A Conversation with Professor Theodore M. Shaw
The struggle to advance civil rights and foster a more fair, just society has always been central to the life of Professor Theodore M. Shaw ’79. Born in 1954, the year that Brown v. Board of Education was decided, Shaw worked at the NAACP Legal Defense and Educational Fund, Inc. for 23 years, including four years as the organization’s director-counsel. He played a key role in drafting the admissions policy that was upheld by the U.S. Supreme Court in Grutter v. Bollinger and served as lead counsel for African-American and Latino interveners in the companion case Gratz v. Bollinger. Throughout his career, Shaw has worked and consulted with human rights lawyers in Africa, South America, Europe, and Asia. In March, he spoke with Columbia Law School Magazine about the civil rights movement, his legal career, and teaching the next generation of public interest lawyers.
Columbia Law School Magazine: You were about 10 years old when the Civil Rights Act of 1964 passed. Do you remember it?
Theodore M. Shaw: Yes. The reason I ended up doing the work I’ve done is because I’m a child of the civil rights era. I had a sense of what was going on around me. It came through my grandmothers. They paid attention to what was going on, and they were committed, and that got passed on.
My paternal grandmother was a domestic worker, and she got up that morning in 1963 and took the bus to the March on Washington. She was one of the 250,000 faces there. She had wanted to bring me, but my stepmother was concerned because there were rumors about violence. I’ve always regretted that I didn’t get to go.
Q: How did the civil rights movement influence you and your path? At what point did you want to be a lawyer?
A: I wanted to do civil rights work, to be involved in the struggle against discrimination and inequality. I thought law was the best way to do it. I was shaped and moved and molded by the events of the ’60s. Martin Luther King Jr.’s assassination had a tremendous personal effect on me. I was living in a public housing project in the Bronx. I was in Harlem [on the day he was killed], leaving my grandmother’s and walking across 125th Street to the subway, and something was wrong. People were just screaming and yelling and crying. Somebody told me that Martin Luther King Jr. had been shot. And my first thought was: “Why him? He was an apostle of nonviolence. Why would somebody shoot King?”
In the aftermath of King’s assassination, the then Archbishop of New York, Cardinal Cooke, decided he wanted to do something about the issues of race, and he created a program that focused on young black men. It was a leadership project.
Q: You were in the program?
A: I was in the second group, and it made all the difference in the world for me. We read black history, black theater. We went to plays. We went to political events. It was a tremendous program, and it made a tremendous difference. You look at the people who came through this program and at what they’ve done, and it’s a great story. It’s about affirmative action.
After Dr. King was killed, a lot of programs like that one began. Those programs, and colleges and universities, including Columbia Law School, didn’t begin to admit significant numbers of African-Americans, and then Latinos and others, because they woke up one day and said, “Diversity is a good thing; we’ve been missing it.” It was a remedial effort that was an attempt to address the long legacy of racial subordination in this country. Cardinal Cooke’s program was part of that. And all of this happened after King’s assassination.
I’ve been in the center of the defense of diversity, although I think it’s a second-best rationale for doing what needed to be done with respect to trying to adjust the effects of inequality that were rooted in our country’s history.
Q: Diversity is the second-best rationale after what?
A: After the remedial rationale. These programs began as an attempt to remedy the effects of that long history of discrimination. The Supreme Court in Bakke threw the remedial rationale under the bus, and in a very ahistorical way ignored the realities of the adoption of the 14th Amendment. And diversity became the rationale.
But diversity in higher education is grounded not in the interests of black students, or Latino students and others who had been excluded from these institutions. It’s not grounded in their right of access to the institutions. It’s the institutions’ First Amendment interests as a matter of academic freedom in having a diverse group of students. And to put it more pointedly, it really is about the educational benefits of having diversity, black and brown students, for white students. I think we all grow and benefit from diversity, but in the meantime, this whole effort to address this long legacy has gotten lost.
That’s a continuing reality that needs to be addressed. Affirmative action can stand on two legs, a remedial rationale and a diversity rationale, but they don’t accomplish exactly the same thing.
Also, the diversity rationale basically is one that leaves out the voices of black and brown people.
Q: Could you expand on that?
A: These so-called reverse discrimination cases get filed by white plaintiffs against institutions that are largely controlled by white folks. The institutions have been defending diversity efforts, as they should. But black and brown people who have the most at stake are not party to those cases. They can try to intervene, but sometimes the courts say no.
If the institutions lose, they go on. White students will continue to apply. Some will get in. Some won’t. It’s black and brown people who get affected, and they have no voice in these cases. The court has not been hearing them and has refused to hear them, which I think is a travesty.
The argument these days is that the 14th Amendment requires strict color blindness. We tie our hands and can’t consciously address the continuing legacy of that racial subordination because to do so is race-conscious. And race consciousness, according to the jurisprudence, equals racism, which is wrong as a matter of fact and as a matter of principle.
The problem has never been mere race consciousness. It’s been racism and subordination, and our jurisprudence completely ignores that, and therefore makes it almost impossible to address that legacy.
Q: After years of working as a civil rights lawyer, what made you want to teach?
A: In ’87, I went out to L.A. to open a West Coast office of the Legal Defense Fund. Not long after I got there, I got a call from a lawyer who had been on the faculty at Michigan. He asked me if I would consider teaching, and I laughed. I said: “Teaching? You know, come on,” and I said no.
Q: Why did you laugh? It’s not exciting enough?
A: No, no, no [it’s not that]. You know, teaching law at places like Michigan or Columbia doesn’t fall into everybody’s lap. Usually people who do that are people who think of themselves as being in the academy. They plan on this. They’re on law review. They go and clerk at the Supreme Court.
I was a civil rights lawyer. I was doing what I loved doing, but also I just didn’t see myself as part of that pool from which people would be recruited to teach. Teaching at these places was for geniuses. I’m no dummy, but I’m no genius.
After three years, I was a little restless. I decided to go to Michigan, and once I got there, I liked teaching. You can stay engaged in issues, and you can think and write and influence another generation of students and learn from colleagues. It’s a great life.
Teaching here at Columbia has been a great honor, but I have another job ahead of me.
Q: What would you like to see next in the civil rights movement?
A: A change in the Supreme Court. It’s regressive when it comes to civil rights policies and practices. This Congress is similarly regressive. You can’t go to this Congress and get a legislative fix. That doesn’t mean there’s not a role for us, even when the Court is controlled by conservatives. We’ve been fighting to have a voice in those cases in which others have been raising the issues of race, and the Court has been consistently refusing to give it.
So these are tough days for civil rights advocates. Ironically, even during the Obama administration, these are difficult, challenging days. It’s the best of times and the worst of times.
Q: How interested are current students in civil rights issues?
A: Very interested. Some people say that law students don’t have the kind of commitment and interest in these issues as they did back in the day. I don’t believe that. It wasn’t like the majority of people were interested in these issues or committed to working on them [back then]. It’s always been a minority of people, and that remains true. The trick is to keep them interested at a time when there’s every reason for cynicism.