First off, who heard of playing hockey on ice in June ... in Carolina?
A couple years ago was the 50th University of the handing down of Brown v. Bd. of Ed., which struck down state mandated segregation in public schools. C-SPAN had an interesting discussion panel involving a few of the surviving participants (lawyers and such ... Linda Brown, the lead student, would have been an interesting counterpoint, especially since decades later she herself joined a suit saying segregation continued -- housing patterns and so forth makes things even more segregated in many areas, especially in the North, than in the past. Sadly ironic.).
Anyway, it was an apt time to republished a compilation of the two oral arguments (with footnotes explaining various opinions and individuals cited) that was first put out by Leon Friedman in 1969. This sort of thing eventually was a bit tedious, since there is just so much you can say when you have ten arguments on largely the same issues. The South generally underlined that they was doing so much (after being forced) to equalize Negro schools (at some points sounding like havens, which might have confused the students there) and separation was really for their own good. The other side basically said that it was purely racism, and even when Congress upheld segregated schools in D.C. they really did not seriously consider it legitimate under the Fourteenth Amendment.
The oral arguments are pretty interesting, even if one gets the idea that no side -- including the Assistant Attorney General of the U.S. who raised the term "deliberate speed" respecting remedy [the Supremes added "all" in, but the phrase is usually given to Justice Frankfurter per Holmes without noting that the feds in effect signed on to it as well] -- was really completely honest about the whole thing. The opinion was somewhat more so with its "living Constitution" approach (including on the changing status of education) though a bit too much weight is given to it -- a truly landmark ruling on race is not quite the same thing as some other case on another matter.
John Davis, the great advocate and presidential candidate, managed to use W.E.B. DuBois (a move used in the TV. movie with Burt Lancaster) and Gunnar Myrdal (cited by Brown in the infamous "Footnote 11," but again I never heard it noted that this nefarious foreign commie sort was mentioned by Davis) as well as providing a retrograde view of that "tragic era," the Reconstruction. Thurgood Marshall provides a good foil, but some of the other arguments are interesting as well. The AG, for instance, hit upon (with prodding from the justices) some real life problems, suggesting future perils in remedy.
An honest approach, mentioned a few times including by the justices, is that times have changed. Segregation might have been appropriate, at least left open (clearly it was in practice) by the Constitution, once upon a time. Thus, public education and the status of blacks in society has changed so much since the 1860s that it is wrong to assume that equality now would allow separation of the races in education, even if it was legitimate in the past.
This is the problem with shallow appeals to history -- sometimes you have to look at the basis of the practice, which is partly why Justice Scalia really gets into trouble on various issues. I think this matter can be attacked head-on, though it seems that advocates feel more comfortable with dealing with things a bit less bluntly. This confuses things, leading me to view things in various cases through a certain different perspective even if I agree with one side's bottom line.
[Justice Jackson, including both on the "living Constitution" approach and fears that remedy would be a mess, was on the money as an unpublished memorandum and some of his comments during orals showed. He also bluntly noted that the reason the Court was involved was that Congress failed to do the job. The "concurrent jurisdiction" of the courts on this matter was addressed by the arguments, while the South basically said that is true but there just is no authority to force desegregation.]
Oh well, I have a lot to say these days, huh? Anyway, this entry was supposed to be about a certain important civil rights case from the 19th Century that had effects into the 20th (and perhaps beyond). Proof that history can inform, especially if looked upon the right fashion. Let us now deal with this specific matter.
It is urged, that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence, and we cannot say, that their decision upon it is not founded on just grounds of reason and experience, and in the result of a discriminating and honest judgment.
The increased distance, [a fifth of a mile*] to which the plaintiff was obliged to go to school from her father's house, is not such, in our opinion, as to render the regulation in question unreasonable, still less illegal.
Charles Sumner, a couple years before being elected senator, defended a father's right to send his young daughter to the nearest school. Unfortunately, at the time, the city schools were segregated by race. So, he sued, in part because he knew Massachusetts was rather liberal on the race question, including CJ Shaw of the MA Supreme Court. He lost and the ruling was so precious that it was cited in Plessy v. Ferguson, the ruling that upheld segregation on public transportation. Not quite the same thing -- brief relations, including among friends and colleagues, of this sort is not exactly akin to children going to school together. Nonetheless, the act of "angels" in such a matter works well for the "devils."
Roberts vs. The City of Boston (1849) as a ruling leaves something to be desired. It really is all blather with the real holding cited at the very end of the ruling, the quoted language. Yes, equality is in place, but equality is not really absolute in practice ... you know, women are treated differently than men. And, schools generally have much discretion over their operation, thus questions like what sort of teachers are hired or the groupings of the grades are left to the discretion of education committee. Toss in filler like: "Legal rights must, after all, depend upon the provisions of law; certainly all those rights of individuals which can be asserted and maintained in any judicial tribunal."
Then, finally the matter at hand is truly faced. Prejudice exists ... the government here is just trying to handle its effects. In the process, of course, it is furthering the practice by separating the two groups from the time they are five years old. Is this truly something that "may well be doubted?" If anything, it is worthy of a bit more discussion than assuming nothing is wrong with the practice being challenged. Of course, one problem with Plessy was that once the Fourteenth Amendment was ratified, race classifications like this could not just legitimately be accepted with so little comment. But, a problem with this case was the acceptance of something as a given ['reasonable'] when it really was not.
Even "liberals" do this -- segregation was accepted by Justice Brandeis too in the one pre-Brown case [Gong Lum v. Rice, involving a Chinese student who was refused entry to a white school] that actually dealt with the matter -- accepting the policy as legitimate. And, they can reason quite well, taking certain "givens" for granted, along the way.
[The segregation policy was revoked about five years later, but Sen. Sumner never could get Congress to accept that: "The separation of children in the public schools ... on account of color or race, is in the nature of caste, and is a violation of equality."]
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* Prior History: "The school established in Belknap street is twenty-one hundred feet distant from the residence of the plaintiff, measuring through the streets; and in passing from the plaintiff's residence to the Belknap street school, the direct route passes the ends of two streets in which there are five primary schools. The distance to the school in Sun Court street is much greater. The distance from the plaintiff's residence to the nearest primary school is nine hundred feet. The plaintiff might have attended the school in Belknap street, at any time, and her father was so informed, but he refused to have her attend there."