Off the Cuff: Theodore Shaw
Theodore Shaw has been the Director-Counsel and President of the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund since 2004 and was worked for the Fund since 1982. Previously, Shaw was a civil rights attorney for the U.S. Justice Department. He holds a JD from Columbia University School of Law.
What made you decide to become a civil rights lawyer rather than practice some other kind of law?
Well, I grew up during the Sixties primarily; I was born in ’54, which was the year of Brown v. Board of Education. When I grew up, the Civil Rights movement and subsequently, the whole Black Consciousness movement were the most important things going on around me. And of course, in the Sixties there was the Anti-War movement, which perhaps has some growing parallel in today’s times. Maybe that’s hopeful. But, the most important thing happening was the Civil Rights movement and I wanted to figure out how to make my contribution.
And you resigned from the Reagan Justice Department over its civil rights policies?
I did. I started my legal career in the Carter administration Justice Department Civil Rights division and in 1980 there was a presidential election and in ’81 when the Reagan assistant attorney general was finally appointed in the summer of ’81, subsequently I found myself in conflict with their policies. There were a lot of career attorneys at Justice who were upset with the division and Justice Department leadership for a whole number of reasons, not the least of which was a case about whether private schools that practice racial discrimination could qualify for tax-exempt status that was before the Supreme Court in a case called Bob Jones University v. IRS. And the federal government, after the Supreme Court had agreed to hear the case and was being briefed, changed its position on a Friday afternoon. That’s when you do something in Washington that you don’t want to get a lot of attention. Those of us in the division were very upset. We had a rebellion of sorts, but I was just a line attorney, not an assistant attorney general, so it was clear if someone had to go it was going to be me and I was looking to get out of the Civil Rights division and figure out where I wanted to go. The job I would have given my right arm for was the NAACP Legal Defense Fund, but you didn’t call them, they called you and one day I got a call from Jack Greenberg, who was then head of the Legal Defense Fund. He was Thurgood Marshall’s successor, and Jack asked me did I want to work with the Legal Defense Fund. I already decided I was resigning – it was like a lightning bolt for me, and I went to the Legal Defense Fund in March of ’82 and I’ve been there ever since, with the exception of three years I spent teaching law school at the University of Michigan.
With cases such as the University of Michigan case [Grutter v. Bollinger (2003) in which an applicant challenged the university’s admission policies], which Marvin Krislov was also involved in, do you think there is a future for affirmative action in America or is it in danger today?
Well, I think that the definition of Affirmative Action, in its purest sense, is simply acting affirmatively to do something about racial inequality. And if there isn’t a future for that kind of action as long as there is racial inequality in this country, then shame on us. There are those who are trying to end affirmative action and I know that’s the ideological war that the Legal Defense Fund and other are engaged in. I did work very closely with President Krislov, who is a personal friend and colleague as a consequence, at University of Michigan and with others. Michigan was an important case, but it was a milestone, not an endpoint as I often say. There was going to be another challenge and that was Seattle and Louisville [Supreme Court decisions that banned certain voluntary desegregation plans] and again, milestones, not endpoints. There will be other cases; there will be other challenges. The battle over affirmative action is in the political sphere now also because of the initiatives that Ward Connerly and others trying to trot around the country to try to ban affirmative action. That’s a tough political fight, because when most Americans, if they hear someone say “colorblind” then they say, “I’m all for that,” and don’t understand the implications or how the concept of colorblindness has been hijacked to blunt all voluntary attempts to address racial inequality. There are a lot of fights ahead of us and one thing I’m clear on is that the issue of race, whether we like it or not, is not going to go away in the next twenty five years, no matter what Justice O’Connor hoped for.
What are some other Civil Rights issues, besides Affirmative Action, that haven’t received enough attention?
The Legal Defense Fund today, along with others, is arguing in Washington DC this very day about the constitutionality of the newly enacted Voting Rights extension that President Bush signed in August, and we knew that would be an attack, an attack out of the same ideological drive against affirmative action, the fact that it is race conscious legislation. The whole issue of the right to vote, including not only fiascos like Florida in 2000 and Ohio 2004, attempts to intimidate people from voting; issues like felon disenfranchisement continue to bedevil us and will continue to bedevil us.
The incarceration rates of black and brown people in this country, sky high, mostly for nonviolent drug offenses and a racially discriminatory system in which, at every level along the way, there are disparities whether we’re talking about arrests, who is charged with what, who is diverted into alternative programs, who goes to trial, who is convicted, who is incarcerated, how long they’re incarcerated. We’re talking about the so-called War on Drugs. It drives the relationship between law enforcement and black and brown communities even while African Americans do not use drugs in any higher proportions than white Americans. There is a huge set of issues there, the crack-powder cocaine disparity that exists, which end up impacting African Americans while white Americans who use cocaine get less severe sanctions or penalties, if they get penalized at all.
Housing discrimination is still ubiquitous in this country and the concentration of poverty is one of the most devastating factors when it comes to education, when it comes to quality of life and employment, just across the board. So next year we will commemorate the 40th anniversary of the Fair Housing Act which was enacted after the assassination of Martin Luther King, Jr., and I suspect there will be some more attention paid to the Fair Housing act and housing issues more generally. In the aftermath of Seattle and Louisville, for example, when it is so much more difficult to desegregate public schools by assigning students, by desegregating housing, so much more as a remedy and a starting point…
A lot of the country has been focused on the situation in Louisiana with the “Jena Six,” [a conflict in which a group of six black students sat under their high school’s “white” tree, only to find nooses hung from its branches the next day,] which is an example of the fact that racial disparities and discrimination are alive and well. While the Jena Six is an important case, it is emblematic of a larger pattern of treatment of disparate ways of black and brown people that exist around this country. Let me be clear: we’re not in the 1940’s or 50’s, things are better, a lot better, than they were then. There is still a lot of work to do.