Transcripts For CSPAN3 1956 Southern Manifesto 20240713

Shortly. Let me tell you a few things about Justice Kagan you may not know already. Born in new york, raised in new york, educated at princeton, oxford, and Harvard Law School, then became a clerk to judge admiral mick flip on the d. C. Circuit followed by clerk justice, and a couple of years of law practice, then in 1991, i can be mia teaching at the university of chicago law school, where she met professor barack obama. Two years later, invited back to washington to work for the Senate Judiciary committee of the special counsel, at the request of the chairman and senator joe biden. Two years later judge make the becomes white House Counsel for president clinton. Justice kagan is asked the come to the white house to serve as an associate white House Counsel. Stays there for a couple of years and that rule, and two more years and domestic policy rolls on behalf of the Clinton Administration in the white house. And president clinton nominates Justice Kagan, but the republicans have no interest and confirming judges at that time so that does not come to pass she then returns to academia this time at Harvard Law School joining she then returns to academia, this time at Harvard Law School, joining the faculty there, where after four years, she becomes the dean of the Harvard Law School, first woman dean of Harvard Law School. Six years after that, president obama invites her to become solicitor general. First woman solicitor general that weve ever had. And then only one year after that, Justice Stevens retires and president obama names Justice Kagan to the Supreme Court. Shes now going into her 10th term here and were very privileged to have her as the host of this evening, Justice Kagan. [applause] Justice Kagan thank you, jerry, so much jeremy, so much. As you could tell, i couldnt keep a job. [laughter] Justice Kagan thank you for everything you do and for everything that society does for the Supreme Court. This are Historical Society does extreme the good work in reminding people of the importance of our constitution and our judicial system and its history. And were deeply appreciative. This evening marks the second of the societys 2019 leon silverman lecture series, which is devoted to dissent in the Supreme Court. On the way over here, professor justin driver and also jerry libbon reminded me that ive written a few of those. [laughter] Justice Kagan tonights speaker is professor justin driver. He is professor of law school. He teaches and writes in the area of constitutional law, and he is the author, most recently, of a book called the schoolhouse gate, public education, the Supreme Court, and the battle for the american mind. That book got rave reviews. The Washington Post called it masterful, named it one of the 50 best nonfiction books of 2018. Not to be outdone, the New York Times called the book indispensable. It was a finalist for the american bar associations silver gavel award, and shortlisted for the five attic kappa Ralph Waldo Emerson award. Professor driver has a distinguished publication record in the nations leading log reviews on all matter of subjects relating to education, race, and constitutional law. Among the other prizes excuse me. He has also written extensively for general audiences. You might have seen his pieces in slate, the atlantic, the New York Times, the Washington Post, and the new republic. Hes a member of the American Law Institute and of the american constitution societys academic advisory board. Hes also an editor of the Supreme Court review. Professor driver received his ba from brown university, a masters in modern history from modern college oxford, where he was a marshall scholar, and his jd from Harvard Law School, where he was editor of the harvard law review. After graduating from harvard, professor driver clerked for judge Merrick Garland, Justice Stephen breyer, and justice oconnor, sandra oconnor. And i dont know where this rings on the list of professor drivers compliments, but professor driver accomplishments, but professor driver was also a student of mine. And i can tell you from those longago years that he is super smart and super thoughtful, with a very kenai for keen eye for fascinating historical subjects. So you are in, as i am in, for a real treat, justin so you are in, as i am in, for a real treat, justin driver. [applause] hey, so ive been introduced by a lot of people over the years, but i have to confess it is an odd sensation to be introduced by a Supreme Court justice. Perhaps one of the few things more still is being in the audience odd still is being in the audience when he introduces a law professor. It must feel like a really fancy restaurant where the main course arrives before the appetizer. Its a sort of proper standard of affairs has been woefully inverted. It was Justice Elena kagan or doing the intro tonight makes it all the more thrilling for me. Not only did i have her as a professor, i was also a thirdyear law student at harvard when she became the dean. And she transformed that institution. I saw it happen almost overnight. There was free coffee for students. [laughter] there was an ice skating rink. Students were smiling. These were all new things at Harvard Law School. [laughter] and she did this not only in a wholesale way, but also in a retail fashion. In my third year, i was trying to decide which various esteemed federal judge of is going to clerk for after i graduated. I understand these are very much first world problems, but what was me. Woe was me. So with all the temerity a law student could muster, i decided to place a phone call to the new dean and ask her about my predicament. And she may have had slightly more pressing matters in front of her, like fundraising or reconceptualizing the entire sort of landscape of Harvard Law School. Nevertheless, she called me back and she called me back quickly. And so i said, dean kagan, should i clerk for judge Merrick Garland . Or should i clerk for judge x . And she said, pretty diplomatically at the beginning at least, theyre both wonderful judges. And then her voice sort of lit up, and she said merrick is a friend, and she went on to say i think he would learn a lot from him. By the intonation, it was clear that i had a lot to learn. [laughter] dean kagans import intervention was extremely helpful. Because my year with judge karlan was wonderful. Not only because he help me get to the Supreme Court of the United States is a law clerk was indispensable in that effort, but more importantly because of the intrinsic experience of that. Year the opportunity to work up close with a person of judge marlins towering intellect in judgment, so im very grateful to you. Youve got a promotion didnt you. I should also say it is odd for me to be here because i grew up in washington d. C. A grand total of 3. 4 miles away from where i am right now, and if i tell you that i grew up out in pennsylvania avenue south and east across the river, you will understand that it is far from amicable. Its an incredible improbable journey. Im really glad to be, here it took a lot of help to get here and many of the people who helped me are in this room today, and i am grateful to you. Okay, so the truth is that the origins of this lecture date back to my time at the university of texas when i was beginning as a law professor, and i was writing a paper that touched on brown, and i wanted to cite this document, the southern manifesto, for the proposition that it was openly and their virulently racist, major racism, unsettle racism. I got a copy of the southern manifesto and i read it once and i read it twice and it did not say what i thought it said. And so, i thought, maybe there is really something to this project. And im going to take it off, so im very grateful to the Supreme Court Historical Society for inviting me to talk about this document that is largely been forgotten today. Being here is a true honor for me. Okay, on march 12th 1956 United States senator Walter George read aloud the document on the senate floor, it was formerly called the defibrillation of principles, no one called it, that everyone called it the southern manifesto, including the people who signed it, its a document that 19 senators and 77 congressman signed all from the former confederate states, and this is two years after brown versus board of education. They say that it was wrongly decided, and they urged it to be reconsidered. So george was tapped to introduce the document in the senate because he was the statesman among the southern delegation. When he was done, his youngest colleague in the southern delegation step forward, this was senator thurman from south carolina. It was his rage, he was the one who conceived of a unified southern statement to push back against brown, and he said i am constrained to make a few remarks at this time because i believe historic event has taken place today in the senate even those who disagreed with thurman and the southern manifesto thought that he was correct in viewing it is a historic occasion. Sandra national makan mayor of michigan said it was historic even if its not the history that americans can be proud of. In 1956 people were obsessed with the southern manifesto. Certainly in law schools. Many of the towering figures of academia at the time wrestled with the southern manifesto these are people like outstanding ripple, Charles Thurman and paul flowing all dedicated a lot of attention to the southern manifesto, as late as 1960, two he dedicates several pages, it is safe to say that the southern manifesto no longer occupies the pace in the minds of legal scholars. The manifesto no longer occupies any place there at all. Instead, within the legal literature. The southern manifesto invariably appears in passing. One way to some other destination. Looking at the fleeting invocations of the manifesto, one has the nagging suspicion that the document has been cited a good deal more frequently than it has been bred. The manifestos marked inundation is my mental because the debate that it generated contained essential lessons for legal audiences, examining the manifesto does nothing less than recast dominant understandings of brown versus board of education. Which is what the most closely scrutinized case from the 20th century. So a law professors have lavished a great deal attention on brown. Precious little has been paid to the opposition to brown. And that is a mistake in my view. Because a close examination of the manifesto adds some sorely needed men of complexity to this that typifies scholars references to the southern manifesto. We are covering the complexity the manifestos drafters displayed in brown. Provides the pervasive stereotype that breeds segregationist says being enraged, unsophisticated. To the contrary, and their efforts to preserve segregation, many senators and congressmen demonstrated lee biloxi to be considerably more calculating, self aware, and legally sophisticated, that is commonly appreciated. So, heres what im going to do over my next bit of time here. I am going to focus on the text of the southern manifesto, precisely because it is so misremembered as to what the document actually says. Im going to step back and place the document in context. Part of the way that one needs to do that is to see what sort of arguments do not appear in the manifesto. They may have anticipated. And the troops of the segregationist opposition to integration. And its helpful to think about the various strategies that Southern Strike segregationist came up with infighting brown versus board of education. We think of the segregationist today as being rigid, inflexible, and in fact they were crafty, and supple. Even if wrongheaded, of course, in the cause that they were attempting to fight so finally as i step back and examine the legacy of the manifesto, and its tempting to think that there is no connection to modern realities, and in fact that would be false, not only does one here does this force and ordinary places where my overarching aim here is to offer absolution. During a period of a march toward racial justice. The manifesto backers head headlong into the opposite direction. The attempt to sustain the system was an atrocity. I detest the cast system that they sought to defend. But vehement disagreement with the underlying views of the manifesto should not prevent us from understanding what arguments they advance why they frame those arguments of these did, and how those arguments resonated within the context of those times. This work is vital, not ja5 p h for appreciating one of the nations most legal transformation and all its complexity, but also for appreciating the continuitys that stem from that earlier era. So what was the southern manifesto . We when people think about it today, it is very much and shrouded in in the fact that they think about it all. We think of segregationists as having temporarily taken leave of their senses, and that the southern manifesto is a scurried that sounds like nothing so much as a latter day rebel yell. When describing the manifesto and its signatories, commentators, say that it was driven by fear anger and mental illness. Just about any emotion or condition that reduces or eliminates rational thought, we hear that the manifesto was, conceived with anger, that it was bristling with angry words, and that it had an ugly vehemence, people say about the signers that they were fanatics aggregation this. This sort of line of thinking finds its height and richard bloombergs simple justice. A truly great admiration. Nevertheless on this one he says the southern manifesto was, and ejaculation of bile and an orgy asked a declaration of defiance. Lets evocative language and if one reads it is hard to square with whats actually on the page a, close examination of the manifesto undermines them assumption that they were blinded by rage. To the contrary they oppose immigration the contains considerable more nuanced, subtlety, unsophistication then their tractors have allowed. Recovering those arguments entails allowing one to understand how the manifesto in significant ways can be seen as the missing to brown versus board of. Education one thing about the text it should not be surprising that its filled with legal arguments, after all, the people who were the devising the southern manifesto were legally trained was summit or sand arming a justice on the North Carolina Supreme Court. Along with serving, there was a senator jon stillness of mississippi, a graduate of the university of virginia, so these folks were quite legally sophisticated in the arguments that they advanced, when the southern manifesto is cited, it tends to be just the first sentence, the first sentence reads, the on warranted decision of the Supreme Court in the Public School cases is now bearing the fruit always produced when men substitute naked power for established law. You know, the phrase naked power. May strike some people as heated language. But i went back to look and see where this language appeared. Even the most sober and buttoned down academics use that very language at the time. Herbert worked for the columbia law professor in his famous article towards neutral principles of constitutional law. Uses the same language of naked power with regards to board versus education. Without language at all alone, it sort of allows people to misunderstand what was at the core of the argument. They used overwhelmingly traditional methods of constitutional interpretation they spoke about originalism they spoke about constitutional text, they spoke about president , they spoke about constitutional structure, they spoke about provincial considerations and they spoke about tradition. This. , i saw a half. Racially separate swear. With the original understand they also might play they say that. Search constitution for education will not find but i sometimes think it is the control cafeteria seats there. In other stuff you dont want to push back. By the time alex pickles so it is true that the term air force does not appear in constitution either, but the president s authorities commander in chief was not consequently the last. They also spoke about president we are thinking here about policy forces ferguson from 1896 reverses rice for meeting 97 that did not involve schools and the money that is to say people have ordered their affairs in reliance on village amid a sea of segregation of schools they claim has come along and pulled the rug out from under them. We also spoke about constitutional structure here. Were thinking about principles of federalism not surprisingly. Neil so say that this was illegitimate as a decision from the Supreme Court of the United States the framers of the constitution have article five which goes to the constitutional amendment and that is the proper place to lead to the integration of schools also the separation of powers. And then they also spoke about tradition which professor refers to the ethos of the constitution and they say that the decision disregards the sort of respect for the parental control of education. Here they cite the purest versus society of sisters from the 1920s which says that the child is not in your preacher of the state. They say this decision is that odds with that tradition the final argument that they made was a consequential list when they say that if brown is actually implemented it will lead to chaos and confusion and it may even lead to the closing of the Public School systems as a whole and so we would get rid of our Public Schools as i suggest, the southern manifesto overwhelmingly issued the naked lee objectionable nation rhetoric of the time this is one area where they did slip up however, and they write the following. Brown is destroying the amicable relations between the right and knee grow races that have been created through 90 years of patient effort by the good people of both races. It is planted hatred and suspicion where there has been here to for friendship and understanding we had a good thing hair going until brown versus the board of education came along and ruined everything people were getting along so nicely that is not how black people saw it, but this was a common trope of the day i found an article from the New York Times that said white people digital legitimately believe that our knee grows, they would say i know black people dont want integration i asked my cook and she told me no and so this was supposed to be a cliche at the time so i do not doubt or reject the idea that this is deeply objectionable rhetoric and suggests that black people were content with the status quo i do suggest that the marvel with the southern manifesto is not some objectionable right rhetoric retain, but so much was kept down. Im going to shift into thinking about the context, including the things that were kept out that were commonly argued by segregationists. Contend that the most illuminating way to conceptualize the southern manifesto is to viewed as the mirror image of the courts opinion in brown. On a superficial level of course where brown sought to dismantle jim crow the manifesto sought to and reinforce it but the similarities between the two documents go deeper than that, including with respect to the process sees that led to their creation. So with respect to brown, ill tell you about the three similarities with respect to the creation, what sort of undergird the southern manifesto and brown versus the board of education. There are similarities with with the with respect to the tone, the sort of converse, thinking about audience the audience this is similar phenomenon, calculations that went into it. And finally, the unanimity piece of it as well so in thinking about the tongue, when chief Justice Warren was writing about brown, he said he was aiming to achieve a tone that was an emotional non rhetorical and non accusatory in an effort to avoid alienating white southerners. , so while the manifest are festival today supposed to be aggrieved and angry and nasty, thats not how it was understood at the time. Many people commented on the mild tone, i found comments from senators who said this is not inflammatory. You might think they were just attempting to be polite to their fellow senators and avoiding some sort of nasty comment confrontation, that even more detached observers, including in the new republic and the nation said that this is not the sort of inflammatory rhetoric that when may have expected, and that rhetoric certainly did exist and i will talk more about that in a moment. With respect to the audience question, you know, warren said that he wanted to keep the draft very short so that it would be readable by the late public, and could be reproduced in newspapers around the country, he wanted this to be an understandable decision so that ordinary folks could open the newspaper and read the decision and understand the courts rationale, the manifestos drafters shared the same goals. It was reproduced in newspapers all across the country, i have the copy that appeared in the New York Times. On the day of the manifesto that it appeared, and they sought to plead their case directly to a nation wide audience. They wrote the manifest or not in order to whip up segregation sentiment in the south, but instead to tempt down integration asked sentiment in the north. People said this at the time, senator george in his Opening Statement said that he wanted people to be aware of the increasing gravity of the situation following ground brown, he feared many people did not fully appreciate this living in other parts of the country. Congressman howard smith of virginia who introduced the document in the house of representatives said, were hopefully might have a sobering effect on the rest of the country and make them stop look and listen newspapers in the south said that this is going to alert people as to what is really going on and what is on our mind and we need to be aware of this in the north. The new republic had a similar kind of statement it was not only white people who thought this a Philip Randall head of the brotherhood of sleeping car porters, wrote a letter to the end a a cbp executive secretary, roy will cans where he said that this is going to tamp down integration sentiment in the north and that this is going to harm our threats for racial integration and a Philip Randall remained concerned about this for weeks to come and wrote to people in the Civil Rights Community to say that this is a real concern, with the question of unanimity. Obviously earl warren, chief Justice Warren wrote brown so it has to be unanimous. It was important for him that there were no dissenting opinions and famously went to the last hold doubt in brown and set of kentucky he said you are all on your own now. You have to decide whether this is in the best interest of the country you can see the way that the southern manifesto was written in order to keep the largest number of people on board as possible. Only three senators decided not to sign the document, those three senators are Lyndon Johnson of texas, senator al gore, albert gore of tennessee the Vice President s father, and senatoresque is key for the drop a footnote, to think about how venerated the unanimity of brown is it seems to me that it proceeds along a funny set of suppositions is it possible that had there been a descent and brown versus board of education, that the decision would have been more aggressive and more effective . The idea that it would have led the south to resist brown versus board of education with greater fervor strains belief in my view. Seems to me that the south resisted brown forces the board of itch k shun with ferocity and they did need, a decision from the Supreme Court of the United States to do so. It is also important to think about the way that even divided opinions are accepted overtime say texas versus johnson decision in the flag burning arena or the very recent over the felt decision a five to four decision involving same sex marriage. Just because there is a dissenting opinion even in a highly failing contesting case it does not mean it would not have been followed im. Going to shift my attention to think about the defenses of White Supremacy and the tactics left that were left on the cutting room floor, like i say the opponents of integration had a very familiar set of moves that were available to them. In order to sort of go to the emotions, in order to sort of anger people and get people in the south. The most important move wouldve been what they referred to as misogyny nation, or the mongrel is a shun of the races, this is the idea that integrated classrooms, are going to inexorably lead to integrated bedrooms. This was the sort of core claim that got people worked up in the south, and you can find this in a statement from a judge from mississippi. A manned by the name of tom p brady. No connection so far as i know. He writes in 1955, these northern knee grows are determined to mongrel lives america. Black people dont have respect for themselves and they are trying to get on the intermarriage turnpike, he says. So you think well, this is mississippi. Surely this is an outlier. What is the background of this person . Its the unusual . This is a man judge, tom brady who his educated at the warns phil school one of the leading institutions of prep schools in the country, and also yale university, so this is a person of sophistication who nevertheless, is using this incredibly strong language. People also spoke about not talking misogyny nation and mongrel is a shun, they would use the more coated language of mixed schools. That our schools are going to become mixed, and this was supposed to create a really evocative image for people of, people having what went author refer to as mixed bled. That language again does not appear in the southern manifesto itself the other techniques that people used at the time where to think about the sort of casting aspersions on black intelligence. They would talk about other sexual matters including what they regarded as high rates of venereal disease high rates of venereal disease, and things in this matter. You see these statements saying its because of syphilis and gonorrhea but if you introduce these two especially black boys are sexually aggressive. And its going to spell doom. So this is the rhetoric thats not in the southern manifesto and that they issue to be more effective and reaching their intended audience. They also conjured a popular belief, were more careful about their arguments with respect to what they were doing with the Supreme Court, we think they were calling for outright defiance, when in fact their arguments were slightly different, they were instead saying that the decision thought to be reversed, this was when it was an interesting document that listed an important debate about judicial supremacy, the ability of judges to determine constitutional meeting, there are some that claim judicial supremacy didnt come into being until after the courts decision in 1958 cooper versus aaron, but this debate about the southern manifesto is really remarkable because it was two years earlier and a listed a role about the Supreme Court in american society, what is striking is the same quite strong views about the fords role in society and cooper versus aaron are already very much in widespread circulation in 1956, indeed, even signatories of the southern manifesto, speak in the register of judicial supremacy, as i say they were crafty, they strategize segregation and its important to think about the underlying context that was there, the most recent word from the board is a call for all deliberate speed, so they were attempting not so much to defy the law instead to shape the understanding of brown versus board of education and to tame the meaning of brown races worth of education, so they wanted reversal, and that was the primary thing that what they said, they were trying to brock people who believed that brown was correctly decided and that we also needed to work on the court of Public Opinion, many people including senator islam we must place our case at the bar of Public Opinion there is the Los Angeles Times columnist who wrote the common, you wont hear it shouted from the rooftops, one of the main purposes of the southern manifesto was to reform and necessitate the Supreme Court, he quotes a southern congressman, he says those political justices over there, the saga Congress Told me with a jerk of his chin, to the Supreme Court building, are going to get the point of what we are doing. These are political figures and if we hold our feet to the fire they will relent. They also said we should think about a constitutional amendment, obviously this is an incredible high prep threshold that might sound fantastical to you all today it may sound far fetched, but one gallup conducted a nationwide poll on this the majority of respondents supported diminishing the constitution, on their own terms, a majority responded even though we think of today as brown versus board of education as a sacrosanct decision, it was not understood in that way by the American People some five years after it was handed down. We also said that we can think about controlling the trial understandings of brown by influencing the lower courts and their efforts senator summit said i will not be so presumptuous to tell the court how to go about its business, and acknowledging judicial supremacy, and he says if you look at round two there is more wiggle room than you traditionally understand. Its a careful reading of brown. Its a podium decision, you think of it as being synonymous with all deliberate speed but theres also language in there about needing to make a prompt, so they are trying to define brown, its also said that we could achieve racial segregation with non racial classifications, senator thurman spoke to a group of he identified with a very recent decision from judge john parker where judge parker read a decision in briggs versus elliott where he said the constitution does not require integration, it nearly four bids segregation, this is the claim that is not incumbent upon School Districts to take affirmative steps to bring about schools, it just wipes off from the books, the formal racial segregation, so you might not think of senator thurman as being attuned to what is happening in the lower courts but this is weeks after it was handed down and people delighted on it and said a yes there is a way to get around brown versus board of education people also spoke about voluntary segregation. He made a claim as the southern manifesto is introduced it is a really remarkable claim, he says while the Supreme Court decision is deplorable from constitutional law and ought to be reversed for that reason, it is not as drastic as many people think, its deplorable but it is not as drastic as people think, we will talk more about that in a moment he says with judge parker it doesnt require the immediate integration of the schools, and it would permit racist to attend separate schools on a voluntary basis, so people attend different places of worship without violating the constitution of the United States and you can have a similar thing with respect to our schools they also spoke about setting up attendance zones in particular ways and one of the things that the southern manifestos signatories claimed was whatever is working up in new york city and other parts of the north, we will just get that going on here as well, whatever they are doing in harlem, we will bring down south, they were very frustrated in that sense and they thought that they were being asked to do something that the supposedly racially and light in north had not. They spoke about segregating schools by sex, while having them racially integrated as well, to do this you would have obviously black girls and white girls in the same school, and black boys and white boys assent attending the same school. This was designed as a backup measure in order to forestall the fear combination of black boys with white girls so we think of them as being jumping up and down and screaming never, but in fact they had several different approaches in order to forestall meaningful racial integration, i am now going to shift to thinking about the legacy of the southern manifesto. So, well, some observers have attempted to assess the southern manifestos ongoing significance and when they do so they conclude that there is no substantial relevance to the modern world, southern politicians might on this telling view it roughly as reenacting the fate of their 19th century for bearers, like the southerners who fought to defend slavery during the 18 sixties, the battle to preserve racial segregation should be understood as the 20th centuries lost cause. In this vein, eisenhower returned to general Herbert Brown now has argued that signs of the manifestos demise appeared as early as 1957. I can only conclude that eisenhowers the sites of action at little rock, crushed the forces behind the southern manifesto in an important sense commentators are correct to contend that the nation the manifesto aimed to preserve had changed and meaningful ways. The manifestos drafters did not succeed in their attempt to maintain state sponsored jim crow schools, and it would be foolish to assert otherwise. This change, moreover, should not be dismissed as merely superficial, but instead should be understood as both representing and pretending profound racial trans formation. Despite this transformation it would be severely mistaken to believe that the manifesto and its rafters were utterly disconnected from current conditions. The drafters foremost goals absolutely prevented racial desegregation while the schools went and realized. It may be more accurate to view their loss on that score in terms partial rather than total. And there are lots of statistic that one could marshal to this effect of absorbing the lamentable state of racial integration in the nations Public Schools. There are a rise in recent years of something called apartheid schools, these are intern problems folks have come up with to describe schools where white students make up 1 or less of the student body, those are on the rise there are 7000 such schools and that makes up more than 7000 of the Public Schools in the entire nation, related, louis there are some School Districts, not schools, but School Districts, that contain astonishingly tiny percent to judges of white peoples. In the school year that ended in 2013. A mere 5 of Public School students in dallas were white. That same figure for los angeles was 9 . And here, in my hometown, washington d. C. , that figure was 11 . Of the entire school district. But perhaps, more significant, at any particular anti integration tactic was the way that the manifesto backers succeeded in their larger effort to control the meaning of brown. Well the manifesto was rhetorically positioned as enforcing the courts decision southern politicians and other contacts already began to argue the alternative, even though brown was unwarranted in contending, it should not be construed as requiring racial integration, this alternative argument may have been viewed as an understudy, but overtime it assumed a starring role, far from comprising this history, the intellectual middle used contained the origins of the modern equal protection. The trajectory of southern publication segregation attitudes towards brown involve the attitude of North Carolina hes the one who said that brown was deplorable but it is not as drastic as people think, and he says that in 1956, and so here im going to very quickly trace his evolution, if you Flash Forward to august 1963, a concerted effort was to shape the meaning of brown which was made in front of the Senate Commerce committee, he does not at this point say brown is a terrible decision, instead he is attempting to drain the meeting from brown, he says he heaps scorn on ig caters who want racially balanced schools, and then he asks attorney general kennedy, following a loaded question, do you not agree with me that denying a schoolchild the right to attend his Neighborhood School in transferring him by bus or otherwise for the purpose of racially mixing the school. The phrase racially mixing. The school in that other community is a violation of the 14th amendment as interpreted by the Supreme Court and brown versus board of education. Kennedy is knocked off of his groove. I and the reporters in attendance say that he twisted in his chair and he is trying to be non committal, and senator ervin poses this precisely worded question again, brown versus board of education prevents busing, is the core of that question, and attorney general kennedy says, i guess you could make an argument along those lines. And in response, serving, senator ervin responds, i dont see how you can disagree with me. So Flash Forward another few years into 1984 now. Senator ervin is still a senator, he writes his autobiography its called preserving the constitution. And he says in 1980 for three decades after the brown voices the bird board of education refers to the civil war amendments. He has rolled up his sleeves and he has now come to the conclusion that brown versus the board of education was correctly maintained in his dissent and plessy, and requires the state to ignore the race of schoolchildren in assigning them to the Public Schools brown versus board of education forbids the curse consideration of race when you are signing people to bump Public Schools, a backup effort to tame and drain the meaning of brown. While he is speaking of voluntary segregation back in the 19 fifties in the 19 eighties he is advocating freedom of choice plants and he says alas while i accept brown the modern Supreme Court has betrayed brown because there are these decisions dealing with busing and the racial integration of schools often in the south that take consideration of race and that is a betrayal of brown versus board of education, so senator urban identified the green versus County School board out of virginia in the 1960s, and another one swan versus shot Charlotte Mick lundberg out of the 1970s where he says these decisions are wrong again because the judiciary is taking account into race when they are making assignments and schools. Although the to cream Supreme Court long aboard thes understanding of brown, senator ervins vision found voice in the courts decision 12 years ago and parents involved in committees schools versus Seattle School district number one. The case was decided in june of 2007. I had the great good fortune of being a law clerk to Justice Breyer during his term i was. Sitting right over there when this decision was handed down. The issue in controversy was whether School Boards in louisville and seattle could voluntarily adopt racial integration programs. This is not court ordered, but instead the School Boards get together and say, we want our Public Schools to reflect the diversity that exists in the cities, and so we are going to think about race and making assignments. There is a rank order preferenceing and you consider race in order to achieve greater amounts of racial integration. The Supreme Court of the United States and validated these plants. My old boss, Justice Breyer, wrote a very long and, in my unbiased view, completely convincing dissenting opinion, and i want to talk a little bit about what the plurality had to say. It sounds somewhat similar to what urban said years earlier. In invalidating these plants, chief Justice Roberts wrote, before brown, School Children were told where they could and could not go to school based on the color of their skin. And these programs tell students where they can and cannot go to school and this is me paraphrasing, based on the color of their skin. It matters not one with four constitutional purposes that in the battle days. Bad old days people did that to keep people apart part, and for black people racial subordinated, in the modern plans they were trying to keep people together that matter not one which as a constitutional proposition. Goes on to say that the old evil of race consciousness in effect fights uncomfortable echoes in these modern plans. He says when it comes to using race to assign children to schools, history will be heard. That line, history will be heard, drew substantial scholarly criticism. Critics have contended that the opinion offered a severely de contextualized understanding of brown and that virtually ignored the cast system that brown versus board of education challenged. Viewed through this prism, this criticism, and my view, hits the mark. In an important sense though, the chief Justice Roberts is opinion was correct in contending that it articulated the views of the brown era. In my view, however, roberts is opinion embraced not the majoritys opinion in brown, but that of the dissenting opinion which is to say the southern manifesto. Some where, senator sam ervin was smiling. Thank you very much. applause eu thank you very much professor driver that was a wonderful lecture. I want to thank Justice Kagan for being our host, in support of the justice. It is very important to us. We try to support the courts and we very much appreciate you being here tonight we have a reception downstairs in the lower great hall. And the lower great hall you may find our gift shopped which will happen to be open at that time, and there are some interesting books available including professor drivers booked the school house gate, as kagan referenced in her opening remarks. You may want to look at that. I would like to thank you all for coming tonight. We are adjourned. applause early in 1945, our be 29 speak and full scale operations against japan. 1500 miles back from bases inside pan, tinny en, and guam. Here 21st Bomber Command concentrated its massive air power and planned the ultimate crushing defeat of japan, down to the last bomb. Here was the beginning of the end of the road to tokyo. After six months of reoccupation,