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The History of EJS

In the Fall of 2000, several individuals from the progressive legal community began meeting to discuss their mounting concerns about the rightward tilt of the courts and of legal doctrine in such fields as civil rights, environmental protection, voting rights, criminal law, immigration law, and federalism. Like many progressives around the country, we were tired of despairing separately about the rollback of decades of achievements in case precedent, social justice lawyering, and organizing.

Drawing upon the strength of existing progressive legal organizations and forging new alliances with think tanks and research institutes, the EJS core group concluded that the time is ripe for a new coalition of practitioners, academics, think tanks and students to develop and implement innovative legal theories and strategies.

Our Guiding Principles

We believe that the regressive right-wing bias of our federal judicial system is a threat to constitutional democracy, due process, and equality. We believe in a representative, impartial, and independent judiciary. We believe in the role of courts to provide full access to the legal system and to promote equal justice for all.

Guided by these principles, the Equal Justice Society aims to unify and organize those who are interested in generating, developing, and supporting innovative legal theories and strategies to eliminate the conservative bias of our legal system. Specifically, the Equal Justice Society seeks to:

• develop and disseminate new legal theories to help ensure fairness and democracy;
• sponsor forums, presentations and debates on the legal issues of our day;
• mentor progressive advocates to go forth and fight for social justice; and
• forge concrete connections between law students and those who are out on the front lines practicing law, working for justice, developing jurisprudence, and serving on the bench.

The Equal Justice Society: Our Vision 2007-2010

"I am the dream and hope of the slave."
And Still I Rise — Maya Angelou

These words were part of a Jewish Black Passover Seder that took place in San Francisco, California, in 1997. As part of the Haggadah, the prayer book containing the Seder ritual, Blacks and Jews talked of their common historical experience as former slaves. Over time the concept of being the "dream and hope of the slave" came to embody a core value at the Equal Justice Society. Upon first encountering this phrase, one might think it only applies to modern day African-Americans. The kidnapped Africans toiling and suffering in the antebellum South would have marvelled to see a man of African descent running for the highest office in this country. They would love to see how much progress has been made. But upon closer reflection, they also would love the fact that other dreams of theirs had been realized. White Americans also fight for the rights of Black Americans. Native Americans, Latino and Asian-Americans are engaged in the struggle for racial justice.

The Equal Justice Society embodies the notion of struggle in every act it takes, in every ally it works with, in every strategy it employs. Many who struggle for justice in the United States of America turn to the law and the legal system. For decades, the Courts were one place that majoritarian impulses towards bias and oppression could be checked by constitutional and statutory restraint. Though much of the civil rights struggle took place in the streets, the law often opened doors. The Montgomery bus boycott in 1955 was ultimately resolved by a decision from the United States Supreme Court outlawing segregation in public transportation. These forward thinking decisions were often denounced by the opponents of racial justice. Despite this resistance, civil rights lawyers kept pushing forward. The federal courts were used to desegregate large portions of society.

In the 1980s, the Radical Right in this country began to be more effective in its attempt to lock the courthouse doors to those who used the law to achieve justice. This was accomplished in a variety of ways. First, Ronald Reagan used the bully pulpit to devalue the civil rights movement and its leaders. The movement had appealed to America's sense of morality. Reagan decided to cast the struggle as just another "special interest." His Department of Justice took the position that the true victims of racial discrimination were White men. Their legal docket supported this point of view. The legal strategists who surrounded Reagan realized that it was not enough to appoint federal judges who
were competent. The judiciary had to be populated by those who embraced the right wing ideology-an ideology that was against abortions, in favor of deference to the executive and against race conscious remedies for discrimination and bias. The Right also realized that reframing the debate was a key to success. The notion of a colorblind society was to replace the notion of color consciousness that had been embraced by civil rights activists.

The Right also relied more and more on think tanks to devise intellectual support for public policy initiatives. For example, Charles Murray, author of The Bell Curve, was a fellow at a conservative think tank. His assertion that Blacks and Latinos are intellectually inferior led him to two conclusions. He urged as a matter of public policy that welfare benefits be capped after a woman has a certain number of children so she can no longer "breed." He also urged the elimination of affirmative action because Blacks are too mentally feeble to benefit. Both of these ideas became public policy. The Welfare Reform Act of 1996 capped the number of children that can be supported by public aid. Affirmative action programs have been attacked from coast to coast.

The Right realized that it must develop the next generation(s) of activists, so they have spent much time and energy in leadership development of young people. Finally, the Right has been good at coming together to move their larger strategic agenda and vision. They spend much time together sharing ideas and cultivating working relationships that serve them well during tough times.

As this strategy started to reap dividends during the 1980s and 90s, it became increasingly difficult to advance a progressive racial justice agenda. Winning court cases became more difficult. State wide initiatives passed in many states that banned affirmative action, severely restricted reproductive rights, and prohibited same sex marriage. The public was convinced that there was no longer a need to struggle around race. The federal judiciary started to be filled with those hostile to racial justice.

It was against this backdrop that litigators, law professors, law students, social scientists, artists, and activists came together to form the Equal Justice Society. It was clear that there was a need for a strategic approach to social change and racial justice. Individual lawsuits were not going to be enough. We needed to step back and take a hawk's eye view of the legal and political landscape. We convened civil rights lawyers and professors from around the country in Berkeley in 2001 and hired our first staff member, Susan Serrano, that fall. The current Bush Administration and the new members of the Supreme Court have only magnified our challenges.

For the past six years, EJS has engaged in much activity in an effort to be part of a larger progressive community that effectively works for social and racial justice. As we move into 2007, we are focused on race as well as on how the progressive community might work more effectively to advance a progressive agenda.

Putting Race Back on the Table

Putting Race Back on the Table is one of the primary strategies of EJS for achieving greater racial justice in America. In this area we have four major programs targeted to bring about significant change. Each of the programs complements and has both short term and longer term goals. In many encounters we have with attorneys, law students, activists, concerned citizens, our view that race is not discussed or dealt with for the most part in our society, is confirmed. Many people avoid talking about racial issues because they either feel there views will be seen as racist or, in the case of many people of color, there is so much rage and anger, that self-censorship seems to be the safest course of action.

At the level of policy, racial animosities are often used to drive regressive programs. These are known as wedge issues aimed at persuading Whites that they have something to fear from Black people or from Asian or Latino immigrants. The fires of racial fear and latent bigotry are flamed for political advantage. These campaigns are often conducted using encoded language such as "forced busing" and "preferences for unqualified people." Progressive allies frequently do not address race in their work. Politicians want the votes of people of color but fear that too close of an association with racial issues will cost them White votes. The law and the judiciary reflect these ambivalent and often contradictory approaches to the issue of race.

EJS has approached this issue in a variety of ways. Civil rights lawyers were thwarted in their efforts to use the 14th Amendment's guarantees of equality by a reactionary ruling (Washington v Davis) from the United States Supreme Court that requires proof that under-representation of people of color in educational institutions, the workplace, and in the ranks of those who receive government contracts was done intentionally. In an era where a comedian who uses the "n" word maintains that he is not racist, it will be difficult if not impossible to prove that the structural racism that so hampers many people of color was intentionally constructed and maintained. Consequently, we have made dismantling the intent doctrine a key priority.

In one of our first conferences with academics at Stanford, we learned that much bias takes place at the level of the unconscious. If this is so, then the intent doctrine is even more ludicrous. Most Americans do not want to be racist and do not think they act in racially biased ways. Thus identifying and popularizing the notion of the existence of unconscious bias is another one of our strategies.

The opposite of colorblindness is race consciousness, an acknowledgement that race must be taken into account in order to level the playing field. Race conscious affirmative action programs remain under attack with the foreseeable result of the resegregation of large parts of society. The defense of the use of race conscious programs is another priority of EJS.

Finally, EJS knows that litigation, legislation, and public policy debates are not the only effective means of heightening a progressive consciousness around race. Popular culture and media are potent and effective ways of changing and shaping minds. The public relations industry clearly demonstrates that people can be persuaded to see things in a particular manner. Within the past few decades, Americans smoked in large numbers, did not wear seatbelts, and threw garbage out of the windows of their cars. Through the combination of brilliantly conceived and executed public relations campaigns coupled with coercive measures such as law and scientific information, people changed both their attitudes and more importantly, their behavior. The last aspect of our race campaign involves mounting such a campaign on behalf of racial justice.

Connecting the Academy with Practice

This area of our work is a two way street. One direction involves getting scholarly support for the policy initiatives we propose. The other direction involves identifying scholars and students to become part of our efforts.

The genesis of this aspect of EJS comes from two places. 1) The strategists who litigated the cases that resulted in Brown v Board of Education allied themselves with social scientists that were able to demonstrate the harm visited upon Black and White students by racial isolation and segregation. 2) The Right has been able to advance its reactionary agenda by relying on academics and intellectuals who develop new public policy based on research and scholarship.

Since its inception, EJS has worked closely with scholars, professors, and other intellectuals. Our first major conference, "Colorblind Racism?" came about as the result of a series of discussions with professors at Stanford. One of the speakers at that conference, Professor Michelle Alexander, spoke to the existence of unconscious bias as one of the many ways bias and discrimination are manifested. Our 2003 conference in Ann Arbor connected scholars, media experts, lawyers, and activists around the topic of dismantling the intent doctrine and unconscious bias. Our 2005 conference on corporations held at UCLA law school also drew upon the expertise of scholars to help explain how corporations have become so dominant in American and indeed, international society.

National Leadership: Building the Grand Alliance

Dr. King is known for advancing the interests of Black people and to a lesser extent for opposing the war in Indochina in the 1960s. A closer examination of his work reveals that, through the urgings of his strategic ally, Bayard Rustin, Dr. King sought to create a Grand Coalition, an alliance of all groups and individuals who hungered for justice and equality. This meant bringing together women, people of color, unions, peace activists, environmentalists, all who saw the possibility of a better world with more opportunities for more people. King was assassinated working for increased rights and more dignity for the sanitation workers of Memphis.

The Equal Justice Society embraces this vision. We call our efforts in this area, the Grand Alliance. This approach has been most effective in our work on judicial nominations. We have formed coalitions with many progressive organizations such as People For the American Way, the ACLU, MALDEF, the National Center for Lesbian Rights, the NAACP, the Asian American Justice Center, Earth Justice, and the Leadership Conference for Civil Rights to name few. Through developing and deepening working relationships as well as by supporting our allies in their battles, EJS is seen as a good team player. In the parlance of grade school report cards, EJS "plays well with others."

We have brought together our coalition partners to talk about how we might break out of our silos to work together in an effective way. The ability of EJS to consistently sustain this perspective is important because often the response of colleagues is to address only the issues that are germane to their respective organizational missions. We have been able to encourage them to see that we might do better articulating the highest common denominator that advances an agenda that serves us all. That might be universal health care. It might be stopping global warming. We are in the process of determining what issue(s) we might work on in a collective manner. We also have a great opportunity with a more moderate Congress to have hearings on issues of concern to the larger progressive community. We have already met with the staff of the Senate Judiciary Committee to talk about conducting hearings on race. We are part of the larger civil rights community that will be proposing federal legislation to undo some of the damage done to rights in the past twelve years.

Moving Forward

The Equal Justice Society has accomplished a lot in a relatively short period of time. We raised $800,000 in 2003, our first full year as a fully staffed organization. We raised over $1.3 million per year in the last two years. We now have a staff of 10 people. Our Board members are nationally recognized scholars and advocates.

We have just completed an extensive capacity building plan, thanks to the assistance of one of our primary funders, the Open Society Institute. In order to continue our upward trajectory, this strategic plan prioritizes three critically needed new positions to move our agenda. The first three new staff members needed are 1) an attorney who can move our dismantling intent agenda, 2) a full-time communications director who can both craft messages as well as devise and implement our race, media, and popular culture agenda, 3) a development associate who can help us diversify our funding base primarily through a major donor program. We are also seeking an increase in funding for scholar advocates, additional travel, communications, and conference costs.

EJS has established itself as a force to be reckoned with in the field of racial and social justice. With more funding, we can do even more.

Fight Back with EJS By Becoming a Member

Your help is needed in assisting the Equal Justice Society promote a progressive legal, social, and economic agenda. For the past six years, EJS has been working to advance a positive vision for our society while battling the regressive efforts of the Right.

JOIN US TODAY!