Day One: Equal Protection’s Grand Promise and Betrayals: Reconstruction, Plessy to Bakke and Beyond: Is there a Way Forward?

February 18—Thursday

9:00-10:20 am Opening

Ted Shaw, Julius L. Chambers Distinguished Professor of Law and Director of the UNC Center for Civil Rights

Opening Address

Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California at Berkeley School of Law

Explaining the arc of the symposium, from an initial look at the framing of the Fourteenth Amendment and its Equal Protection Clause in 1867-68 through the initial interpretations of the Clause by the Supreme Court, its distortion by latter 19th Century federal, state, and local authorities, the legal efforts to prompt a ‘rediscovery’ in Brown of the earlier vision, the subsequent, half century struggle over the meaning of Brown, the rise of the Washington v. Davis intent standard on the one hand and Bakke on the other, how both of those doctrines have emerged to constrain and limit full Equal Protection in the 21st century, in higher education and elsewhere, and finally, how the Court and the political branches might forge a broader and deeper conception of these core political ideals.

Questions & Comments to Follow

10:30-11:45 am Panel One

Beyond Chattel Slavery: The 39th Congress Frames A New Fourteenth Amendment, an Equal Protection Clause, and “Affirmative Action” Statutes To Assist Newly Freed African Americans


Risa Goluboff, Dean and Arnold H. Leon Professor of Law, (and Professor of History), University of Virginia School of Law


Akhil Amar,Sterling Professor of Law & Political Science, Yale Law School (among many pertinent prior works:“Reconstructing the Republic: The Great Transition of the 1860s,” (with Lindsey Ohlsson Worth and Joshua Alexander Geltzer) in Transitions: Legal Change, Legal Meanings, Austin Sarat, ed.) (2012))

Eric Schnapper, University of Washington School of Law (key article on the symposium’s principal issue is: “Affirmative Action and the Legislative History of the Fourteenth Amendment,” 71 Va. L. Rev. 753-98 (1985)).

Questions & Comments to Follow

12:15-1:15 pm Luncheon Address/Frank Porter Graham Lecturer, 2021

IntroductionJames L. Leloudis, Professor of History, Associate Dean for Honors, & Director of the James M . Johnson Center for Undergraduate Excellence, University of North Carolina at Chapel Hill

Eric Foner, DeWitt Clinton Emeritus Professor of History, Columbia University. Among his many prior works are the magisterial text, Reconstruction: America’s Unfinished Revolution 1863-1877 (1988) and more recently, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (2019).  

About the Frank Porter Graham Lecture: The Frank Porter Graham lecture series honors the late U.S. Senator and president of the University of North Carolina, who was a champion of freedom, democracy, and the disadvantaged. The lecture is made possible by the gift of Taylor McMillan ’60, who established the Frank Porter Graham Lecture Series.

Questions & Comments to Follow

1:30-2:45 pm Panel Two

The Legal Challenge That Yielded Brown v. Board of Education— And Brown’s Evolution During The Succeeding Twenty Years (1954-1975)


Kimberley West-Faulcon, James P. Bradley Professor in Constitutional Law, Loyola of Los Angeles


Michael Klarman, Kirkland & Ellis Professor of Law, Harvard (among his many prior works are From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford Univ. Press 2004) which won the 2005 Bancroft Prize in History, and Brown v. Board of Education and the Civil Rights Movement and Unfinished Business: Racial Equality in American History (2007), as well as an article “Has the Supreme Court Been More a Friend or Foe to African Americans?” 140 Daedalus 101 (2011).

Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, University of Chicago School of Law (among his pertinent works are a recent book, Democracy and Equality:  The Enduring Constitutional Vision of the Warren Court (Oxford Univ. Press 2019), with an initial chapter entitled “Brown v. Board of Education”).

Questions & Comments to Follow

3:00-4:15 pm Panel Three

The Arrival of Washington v. Davis and Bakke: A Judicial Demand for Proof of “Invidious Intent,” & The Ironic Cry from Whites for Equal Protection (1976-2014)


Erika Wilson, Wade Edwards Distinguished Professor of Law, University of North Carolina School of Law


Elise C. Boddie, Henry Rutgers Professor, Rutgers Law School (among her pertinent articles are: “The Constitutionality of Racially Integrative Purpose,” 38 Cardozo L. Rev. 531 (2016); “The Future of Affirmative Action,” Harv. L. Rev. Forum, Nov. 10, 2016; “The Indignities of Colorblindness,” UCLA Law Rev. Discourse (2016)

Girardeau A. Spann, James and Catherine Denny Professor of Law, Georgetown Law School (among his pertinent publications are a book, The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race & Remedies (NYU Press 2000); and articles including: “Good Faith Discrimination,” 23 Wm. & Mary Bill Rights. J. 585, 585 (2015);  Fisher v. Grutter, 65 Vand. L. Rev. En Banc 45, 48 (2012); “The Conscience of a Court,” 63 U. Miami L. Rev. 431, 432 (2009); “Affirmative Inaction,” 50 How. L.J. 611, 612 (2007).

Osamudia James, Professor and Dean’s Distinguished Scholar at Miami Law School (through 6-30-21, after which she will come to the University of North Carolina School of Law) whose prior pertinent articles include The Innocence of Bias, 119 Mich. L. Rev. __ (2020); “White Like Me: The Negative Impact of the Diversity Rationale on White Identify Formation,” 89 N.Y.U.L. Rev. 425 (2014); and “Opt-Out Education: School Choice as Racial Subordination,” 99 Iowa L. Rev. 1083 (2014).  

Questions & Comments to Follow

4:15-5:30 pm Afternoon Address

Bakke’s Cruel Consequence:  The Disappearance of Black Voices in Affirmative Action Litigation

Ted Shaw, Julius L. Chamber Distinguished Professor of Law, University of North Carolina at Chapel Hill. Former Director-Counsel, NAACP Legal Defense Fund

Questions & Comments to Follow