level of racial diversity. What do you think about that?
Sherrilyn Ifill:
I mean, I don’t know. Of course it strikes me, for sure. But I’m okay with it. I’m okay with it. I mean, I actually think there’s a set of questions to be answered. I’m not even per se against legacy admissions. I’m per se against not having a rationale for legacy admissions that are about the enrichment of the environment at the school. I’m not an admissions officer, I’m not a dean, but I do think that you have to make your case with any criteria that you use for admission. And so what’s the criteria? What is it that legacies enrich the environment? In what kinds of ways that in all to the benefit of all students? I mean, I just think transparently articulating that, the same thing with athletes. You don’t have to have an athletic program, but I think we would agree that athletic programs enrich the environment of schools, right?
So I think you have to make the case for why it’s important and then you have to make the case for why you weigh it in the way that you weigh it, however you weigh it. So I think it’s a little bit more complicated than saying, “Legacy admissions, yes. Legacy admissions, no.”
Tomiko Brown-Nagin:
Very good. I could go on and on asking you questions. I think we need to bring the audience into the conversation and invite Professor Charles to the stage to moderate the audience questions.
Guy-Uriel Charles:
So just to get us going, what happened? So you talked about Brown, you’ve talked about the colorblindness rationale. What happened to this idea—where did the court get this idea that there is a constitutional limit on race consciousness? That something can be constitutional and where we have a number of Supreme Court decisions that say Grutter verses Bollinger as an example, that it is okay, but that somehow the Constitution has a sunset provision on a particular conception of equality. How did you react to that and where do you think that came from?
Sherrilyn Ifill:
So we know that in Grutter, Justice O’Connor said that we expect-
Tomiko Brown-Nagin:
25 years.
Sherrilyn Ifill:
We expect. She didn’t say in 25 years. She said, “We expect that in 25 years.” And I took her to be saying, “We aspire.” Right? “That in 25 years we won’t need this.” But I didn’t see it as a hard cutoff as the court purported to do, even though we’re still at 23 years. But actually this is a very long-standing Supreme Court theory, which is that there has to be a cutoff point. In 1883 when the Supreme—am I right about that date? When the Supreme Court decided the civil rights cases. 1883 or 1885?
Tomiko Brown-Nagin:
Yes. Yeah.
Sherrilyn Ifill:
1883. In 1883, when the Supreme Court decided a set of cases that became known as the Civil Rights cases, which basically challenged racial discrimination in public accommodations, in hotels and theaters and so forth. Justice Bradley writing for the court says that the 14th Amendment is not meant to deal with discrimination by private parties or by corporations. They get to do whatever they want. Also not in my view in the spirit of the 14th Amendment, but nevertheless, that was the decision. And Justice Bradley also expresses this view that the scholar, our colleague, Darren Hutchinson, describes as racial exhaustion. We’re also tired of doing this thing we’ve never done. And so in 1883, the court says, “When a man has shaken off the shackles of servitude, there comes a point when he must stand on his own two feet. How long must the black man be the special favorite of the laws?” This is 20 years after slavery ended. Right?
So they were exhausted when they began. From the very beginning it’s been like, “But tell me when this is going to end.” There’s always been this cutoff thing. So I think that Sandra Day O’Connor meaning to say something to calm down the anxiety of her colleagues to say, “I see an end to this.” Now became their thing. It’s 25 and by God, by 23 we better get it done so that we can come in ahead of time. I mean, there is this thing. And I think what is so dangerous about the SSFA opinion is that they have now decided that to recognize race itself is somehow unseemly and an evil. That the high ground is not seeking to ameliorate the ongoing effects of racial discrimination. The high ground can only be not seeing race and to see race in any way. And I feel this is ominous for the other cases, not necessarily even in the education space, that are likely to come before the court. To see race is itself something that pollutes our constitution and it’s deeply, deeply disturbing and also I think quite ominous.
Guy-Uriel Charles:
So a number of great questions, the start one with originalism, which picks up, I think, on one of the first questions that Tomiko asked you. The court in SFFA the majority as well as Thomas’s opinion, they talk about the intent of the framers of the 14th Amendment. Now interestingly, they don’t point to any evidence to support the intent of the framers. And as you mentioned, ironically, Thomas points to the Justice Harlan’s dissent and Plessy as evidence of the—which is very odd.
Sherrilyn Ifill:
1896.
Guy-Uriel Charles:
But the question is about originalism and its application in these types of cases. If you wouldn’t mind offering your thoughts on its selective application or at least the way that it is applied in these particular contexts.
Sherrilyn Ifill:
Well, I think originalism is an ingredient. It’s certainly part of an analysis. I mean, I use it all the time. I don’t think it’s the end of the analysis. It is certainly something that should be considered. What were the people who were creating this provision thinking? What were they trying to accomplish? Which is different than saying, “What would James Madison have thought about marriage equality?” That’s not originalism to me, right? I don’t think originalism is, did Charles Sumner think about race-conscious admissions at Harvard? I don’t think that’s originalism, right? Originalism is looking at the provision and trying to understand what is the problem they were trying to solve or the problem they were trying to protect against or the guarantee they were trying to—what is it and what are the irreducible principles that are part of that? And that’s why I say I’m certain. And one of the reasons I love the addition of Justice Jackson is because she has the receipt.
Tomiko Brown-Nagin:
She is there.
Sherrilyn Ifill:
She is right there.
Tomiko Brown-Nagin:
She is there. I love it.
Sherrilyn Ifill:
Listen, listen. We have not in our adult litigating lifetimes heard a Supreme Court justice say, “I happen to have the report on the creation of the Freedmen’s Bureau right here.” That’s just not something that happens from the bench. I mean, literally an oral argument, “I have it right here and it says...” That moment for me was like kismet. Oh my God, it’s fantastic. Because she actually is doing the originalist work that they will not do because—and this is what I talk about in my class, in the class I’m teaching here. When we talk about the framers, I’m sure most of you are thinking about Hamilton and Madison and Jefferson, and we’re thinking about the folks in the tricorne hats and so forth. But for our lives, the framers that are most relevant to our lives are Sumner and Bingham and the people who are not just the people who sat in the room because framers are also the people who are doing the work of creating the principles that end up in the text. It’s not just the people who are writing in the room, right?
Kate Masur has a wonderful book, Until Justice is Done, that really is about all of the challenges that were happening among free black people in the North that were giving content to the understanding of citizenship and giving content to the understanding of what equality means. So the guys who are in the legislature in those days, all guys, don’t just sit in a room and they start writing and they’re like, “You know what I’m going to say? Privileges and immunities.” They’re not that brilliant that they just come up with these things. “Equal protection of laws. I know what I’ll say.” Right? There are concepts being worked on, and those people are also founders who are part of the struggle over what these things mean. So if we want to talk about the framers and the founders of our America, of the second America, the post-Civil War America, then we would be looking at that history. And that history makes very clear what was on their minds.
And I talked about it earlier, about the spirit of insurrection, about the spirit of white supremacist ideology, and the stubbornness of it. And the stubbornness. Frederick Douglass who is a founder, whose voice was very important during this period, says in a speech in 1865—Frederick Douglass was very adamant that the 14th Amendment needed to include the right to vote. In fact, he thought the 13th Amendment should include the right to vote. He didn’t see any point in ending slavery without politically empowering black people because he believed that to not ensure that black people could vote and control their political destiny would mean that black people would be at the mercy of their former tormentors. And that’s how he described it. He gave a speech in 1865 in this very state and city, I believe, to the Massachusetts Anti-Slavery Society, called “What the Black Man Wants.”
So this is 1865 before ratification of the 13th Amendment, certainly before the 14th Amendment. And it’s all about why black people have to have the vote. And he says that this feeling, this enmity of southerners who believe that they are superior to black people, he said, “When everything dies down, it will be passed down,” he says, “from sire to son. And this enmity,” he says, “will not end in a year or even two years or even an age.” It is false that what they were just trying to do was focused on that period. They understood. They were in fact horrified by the stubbornness of these two spirits that they found in their investigations. They believed, or else these would just have been statutes. They’re in the constitution because they believed that this was a long-standing problem that threatened the potential for this multiracial democracy to hold together. That’s the originalist, frankly, reading of the 14th Amendment that you see nowhere from these folks who purport to be originalists, but who are then talking about Plessy versus Ferguson in 1896 and a dissent.
And so I just feel like if you’re going to do it, do it for real and do it with a full understanding of what it means to engage in the process of trying to understand what was the intention behind particular provisions of the constitution.
Guy-Uriel Charles:
You talk about Justice Jackson. There’s a question about what black women have inspired you and your work as a civil rights litigator, leader of a civil rights organization, and professor.
Sherrilyn Ifill:
Well, the subject of Tomiko Brown-Nagin’s book, Constance Baker Motley, was a touchstone. A really extraordinary woman who I had the honor of getting to meet when I was a young LDF lawyer. And I’ve told Dean Brown-Nagin this story. But when I was a young LDF lawyer, I arrived in 1989, I was pregnant, and I was a full-time litigator. All my cases were in the South. And I was getting ready to have my daughter. She was born in 1990. And I went to the head of the Legal Defense Fund at the time, Julius Chambers, North Carolina hero, civil rights litigator, and I said to him that I wanted to take four months of maternity leave. And there was another woman in the office who was also pregnant, a lawyer. A little bit more senior to me, white woman lawyer. And she said she was taking three months. And so he said to me, “Well, she said she’s taking three months, so why do you need four months?” And I said, “Okay, so that’s what we’re doing?”
And so I said, “I figured out this is what I need.” And so on and so forth. And he said, “Well, I don’t see why I should make them different, and it seems like three months is okay.” And so I thought about it, I was pretty upset, and I said, “You know what? I’m going to take four months. Don’t pay me for the additional month.” And by the way, my salary at this time was, I think, $27,000 a year. So wasn’t exactly breaking the bank. Anyway, I went off on my maternity. I did my first trial pregnant, all my depositions, I finished the trial, and went on maternity leave. And of course, he paid me for the four months. And his assistant said, “He was so embarrassed. He was so embarrassed by—” But in any case, so I said to him, I said, “We have no policy.” And he said, “Well, what did we do in the past?” And I said, “What past?” Women at LDF, largely litigators, did not have children. It wasn’t that they weren’t allowed, they just didn’t.
And so I said, “You mean Constance Baker Motley?” And he said, “Yeah, why don’t you call Connie Motley and talk to her?” And I said, “I don’t know. I don’t...” He said, “Call her up.” So I did call her. She’s on the bench. This is Judge Motley. He’s saying, “Call Connie Motley.” And so I called her up and I told her that, “Julius Chambers said I should call you. I’m having a baby. And he said you would be able to—” And she said, “Oh, let’s have lunch.” And so she took me out to lunch and it was lovely. And her advice, by the way, was get a live-in nanny, was not going to... That possibly... Her husband worked in finance, mind you. And anyway, so we became friends after that. And I just found her to be such a powerful woman. We used to talk a lot about our backgrounds. And she was very into her family tree at Nevis, and she came from a large family as I did, and was very close with her siblings.
And I love these photographs of her going in and out of court wearing this silk shantung suit with the pearls and the Cuban heels. I mean, the woman looked amazing and-
Tomiko Brown-Nagin:
She did.
Sherrilyn Ifill:
And that was important in those days. I mean, you could imagine these people had never seen in many of these jurisdictions a black woman lawyer before. It’s hot and you still have to look perfect and your hair has to be right. And just how well turned out she was while doing this incredible and extraordinary work. And a woman who I think most people don’t know desegregated most of the, in her litigation, state universities in the South. And I just don’t think her name is one that trips off people’s tongue. Obviously, I’ve talked about Barbara Jordan so much and seeing her during the Watergate hearings and just seeing the kind of power she had. And also her ownership of talking about the constitution which seemed, even at my very tender age of eight or nine, she was talking about the constitution as though it was hers and that had not really occurred to me before.
Tomiko Brown-Nagin:
Yeah, it was really important.
Sherrilyn Ifill:
No, that was huge.
Tomiko Brown-Nagin:
She was serious.
Sherrilyn Ifill:
And it was not an act. Her allegiance, she said, was to the constitution. And I found this so powerful and exciting and improbable. So yeah.
Tomiko Brown-Nagin:
And let’s also called the name of Lani Guinier. Our friend, our colleague, our mentor.
Sherrilyn Ifill:
Yeah. So, I went to LDF in 1988, and Lani Guinier was getting ready to leave. And that’s actually why I was hired. Not like I could be any replacement for Lani, but they needed someone to do some voting rights litigation and she agreed to be a consultant. She was going into the academy. She just had her son, Nico, who’s a professor here now, and she was going to teach at Penn. And so she made an arrangement that she would continue to consult on voting rights cases and basically be my supervisor from afar. This is before Zoom though. Be my remote supervisor, along with Pam Carlin, who was leaving at the same time to go teach at UVA. So in walks, I’m 90 pounds soaking wet, don’t know anything, a year out of law school, just finished a fellowship at the ACLU, reading the Voting Rights app for the first time.
And if you knew anything about Professor Guinier, she didn’t care. You had to get up to speed. She was such a taskmaster. I used to go home on the weekends and I would call my sister and say, “She hates me. She hates me.” It was so hard. So hard. And I couldn’t believe the caliber, you know what I mean?
Tomiko Brown-Nagin:
Yeah.
Sherrilyn Ifill:
That she was at. So imagine having your two mentors, for those of anything about these two professors, be Lani Guinier and Pam Carlin.
Tomiko Brown-Nagin:
It’s extraordinary.
Sherrilyn Ifill:
It was nerve wracking. And I’ve always said if I didn’t get an ulcer the first 18 months I was at LDF, I never will. That’s how stressful it was. But in a very short order, I learned so much from Lani. Not only was she incredibly brilliant as a litigator, but she was visionary. She was aggressive and bold in terms of thinking about litigation. And she showed me that you could be this kind of scholar because she was producing some of her earliest work then that I was reading just because we were working together. And I was like, “Oh, wait, you can write like that? You can use those kinds of citations?” She was so widely read. Her thinking was so broad and so deep. It was philosophers and legal scholars and star search, and it ran the gamut. She was so brilliant.
Tomiko Brown-Nagin:
She was.
Sherrilyn Ifill:
So she became the standard for me, I would say, for my entire career. And when I became head of LDF, I wanted her approval so much. And she was beginning to be a little bit sick then, but she was so lovely and supportive. And I remembered when Jeff Sessions was nominated to be Attorney General, Lani had tangled with Jeff Sessions when he was US attorney for Alabama around voter fraud litigation. And she was calling me up every day saying, “I just want to help. Do you want me to just come sit in the Senate Judiciary Committee? I’ll just sit right behind you.” “Listen Lani, we got it. Don’t worry. I don’t think there’s much we can do about it. They’re going to vote for the guy.” But she was still so fired up and yeah, there’s just no one like her and the children of Lani. The many, many people and scholars and litigators who learned under her and tried to meet her standard and still have her writings and her example, are legion. And it’s an example truly, of excellence.
Guy-Uriel Charles:
We could do this all day. Great questions. But this concludes our program. I first need to thank and acknowledge the members of the Radcliffe Institute Leadership Society and our annual donors. Those of you who are watching and those of you who are here, your generosity keeps Radcliffe programming free and open to the public. We are so thankful for you. We also wish to gratefully acknowledge the recognition of the Perrin Moorhead Grayson and Bruns Grayson Dean’s Leadership Fund for Academic Ventures. They’re the ones who are supporting this event. So first, let’s just give it up for the supporters of this group. And of course, our two interlocutors, Dean Tomiko Brown-Nagin, Professor Sherrilyn Ifill. Brilliant conversation. Thank you to all of you for your terrific questions.
Heather Min:
That concludes today’s program.
Ivelisse Estrada:
BornCurious is brought to you by Harvard Radcliffe Institute. Our producer is Alan Grazioso. Jeff Hayash is the man behind the microphone.
Heather Min:
Anna Soong, Kevin Grady, Marcus Knoke, and Max Doyle provided editing and production support.
Ivelisse Estrada:
Many thanks to Jane Huber for editorial support. And we are your cohosts. I’m Ivelisse Estrada.
Heather Min:
And I’m Heather Min.
Ivelisse Estrada:
Our website where you can listen to all our episodes is radcliffe.harvard.edu/borncurious.
Heather Min:
If you have feedback, you can email us at info@radcliffe.harvard.edu.
Ivelisse Estrada:
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Heather Min:
Thanks for learning with us, and join us next time.
