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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, November 06, 2015

Brown v. Board of Education Orals

The Brown v. Board Landmark Cases episode is in a few weeks but read the oral arguments of the cases (two sets, the second dealing with history and remedy, not the third involving remedy) edited by Leon Friedman. They might have been re-released (originally in the late 1960s, explaining why various people are cited as still alive) for the 50th anniversary of the ruling. The matter was also discussed here as part of an originalism discussion with various comments by me, including in answer to a precious sort that wondered why it is deemed so special.

Some more might be added when the episode comes, but a few things do come to mind.  First, we have Plessy v. Ferguson, a 8-1 ruling that a brief clip at the episode link has Alito confirm (let's not be too controversial) was wrong when decided. Another link has Scalia using Justice Harlan's dissent as a way to show how he could be originalist and part of the Brown majorityAs I noted in comments here, Justice Harlan actually separated (ha) segregation in public schools from that of public accommodations, even while rejecting mandating segregation in a private incorporated college.  He also voted without comment with an opinion that treated interracial fornication differently so did not think at the time that interracial marriage was protected either. An originalist with a poor sense of history?  Who knew?

The excellent Harvard speech provided above arguably at least partially defends Plessy, noting in the 1890s that "separate but equal" would be seen as a big deal when actual slavery was still fairly fresh in the memory of the writers. This doesn't change the truths in the minority (apart from the comments supporting white supremacy) or the that some people even then realized mandated segregation by race was illegitimate. As noted by a 1960 article by Charles Black (a Texas boy), as well as Justice Harlan (a previous slaveholder), everyone knows segregation arose out of and promoted racial caste.  Consistently admitting this and protecting equal protection of the law took a lot more time, especially for "social" equality.  This took time and in the process society and the law changed.  The "living" nature of the constitutional law was cited a few times in the oral arguments here.

The oral arguments were interesting though at some point did get a bit repetitive. A general point was that there was a lot of evidence, especially by looking at what they did, that state mandated segregation in education was not originally deemed to be unconstitutional. The way to avoid this was to try to show (rather unconvincingly) a clear statement in this respect was not formally stated even as Congress repeatedly provided funding for separated schools.  More helpfully, appeal to broad principles, including in court opinions, and occasionally remind people that the system is obviously racially unequal by the facts on the ground and motivations of the parties.

The government argued segregation was a positive thing, including for black self-worth, and that it was doing so much to promote education for blacks. Again, going by Souter's words, early on, this was more impressive than it was in the mid-1950s, especially given public education itself was in its infancy many places in the Civil War era. The changing times approach, including the growing and central importance of the civil right of education was also cited in Justice Jackson's unpublished concurrence (which I have in hard copy somewhere but cannot yet find online), again softens the blow some. Also, particularly South Carolina and Virginia, much was made on how much was being spent to equalize education. The fact this was a result of litigation where they failed in court to even meet the "separate but equal" test was not emphasized.

At times, the government had a point -- Justice Thomas is not the only leading black voice who has suggested that integration is not necessary for black education to thrive, and the value of same sex schools is also promoted by some.  Thus, we have the segregationist lawyer John Davis quoting W.E.B. Du Bois on the value of black schools!  In a vacuum, especially in a racist society, segregation might be defended. And, some of the psychological research provided has been shown to be weak, down to the famous doll study.  But, Charles Black was right too -- we know what was going on here.  The black students lawyers and even the justices at this point might down play it some, but segregation was part and parcel of a racist system. And, the schools weren't equal -- as noted at one point, even with the huge influx of cash for repairs etc., the spending was not equal.

There was also a major division among the parties here. The state ruling in Delaware, a border state, actually held for the students.  The schools were not "equal" and black students had a right to go to better white schools. A lower court in fact found that separate was inherently not equal, at least in the state in question, but that as a matter of law this did not matter.By the end, multiple members of the D.C. school board were ready to integrate. The stance of Kansas might be suggested by an account later written by the lawyer involved -- A Time To Lose.  And, like in Delaware if more so, the court below found as a factual matter that separation was not equal, but finding its hands tied given current law.  S.C. and Virgina was much more gung ho and the aftermath was a lot more harsh in those places.

The federal government played an important role here as well, particularly because it was determined (though the President himself was less gung ho) that segregation was a bad for foreign relations. Like for SSM and previously for other Warren Court landmarks such as prayer in school caes and "one person, one vote" matters, the fact the President was officially on board was a big deal.  Two major influences to the final opinions also are seen from the oral arguments here. One, the idea that history is inconclusive in respect to school segregation.  Hard to tell from the argument transcript, but perhaps the brief was more detailed on making the case there.  Two, as to remedy, "all deliberate speed" was cited.  Some accounts, from my reading, suggest Justice Frankfurter suggested this approach.  Perhaps, he did, but the government here as well.

The students' lawyers accepted that there would be administrative issues to settle and that this would be largely a public policy question. But, they felt it appropriate to handle things here within a year. Justices Black, the Southern justice most supportive of the justice of the ruling, also felt immediate relief would be appropriate. Realistic up to a point -- who would enforce this quick taking off of the band-aid approach? He knew there would be strong opposition, but saw little benefit in trying to string things along to obtain more support by a sign of moderation as good faith. The drawn out battle was a tragic result, "tragedy" here in its classical sense of something where bad things came out of good intentions.

I discuss Brown (states) and Bolling (D.C.) here and generally find them reasonable opinions. The federal case is very brief but provides precedent that show that due process includes an equal protection component especially when racial discrimination is involved.  It wasn't novel to this case. Likewise, Hurd v. Hodge is cited regarding the principle that if racial segregation is unconstitutional as applied to the states, it is clear without more that so it is for the federal government (there it was regarding racial covenants).  As to Brown, as with law and graduate schools, separation was deemed to lack a certain something.  Plus, with cites to two opinions below and the infamous footnote summarizing research, it was held to promote a sense of inequality.  A small doll study etc. might not be enough to show that, but did opponents really want to deny the ultimate conclusion?

[Jack Balkin edited a collection of opinions spelling out how different law professors would have written the opinion and like his similar effort for Roe v. Wade, it is worth looking over. A bit too precious all the same.  CJ Warren was written in a specific time and place, trying for a simple unanimous ruling that was acceptable enough for the PTB at the time. All things considered, he did an pretty good job, even beyond some of the creative arguments offered in that book that are nice thought experiments but less likely to be applied in normal course of the law.]

A few final thoughts. The sense that the rulings were but a logical next step should not let us ignore that a gigantic step forward was being made. The breadth of the problem here and the significance of the change in society -- even without the upcoming per curiam orders applying it to parks etc. -- was greatly different than for a few members of law schools and the like. And, bluntly overruling Plessy, the partial burial soon shown to be complete, was a big deal.  Next, this was a major act of judicial activism, in the positive sense of the word.  Once you make such a big step in the face of so much opposition, others will come. And, so it was in education alone, the importance and equality principles logically applied to prayer in schools and protection of rights of students to areas such as free speech.

Finally, and I'm sure I left something out, some have belittled the ultimate value of the rulings given that school segregation continued and de facto at least inequality continues today. But, putting aside that even as to border areas and elsewhere true integration occurred (and even before the rulings, efforts were being made to improve black schools), the USSC formally holding that segregation was unconstitutional was a BFD.  It might have taken time for Congress, for example, to use the spending power to pressure integration, but the nation was put on notice that race based segregation was unconstitutional.  To reference Martin Luther King Jr., the promissory note was there, even if it was not yet (or even today) fully paid.

ETA: One somewhat interesting wrinkle, other than a few references to segregation here being a sort of "bill of attainder" (somewhat weak argument since it isn't really an intentional penalty; sort of a title of nobility the other way) are references to school cases like Meyer v. Nebraska to reference a "liberty" of education being unduly invaded and a related case involving Hawaii, then a territory, and thus a federal matter.

The merits however are somewhat different here and to the degree such cases totally denied the ability to let's say teach in a foreign language, not quite comparable.  But, it does provide a useful hook both for a "liberty" claim and application of rights to states made to the federal government too.


* Segregated schools were accepted multiple times by the Supreme Court even if it never directly ruled upon the question like they did in Plessy; attempts by one side to avoid this again was not very convincing.  Nor was it likely that deep down even they themselves were convinced. They were there to have the precedent overturned. They succeeded there though the limits of the law itself to change things also came to pass.

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