Q&A with Professor Kenneth Mack
Beyond Brown v. Board: Mack argues for a broader history of civil rights lawyering
Post Date: May 5, 2006
This article was published in the April 2006 issue of Harvard Law Today: Professor Kenneth Mack '91 is an expert on American legal history, with a particular emphasis on the history of civil rights. Mack discusses his latest research with HLS Director of Communications Michael Armini.
Professor Kenneth Mack ’91
Your recent article in the Yale Law Journal argues that the conventional history of civil rights lawyering is too narrow and too focused on courts. Can you explain this?
My basic contention is that the history of civil rights lawyering is not only too focused on courts, it’s too focused on Brown v. Board of Education. My goal is to fully capture the range of alternatives that were debated within the civil rights legal community. We have to think of Brown as only one of many options that people debated and considered and fought for.
Why do you think history has zeroed in so much on the Brown decision?
Well, it’s obviously such an important event in our culture. It’s become iconic in a sense. It symbolizes lots of things. But because of that, it also attracts too much attention from scholars, often to the neglect of other objectives.
So civil rights lawyers were actually doing a lot more—they were social activists as well as lawyers?
Yes. What a civil rights lawyer interested in reform in 1930, 1940 or even 1950 would have thought about was not limited to what could be litigated. People thought about many ways that lawyers could help transform American society—not just litigating a case up to the Supreme Court and getting a decision.
Do you think that today’s law schools need to do more to produce social activists and not just lawyers focused on the law and litigation?
Yes, but I would define social activism quite broadly. It often gets talked about in terms of public interest versus corporate law, but I think one can be an activist in many different venues—as in-house counsels, in government practice, in NGOs and in being one’s own entrepreneur within the law—as well as within the traditional activist venues.
As an expert on the history of civil rights, how do you see the struggle today? What are the new frontiers in the battle for civil rights?
I think the new frontier certainly has to be class inequality, broadly considered. Or at least it should be. I think the measure of social inequality that should be most pressing for everyone interested in reform should be economic inequality and class inequality. That’s something that has pretty much dropped off of the social agenda for both political parties. If the historic civil rights lawyers like Charles Hamilton Houston were alive today, that’s what they would think activists should be focused on.
Why do you think that’s happened?
I think that there’s a great degree of skepticism today about using broad-based government programs as a way to attack class inequality. And some of that skepticism is merited. But people tend to think too much in terms of the old solutions, and we really need to rethink social reform and what approaches are going to get us there.
You have an undergraduate degree in electrical engineering. Does that training ever come to bear in your current work?
I don’t directly use my engineering training in my current work, because I obviously don’t do Fourier transforms or anything like that. But I think habits of mind are useful—a sort of disciplined thinking. And I think that’s what I carried forward from my undergraduate training, even if I’m not applying the mathematical techniques.
What advice would you give a recent law school grad who wants to go into teaching?
I would say that the most important thing is to write. As recently as 15 years ago, when I graduated from law school, there was a premium on law school grades and clerkships. Those things are still important, but right now the most important thing is to write and to produce good scholarship. I would advise anybody to begin trying to think of a project and to develop it in law school.
On the ground
Professor Kenneth Mack ’91 argues that civil rights lawyering has always meant more than seeking change through litigation. Here are some examples of HLS programs that use strategies outside the courtroom to advance civil rights and confront inequality.
The Housing Clinic at the Hale and Dorr Legal Services Center
While the clinic uses litigation to advocate tenants’ rights, students also learn alternative strategies to fight discrimination and improve access and affordability in housing. The clinic offers opportunities to practice “community lawyering” by connecting students to neighborhood groups that inform tenants about their rights and educate members about the importance of group mobilization.
The Child Advocacy Program’s Clinical Placements
The new Child Advocacy Program gives students the opportunity to work on nonlitigation projects that improve the lives of underserved children. A number of projects focus on improving access to social services and assisting victims of abuse and neglect. This spring, clinical students are working with organizations such as a mediation program for custody resolution and a medical-legal partnership that advocates for children whose health conditions have legal implications, like asthmatic children in substandard housing.
The O’Connor Project
The O’Connor Project, an initiative sponsored by the new Charles Hamilton Houston Institute for Race and Justice, will examine ways to close the racial achievement gap in education. Though still in its planning stages, the project will investigate the political, legal and social challenges identified in the majority decision written by former Supreme Court Justice Sandra Day O’Connor that upheld diversity admissions policies at the University of Michigan.