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Affirmative Action May Suffer Setback, Says Former Brown Counsel

Jack Greenberg, the Alphonse Fletcher Professor of Law at Columbia University and the former co-counsel with Thurgood Marshall on the Brown v. Board of Education case, said Tuesday that reports of the oral arguments in the recent U.S. Supreme Court cases on school desegregation have made him pessimistic, but hopeful that the one or two justices who have the reputation of being inhospitable to integration will vote to uphold the plans.

In an online talk on, Greenberg said that if the school districts in Seattle and Louisville, Ky., lose their cases, affirmative action and integration will suffer a major setback.

“But it may be that some other techniques can be worked out that can achieve similar results, like economic integration, or integration according to standardized test scores,” said Greenberg, who has argued before the Supreme Court in more than 40 cases. “It’s hard to say whether the outcomes would be the same and, indeed, whether communities would embrace such plans.”

The talk was held in connection with The E-Guide to Public Service at America’s Law Schools, a free online resource that provides a range of information about public interest programs and curricula at more than 115 law schools.

Asked if he felt the need for a continuing role for affirmative action in higher education, the former director-counsel of the NAACP Legal Defense & Educational Fund said, “I strongly believe that [affirmative action in higher education] should continue for reasons much like those set forth by Justice [Sandra Day] O’Connor in the University of Michigan case.”

Greenberg said the effect of the rising Hispanic and Black middle class on affirmative action efforts is not clear right now. Although civil rights organizations from both communities have worked together, he said most Hispanics don’t have the moral argument that arises out of the history of slavery that Blacks have.

“But they do have the argument that society will prosper to the extent that Hispanics are given the opportunity to fully contribute their abilities to society,” he said.

Greenberg also stressed that Dr. Martin Luther King supported affirmative action and praised India’s affirmative action programs. He added that we would do well to embrace India’s quota-system approach, which designates seats to castes that have been historically discriminated against. King wrote that a society that has acted against Black people for hundreds of years must do something to equip them to compete on a just and equal basis, said Greenberg.

Odeana R. Neal, a professor at the University of Baltimore School of Law, asked Greenberg how he felt about the backlash of integration efforts, which Greenberg said was led by a network of right-wing organizations such as the American Enterprise Institute and the Heritage Foundation.

“I can’t know what motivates them, although some are ideologues,” he responded. “That doesn’t mean that they aren’t sincere in their beliefs, although I think they are sadly mistaken. I don’t think they are interested in integrating the country.”

By Shilpa Banerji


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