Transcripts For CSPAN3 1956 Southern Manifesto 20240713

Good evening. Im Vice President of the letter on the Supreme Court. Were very privileged tonight ustice she wi distinguskrq speaker very shortly. Fewtly. i may or may not know already. Born in new york, raised in new 91 oxford, and Harvard Law School. Abner mikvah on thea5 nid. C. conivhtnr niby a marshklip with justicenini nrthc andnr a couple years of lawr p then in 1991, entering academia, teachingcor the unsa aray of chicagojfni law school, where she met xdprofessr barack obama. F years later, invitedni cok to washington tow ork fa fato ncommittee at the rqnest of vhe chairman, thennifani senator joe biden. nrninrtwonr years later, judge. H becomes white housew3b.  counser nclinton. S ass oninininijfcookconrconir to the white house, coserve as. Two more years in domestic clintonqninb niadministration e white house. Judgeo hahe d. C. nnrnico republicans have no interest un confirming judges at that time 7 o rrq then returns toco niacadem, this time at Harvard Law School, joeao uco the faculty there, law coschool, firsa woman dean f Harvard Law School. Tct 1 solicitor general that weve ever had. aone yearco aftr that, Justice Stevens retires court. Esident obama names shes now going into her ni10thh term hre w krivileged to have her as the kagan. Konioknini[applause]nr justicek you, jerry, so much ni jeremy, so much. nias you could tell, ir keep a job. coco[laug ter] Justice Kagan nik coniconinrnininicor extreme t e goodninri] niwork in reminding people of the importance of our constitution importance of our constitution iou appreciative. This evening marks thenico nised of the societys 2019co nrleon Supreme Court. Justin driver and also jerry nijfnrconicwinrni[laughter]nrg 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 ranks 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 keen eye for fascinating historical subjects. 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 who did the introducing 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] like, dont call the dean of Harvard Law School with your nonproblems, right . But dean kagans intervention was extremely helpful to me because my year with judge garland was life altering. Not only because he helped me get to the Supreme Court as a law clerk he was indispensable in that effort but more important leap because of the extrinsic experience of that year, the opportunity to work up close with a person of judge garlands towering intellect, integrity, and judgment. So im very grateful to you, Justice Kagan. Ok, i should also say its 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. Thats what google maps tells me. And if i tell you that i grew up out pennsylvania avenue, south and east, across the river, you will understand that its far from inevitable my being before you. Its an incredible improbable journey and im really glad to be here. It took a lot of help to get me here and many of the people who helped me are in this room today and i am grateful to you. Ok, 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 the virulantly racist, and it was a victim and racism. I went and i got a copy of the southern manifesto and i read it once, and id read it twice, and it did not say what i thought it said. And so i thought maybe theres really something to this project and im going to take it up. And so im very grateful to the Supreme Court Historical Society for inviting me to talk about this document thats largely been forgotten today. Being here is a true honor for me. Ok, on march 12, 1950 six, United States senator Walter George read aloud a document on the senate floor that was formally called the declaration of constitutional principles. Just about no one called it that. Everyone called it instead 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 the board of education, and 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 elder statesman among the southern delegation. And when he was done, his youngest colleague in the southern delegation stepped forward. This is senator Strom Thurmond of south carolina. It was his brainchild. 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 an historic event has taken place today in the senate. Even those who disagreed with thurmond and the southern manifesto thought he was correct in viewing it as an historic education. Senator Patrick Mcnamara of michigan says youre right. It is historic. Even if it is not the history of which americans can be proud. So in 1956, people were upset with the southern manifesto, certainly in law schools. Many of the towering figures in academia at the time wrestled with the southern manifesto and what it meant. These are people like Alexander Bickel and Charles Fairman and paul freund, all dedicated a lot of attention to the southern manifesto as late as 1962, and bickel dedicates several pages about the manifesto. Today, its safe to say it no longer occupies a Central Place in the minds of legal scholars. It only risks mild exaggeration to contend longer contains anyplace there at all. Instead, the southern manifesto invariably appears in passing on the 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 read. The manifesto is lamentable because the document and the debate it generated declared essential lessons for legal audiences. Examining the manifesto does nothing less than recast dominant understandings of brown versus the board of education, which is the most closely scrutinized opinion from the 20th century. And so while law professors have lavished a great deal of attention on brown, precious little has been paid to the opposition to brown. And that is mistaken, in my view, because a close examination of the manifesto adds some sorely needed complexity to the caricature treatment that typifies scholars references to the southern manifesto. Recovering the complexity that the manifestos drafters displayed in resisting brown belies the stereotypes as all being enraged, unsophisticated bumpkins. To the contrary, in their efforts to preserve segregation, many senators and congressmen demonstrated the ability to be considerably more calculating, selfaware, and legally sophisticated than is commonly appreciated. So, heres what im going to do in my next little bit of time here. I am going to focus on the text of the southern manifesto, precisely because it is so misremember as to what the document actually says. And then im going to step back and try to place the document in context. And part of the way that one needs to do that is to see what sort of arguments do not appear in the southern manifesto that one may well have anticipated and what have put their opposition to racist segregation. Its also helpful to think of the various strategies that southern segregationists came up with in fighting brown v. Board of education. We think of segregation today as being rigid and 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, i will step back and examine the legacy of the southern manifesto and its tempting to think that it has no connection to modern realities, and in fact, that would be false in the sense that not only does one hear some of these sorts of arguments in sort of ordinary places, but also even at the Supreme Court of the United States. My overarching aim here is to offer neither absolution nor an apology for the manifestos signatories. During a period where they marched towards justice, these marched the other direction. It was an atrocity. I detest the cast system that they sought to defend. But the vehement disagreements with the backers should not preclude us from understanding why they framed the arguments as they did and how it resonated within the context of their times. This work is vital not only for appreciating one of the most significant legal transformation in all its complexity, but also for appreciating the continuities that stem from that earlier era. Ok, so what was the southern manifesto . When people think about it today, it is very much enshrouded in the mist of mythology to the extent that they think about it at all. We think about segregationists as having temporarily sort of taken leave of their senses, and that the southern manifesto is a screed that sounds like nothing so much as a latterday rebel yell. You know, 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 it seethed with anger, that it bristled with angry words, and that it had an ugly vehemence. People say that they were fanatic segregationists. This line of thinking finds its height in richard pfluegers simple justice, a magnificent work i hold in truly great admiration. Nevertheless, he says the southern manifesto was an ejaculation of bile, and an orgyastic violence. Its incredibly evocative language, and if anyone reads it, its hard to square with what is on the page. It undermines that they were universally blinded by rage. To the contrary, the drafters often use legal arguments to contain considerably more nuance, subtlety, and sophistication than their detractors have allowed. Recovering those arguments in detail allows one to discover how the manifesto should be viewed as the missing dissent to brown versus board of education. Ok, so here im going to talk about the text of it. When thinking about the text, it should not be surprising that its filled with legal arguments. After all, the people who were the sort of divide the southern manifesto were legally trained. One of the main people, in addition to senator thurmond, was senator sam ervin of North Carolina, a graduate of Harvard Law School and a justice on the North Carolina Supreme Court. Along with ervin, there was senator john stennis of mississippi, a graduate of mississippi law school. These were quite legally sophisticated in the arguments. When the southern manifesto is cited, it tends to be just the first sentence. The first sentence reads, the unwarranted 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 looked back to see where this link which appeared, and even the most sober and buttondown academics used that very language at that very time. Another uses the same leg which about naked power with respect to brown versus the board of education. So, focusing on that leg which alone language alone sort of allows people to misunderstand what was at the core of the argument. They used overwhelmingly sort of traditional methods of constitutional interpretation. They spoke about origionalism. They spoke about constitutional text. They spoke about precedent. They spoke about constitutional structure. They spoke about prudential considerations. And they also spoke about tradition. These are, today, look constitutional law professors refer to as the modalities of constitutional interpretations, with a tip of the hat to professor philip bobbitt. These are the basic forms of constitutional interpretation and all of them appear in the southern manifesto. When i teach it, i use the manifesto to have students identify the forms of argument. The first in the dominant mode is, they say the decision in brown betrayed the original understanding of the 14th minute. They say weve looked at the debates in congress and there is no reason to believe that they thought schools should be integrated. After all, they say, the very congress that discussed the 14th amendment and that crafted the language would subsequently have racially segregated schools in the district of columbia, so how can you square brown versus the board of education with the original understanding . They also made a textual claim. They say that if you search the constitution for the word education, you will not find it. This is what i sometimes think of as the controlesque theory, we just try to see if its there and if its not, theres nothing to be done about it. People did push back on this idea at the time. Alex bickel said its true that the term air force doesnt appear in the constitution either, but the president s authority as commanderinchief is not consequently the less. They also spoke about precedent. Were thinking here about plessy versus ferguson from 1896, and also gone long versus rice from 1927, a case that did involve schools, and they made the traditional move that one would expect. That is to say that people have ordered their affairs. So in reliance on the legitimacy of racial segregation in schools, and brown v. Board of education they claimed, has come along and pulled the rug out from under them. They also spoke about constitutional structure. Here, were thinking about principles of federalism, with a referred to as states rights. And they also say 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 a constitutional amendment, and that is the proper place to lead to racial integration of schools. Also spoke about the separation of powers. Then they also spoke about tradition, or what professor bobbitt referred to as the peoples of the constitution. And they say that the decision disregards the sort of respect for the parental control of education. Here, they cite the pierce versus society of sisters decision from the 1920s, which says that the child is not the mere creature of the state. And they say that this decision is at odds with that decision. The final argument that they made was a consequentialist one. They say that if brown is actually implemented that its going to lead to chaos and confusion. And that it may even lead to the closing of the Public School systems as a whole. As i suggest, the southern manifesto overwhelmingly issued issued eschewed the rhetoric at the time. This is one way they did slip up, however. And they write the following, brown is destroying the negro races that have been it has planted hatred and suspicion where there has been, hereto for, friendship and understanding. Right . We had a good thing going until brown v. Board of education came along and ruined everything. People were getting along so nicely. Thats 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 legitimately believed that our negros dont want integration. They would say i know black people dont want integration. I asked my cook and she told me no. Right . So, this was supposed to be a cliche at the time. So, i dont doubt or reject the idea that this is deeply objectionable rhetoric that suggests that black people were content with the status quo. I do suggest that the marvel of the southern manifesto is not some objectionable rhetoric cretin, but discrete in, but that creeped in, but that so much was left out. Im going to get into the things that work left out, but commonly argued by segregationist. They contend that the most illuminating way to conceptualize the southern manifesto is to view it as the mere image of the courts opinion in brown. On a superficial level, of course, where brown sat to dismantle jim crow, the manifesto sought to reinforce it. But the similarities between the two documents go deeper than that, including the processes that led to their creation. So, with respect to brown, well, ill tell you about the three similarities with respect to the creation, what sort of undergirded. Theres similar is with respect to tone. Theres similarities, sort of converse, thinking about audience. The audience is similar phenomenon, calculations that went into it. And finally, the unanimity piece of it, as well. So, in thinking about the tone, when chief Justice Warren was writing about brown, he was aiming to achieve a a tone that was unemotional and nonaccusatory in an effort to avoid alienating white southerners. So, while the manifesto today is 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 attempting to be polite to their fellow senators and avoiding some sort of nasty comment confrontation. But even more detached observers, including in the new republic and the nation, said that this is not the sort of inflammatory rhetoric that one may have expected. And that rhetoric certainly did exist and ill 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 lay public and could be reproduced in newspapers around the country, that 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 share these 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 thought, to plead their case directly to a nationwide audience, they wrote the manifesto not in order to whip up segregationist sentiment in the south, but instead to tamp down integrationist 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 brown, and that he feared that 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 just hopeful it might have a sobering effect and make them stop, look, and listen. Newspapers in the south said that this is going to other people as to whats really going on and once on our mind and that they need to be aware of this in the north. In the new republic had a similar type of statement. It was not only white people who thought this. A. Philip randolph the head of the brotherhood of the sleeping car porters, wrote a letter to the naacp executive secretary, roy wilkins, where he said that this is going to tamp down integrationist sentiment in the north, that this is going to harm our for racial integration, and a Philip Randolph remained concerned about this for weeks to come, and wrote to people in the Civil Rights Committee to say that this is a real concern. And then with the question of unanimity, obviously earl warren, chief Justice Warren, wrote brown, so as to be unanimous. It was important to him that there would be no dissenting opinions. He famously went to the last holdout in brown, Justice Stanley reed of kentucky, and said youre all on your own now. You have to decide whether this is in their best interest of the country. You can see the way 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 senator Lyndon Johnson of texas, senator al gore of tennessee, the Vice President s father, a senator estes case over. It does raise an interesting question to think about how venerated the unanimity of brown is. Seems to me it proceeds along a funny set of suppositions. Is it possible that had there been a dissent in brown v. 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 v. Board of education with greater fervor strains belief, in my view. It seems to me the south resisted brown v. Board of education with plenty of ferocity, and they didnt need a decision from the Supreme Court to do so. Its also important to think about the way that even divided opinions, you know, are accepted over time. Think about, say, the texas versus johnson decision in the flagburning arena, where the very recent over the felt decision, a 54 decision involving samesex marriage. Just because theres a dissenting opinion, even in a highly dissent contested case, does not mean that it would not be followed. Im going to shift my attention to think about the defense of White Supremacy and the tactics 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 up in the south. The most important move would have been what they referred to as miscegenation or the mongrelisation of the races. This is the idea that integrated classrooms are going to inexorably lead to integrated. 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 man by the name of tom p brady, no connection so far as i know. He writes in 1955, these northern negroes are determined to mongrelize mongrelize america. Black people have no respect for themselves and they are trying to get on the intermarriage turnpike, he says. You think well, this is mississippi. Surely this is an outlier. What is the sort of background of this person . Is he unusual . This is a man who was educated at the warrensville school, one of the leading institutions, prep schools, in the countries, 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 about miscegenation and mongrelization. They would use the coded 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 one author referred to as mixed blood. That language, again, does not appear in the southern manifesto itself. The other techniques that people used at the time were to think about sort of casting aspersions on black intelligence. They would talk about other sexual matters, including what they regarded as high rates of venereal disease. And in things in this register, you see these statements that is because of syphilis and gonorrhea that if you introduce to schools, especially black boys are sexually aggressive, and its going to spell doom for alour blonde haired little girls. This is the sort of rhetoric that is not in the manifesto, that they eschewed in order to be more effective in reaching their intended audience. Ok. They also, contrary to parse popular belief, popular belief, were more careful about their arguments with respect to what they were doing with the Supreme Court. We think today that they were calling for outright defiance, but in fact, their arguments were slightly different. They were instead saying that the decision ought to be reversed. This is a point for some of the law professors in the audience. But the southern manifesto is an interesting document because it listed elicited an important debate on the authority of judges to determine constitutional meaning. There are some who have claimed that judicial supremacy didnt come into being until after the courts decision in 1958 in cooper versus aaron. But this debate is remarkable because its two years earlier, 1956, and elicited debate about the role of the Supreme Court in american society. And what is striking is that the same sort of strong views of the courts role in society is articulated in cooper versus aaron are already 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 strategized segregation. And its important to think about the underlying context that was there. The most recent word from the court is not brown, but brown ii, and it called for all deliberate speed. So they were attempting not so much to defy the law, but instead to define the law, to shape the understanding of board reeducation and to tame versus education understanding of board brown versus board of education entertain brown v. Board of education and to tame brown v. Board of education. We also need to work the court of public opinion. Many people, including senator eastland, said we must place our case at the bar of public opinion. There was a Los Angeles Times columnist who wrote the following. You wont hear it shouted from the rooftops, but one of the main purposes of the southern manifesto is to reform and resuscitate this up in court. And then he quotes a southern congressman. The congressman told me are going to get the point of what were doing. These are political figures. If we hold their feet to the fire, they will relent. They also said we should think about a constitutional amendment that she also said we should think about a constitutional he also said we should think about a constitutional amendment. This may sound fantastical to you today. It may sound farfetched. But when gallup conducted a nationwide poll, a majority of respondents supported amending the constitution to allow states to resolve the School Integration collection on their own terms. So, even though we think of it as brown v. 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. They also said that we can think about controlling the sort of doctrinal understandings of brown in the lower courts and their efforts of senator stennis of mississippi. He said im not going to be so presumptuous has to tell the District Court how to go about presumptuous as to tell the District Court how to go about its business. But if you look at brown ii, theres more wiggle room then you would understand, even though its a protean decision. We think of it as being synonymous. But at the time, theres also language about needing to make a prompt and reasonable start. Again, they are trying to define brown ii. He also said we should achieve racial segregation with nonracial classifications. Senator thurmond spoke to the Bar Association and he identified with a very recent decision from judge john parker, where judge parker read a decision in the briggs versus elliott case, where he says the constitution does not require integration. It merely forbids segregation. This is the claim that it is not incumbent upon School Districts to take firm steps to bring about mixed or the schools. It just wipes off from the books the formal racial segregation. So, we might not think of senator thurmond as being attuned to what is happening in lower courts, but this is only weeks after the decision was handed down. And people said ah, yes, there is a way to get around the dreaded interpretation of brown versus board of education, which would have led to integration. People also spoke about voluntary segregation. Senator sam ervin again, he made a claim, as the southern manifesto was introduced it was a really remarkable claim. He says, while the Supreme Court decision is deplorable from the standpoint of constitutional law and ought to be reversed for that reason, it is not as drastic as many people think. Its deplorable, but not as drastic. Ill talk more about that in a moment. He says with judge parker, it doesnt require the immediate integration of the schools and would permit racists to attend separate schools on a voluntary basis. Ervin says people attend different places of worship without violating the constitution, and we 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 manifesto signatories claimed was well, whatever is working up in new york city and other parts of the north, well just get that going down here, as well. Whatever theyre doing in harlem, we will bring down south. They were very frustrated in the sense that they felt they were being asked to do something that the supposedly racially enlightened north had not. They spoke about segregating schools by sex. While having them racially integrated, as well. To do this, he would have black girls and white girls attend the same school, and black boys and white boys attending the same school. And this was designed as a backup measure in order to forestall the feared combination of black boys with white girls. And so again, we think of them as being intransigent and jumping up and down and screaming never, but in fact they had several different approaches in order to sort of forestall meaningful racial integration. Ok, im not going to shift thinking about the legacy of the southern manifesto. So, while some observers have attempted to assess the southern manifestos ongoing significance, and when they do so, they conclude that the document has no substantial relevance to the modern world. The southern politicians who shaved and signed the manifesto might, on this telling, be viewed roughly as reenacting the fate of their 19 as reenacting the fate of their 19thcentury forbearers. Like slavery in the 1860s, the battle to preserve racial segregation should be understood as the 20th centurys lost cause. In this vein, eisenhowers attorney general argued that signs of the manifestos demise appeared as early as 1957. Heres what attorney general brown had to say. I can only conclude that eisenhowers decision at little rock crushed the forces behind the southern manifesto. In an important sense, commentators are correct to say it changed in meaningful ways. The manifestos drafters did not succeed in their attempt to maintain statesponsored 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 portending profound racial transformation. Despite this transformation, it would be severely mistaken to believe that the manifesto and its drafters views are utterly disconnected from current conditions. Although the drafters foremost goal of absolutely preventing racial desegregation in Public Schools went unrealized, it may be more accurate to view their loss on that score in terms partial, rather than total. And there are lots of statistics that one can marshal to this effect, observing the lamentable state of racial integration in the nations Public Schools. You know, theres been a rise in recent years of something called apartheid schools. This is a term folks have come up with to describe schools where white students make up 1 or less of the student body. Those schools are on the rise. There are 7000 such schools. And that makes up more than 7 of the Public Schools in the entire nation. Relatedly, there are some School Districts, not schools but School Districts, that contain astonishingly tiny percentages of white peoples pupils. 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 than any particular antiintegration tactic was the way that the manifesto backed her succeeded in their larger effort to control the meaning of brown. While the manifesto was positioned as opposing the courts decision, southern politicians and other context had already argued the alternative. Even though brown was unwarranted, they contended, it should not be construed as requiring racial integration. This alternative argument may have debuted as an understudy, but over time it assumed a starring role. Far from comprising losers history, the intellectual mill you that produced mileu that produced the manifesto contained the origins of the protections clause. The trajectory of the attitudes can be traced by the evolving attitude of senator sam ervin of North Carolina. Hes the one who said if brown was deplorable, its also not as drastic as people think. He says that in 1956. And so here im going to very quickly trace his evolution in this area. If you Flash Forward to august, 1963, ervin made a concerted effort to shape the meaning of brown in some hearings for the Senate Commerce committee. He does not, at this point, say brown is a terrible decision. Instead, again, he is attempting to drain the meaning from brown. He says he heeps scorn on educators who want racially balanced schools, he says. And then he asks attorney general kennedy the following loaded question. He says, do you not agree with me that denying a schoolchild the right to attend his Neighborhood School and transferring him by bus or otherwise to another community for the purpose of racially mixing the school note that phrase, racially mixing the school in that other community is a violation of the 14th amendment, as interpreted by the Supreme Court in brown versus the board of education. Kennedy is knocked off, you know, his sort of, his groove. And there were reporters in attendance who say he twisted in his chair, and hes trying to be noncommittal. And then senator irvin poses this precisely worded question again, right . Brown v. Board of education prevents busing is the core of that question. And attorney general kennedy says, i guess you can make an argument along those lines. And i response ervin responds with a grin, i dont see how you can disagree with me. 1984 now, senator irvin is still a senator. He writes his autobiography. Its called preserving the constitution. He says three decades after brown v. Board of education that he has given the civil war amendment primacy of study. Hes really rolled up his sleeves and he has now come to the conclusion that brown v. Board of education was correctly decided in the first instance. And he goes on to say and he says, the constitution is colorblind as the first Justice Harlan maintained in his dissent in plessy and requires the states to ignore the race of schoolchildren in assigning them to their Public Schools. Brown v. Board of education forbids the consideration of race when you are assigning people to Public Schools. This is an effort, again a backup effort, to drain the meaning of brown. So, while hes speaking of voluntary segregation back in the 1950s, in the 1980s, he is advocating freedom of choice plans. 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 v. Board of education, so senator ervin identified the Greene County scoreboard out of virginia in the 1960s. And another one, swan versus charlottemecklenburg out of the 1970s, where he says these decisions are wrong again because the judiciary is taking into account race when they are making assignments in schools. Although the Supreme Court long avoided this understanding of brown, senator irvins vision found voice in the courts decision 12 years ago, in parents involved in Community Schools v seattle district 1. The case was decided in june of 2007. I had the 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 the School Boards get together and say we won our Public Schools to reflect the diversity that exists in the cities and were going to think about race in making assignments. There is a rank order preferencing, and you can consider race in order to achieve greater amounts of racial integration. The Supreme Court of the United States invalidated these plans. 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 ervin said years earlier. In invalidating these plans, chief Justice Roberts wrote before brown, schoolchildren 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 paraphrasing, based on the color of their skin. That matters not one whit for constitutional purposes that in the bad old days, people did that to keep people apart, and for black people, racially subordinated. In the modern plans, they were trying to keep people together. That mattered not one whit as a constitutional proposition. He goes on to say that the old people of race consciousness finds 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. Critics have contentedly offered a severely decontextualized version of brown and ignored the system that brown v. Board of education challenged. Viewed through this prism, this criticism, in my view, hits the mark. In an important sense, though, chief Justice Robertsopinion was correct in contending that it articulated the views of the brown era. In my view, however, robertsopinion embraced not the majoritys opinion in brown, but that of the dissenting opinion, which is to say the southern manifesto. Somewhere, senator sam ervin was smiling. Thank you very much. [applause] thank you very much, professor driver. That was a wonderful lecture. And i want to thank Justice Kagan again for being here, for being our host. Support of the justices is very important to us. And we try to support the court, so we appreciate you being here tonight. We have a reception downstairs in the lower grade hall following the meeting. On the lower grade hall, you may also find our gift shop, which will happen to be open at that time. And there are some interesting books available, including professor drivers book, schoolhouse gate, which Justice Kagan referenced in her opening marks. And then thank you all for coming tonight. We are adjourned. [applause] captions Copyright National cable satellite corp. 2020] [captioning university of michigan politics professor Pamela Brandwein discusses Justice Joseph bradleys dissent in the slaughterhouse cases, which concerned new orleans butchersright to practice their trade after the passage of a Louisiana State regulatory law. She explains how bradleys broad interpretation of protections conferred by the fourteenth amendment influenced later landmark cases. Good evening. Thank you for being here. Im Chilton Varner and serve as president of the Supreme Court Historical Society. I am pleased to welcome you to the thirdf