Civil Rights and Wrongs

THERE'S AN OLD SAYING in legal circles that when you don't have the facts on your side, argue the law; when you don't have the law on your side, argue the facts; and when you don't have either on your side, just argue.

To an extent, this seems to be the logic behind the Black Law Students Association's (BLSA) reluctance to discuss the fact that 59 law students have already registered for a civil rights course the BLSA had worked energetically to urge students to boycott.

While it's always difficult to determine how effective a boycott is, it seems fair to say that this particular one has not gotten the kind of near-unanimous support old-style boycotts have long obtained in the civil rights movement in America. By all accounts, 59 students is not a particularly low number to be taking a civil rights offering at the Law School. Professor Derek Bell, who taught the last civil rights course given there, says that his course generally attracted from 40 to 90 students, and that 59 was certainly not an unusually small number of people for the course.

To be fair, the notoriety gained by the course--which will be taught in the Law School's winter term by Jack Greenberg and Julius Levonne Chambers, both of the NAACP Legal Defense Fund--is bound to skew the enrollment figures somewhat. A good number of students who probably knew little about either of the two visiting professors have been treated to a barrage of press accounts lauding the men's special qualifications for teaching the course.

But it is still impossible to ignore the fact that the 59 law students who signed up for the class are not even a cross-section of students at the Law School. Since students may take only one course in the short winter term, they are by self-selection a group of students most interested in issues of civil rights. It would be one thing if a minority-led boycott of a stuffy course on corporate law was widely disregarded. But this is a group of students who, in professing to want to study the civil rights battles of yesteryear, are explicitly rejecting what BLSA says is the civil rights battle of today.

Minority leaders on campus should think hard about why 59 students nominally interested in civil rights law are rejecting a boycott being ardently pushed by a broad coalition of minority and other progressive groups on campus. There are no doubt a wide variety of reasons.

Many minority leaders across the nation have said that one reason their battle is becoming more difficult now is simply that affirmative action is finally hitting the intellectual classes. It was one thing for Northern liberal intellectuals to argue in the 1960s that schools and lunch counters in the South should be integrated. It may be more difficult to accept that building on past successes, the new targets are a little closer to home. Now, affirmative action is looking to the real bastions of power--such as medical school admissions, and tenure at prestigious law schools. The fact that this incident happened at Harvard Law School, for many people the embodiment of American upper crust, drove home the point that civil rights has set its sights higher today.

A corollary of the fact that civil rights has moved into the higher stakes is the fear that minority gains come only at the expense of whites. Of course, since the Law School has only one Black man and one white woman among its 65 tenured professors, it is hard to argue that minorities have taken more than their share of positions. But there is clearly a widespread fear that in a fixed pie of 65 tenured positions, the minority slice gets larger only by making other slices smaller.

IN THE LAW SCHOOL saga, Jack Greenberg unwittingly played a perfect martyr to this cause. A man who has quietly devoted his life to furthering the rights of Black people. Greenberg was brought into the issue innocently, at the request of a Black civil rights lawyer who wanted him to help teach the course. Suddenly, however, he was bearing the blame for the Law School's suspect tenuring process. Minority students were demanding that he be disinvited to teach the course, and that a minority professor be brought in his place.

For better or worse, Jack Greenberg could be seen as a rallying point for any white fears that whites are somehow being asked to alone for sins they do not believe they committed. Jack Greenberg, who has litigated numerous civil rights cases before the Supreme Court, did not decide the ethnic breakdown of the Law School faculty. Why should he be made to suffer for it?

In this murky situation, it is hard to say just what the minority law students should do. Holding a boycott seems to play right into the fears of many white students. But on the other hand, students are not by nature in the most effective position to trigger real change on issues like tenure. Short of taking to the streets as in the 1960s, a boycott is one of the few actions students can take to express displeasure with a course offering.

What is clear, however is that minority law students must not shrug off the fact that 59 law students have figuratively crossed the picket line and enrolled in the boycotted class. The latter--who obviously care about civil rights -- is just the sort of group that must be won over for civil rights and affirmative action to press onward.

From a tactical point of view, had the minority law students succeeded in keeping enrollment in the course to zero, you can bet they would be talking quite loudly about their achievement. And if 59 students seems rather high, it is hardly in the BLSA's interest to argue the numbers. But it is nevertheless crucial that they take a close look at the 59 students who disregarded a civil rights boycott to take a civil rights course. For better or worse, these men and women may be typical of the civil rights movement's national audience in the years ahead.