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Risa Goluboff
Risa Goluboff

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Scholar’s Corner

Most legal scholarship today takes place outside the public view — in faculty workshops, academic journals, and sometimes amicus briefs on issues of national importance. But as the law has become more central to our personal and national lives, it seems more necessary than ever to connect the academy to the larger world. The best work being done at Virginia and at other top schools attempts to make sense of discrepancies that arise (or persist) in the law and examine them in a way that invites understanding — or, better still, change. In this way, the practice of law and the production of legal scholarship are very much alike. They both require a broad view of the problem, but also a ceaseless curiosity in teasing out every material issue.

Risa Goluboff, although new to the tenured ranks, is already a mainstay of the Law School faculty. Her first book, The Lost Promise of Civil Rights (Harvard University Press, 2007), seeks to do nothing less than reconstruct our understanding of the history of civil rights. Goluboff mined original sources to recover the “lost promise” of a civil rights law focused not just on race but also on labor rights and economic exploitation, a focus irrevocably changed by Brown v. Board of Education.

Excerpt from Brown and the Lost Promise of Civil Rights
(Risa L. Goluboff and Myriam Gilles, eds., forthcoming Foundation Press, 2007)

Brown became the iconic civil rights case of the modern era. As legal scholars spent considerable effort analyzing, justifying, and systematizing the Court’s decision, the image of Jim Crow it projected and the legal doctrine it embraced captured the collective legal imagination. Over the decade that followed Brown, subsequent cases, the rise of the civil rights movement, and legislative developments all contributed to this transformation of constitutional civil rights. To some extent, these developments reinvigorated particular aspects of pre-Brown civil rights. The pivotal civil rights protest of 1963 was called a March for Jobs and Freedom. The Johnson administration’s War on Poverty tried to attack economic deprivation in part out of a recognition of the continuing connection between racial and economic inequality. And Title VII of the 1964 Civil Rights Act legislatively prohibited discrimination in the private labor market and labor unions as well as among state actors themselves.

Even so, these developments often reinforced, rather than undermined, the image of Jim Crow and racial harm that Brown depicted. Media representations of the 1963 March on Washington largely forsook the protest’s economic emphasis for Martin Luther King Jr.’s focus on formal color-blindness — in which people would “not be judged by the color of their skin but by the content of their character.” The War on Poverty took as its mission not the redress of economic inequality for its own sake but rather as a cause of the psychological alienation that underlay rising racial violence across the nation. And Title VII prohibited “discrimination on the basis of race” in the same terms as it prohibited discrimination in education and public accommodations. The law addressed work-related inequality as simply an ordinary manifestation of the general problem of race discrimination. Title VII, like Brown itself, submerged the substantive right to work that had been a hallmark of the pre-Brown years for the antidiscrimination paradigm that was a hallmark of the post-Brown era.

Moreover, these and other developments remained largely separate from constitutional law itself. Title VII was not constitutionally mandated. The Civil Rights Cases with their state action requirement remained good constitutional precedent. And attempts to translate legislative and social movement momentum for protection of the poor into constitutional guarantees ultimately failed. Within the realm of constitutionally protected civil rights, Brown’s equal protection clause, with its state action requirement and concern for formal rather than material equality, remained dominant.

As legal scholars increasingly converged on a general framework for making sense of the constitutional law of civil rights, then, that framework was predominantly the one Brown had set into motion in 1954. This is apparent in changes to succeeding editions of civil rights and constitutional law casebooks and treatises. Before and just after Brown, treatises and casebooks reflected considerable variety in both the subjects they included within the field of civil rights and the way they analyzed those subjects. Legal scholars treated “civil rights” as encompassing issues like involuntary servitude and labor rights as much as racial segregation; they saw rights as falling into categories like “the security of the person” as much as “discrimination”; and they described the vindication of civil rights as an affirmative responsibility of government as much as the responsibility of private litigants. By the 1960s, treatise and casebook authors eliminated sections on the security of the person; they condensed or eliminated discussions of involuntary servitude and the Thirteenth Amendment; and they eliminated chapters on freedom of labor altogether. Work-related civil rights were largely reduced to the question of job discrimination under the equal protection clause, akin to discrimination in other arenas.

As scholars winnowed out the varieties of pre-Brown civil rights, they converged on a race-based, privately-litigated, equal protection-oriented civil rights framework that Brown had inaugurated. Indeed, they reconstructed a pedigree for Brown that made that framework seem more timeless than it really was. Rooting Brown in the 1938 case of United States v. Carolene Products, scholars suggested that courts had long before determined to treat race cases differently from those involving economic regulation. The canonization of Carolene Products doctrinally separated economics from race and justified judicial interference with the latter but not the former. It consequently interred any linkage civil rights lawyers had been able to make between the economic and formal legal aspects of Jim Crow in the pre-Brown era.

The link to Carolene Products made it all too easy to assume that before Brown, as afterwards, civil rights doctrine primarily addressed questions of racial classification. In fact, neither lawyers, judges, nor scholars had viewed Carolene Products as determining the contours of civil rights law before its vindication in Brown. It was not until the post-Brown years privileged a race-focused equal protection clause, and contrasted stringent judicial review of government actions affecting racial minorities with those affecting the economy, that race and labor truly diverged in constitutional law. It was not until then that constitutionally-grounded civil rights became squarely rights against the government, in contrast to both rights against private power and rights protected by the government. It was not until then that it became clear how partial the victory in Brown was and how much of Jim Crow remained intact in the face of the new civil rights Brown had helped construct.