Remarks by Jane Sherburne at the 2011 Brennan Legacy Awards Dinner

Thank you Michael. I value your leadership of the Brennan Center for Justice and even more, your wonderful friendship over the years. Bob Morgenthau, I have been an admirer from a distance and am humbled to share this honor tonight with a man of your stature and accomplishments. I would like to recognize my husband, Bob Van Heuvelen, who is here tonight and always supportive of everything – or nearly everything – I do. I am also grateful to have so many colleagues here from BNY Mellon – thank you and our great company for your support. And of course I want to thank my many friends here tonight and distinguished guests.

Aren’t we glad that our country has the Brennan Center? There is no question that we are living in challenging times.

And I don’t say that as the General Counsel of a major financial institution – though I could. No, I say that from the perspective of someone who has paid attention to public policy issues in one form or another throughout my career, hopefully in the spirit of my mentor and role model, Lloyd Cutler.

The mood in the country is nasty – aspiration for a better way of life and a sense of promise about what is possible have given way to loud complaints about haves and have-nots, and the role of government in messing with it at all. In the midst of this noisy debate, comes a renewed challenge from the University of Texas to the use of affirmative action in higher education. My work on the Michigan affirmative action cases nearly a decade ago was perhaps the most satisfying of my career and much of it was inspired by Justice Brennan when he set the stage in Bakke – so I thought I might take a few minutes to reflect on the implications of reconsidering affirmative action.

Race continues to be a defining characteristic in our society. We still live in segregated communities, go to largely segregated churches and schools. We rarely dance at each other’s weddings or cry at each other’s funerals. We still hardly know each other at all. How can we begin to find solutions to the ways in which race still separates us when the framework of our lives continues to isolate us from one another?

The expert case we developed in the University of Michigan affirmative action case established the benefits of a racially diverse student body by presenting empirical proof that people educated at colleges and universities with a diverse student body are more likely to move through their adult lives with racially diverse friends, live in integrated neighborhoods and work with diverse colleagues.

How surprising is that? Think about it. Social scientists tell us that college years are the time of life when character is shaped and determined, and the degree of comfort one has with difference is established – and how that turns out for a young person will be deeply influenced by the range of experiences to which young people are exposed during those key developmental years. Comfort with difference leads to tolerance of difference and it produces adults who are not comfortable with points of view and problem solving approaches that are polarizing – that favor the interests of one group without acknowledging or trying to understand the legitimate interests of another. If we want our young people to develop into tolerant adults and effective problem solvers we have to create places for them to get to know one another. And if these places aren’t created naturally, we need to create them artificially.

I’ve seen how this works recently in a powerful way – not with respect to race in America, but how that lesson can work in the context of the Middle East conflict. Last summer we hosted Tomer, a young Israeli student, and Samer, a young Palestinian, in our home. These kids were participants in a peace program, self-selected to be sure, but were plainly wary of one another and arrived filled with suspicion and tentative about the possibility of bridging the vast gap between them. Living together in the neutral territory of our home enabled these young people to take risks and get to know each other. It was incredibly intense for all of us. Their experiences were raw; their anger often erupting from just below the surface where it seemed to reside perpetually.

The challenge was apparent on the very first evening, when Tomer complimented Samer on the beauty of Jenin, Samer’s home town in the West Bank. The sweet moment of the compliment evaporated into sullen silence when it became clear Tomer only knew of the beauty of Jenin because he had been stationed there during his service in the Israeli Army. The conversation quickly moved to safer topics.

Later that evening, when they chose their bedrooms, Samer, knowing that our Israeli student from the prior summer had occupied the bedroom in our basement, exclaimed at Tomer’s choice of the same room – “Why do Israeli’s always seem to prefer basements!?” Tomer, coolly replied – “Because we have spent so much of our lives in the safety of bomb shelters.” Uneasy laughter followed.

But over the ensuing weeks, these tense moments gave way to frank discussions, over meals prepared together, and lots of beer. Though they continued to disagree passionately, Tomer and Samer, got to know each other. We saw them develop respect for each other’s views and a genuine friendship.

Samer, our Palestinian son, summed it up in the starkest of terms:

Now, he explained, when he hears that a Palestinian rocket struck targets in Haifa, instead of cheering, he will worry for Tomer’s family. That seems like progress to me. And a sentiment born of confronting and living with difference.

These young people experienced what we learned with our work on the Michigan case – whether in the context of overt hostilities in the Middle East or the more subdued forms of racism that have evolved in the United States – we need to create places where people learn to become comfortable with difference and value it in their lives. It is fundamental to the creation of a citizenry that is tolerant, capable of finding common ground; solving problems in inclusive and thoughtful ways. Becoming that sort of place should remain a legitimate goal of our public educational institutions when composing their student bodies.

Looking for the way to thread this needle is no longer my day job. Fortunately, we have places like the Brennan Center and the Lawyers’ Committee for Civil Rights, where finding the way forward on issues like this is exactly their sweet spot. Of course we all wish we had the wisdom and courage of Justice Brennan on the Court as it tackles issues like affirmative action. But we are incredibly grateful that we have the next best thing – his living legacy, the Brennan Center for Justice.