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    The pathbreaking lawyer and “Civil Rights Queen” was the first Black woman to argue before the U.S. Supreme Court.

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    Constance Baker Motley had sterling qualifications. It didn’t matter to her critics.

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    The first major biography of one of our most influential but least known activist lawyers that provides an eye-opening account of the twin struggles for gender equality and civil rights in the 20th Century. Born to an aspirational blue-collar family during the Great Depression, Constance Baker Motley was expected to find herself a good career as a hair dresser. Instead, she became the first black woman to argue a case in front of the Supreme Court, the first of ten she would eventually argue. The only black woman member in the legal team at the NAACP’s Inc. Fund at the time, she defended Martin Luther King in Birmingham, helped to argue in Brown vs. The Board of Education, and played a critical role in vanquishing Jim Crow laws throughout the South. She was the first black woman elected to the state Senate in New York, the first woman elected Manhattan Borough President, and the first black woman appointed to the federal judiciary. Civil Rights Queen captures the story of a remarkable American life, a figure who remade law and inspired the imaginations of African Americans across the country. Burnished with an extraordinary wealth of research, award-winning, esteemed Civil Rights and legal historian and dean of the Harvard Radcliffe Institute, Tomiko Brown-Nagin brings Motley to life in these pages. Brown-Nagin compels us to ponder some of our most timeless and urgent questions–how do the historically marginalized access the corridors of power? What is the price of the ticket? How does access to power shape individuals committed to social justice? In Civil Rights Queen, she dramatically fills out the picture of some of the most profound judicial and societal change made in twentieth-century America.

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    There are many ways to describe Justice Ginsburg’s historic achievements. This essay considers one enduring descriptor. When President Bill Clinton nominated her to the Supreme Court, he noted that some called Ginsburg the “Thurgood Marshall” of the women’s movement. Through this essay, I engage with and complicate that comparison. I do so to celebrate Justice Ginsburg’s pathbreaking career as a litigator and contextualize claims that her approach was insufficiently progressive. Properly contextualized, Ginsburg’s career highlights a fact too often overlooked: the civil rights movement inspired a “movement of movements” that reverberated throughout society to the benefit of women and a range of marginalized groups. The loss of Ginsburg—the last civil rights lawyer on the Court—deprives the institution of that historical legacy and the invaluable perspective on law and society that it cultivated within her.

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    We are living in an age of political turbulence, social division, and resistance. The resistance that formed in reaction to the election of Donald Trump styles itself a force to defend constitutional rights, democratic norms, and the rule of law in the United States. Perhaps the New Republic best explained its advent: the Resistance had been born of partisan—that is, Democratic—fury after “liberalism had been dealt its most stunning and consequential defeat in American history.” “For the first time in decades, liberalism has been infused with a sense of energy and purpose,” with millions of people devoted to a singular cause: resisting Trump.

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    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.

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    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.

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    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.

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    Protest & Polarization Symposium

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  • 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).

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    American Constitution Society, C-Span Book TV

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    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).

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    The Buck Colbert Franklin Memorial Civil Rights Lecture

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    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.

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    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.

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    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.

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    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.

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  • 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).

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    An illustrated encyclopedia of congressional acts from the earliest days of the American republic up through recent years.

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    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.

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    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