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The Importance of a Strategic Approach to Civil Rights Litigation Elaine Jones'

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The Importance of a Strategic Approach to Civil Rights Litigation Elaine Jones' REKINDLING BROWN: 6 AFR.-AM. L. & POL'Y REP. 208 I1 ASIAN L.J. 290 15 BERKELEY LA RAZA L.J. 81 19 BERKELEY WOMEN'S L.J. 409 CALIF. L. REv. Luck Was Not a Factor: The Importance of a Strategic Approach to Civil Rights Litigation Elaine Jones' Looking at the topic of the symposium, "Rekindling the Spirit of Brown v. Board of Education," I think about the meaning of that title. Rekindling means that something has died, the flame has ebbed, or something needs a fire or match to light it. I hope that is not the case. I hope that is not the case considering the tremendous victory in the Supreme Court of the United States' and, in California, the defeat of Proposition 54.2 You have buried it here in California. I. DEVELOPING SOPHISTICATED STRATEGIES We learn lessons from the occasional defeats that we experience. Proposition 2093 was a wake-up call, and-had our strategy been a little different-I think we could have prevailed. But you know what they say, "Fool me once, shame on you. Fool me twice, shame on me." We will not go that way again. With Proposition 54, civil and human rights communities faced a very sophisticated strategy that was not specifically about race. To combat this strategy, we talked about issues that impacted a larger community, things like health issues and the kinds of medical research we wanted done. Our arguments appealed to a larger population, and that is why we won. For example, we asked, "How should the medical research be structured to determine who suffers from certain kinds of illnesses? What kind of research do we need to do?" Developing arguments that appeal to a larger population is a challenge, especially as we deal with race and ethnicity issues. It is a tough challenge, but it is one we have to meet if we are going to move anywhere. Someone approached me after the Supreme Court oral arguments in Gratz v. Bollinger and Grutter v. Bollinger4 and said, "Oh, Elaine, what luck that it was Gratz and Grutter. The . Cite as Elaine Jones, Luck Was Not a Factor: The Importance of a Strategic Approach to Civil Rights Litigation, in SYMPOSIUM, REKINDLING THE SPIRIT OF BROWN V.BOARD OFEDUCATION, 6 AFR.-AM. L. & POL'Y REP. 208; 11 ASIAN L.J. 290 15 BERKELEY LA RAZA L.J. 81; 19 BERKELEY WOMEN'S L.J. 409; CALIF. L. REV. (2004). This is a footnoted version of a talk given on November 13, 2003, at University of California, Berkeley, School of Law (Boalt Hall), as the keynote address of the symposium, "Rekindling the Spirit of Brown v. Board of Education: A Call to Action." t President and Director-Counsel, NAACP Legal Defense and Education Fund. 1. Grutter v. Bollinger, 539 U.S. 306 (2003). 2. Proposition 54 was an expansive attempt to eliminate the state government's ability to collect data on the race of persons receiving or affected by government programs and proceedings. 3. Proposition 209 eliminated affirmative action programs in all California government institutions. It was passed by California voters in 1996. See CAL. CONST. art I. § 31. 4. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter, 539 U.S. 306. REKINDLING BROWN: 6 AFR.-AM. L. & POL'Y REP. 209 11 ASIAN L.J. 291 15 BERKELEY LA RAZA L.J. 82 19 BERKELEY WOMEN'S L.J.410 CALIF. L.REv. Supreme Court could have heard some other case." And I said, "Luck? Luck? No, no, no; you are missing some very important information." We in the community- the larger community that cares about these issues-knew for at least seven or eight years that the Supreme Court was going to take a case addressing affirmative action. We did not know whether it would be in the context of employment, or scholarships, or higher education, but we knew Bakke5 would be challenged. Today, Bakke is twenty-five years old and we know what we faced throughout the 1980s. 6 For the past twenty years, we have endured through the Justice Department's vigorous attempts to turn back the clock on previous civil rights victories. It was inevitable that a case was going to go through the Supreme Court of the United States. We just did not know the context. A. Attempt to Intervene Early: Hopwood v. Texas What does that mean? It means that you do not just sit and wait for it to happen. You do not just say, "Alright, the Court's going to take one and if it's one that we didn't bring, we will have to file an amicus or try to affect the outcome some other way." No. You get in there early and employ the same strategy that Thurgood [Marshall] did in Brown. And that's just what we did. These victories are not accidents. Hopwood,7 the University of Texas case, was the first case leading to the strategy in Grutter. When Hopwood was decided in 1996, the Fifth Circuit Court of Appeals just simply overruled the Supreme Court in Bakke.8 I did not know the court of appeals could do that, but that is the position they took. The court said that it was virtually impossible for race to be a compelling interest and that the Texas program could never meet the test under the Fourteenth Amendment. 9 It held that this program was unconstitutional under the Fourteenth Amendment. 10 In a special concurrence, the Fifth Circuit discussed Bakke at length, calling Justice Powell's opinion "a lonely opinion."" In his concurrence, Judge Wiener criticized the court for deciding the issue too broadly.' 2 He thought that diversity might be a compelling interest, but concluded that the program at issue was not narrowly tailored, balanced, and reasonable.' 3 In other words, he did not try to overrule the Supreme Court. But his colleagues on the circuit court disagreed and thus effectively overruled the U.S. Supreme Court. So we were in trouble in Hopwood v. Texas because when you get these cases-when a public university is sued-who is supposed to defend it? The Attorney General of the state is supposed to defend the university. But in this instance, Dan Morales, the Texas Attorney General, lacked any sense of strategy and 5. Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978). 6. Id. 7. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (overturning the University of Texas race- conscious admissions program). 8. Id. 9. Id. at 945-46. 10. Id. at 945. 11. Id. 12. Id. at 962 (Wiener, I., concurring). 13. Id. REKINDLING BRO w: 6 AFR.-AM. L. & POL'Y REP. 210 IIASIAN L.J. 292 15 BERKELEY LA RAZA L.J. 83 19 BERKELEY WOMEN'S L.J. 411 CALIF. L. REV. immediately held a press conference in which he conceded the difficulty of defending the affirmative action program at the University of Texas. Simultaneously, we tried to intervene in Texas, to represent the interests of the students of color. Morales opposed our intervention, declaring, "You can't come in." We fought along side of and worked with the Mexican American Legal Defense and Education Fund (MALDEF) to intervene with the hope of affecting the record and the evidence. The Attorney General and those who should have defended the program fought against LDF's intervention. Then a petition was filed requesting the Supreme Court of the United States to take the case. I was very nervous about the possibility of the Supreme Court's ruling on Hopwood When you get a case in the United States Supreme Court with no trial, based on a summary judgment motion, on an issue as important as this, you have got real problems. Yet there we were on the brink of having this case heard in the Supreme Court. Many in the academic, legal, education, and social science communities were saying, "Well, we want the court to take the case and put this issue to rest once and for all." My thoughts were: "No, please, no, no, not this case." When the Supreme Court denied certiorari, Justice Ginsburg wrote, "This Court... reviews judgments not opinions.' 4 In other words, the program had changed between when the case was initially filed until it reached the United States Supreme Court; therefore, there was nothing to review. B. Develop the Record- Piscataway Township Board of Education v. Taxman The next case that came up was Piscataway Township Board of Education v. Taxman, a case out of New Jersey.' 5 This case had been percolating for some time. It arose in the employment context: a white teacher, a black teacher, and a situation in which there was a layoff. However, the Supreme Court had already spoken on the question of layoffs in Wygant v. Jackson16 Board of Education in severely restricting the use of race in the layoff context. In Piscataway,the white teacher was laid off and the black teacher kept for the reason stipulated in the record: because she was the only black teacher.17 Within a few months the white teacher was rehired. Now we have the issue. The white teacher brings suit based on impermissible use of race. The Piscataway School District loses in the district court.18 The case then goes up to the Third Circuit; the school district loses in the Third Circuit.' 9 I woke up one morning and saw the Supreme Court had granted certiorari in the Piscatawaycase. 2° 14. Texas v. Hopwood, 518 U.S.
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