On April 4, the annual Joshua A. Guberman Lecture took place at the Heller School for Social Management and Policy to honor Prof. Anita Hill for her prolific social justice research and advocacy.
The Guberman lecture is a yearly tribute to the late Boston based attorney Joshua Guberman and is endowed by the Guberman family as a way to commemorate his legacy in law and social justice. Associate Prof. Rosalind Kabrehl (LGLS), who introduced the event, noted the omnipotence of Guberman’s legacy at Brandeis, pointing out that “nearly the entire faculty in the Legal Studies Department started their careers at Brandeis as Guberman fellows.”
This year, the Guberman lecture also served to honor Millie Guberman Kravetz, a former faculty member at the Heller School who passed away in September at the age of 103.
At the event, Hill was recognized as the Heller School’s David R. Prokrost Chair by Prof. David Weil (Heller), who lauded Hill as “a treasured colleague,” saying that she “always leaves one with a profound sense of optimism… [and is a] speaker of truth to power.” Speaking truth to power is an obvious conviction in Hill’s legal, governmental and academic career and was ever-present in her emphatic criticism and analysis of last year’s Supreme court decision regarding affirmative action.
On June 29, 2023, the Supreme Court ruled that affirmative action, as well as diversity, equity and inclusion programs violate the 14th Amendment’s Equal Protection Clause in the cases of Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College (Harvard) and SFFA v. University of North Carolina (UNC). Hill opened her lecture by observing that this decision and the “intensity and duration of the attack on such policies” represent “Americans’ unwillingness to reconcile with our racial history.” She stated that “in the [United States], equality has always been a contested concept, including before and since the 14th amendment was ratified.” The definition of equality has never been fully and rightly realized by both law and society and Hill believes that the legal end of affirmative action marks a profound redefinition of equality by the justice system. As a Professor of Social Policy, Law and Women’s, Gender and Sexuality Studies at Brandeis, the far-reaching research Hill presented in her lecture followed the impact of the Supreme Court’s ruling on college campuses. The drastic consequences can be seen especially in Texas which has arguably experienced the most alarming repercussions after the passage of SB17, which on June 17 2023 attacked diversity, equity and inclusion programs in the Texas school system. Hill decried this as a “failure to acknowledge that inclusion under the law is good for our democracy,” which was actually “a major tenet of Brown v. Board.” She views the Supreme Court’s decision as a massive step back as even “both conservative and liberals in the court [agreed at the time of Brown v. Board]… that an inclusive society was critical to democratic principles.” Now, what should be a fundamental value of inclusion seems to be lost.
In taking the longitudinal approach to understanding the pervasive discrimination in America’s education system, Hill called back to the very clause affirmative action is said to violate in the 14th amendment. She said that the “14th amendment was a compromise that chose legal equality over social equality” because during its ratification, “the idea of equality was hotly contested” in terms of what it meant as a bare minimum leveling of the legal framework of the U.S.. Ratified in 1868, three years after the end of the civil war, the 14th amendment extended the legal rights, granted by the U.S. The Constitution’s Bill of Rights, to all male American citizens regardless of race. But Hill said that “[Americans] didn’t know even after ratification what equality under the law actually meant… [which has a] chilling effect because those of us who have read the law, who have lived in society… What we got was equality under the law,” which is decidedly different from its actual implementation in a system that is foundationally racist.
Equality as an idea, an ideal or a construct was not informed by lived personal experience at the time of its definition by the 14th amendment. The Equal Protection clause was “clearly a compromise… [and because] the principles were debated by a group of undemocratically elected white men, [it was] a compromise about the conception about what the law was going to be,” and could not possibly solve the issues of racial inequality in the U.S. at that time, or contend for the future. The language of the 14th amendment and the equal protection clause did not give proper coverage to the fact that “racism was and is a prevailing factor and condition in our society,” according to Hill. Today, the originalist approach to interpreting the Constitution allows for decisions such as the Supreme Court’s ruling against affirmative action to happen because of the decceptively “anemic” definition of equality.
“From the very beginning of equality being discussed [by the government]…, we were left with a question about what it really means,” and this question was legally left to the Supreme Court. Hill said that this is “where [the question of equality] has been and where it will continue to be forever.” The Supreme Court is supposed to protect equality under the law “but ultimately does not … because we have given so much control over the language, [which is] so contradictory [to the supreme court].” The task of deciding what the language of the Constitution means and then also applying it to the very ideas in the Constitution leaves room for potentially dangerous interpretation. Hill said that the “idea that you have women and Black people waiting in the wings [during these decisions] to see what their fate is going to be,” shows the disconnect between reality and the ideal. Both before and since the establishment of the Equal Protection Clause, disenfranchised minorities “didn’t know how any of us were going to be protected,” because of unconscious constitutional bias, said Hill.
“Lived personal experience” is key to Hill’s understanding of what equality should be. To her, this means recognizing that “people are feeling the weight of these decisions in their personal lives.” She quoted former Justice Ruth Bader Ginsburg’s explanation of “rank discrimination” being the systemic and arguably foundational bigotry and inequity that exists in the U.S. and cited this terminology as an important context for the lived personal experiences of minorities. Hill observed that “the damage that has been done by rank discrimination … has gone unacknowledged [and] has compounded over the years.”
Examining this rank discrimination historically, Hill used Texas as a case study in showing how racist policies in education have left an unyielding legacy. Discriminatory education policies began in the Texas school system in 1848 after its annexation when they “established de facto segregation by separating Mexican students from American students,” according to Hill. Even though the Supreme Court decision in the 1954 case of Brown v. Board legally undid the hundreds of years of racial inequity in education by forcing schools to integrate, generational social disparity is still evident in divisions in community lines today.
The legacy of discrimination in Texas shows that legal decisions do not always find full realization in reality. Hill said that the “reason that [she] thinks [Americans] need to think about this is because the experience that students have [in Texas now] didn’t begin with their entrance into elementary school, it [began] all the way back to 1848” when they were burdened with “school buildings that were inhabitable, and cultural and structural barriers,” that impact’s today’s education system still. Hill determined “that is what generations of rank discrimination come too,” and recognized that this was “exacerbated by the 1976 Supreme Court case San Antonio v. Rodriguez,” that “not only locked in class discrimination by refusing to acknowledge class as a protectable category but locked in racial discrimination at the same time” because of the wealth gap between Black and White Americans. Given this historical weight to educational discrimination, Hill said that it is “no surprise that Texas is the center of the conversation about educational equality” today.
According to Hill, after the Supreme Court’s decision against affirmative action which essentially “redefined equality” in its interpretation of the 14th amendment according to Hill’s analysis, Texas Governor Greg Abbott was quick to “prohibit state colleges and universities from practicing [any] forms of DEI,” by signing SB17, which closed DEI offices on college campuses, as well as diversity training and any promotion of equitable access to education. Hill said Abbot’s actions, especially in the wake of Texas’ historical disparity, will be known for its political as well as legal impact. She elaborated that “American history is replete with cases that the US supreme court got wrong… and [she] believes SB17 will be in that line of cases… including [for example] Plessy v. Ferguson, in which denying education to women and Black people was deemed good for the community.”
On the widespread impact of the end of affirmative action, Hill said that “the sweep of these decisions has gone way beyond the language of the court,” as “legal decisions and state policies will likely perpetuate discrimination.” In her research, she reasoned that the “wave of anti-DEI policies” in states, illustrated by the passage of “more than 100 bills to regulate DEI in the current legislative session,” is an effort to “erase identity.” She found that it is “not just about student services or admission policies … the loss has been to knowledge transmission as well as production …, [as] what is happening in addition to the anti-DEI movement [is the] limitation of the study of topics relating to identity,” such as critical race theory, which is also applicable to grades K-12. These consequences of the court’s choices in interpreting the language of the 14th amendment “will change education and it will also change research.” Bringing the issue back to a context of personal experience, Hill hypothetically appealed to the future of society saying, “I am concerned about where my children will go to school, where my grandchildren will go to school and what they will be able to learn when they go to those schools. And I think that’s what we should be worried about.”
As “an opportunity to confront the issues of today,” Hill sees affirmative action as a way to assess what former Supreme Court justice Thurgood Marshall meant by his idea of “complete equality.” Justice Marshall drew upon the lived experiences key to understanding inequality in its social ramifications to form theories about equality and to inform his decisions, explained Hill. “His practice of storytelling [as a way] to illustrate [the effects] of equality deepened awareness [about] race-based disparities” and serve to remind “that the Supreme Court has to ‘narrow the gap between the ideal and the reality of people’s lived experiences.’” In contrast, the Court’s decision in SFFA v. President & Fellows of Harvard College and SFFA v. University of North Carolina outlines a “race neutrality theory of equality… [insinuating that] the way to stop discrimination on the basis of race means to stop discriminating on the basis of race.” While this offers an overly simplistic and ignorant view of the history of race in America, Hill said she believes that “we must bring reality closer to theory and democratic principles.” Building this understanding of equity into a theory of equal protection under the law “will not be color blind,” and will require Americans to “be open and candid about racism.” Understanding “inclusion as a critical point of our democracy” and institutionally investing in this through educational policies such as affirmative action and DEI programs is crucial if the United States is to “live up to its promise” of equality.
Hill still decided to adopt an optimistic outlook as she thinks that “we have the pieces that we need to understand what equality under the law can mean today.” This necessitates drawing upon the “understanding of the crucial loss that society will experience if we don’t get there.” She referenced the mobilization of students at the University of Texas as an example of crucial social justice work. Hill maintained that students in Texas are strongly “convinced that they can change the course of their education … and change the state in which they are residing … [by] investing their time and energy into changing the narrative.” Students have the right to “make the education that they receive the education that they entered the school to receive.”
Ending the lecture on a reflective note, Hill remembered her parents, who raised 13 children in Oklahoma during the era of Jim Crow. She knows her parents died in a better world than they entered and urged the audience to “think about your own parents and how the world is a fairer and safer place because they have lived through some of the worst times.” By “think[ing] about the changes [that] past generations were able to see and project[ing] that forward to the change we hope to see … we can all be hopeful.”
