By Amy SpoonerSept. 24, 2014
Mary Frances Berry, ’70, served on the U.S. Civil Rights Commission under five presidents and was jailed for her protests against apartheid. So when she told attendees at the Michigan Journal of Race & Law's 20th Anniversary Symposium, "Things are bad, but they used to be worse," she spoke from experience.
Berry, the Geraldine R. Segal Professor of American Social Thought and professor of history at the University of Pennsylvania, delivered the keynote address at the Sept. 19 symposium, which brought together current students and alumni of the Michigan Journal of Race & Law to discuss the Journal's growth and reflect on the current racial climate in the United States. The symposium was sponsored by Michigan Law's Program in Race, Law & History as well as the Journal.
Berry shared stories of her government service, while framing the launch of the Michigan Journal of Race & Law in a historical context. On the heels of the Rodney King beating and subsequent trial and riots in Los Angeles; the election of Nelson Mandela; and the passing of the California Civil Rights Initiative ["Prop 209"], the Journal "dealt rationally and coolly with what was going on," Berry told the audience. As it enters its third decade, Berry encouraged innovation in thinking about racial divides. "The Journal must sort out race and the particular needs of different people of color, analyzing the issues, and proposing legal strategies to achieve positive change," she said, noting that different minority groups have different concerns. "Latinos have a colonialism problem. Native Americans have a sovereignty problem. And blacks have a subordination-slavery-Jim-Crow problem. We have to ask ourselves whether lumping together all people of color helps or hurts us."
Berry spoke of a "historical myopia" concerning race in the United States, arguing that while support for diversity in the time of the 1978 Regents of the University of California v. Bakke decision was important and benefitted many, it also was a "pact with the devil" that left most African Americans behind. "The vast majority of slave-descended African Americans are not aware of diversity. They don't live it...their lives are racially isolated, segregated, for the most part, in neighborhoods and in schools. With each new wave of immigrants, they continue to be left behind."
Berry believes an important part of the problem is that the threads of history, empathy, and a sense of community that helped form remedies for race discrimination after Bakke have eroded. "The country that has always balanced individualism with a sense of what is good for the community has gone on a binge of too much emphasis on individualism." Adding to the decline are economic stressors such as long-term unemployment and the after-effects of the Great Recession, as well as failing K-12 schools where African American students are the majority. "We routinely accelerate the firing of teachers who don't improve student achievement on standardized tests, but what we ignore is that the neediest students are either pushed out in zero-tolerance programs or drop out. We ignore the social and economic factors that create the conditions these children live in," said Berry. "[The children] haven't failed; we have failed them."
At the same time, legal challenges to affirmative action have greatly reduced African American enrollment at the country's most selective colleges and universities, she noted. Berry has been involved in the affirmative action debate since its earliest days as both an activist and former assistant secretary in the Department of Education, and she is dismayed by the Supreme Court's shifting on the matter—most recently in its 2014 ruling to uphold the constitutionality of the Michigan Civil Rights Initiative ("Prop 2"). "Did Harry Blackmun have it right [in Bakke] or does Justice Roberts have it right [in Schuette v. Coalition to Defend Affirmative Action]?" she asked. "If Robert's view is correct, then there's no work to be done because there’s no need to have remedies for race discrimination. If Blackmun's approach is the answer, then we have to figure out a way to change public opinion...but that requires a movement for social change that cannot develop unless we reclaim our history and restore a sense of community and empathy for those who experience inequity."
Part of that reclamation process, Berry noted, involves the legacy of slavery. She criticized African Americans for being complacent in the country's "steady disremembering" of slavery. Such lethargy on the part of the black community has allowed the vernacular to equate problems like human trafficking to slavery, which insults the history of African Americans. "Human trafficking is very bad, but it's also illegal," she said. "Slavery was sanctioned by the law."
Berry challenged the Michigan Journal of Race & Law and the legal profession to expose inequality and be conduits for enduring social change. "We need more hot lawyers instead of cold lawyers," she said. "We need lawyers who can tell you how to do something, instead of lawyers who tell you that you can't do it. We need the best legal brains...[to] make liberty and justice for all a reality."
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