By Constance Dionne Russell

“We must challenge the rigid ways of the past, recognizing–as Judge Benjamin Cardozo declared in 1932–that ‘the agitations and the promptings of a changing civilization’ demand more flexible legal forms and demand equally ‘jurisprudence and philosophy adequate to justify the change.’”

White stylists and salons have denied service to Black women for at least the past seventeen years. This exclusion is reminiscent of the Reconstruction and Civil Rights eras, when states, individuals, and businesses discriminated against Blacks and ultimately labeled Blacks with the “badges and incidents of slavery and involuntary servitude.” The segregation perpetrated by salons not only affects the psyche of Black women but may also cause Black women to feel inferior. Ultimately, the denial of service to Black women by White stylists and salons diminishes the effects of the laws enacted by the congressional legislature to promote equality and individual civil rights.

Ironically, the United States of America prides itself as a country promoting “liberty and justice for all.” Indeed, the American flag, which represents the “proud traditions of freedom, of equal opportunity,” combined with the Pledge of Allegiance, “foster [this] national unity and pride.”8 Inherent in these principles is the belief that everyone is entitled to equal treatment. Therefore, Black women naturally should expect to walk into any salon and receive service from any hair stylist, even a White stylist, without incident.

By Craig R. Heeren

Many school districts embrace voluntary programs designed to maintain or increase diversity (racial, ethnic, and other sorts) within their schools. They do so for a variety of reasons and through a number of different mechanisms and formulas. Most controversially, some schools use race to determine a student’s school assignment. In June 2007, the Supreme Court considered two challenges to race-based plans. In a deeply divided plurality decision in Parents Involved in Community Schools v. Seattle School Dist No. 1 (PICS), the Court held both assignment plans unconstitutional. Following PICS, the question remains: what voluntary school assignment plans in the K-12 public school setting are constitutional and how effective are they at achieving their stated goals? The purpose of this Article is to review the different paths school districts may take in crafting assignment plans and to determine if they will both pass constitutional muster and succeed at increasing diversity. After analyzing the PICS decision and the tension inherent in the two lines of precedent that inform this area of law, the Article will review existing and theoretical voluntary assignment plans to assess their constitutionality and effectiveness in achieving diversity, racial or otherwise. This Article concludes that race-based plans remain constitutionally permissible after PICS, but only with exacting standards school districts will find difficult if not impossible to meet or in circumstances where the plan is largely ineffective at effecting change in school composition. While raceneutral plans, including those related to socioeconomic status, are almost certainly constitutional, their effectiveness varies and may not capture all forms of student diversity.

By Janet Halley

Note to the reader: What follows is a revised version of remarks I delivered on Monday, September 17, 2006 in the Casperson Room at Harvard Law School, at the time of my appointment to the Royall Chair of Law. The portrait of the donor, Isaac Royall, reproduced here as Plate 1 and discussed below, was behind the lectern. I am very grateful to the Harvard BlackLetter Law Journal for publishing this essay.

It has been a great honor to me to be appointed the next Royall Chair here at Harvard Law School and I want to extend the deepest gratitude to Dean Kagan for this event in my life. It is a particularly daunting honor because I succeed so many distinguished Royall Chairs. This seems like an opportune moment to remember their names, from the first to the most recent: Isaac Parker, John Hooker Ashmun, Simon Greenleaf, William Kent, Joel Parker, Nathaniel Holmes, James Bradley Thayer, John Chipman Gray, Joseph Henry Beale, Edmund Morris Morgan, John Mac-Arthur Maguire, Paul Abraham Freund, Archibald Cox, Benjamin Kaplan, Vern Countryman, Robert Charles Clark and David Richard Herwitz.

But there are some aspects of stepping into this position that are more strenuous, and I want to use this inaugural moment to reflect on them. I want to think hard about Isaac Royall, Jr., the founder of my chair. And before turning to this task, I want to thank Daniel Coquillette, Lester Kissel Visiting Professor of Law at HLS, and Elizabeth Kamali, our recent graduate, who have researched Isaac Royall’s life and the early history of the Law School and who have been unstintingly generous to me in providing their counsel and their beautiful files of materials, both primary and secondary. Throughout our discussions, the precision and scholarly wisdom of Elizabeth’s work showed me a powerful new legal historian in the making. I also want to thank Betsy Henthorne, David Warrington and Melinda Spitzer Johnston for providing extremely valuable information from the Law School’s archives. Especially because I have had such wonderful help, I hasten to add that all errors of fact and judgment are mine alone.

By Amanda K. Baumle, Mark Fossett, Warren Waren

In July 2006, President Bush signed the reauthorization of the Voting Rights Act of 1965, following heated congressional debates concerning the relevance and efficacy of the Act. Given the reauthorization, with few revisions, of the Act’s preexisting provisions, we examine in this article whether its provisions have been effective in curtailing discriminatory voting rights practices. Specifically, we consider whether cities are able to circumvent the intent of the Act and engage in annexation practices that produce undesirable consequences for minority voting rights. We then employ empirical analyses to assess whether there is evidence that minority vote dilution is, in fact, occurring as a consequence of annexations. We examine whether the minority population is reduced, in the long term, as a consequence of annexation. In addition, we examine whether the racial and ethnic composition of land parcels appear to affect the odds of annexation. Our findings provide mixed evidence concerning the efficacy of the current provisions of the Voting Rights Act in discouraging annexations that are likely to dilute minority voting.

By Adrien Katherine Wing

We are on the verge of achieving a new administration in Washington, perhaps a historic one led by a black man, Senator Barack Obama, or a white woman, Senator Hillary Clinton. If the Democratic Party comes back into power, a number of law students, faculty, and alumni may soon be in positions in the executive, legislative, and judicial branches, and able to consider fundamental change in how we conceptualize equality. This brief essay emphasizes the opportunity we have for considering whether the United States can push for constitutional amendments or statutory reform based upon lessons learned from South Africa.

By Ngai Pindell

I write and teach about cities. At one level, cities exist separately from their inhabitants. They inspire travelers, compete for capital and labor, and manage an ever-shifting relationship with neighboring cities, their state, and the federal government. But I want to focus on another level of city character and identity here. Instead of focusing on cities as autonomous entities, we might focus on cities as aggregations of individuals who shape, and are shaped by, their urban environment. These individuals struggle with their own social and racial identities.

The identity and character of cities in America have been profoundly influenced by race. In the past, laws mandating the segregation of African American and white urban residents through racially discriminatory housing and lending policies created racial geographic boundaries within cities and between cities and suburbs. The impact of this racial segregation in cities can be seen in the creation and persistence of an urban African American underclass in some cities as well as many urban neighborhoods marked by racial homogeneity and economic underinvestment.

Malcolm X made the case for thinking about “Race Across Boundaries”:

The American black man is the world’s most shameful case of minority oppression . . . . How is a black man going to get “civil rights” before first he wins his human rights? If the American black man will start thinking about his human rights, and then start thinking of himself as part of one of the world’s greatest peoples, he will see he has a case for the United Nations.

I do not specialize in the study of a particular racial or ethnic minority group. Rather, I work to utilize international treaties to prevent discrimination and promote equality. I help NGOs, individuals and governments understand how they can use the various human rights mechanisms to help support their claims, and advocate for and implement change. When we think about “Race Across Boundaries,” we have to think about ICERD – the International Convention on the Elimination of All Forms of Racial Discrimination – and its attempt to set international standards – beyond borders and without boundaries – for the elimination of all forms of racial discrimination.
My original intention was to discuss some of the work I have done with government and NGOs looking at compliance with the ICERD in the sub-Saharan African country of Botswana. I have worked there over the past few years, providing technical assistance to an inter-ministerial committee of government, advising how better to report on and implement the provisions of the various U.N. human rights treaties (including ICERD and the Convention on the Elimination of All Forms of Discrimination Against Women). I also planned to talk about my work in Armenia, Israel, and other countries doing similar things.

In this Article the authors will compare the development of constitutional law and federal anti-discrimination law in the context of higher education of African-Americans in the U.S. with Dalits in India. Both groups suffer from oppression and discrimination based upon a hereditary trait and related to their integration into mainstream society; neither group is completely isolated from the majority population responsible for the discrimination; and African-Americans and Dalits approximate similar percentages of their country’s population. Based upon the 2000 census, African-Americans constitute 12.7% of the American population, and, according to the 1991 Census Report of India, Dalits make up 16.5% of the Indian population. Yet, although African-Americans have been victims of hereditary racial oppression in the U.S. for almost 400 years, Dalits have suffered oppression for 3,500 years and counting.

In India, Caste Hindus have traditionally considered Dalits—members of society located below the caste system—to be religiously polluted because of their hereditary occupations. Dalits were—and for the most part still are—confined to doing the worst work in India. Dalits take care of trash and body disposal, maintain the sewage system, clean toilets, work with dead animals, collect cow manure and turn it into cooking fuel, labor in the fields, work on leather, and dig the wells for water. For millennia, Caste Hindus denied Dalits the most basic human rights. They were denied access to Hindu temples and to formal education, prohibited from drawing water from public wells (often the very wells that they themselves dug), prevented from walking on the road in broad daylight and compelled to wear dirty clothes—if they were allowed to wear clothes at all. Caste Hindus segregated housing for Dalits and placed them on the outskirts of town.

The 21st Century has seen a black man make a credible run to be elected President of the United States—the most powerful office in the world. Blacks have been appointed to some of the highest political offices of the nation by a Republican administration that is not beholden to black electoral support. These posts include Sectary of State, Secretary of Education, Secretary of Housing and Urban Development, and Chairman of the Federal Communications Commission. Black members of the lower House of Congress hold chairpersonships of the powerful House Ways and Means Committee, the House Judiciary Committee, and the House Homeland Security Committee. Blacks now hold the governorships in the States of Massachusetts and New York. African-Americans are running and have run some of America’s most powerful Fortune 500 companies, such as Merrill Lynch, American Express, and Aetna Inc. Americans have come to expect that African-Americans will be among the faculty members and students in our most prestigious educational institutions, including the Harvard and Yale Law Schools. However, these are also the worst of times. This past summer, the Supreme Court issued an opinion that will greatly restrict the ability of schools to integrate their K-12 student bodies.  The inevitable consequence is a continuation of the increasing racial and ethnic segregation we have observed occurring in our public schools over the past twenty years. The percentage of black men in jail is reaching record levels, as is the percentage of blacks born to single-parent families. As with the proverbial bottle of water, you can see the situation of African-Americans in the United States with an emphasis on the positive.

In so doing you can celebrate the successes and revel in the overcoming of barriers of historic racial oppression that have occurred in recent times. Conversely, you can focus on the failures. You can be discouraged by both the lack of progress and the formidable obstacles that continue to stand in the way of true racial equality. Either depiction would be an accurate and true description of the current condition of the African-American community. Whether you focus on the positive or the negative, however, implied in your view of the African-American Community in the New Millennium are the limitations of the bottle itself. Whether we look at the situation of African-Americans as half full or as half empty, we are looking at the waters of progress, or lack thereof, as confined by the size and shape of the bottle produced through contrasting the African-American situation to that of non-Hispanic whites. Given the long historical struggle of the African-American community against racial oppression in the United States, there is ample justification for this comparative framework. However, an enduring problem for African-Americans is that this framework always views the African-American situation in a negative light. Even when acknowledging progress, it can only be acknowledged with the candid recognition that there is still a long way to go.

What we seek to do is change the bottle into which we pour the water of progress of the African-American community. While we recognize that the normal framework of comparing African-Americans to non-Hispanic whites is legitimate, it is certainly not the only way to look at the accomplishments, or lack thereof, of the African-American community in the United States. Rather than compare African-Americans to just non-Hispanic whites, we could also compare them to other oppressed groups around the globe, such as Dalits in India. In such a comparison, the cup of progress of African-Americans does “runneth over.” By comparing African-Americans to other oppressed groups in the world, we are far better able to appreciate their successes and strengths. Such a comparison is just as true and valid as the traditional comparison to non-Hispanic whites; however, it yields a far more positive understanding about the accomplishments of the African-American community in the United States. Thereby, it allows us to develop a fuller understanding of the African-American community than we get when our understanding is limited to the traditional framework.

By Ori J. Herstein

Some claim “slavery did not harm the descendants of slaves” since, without slavery, its descendants would never have been born and a life worth living, even one including the subsequent harms of past slavery, is preferable to never having been born at all. This creates a classic puzzle known as the “non-identity argument,” applied to reject the validity of claims for historic justice based on harms to descendants of victims of historic wrongs: since descendants are never harmed by historic wrongs, they have no right to rectification. This conclusion is unintuitive.

This article explains the nature of harm involved in historic injustice, overcoming the hurdle the non-identity argument poses to historic justice claims. Historic injustice and the harms it generates are best understood as group harms. Claims for historic justice can be grounded in harms that currently living individuals suffer as a function of the harms their group or community presently suffers as a consequence of historic wrongs. One form of harm, “constitutive harm,” differs from the aggregative account of harm assumed by the non-identity argument and is immune to it. It is the type of harm people suffer as members of certain historically wronged groups and communities. Therefore, the constitutive harm people suffer in cases of historic injustice may serve as a basis for justifying claims for historic justice.