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Harvard Law professor Guy-Uriel E. Charles discussed the decline of what he termed the “civil rights consensus” — a set of legal and political ideologies coming out of the American civil rights movement — at a Harvard Law School talk on Thursday.
The lecture, titled “Identity Crisis: The Future of Racial Equality in the Twilight of the Civil Rights Consensus,” marked Charles’s appointment as the Charles J. Ogletree Jr. Professor of Law. Harvard Law School Dean John F. Manning ’82 moderated the event.
The professorship was established in honor of Ogletree, a public defender and law professor who taught at Harvard from 1984 to 2020. During his career, Ogletree advocated for racial justice, represented public figures including Tupac Shakur and Anita Hill, and founded the Charles Hamilton Houston Institute for Race and Justice at HLS.
Charles described the civil rights consensus as typified by Supreme Court cases — most prominently, Brown v. Board of Education — and legislation — the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Fair Housing Act of 1968, and the Immigration and Naturalization Act of 1965. He argued that these shifts recognized that America’s history of racial discrimination compelled legal conditions that provided extra protections for minorities.
“As a matter of formal law and also as a matter of political morality, non-white others have special standing and must be accounted for within the constitutional, political, and economic order,” Charles said of the civil rights consensus.
Nonetheless, Charles said that legislation within this framework, like the Voting Rights Act, often targeted only the worst instances of discrimination, rather than establishing more robust structures of equality. Courts allowed efforts toward legal equality to move “only so far and only so fast,” Charles said.
Though courts recognized legal claims that prevented resources from being denied on the basis of race, they did not require that the resources be provided in the first place, Charles said.
“You don’t have to provide a material good, but if you do provide it, you must do so without excluding people because of their race,” Charles said.
For example, in the 1971 case Palmer v. Thompson, the Supreme Court allowed the city of Jackson, Mississippi, to close its public swimming pools instead of integrating them.
Charles said he believes the civil rights consensus is in decline and that society and the courts “are increasingly less committed to the proposition that non-white others have distinctive claims on the polity because of our history of discrimination.”
Instead, he argued, they are embracing the model of anti-classification, which deems race-based legal distinctions illegitimate. As the Supreme Court prepares to hear Students for Fair Admissions v. Harvard, Charles predicted that the Court will find that “race-conscious admissions policies are no longer consistent with the law.”
Beyond that, Charles said he thinks rising racial antagonism and controversy over critical race theory demonstrate renewed conflict over the process of reconciling America’s racial history with its national identity.
He laid out several possibilities for the future politics of race in the United States: rising class-based consciousness, heightened partisanship, conflict between liberalism and illiberalism, unified national identity, or racially essentialized tribalism.
Before Harvard, Charles taught at Duke Law School and the University of Minnesota Law School. He received his J.D. from the University of Michigan Law School. His legal scholarship has focused on political processes, race, and power.
“My work has been animated by trying to understand what we owe each other as self-governing people,” Charles said.
