Tomiko Brown-Nagin

Daniel P.S. Paul Professor of Constitutional Law

Professor of History, Faculty of Arts and Sciences, Harvard University

Co-Director, Program in Law and History

Biography

Tomiko Brown-Nagin is the Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School and Professor of History at Harvard’s Faculty of Arts and Sciences. The Co-Director of the law school’s Program in Law and History, Brown-Nagin is an award-winning legal historian, an expert in constitutional law and education law and policy, a member of the American Law Institute, a fellow of the American Bar Foundation and a distinguished lecturer for the Organization of American Historians. She has published articles and book chapters on the Supreme Court’s equal protection jurisprudence, civil rights law and history, the Affordable Care Act and education reform in a variety of publications, including the Yale Law Journal, the Harvard Law Review, the Columbia Law Review and the Journal of Law & Education.

Her 2011 book Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (Oxford), won the Bancroft Prize in U.S. History. Brown-Nagin also has published articles and opinion pieces on education reform in the popular press. She is a frequent media commentator on legal issues and educational policy.

Brown-Nagin currently is at work on a book about the life and times of the Honorable Constance Baker Motley, the civil rights lawyer, politician, and judge.

She earned a law degree from Yale, where she served as an editor of the Yale Law Journal, a doctorate in history from Duke University, and a B.A. in history, summa cum laude, from Furman University. 

Areas of Interest

Tomiko Brown-Nagin, The Civil Rights Canon: Above and Below, 123 Yale L. J. 2698 (2014) (reviewing Bruce Ackerman, We The People: The Civil Rights Movement (2014)).
Categories:
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Civil Rights
,
Race & Ethnicity
,
Discrimination
,
Poverty Law
Type: Article
Abstract
This essay builds on the constitutional history of the civil rights movement from below to complement and complicate the canon identified in We the People: The Civil Rights Revolution. Like Professor Ackerman's work, this essay embraces the concept of popular sovereignty: it is a powerful resource for social movements seeking constitutional change. However, this essay expands the "who" and the "what" of the civil rights era's constitutional vision beyond the public figures and antidiscrimination statutes to which We the People attaches great significance. Ackerman's civil rights canon emanates from officialdom-Lyndon Johnson, Hubert Humphrey, and Everett Dirksen-and a single representative of the civil rights movement, Rev. Dr. Martin Luther King, Jr. Antidiscrimination statutes-the Civil Rights Act (CRA), Voting Rights Act (VRA), and Fair Housing Act (FHA)- comprise the canon. This essay argues that A. Philip Randolph, Bayard Rustin, Ella Baker, and the new abolitionists of the Student Nonviolent Coordinating Committee (SNCC)-representatives of the grassroots and proponents of an economic vision of equality-also were architects of a civil-rightsera canon. These avant-garde figures, often critics of the Democratic Party, pushed Dr. King and federal officials to pursue economic citizenship as a component of a new constitutional vision of equality. In the Equal Opportunity Act (EOA), the heart of the War on Poverty, this element of the movement partly realized some of its economic goals. These activists contributed to change during the civil rights era in the absence of formal power in legislatures and courts, and pressed states and local people to implement (or ratify) locally relevant elements of the national civil rights agenda. Because this activism was tethered to local communities and local concerns, these activists personify popular sovereignty in its truest meaning. The exclusion of such mobilized and organized citizens as agents of political influence-as elemental to the "we" in "We the People"- reveals two conceptual limitations in We the People's canonization project. First, it denies voice, agenda-setting power, and historical significance to the same classes of persons denied full citizenship and left outside of the corridors of power when the drafting and ratification of the Constitution originally took place. Second, We the People's imperfect version of history results in an inaccurate description of civil rights constitutionalism. It conceives "higher lawmaking" as the byproduct of power brokers who leverage institutional power and achieve consensus about the meaning of equality through assent by electoral majorities. A more descriptively accurate and normatively desirable account of civil rights constitutionalism would concede historical and ongoing contest over the meaning of equality.
Tomiko Brown-Nagin, Rethinking Diversity and Proxies for Economic Disadvantage in Higher Education: A First Generation Students’ Project, 2014 U. Chi. Legal F. 433 (2014).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Race & Ethnicity
,
Education Law
Type: Article
Abstract
On the fiftieth anniversary of the Civil Rights Act of 1964, this Article argues for a renewed focus on disadvantage and social mobility in passage of the Civil Rights Act and originally advocated affirmative action, the goals of rooting out discrimination and ensuring social mobility for all Americans motivated him. Over time, these goals receded in law and policy. Courts justified affirmative action on grounds of diversity. More recently, commentators urged consideration of "class-based" affirmative action or advocated policies that favor "low-income" students. Both initiatives can help open up access to selective institutions of higher education. However, neither is a dependable proxy for disadvantage in education. Race-based affirmative action justified on grounds of diversity is a vital tool for ameliorating racial inequality, but it does not necessarily address class-based disadvantage. Class- or income-based policies do not necessarily benefit the neediest students. The demographic makeup of selective institutions of higher education today suggests that neither effort is particularly effective in ensuring social mobility. Campuses are more racially heterogeneous, but largely economically homogeneous. If the social mobility objectives of the Civil Rights Act are to be more fully realized, universities must supplement current admissions and aid policies. Today's costly, ultra-competitive, and strategically managed admissions environment makes it even more vital to create pathways for talented students from truly disadvantaged backgrounds to selective institutions. To avoid the crowding out of the neediest students, disadvantage must be identified more precisely and attacked at its roots instead of indirectly. Favorable treatment of first-generation, Pell Grant-eligible students in three areas - admissions, financial aid, and institutional outreach - can facilitate greater access for truly educationally disadvantaged students. Through initiatives focused on these students, colleges can simultaneously tackle social problems related to income, socio-culture, place, and race, advance equal educational opportunity and pursue the national interest in social mobility.
Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (Oxford Univ. Press 2011).
Categories:
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Immigration Law
,
Law & Public Policy
,
Poverty Law
,
Legal History
Type: Book
Abstract
In this Bancroft Prize-winning history of the Civil Rights movement in Atlanta from the end of World War II to 1980, Tomiko Brown-Nagin shows that long before "black power" emerged and gave black dissent from the mainstream civil rights agenda a name, African Americans in Atlanta questioned the meaning of equality and the steps necessary to obtain a share of the American dream. This groundbreaking book uncovers the activism of visionaries--both well-known figures and unsung citizens--from across the ideological spectrum who sought something different from, or more complicated than, "integration." Local activists often played leading roles in carrying out the agenda of the NAACP, but some also pursued goals that differed markedly from those of the venerable civil rights organization. Brown-Nagin documents debates over politics, housing, public accommodations, and schools. Exploring the complex interplay between the local and national, between lawyers and communities, between elites and grassroots, and between middle-class and working-class African Americans, Courage to Dissent transforms our understanding of the Civil Rights era.
Tomiko Brown-Nagin, Missouri v. Jenkins: Why District Courts and Local Politics Matter, in Civil Rights Stories (Myriam Gilles & Risa Goluboff eds., Foundation Press 2007).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Family Law
,
Constitutional Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Race & Ethnicity
,
State & Local Government
Type: Book
Tomiko Brown-Nagin, African Americans and the Constitution, in Handbook of African American History (Leslie Brown ed., Oxford Univ. Press forthcoming 2017).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
,
Race & Ethnicity
Type: Book
Tomiko Brown-Nagin, The Only Woman in the Courtroom: Constance Baker Motley and Twentieth-Century Struggles for Equality (forthcoming 2017).
Categories:
Legal Profession
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Gender & Sexuality
,
Judges & Jurisprudence
,
Legal History
,
Biography & Tribute
Type: Book
Tomiko Brown-Nagin, The Mentoring Gap: Race and Higher Education Commentary Series, 129 Harv. L. Rev. F. 303 (2016).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Race & Ethnicity
,
Education Law
Type: Article
Tomiko Brown-Nagin, Lani Guinier & Gerald Torres, Tejas Es Diferente: UT Austin’s Admissions Program in Light of Its Exclusionary History, in Affirmative Action and Racial Equity: Considering the Fisher Case to Forge the Path Ahead 63 (Uma M. Jayakumar & Liliana M. Garces eds., Routledge 2015).
Categories:
Family Law
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Fourteenth Amendment
,
Race & Ethnicity
,
Discrimination
,
Education Law
Type: Book
Tomiko Brown-Nagin, Two Americas in Healthcare: Federalism and Wars Over Poverty from the New Deal-Great Society to Obamacare, 62 Drake L. Rev. 981 (2014).
Categories:
Discrimination & Civil Rights
,
Health Care
,
Government & Politics
Sub-Categories:
Poverty Law
,
Social Welfare Law
,
State & Local Government
,
Health Law & Policy
Type: Article
Abstract
The Supreme Court’s decision sustaining the Affordable Care Act has inspired commentary applauding the Court for preserving the social safety net instituted and expanded during the New Deal and the Great Society. That narrative, as far as it goes, is accurate; but its double-edged meaning has not been fully understood until now, this Article shows. In exchange for the establishment and expansion of federal entitlement programs, Congress ceded to otherwise resistant states substantial control over the administration of federal programs, including Medicaid. Historically, officials in many states deployed administration discretion to police the boundaries of the "deserving" versus "undeserving" poor, to discriminate against minorities, and to stigmatize social welfare spending. The Chief Justice’s deft opinion in NFIB reinforced deference to the states — and the attendant costs described in this Article’s examination of the fraught socio-legal history of federal social welfare programs. In an unprecedented reading of the Spending Clause that privileged states’ decisional autonomy, the Court undermined Congress’s power to institute a truly national healthcare system through Medicaid. As a consequence of the Court’s analysis, states can opt out of the Medicaid expansion without fear of losing existing funding. Twenty-three states — including those with some of the highest poverty rates in the nation and thus the greatest need for Medicaid — did, in fact, opt out. The remarkable outcome of NFIB on the Medicaid expansion in states where some of the neediest Americans reside should temper any assessment that the Court preserved the New Deal-Great Society social contract. If NFIB affirmed the New Deal-Great Society contract, this Article shows, it shored up both the laudable and lamentable aspects of that legacy. The outcome perpetuated two Americas in healthcare.
Tomiko Brown-Nagin, The Long, Broad, and Deep Civil Rights Movement: The Lessons of a Master Scholar and Teacher, in Making Legal History: Essays in Honor of William E. Nelson 140 (Daniel J. Hulsebosch & R.B. Bernstein eds., New York Univ. Press 2013).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Civil Rights
,
Discrimination
,
Race & Ethnicity
,
Legal History
Type: Book
Tomiko Brown-Nagin, Does Protest Work, Protest & Polarization Symposium, Howard University (Nov. 1, 2012).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Presentation
Abstract
Protest & Polarization Symposium
Tomiko Brown-Nagin, The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change (Supreme Court Roundup on Fisher v. Texas), 65 Vand. L. Rev. En Banc 113 (2012).
Categories:
Family Law
,
Constitutional Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Fourteenth Amendment
,
Civil Rights
,
Discrimination
,
Race & Ethnicity
,
Education Law
,
Judges & Jurisprudence
Type: Article
Tomiko Brown-Nagin, Remembering Movement Lawyers and Viewing Constitutional History from the Bottom Up, University of Georgia, American Constitution Society, C-Span Book TV (Apr. 20, 2011).
Categories:
Legal Profession
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Legal History
Type: Presentation
Abstract
American Constitution Society, C-Span Book TV
Tomiko Brown-Nagin, On-Camera Interview on Courage to Dissent, C-Span Book TV, Charlottesville, Va. (Mar. 18, 2011).
Categories:
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Legal History
Type: Presentation
Abstract
C-Span Book TV
Tomiko Brown-Nagin, On-Air Interview, Thursday Night at TU: The Buck Colbert Franklin Memorial Civil Rights Lecture, KWGS, NPR, Tulsa Affiliate (Feb. 15, 2011).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
Type: Presentation
Abstract
The Buck Colbert Franklin Memorial Civil Rights Lecture
Tomiko Brown-Nagin, Hollow Tropes: Fresh Perspectives on Courts, Politics, and Inequality, 45 Tulsa L. Rev. 691 (2009)(reviewing Martha Minow, In Brown's Wake: Legacies of America's Education Landmark (2010); Paul Frymer, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (2007); and Julie Novkov, Racial Union: Law, Intimacy, and the White State in Alabama, 1865-1964 (2008)).
Categories:
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Race & Ethnicity
,
Legal History
Type: Article
Abstract
In this issue, Tomiko Brown-Nagin reviews a trio of recent books – Martha Minow‘s In Brown’s Wake: Legacies of America’s Educational Landmark, Paul Frymer‘s Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party, and Julie Novkov‘s Racial Union: Law, Intimacy, and the White State in Alabama, 1865-1954 - brings fresh perspectives to the study of how courts, political actors, and a range of institutions have contributed to the nation‘s current mix of inequality and opportunity. Like earlier commentators, these authors recognize that court-based change is not a reliable tool of problem solving.
Tomiko Brown-Nagin, Hon. Robert L. Carter, in The Yale Biographical Dictionary of American Law 98 (Roger K. Newman ed., Yale Univ. Press 2009).
Categories:
Legal Profession
Sub-Categories:
Legal History
,
Biography & Tribute
Type: Book
Abstract
This book is the first to gather in a single volume concise biographies of the most eminent men and women in the history of American law.
Tomiko Brown-Nagin, Book Review, 74 J. S. Hist. 1025 (2008)(reviewing Thomas F. Jackson, From Civil Rights to Human Rights: Martin Luther King, Jr., and the Struggle for Economic Justice (2007), Felicia Kornbluh, The Battle for Welfare Rights: Politics and Poverty in Modern America (2007), and Kris Shepard, Rationing Justice: Poverty Lawyers and Poor People in the Deep South (2007)).
Categories:
Legal Profession
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Poverty Law
,
Race & Ethnicity
,
Civil Rights
,
Government Benefits
,
Legal History
,
Legal Services
Type: Article
Tomiko Brown-Nagin, "One of These Things Does Not Belong": Intellectual Property and Collective Action Across Boundaries, 117 Yale L.J. Pocket Part 280 (2008).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Political Theory
,
Law & Social Change
,
Intellectual Property Law
Type: Article
Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436 (2005).
Categories:
Discrimination & Civil Rights
,
Family Law
,
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Fourteenth Amendment
,
Civil Rights
,
Discrimination
,
Law & Social Change
,
Education Law
Type: Article
Abstract
Contributing to the growing legal literature on social movements and constitutional culture, this Article uses the widespread public mobilization that occurred around Gutter v. Bollinger and Grata v. Bollinger as a point of departure for its analysis. These cases are apt for such a discussion because they generated scores of amicus briefs and numerous public opinion polls and, most important for this analysis, featured a group of intervenors styling itself a "mass movement" for social justice. Taking an interdisciplinary approach, this Article considers the Gutter intervenors' experience in light of social movement history and the social science and legal literature on mass movements. Challenging the legal literature, this Article concludes that social movements and juridical law are fundamentally in tension. The legal literature assumes not only that the two are compatible, but also that rights talk is especially inspirational to, and efficacious for, social movements. This view overlooks an important distinction between the definitional and inspirational roles that law in the courts can play in protest movements. Social movements may profitably use rights talk to inspire political mobilization, although less successfully than legal mobilization theorists assume. But social movements that define themselves through law risk undermining their insurgent role in the political process, and thus losing their agenda-setting ability. Viewed within this framework, the Gutter "mass movement" failed to significantly impact the constitutional order. Instead, the intoners engaged in a single-issue political and legal reform campaign, which achieved only moderate success. Their limited success demonstrates the tension between social movement tactics and litigation as tools of social change.
Tomiko Brown-Nagin, The Impact of Lawyer-Client Disengagement on the NAACP Legal Defense Fund's Campaign to Implement Brown v. Board of Education, in From the Grassroots to the Supreme Court: Brown v. Board of Education and American Democracy (Peter F. Lau ed., Duke Univ. Press 2004).
Categories:
Government & Politics
,
Legal Profession
,
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Race & Ethnicity
,
Education Law
,
Supreme Court of the United States
,
Legal History
Type: Book
Abstract
Board of Education , showing that the resolution of racial segregation in schools transformed the lives of ordinary citizens in broader ways than has previously been ass ""From the Grassroots to the Supreme Court "combines well-crafted ...
Tomiko Brown-Nagin, An Historical Note on the Significance of the Stigma Rationale for a Civil Rights Landmark, 48 St. Louis U. L.J. 991 (2004).
Categories:
Legal Profession
,
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Discrimination
,
Education Law
,
Legal History
Type: Article
Tomiko Brown-Nagin, Race as Identity Caricature: A Local Legal History Lesson in the Salience of Intra-Racial Conflict, 151 U. Pa. L. Rev. 1913 (2003).
Categories:
Legal Profession
,
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Race & Ethnicity
,
Discrimination
,
Poverty Law
,
Civil Rights
,
Education Law
,
Legal History
Type: Article
Tomiko Brown-Nagin, Elementary and Secondary Education Act of 1965, in 1 Major Acts of Congress 263 (Brian K. Landsberg ed., Macmillan Reference USA 2003).
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Poverty Law
,
Education Law
Type: Book
Abstract
An illustrated encyclopedia of congressional acts from the earliest days of the American republic up through recent years.
Tomiko Brown-Nagin, Toward a Pragmatic Understanding of Status Consciousness: The Case of Deregulated Education, 50 Duke L.J. 753 (2000).
Categories:
Family Law
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Fourteenth Amendment
,
Civil Rights
,
Race & Ethnicity
,
Education Law
Type: Article
Abstract
This Article discusses the relationship between federal equal protection doctrine and the states' experiment with deregulated education-in particular, charter schools whose student bodies are identifiable on the basis of status. I argue that the states' experiment with deregulated education and the Supreme Court's understanding of the limitations imposed by the federal Equal Protection Clause on status conscious state action are substantially in conflict, though not inevitably so. Reconciling state policy and federal constitutional law requires, first, that state legislatures draft laws that are consistent with the Court's skepticism of explicitly status-conscious state action, and its ambivalence toward state action that addresses social problems of status-identifiable groups in ways that do not raise the specter of historically or culturally meaningful notions of racial ordering or sexbased stereotypes. Thus, legislatures might give attention to the justificatory rhetoric of diversity or the idea of students "at-risk" of academic failure rather than incorporating concepts like racial balance or sex-segregation in enabling legislation. Second, the federal courts should adopt a more pragmatic mode of equal protection analysis in considering claims against deregulated schools, rather than presuming that status-identifiable charter schools should be subjected to heightened scrutiny, or that heightened scrutiny requires finding such schools unconstitutional. A more pragmatic mode of constitutional analysis is justified by the public and private features of deregulated schools, which, I propose, entitle some schools to be considered "quasi-public." It is also justified by the Court's precedent on federalism and education, which should be understood as consistent with state legislators' purpose in deregulating schools-encouraging innovative approaches to learning through participatory democracy.
Tomiko Brown-Nagin, The Transformation of a Social Movement into Law?: The NAACP's and SCLC's Civil Rights Campaign Reconsidered In Light of the Educational Activism of Septima P. Clark, 8 Women's Hist. Rev. 81 (1999).
Categories:
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Legal History
Type: Article
Abstract
This article reconsiders the efficacy of the Southern Christian Leadership Conference's (SCLC) and the National Association for the Advancement of Colored People's (NAACP's) strategies for achieving civil rights by comparing and contrasting them to the approach favored by the educator, Septima Poinsette Clark. Focusing on the relationship between literacy and the ability of individuals to achieve political and socio-economic power, Clark argued that knowledge could empower marginalized groups in ways that formal legal equality could not. Although her educational activism inlocal communities was important to the overall success of the civil rights movement, Clark is a relatively obscure historical figure; her value to the movement was underappreciated by more prominent male leaders due to gender inequality, she believed. Whatever its origins, this failure fully to appreciate the worth of activists of Clark's caliber was mistaken, this article concludes. Inattenton to the perspectives of those with educational expertise significantly undermined the overall efficacy of the NAACP's and SCLC's endeavors to achieve racial equality by compelling compliance with constitutional norms, especially with respect to the great number of abjectly impoverished people who were intended beneficiaries of their work

Honors and Awards