Diversity and U.S. Legal History

Lectures and panels focus on the history of law’s treatment of identity groups

Joseph Singer speaking

Credit: Martha Stewart Beginning with Joseph Singer’s (above) lecture on Native Americans in U.S. law, speakers in the fall 2016 “Diversity and U.S. Legal History” lecture series included seven Harvard professors (Law School professors Singer, Randall L. Kennedy, Tomiko Brown-Nagin, Annette Gordon-Reed, Michael Klarman, and Kenneth W. Mack, and Divinity School professor Diana L. Eck) and three guests (John S.W. Park from University of California, Santa Barbara, Rachel Moran from UCLA Law School, and Katherine Franke from Columbia Law School).

Over the past semester, a group of leading scholars came together at Harvard for the lecture series, “Diversity and U.S. Legal History.” The series was sponsored by Dean Martha Minow and organized by Professor Mark Tushnet, William Nelson Cromwell Professor of Law, who also designed a reading group to complement the lectures.

Tushnet said that he was responding to an interest in diversity issues that he saw on campus. “The goal was to expose students to the variety of ways that people of diverse backgrounds have been treated in the U.S. over time. That’s a kind of information that they don’t get systematically in any other context. For example, the history of African-Americans plays a large role in the U.S. legal history course, but you may not hear much about Latinos. And in the course dealing with race and constitutional history, you don’t get religious pluralism. This series brings it all together.”

Beginning with Joseph Singer’s lecture on Native Americans in U.S. law, speakers included seven Harvard professors (Law School professors Singer, Randall L. KennedyTomiko Brown-Nagin, Annette Gordon-Reed, Michael Klarman, and Kenneth W. Mack, and Divinity School professor Diana L. Eck) and three guests (John S.W. Park from University of California, Santa Barbara, Rachel Moran from UCLA Law School, and Katherine Franke from Columbia Law School). Tushnet is currently working on a followup series, “Diversity and Social Justice in First Year Classes,” to be offered in the spring. HLS faculty contributors to that series will include Duncan Kennedy, Jon Hanson, Oren Bar-Gill, Todd Rakoff, Samuel Moyn, Jeannie Suk-Gersen, Rebecca Tushnet, and Glenn Cohen.


Joseph Singer: 567 Nations: The History of Federal Indian Law

Bussey Professor of Law Joseph Singer’s lecture gained resonance from the Standing Rock demonstrations, still developing when the talk was delivered in September. He provided context by covering the history of the United States and its changing legal relationship with the native Indian population, a history that has often been tragic. “There is no polite word for this,” he said. “The United States is a democracy, but has engaged in imperialism and conquest. At the same time, it’s absolutely crucial to understand that the conquest was incomplete.”

American settlers’ relations with Indians were conflicted from the beginning. The colonization of America before 1776 created displacement of the native tribes, and resulted in violent skirmishes. The articles of confederation (ratified in 1791) didn’t even agree on who would manage relations with Indian nations: It gave “one hundred percent” power to Congress, while reserving an unspecified amount for the states—a logistical impossibility. King George obtained the Indians’ backing in the Revolutionary War.

Following the Revolution, the Indians were allowed to deliver some of their land to the U.S. and to reserve the rest, hence the term “reservation.” Key legal decisions came in three Supreme Court cases known as the “Marshall trilogy,” decided by Chief Justice John Marshall between between 1823-33. These established that Indian nations would retain their sovereignty, but that the United States would also claim power over them. The boundaries of power were never clearly specified and thus made for an uneasy alliance, as the Indians weren’t given the option of agreeing to the terms. The goal was for them to be governed through trade and negotiation, rather than physical force.

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Diversity and Social Justice in First Year Classes

This Spring, Harvard Law School Dean Martha Minow will sponsor a lecture series on “Diversity and Social Justice in First Year Classes.” The series will examine how issues of diversity and social justice can be integrated into the 1L curriculum. Professor Mark Tushnet will organize the series in conjunction with a Spring reading group. Faculty contributing to the lecture series will include Duncan Kennedy, Jon Hanson, Oren Bar-Gill, Todd Rakoff, Samuel Moyn, Jeannie Suk-Gersen, Rebecca Tushnet, and Glenn Cohen.

That changed for the worse with the 1829 election of Andrew Jackson, beginning an era that is “painful to talk about.” In 1830 Jackson signed the Indian Removal Act, which exiled tribes to west of the Mississippi River. Though it called for voluntary removal, Jackson had many tribes removed by force. The 1832 Cherokee Nation removal, known as the “trail of tears,” resulted in four thousand deaths, or one-quarter of all Cherokees. “At the end of the 19th century,” Singer said, “the Indian population had been diminished to something resembling genocide.” After the Civil War the U.S. adopted a policy to destroy tribal government and force Indians to convert to Christianity; tribal language and religion were criminally punished. Allotments of land were given to Indians, the “surplus” was sold to whites. Tribes were effectively left with no constitutional rights whatsoever.

Yet a 180-degree turn took place with the Indian Reorganization Act of 1934. The U.S. now wanted to revitalize tribal government and culture; tribes were encouraged to adopt constitutions. But this proved short-lived. Beginning in the late ’40s, the U.S. again turned against tribal government, Indians were now expected to move to cities and assimilate, and more than 100 tribes lost their federal recognition. A decision in Tee-Hit-Ton Indians vs. U.S. (1955) did not allow the Indians to recover timber that was taken from their lands by the U.S. Absent a U.S. treaty or statute recognizing their property, they had no right to it, regardless of tribal law to the contrary. This, Singer said, is still the law.

The last 50 years have seen a revitalization of Indian nations, with sovereignty favored by both major political parties, and the growth of colleges and businesses run by tribes. In 1960 there were fewer than a half-dozen American Indians who had gone to law school. There are now thousands, yet tribes legally have no criminal jurisdiction over non-Indians. The relationship remains in flux: The U.S. government now limits tribal sovereignty, but at least recognizes it as existing.


Rachel Moran: Liminal Latinos

In her lecture, former UCLA Law School dean Rachel Moran argued that Latinos have had a shadowed identity, caught between racial divisions. They have, she said, “been liminal figures who face uncertain terms of belonging. Their story has been one of old wounds, incomplete remedies and newfound power.”

She divided the history into three eras. The first was one of liminal racial identity, “when Latinos fought for privileges associated with their formal status as white, even as they faced acts of discrimination that rendered them nonwhite.” A turning point was the 1945 decision, Mendez vs. Westminster School District. While the case stood for desegregation of schools in Orange County, the plaintiffs’ attorney David Marcus didn’t base his argument on treating Mexican-Americans as a separate racial group and the school district argued that the Mexican-American students were white, but needed to be segregated because they spoke Spanish.

Brown vs. the Board of Education (1954) “relegated the separate but equal doctrine to the jurisprudential junkheap,” said Moran, and ushered in a new and uncertain era for Latinos—an era of “liminal ethnic identity and a struggle to escape racial determinism.” While Brown created a new era of civil rights, focused on harms of past racial discrimination, it somewhat excluded Latinos, since they had been identified as white. This formal distinction created tensions between the African-American and Latino agendas for reform.

This played out in the Keys vs. School District 1 case (1973), a ruling for desegregation of both black and Latino students in a Denver school district. As a result, students were bused from predominantly Latino schools to other parts of the city. The busing prompted “massive white flight, which made meaningful integration basically impossible.” In response, the Supreme Court decided that quality education programs, rather than full integration, could be a substitute in remedying past harms. “For disappointed civil rights advocates, this felt like a disheartening return to the discredited notion that separate could be equal,” Moran said. Yet many Latinos welcomed the decision, as it brought them back to bilingual education.

The most significant new campaign, she said, is the promotion of education for the undocumented. In Plyler vs. Doe—decided in 1982, when Texas’ undocumented population was still relatively small—it was held that 14th Amendment rights applied to persons, not just citizens. Plyler effectively created a safe space in the schools for children of the undocumented, ruling that their legal status did not justify subjecting them to the handicap of illiteracy. But as Moran noted (quoting Harvard Graduate School of Education professor Roberto Gonzales), the same students undergo a “transition to illegality” as they approach graduation, confronted with threats of deportation and barred from lawful work. Thus Plyler didn’t cure the marginalization of undocumented students, and merely postponed it.

At present, Moran said, Latinos are in an era of liminal political identity. With the growth of the Latino population to roughly 50 million, there’s a widespread perception that Latinos will be politically influential—but the nature of that influence is still undetermined. Latinos are disproportionately likely to identify as independents, but this may be because many are foreign-born and less familiar with the two-party system. There’s a widespread belief that the Latino vote is up for grabs. Moran quoted Ronald Reagan’s view that “Latinos are Republicans, they just don’t know it yet.” Yet she said that Latinos are pragmatic voters, likely swayed to the Democratic party by Republicans’ anti-immigrant rhetoric. At the moment, she said, the Latino community “stands on the brink of a breakthrough, and but a hair’s breadth away from a backlash.” 


Tomiko Brown-Nagin: Social Movements and Social Change in Twentieth Century America

Professor Brown-Nagin, the Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School, focused on the power of social movements— defined as “groups of citizens who are mobilized to support a cause, whether liberal or conservative”—to shape the law, and bring about change. These changes can happen  in the courtroom, or through “rights talk” and grassroots activism outside of it.

She focused on the black freedom struggle as a social movement that has advanced through both avenues. It began in the courts, with the NAACP’s successful attempt to end Jim Crow laws in the classroom, resulting in the 1954 Brown decision. At the time, Brown-Nagin noted, some civil-rights advocates saw the Constitution as an unlikely path to end racial discrimination, since the same document had been invoked to justify slavery and segregation. Yet there were many external factors that created a favorable environment for the NAACP—among them World War II, which had exposed the hypocrisy of a democracy founded on segregation, and the lynchings in America, which had “dramatized the depravity of white supremacy.” There was also a perception that black citizens had made significant advances, making segregation under Plessy v. Ferguson harder to justify.

The movement advanced through the work of Dr. Martin Luther King, who added an element of moral suasion as he invoked Constitutional law. As Brown-Nagin noted, he referred to the legal concepts of liberty, equality and citizenship but also went further, arguing that racial discrimination not only violated the laws of man, but those of God. During the Montgomery bus boycott, a year after Brown, King invoked that decision, arguing that the rights of citizens in a democracy justified the boycott, and added that “If we are wrong, then God Almighty is wrong.” Such intuitive leaps were grounded by the inspirational nature of his message. “You have to appreciate that his audience, which longs for inspiration, which is religious, and which is patriotic…[for them] it works. And it puts his opponents on the defensive.”

During the early ’60s, the Student Nonviolent Coordinating Committee (SNCC) adopted a more activist approach. Their agenda, she said, was more expansive than King’s: They wanted desegregation but also economic justice, affordable housing, community schools and an end to police brutality. “Theirs was a sweeping human rights agenda that really challenged America.” While Dr. King had praised the Brown decision, SNCC argued the promise of better schools had not come to fruition—that the Supreme Court had failed African-Americans, turning its back on its own decision. Disillusioned with the courts, they called for more participatory tactics—sit-ins, boycotts, picketing and strikes. They believed that rights were illusory, that the belief in the power of law facilitates oppression. But ironically, this radical student movement helped lay the groundwork for the Civil Rights Act of 1965. Thus a movement that distrusted the courts indirectly caused change from within them.

A similar evolution played out in the women’s liberation movement. There was litigation (the battle for suffrage), moral suasion (the National Organization of Women’s arguments against male domination) and street-level demand for change (bra burning, consciousness raising, Miss America picketing). Yet since the 1970’s, conservative movements have also risen to challenge women’s advances, also using legal arguments, just as pro- and anti-segregation advocates had invoked the Constitution. “Thus we see both the promise and the peril of strategic social movements,” Brown-Nagin said. And so, she concluded, the power of citizens to effect change is both the good news and the bad news.

Watch all the lectures in the series.