Transcripts For CSPAN3 1956 Southern Manifesto 20240713

In brown vs. The board of education. In that case the Supreme Court outlawed racial segregation of schools. Good evening and welcome to everybody. Im a Vice President of the Supreme Court Historical Society and delighted to see everybody here tonight in our second lecture of the leon silverman series on dissents in the Supreme Court. Were very privileged tonight to have as our host Justice Kagan. She will be introducing our distinguished speaker very shortly. Let me just tell you a few things about Justice Kagan. You may or may not know. Born in new york, raised in new york, educated at princeton, oxford, and Harvard Law School. Then became a clerk to judge abner mikva on the d. C. Circuit followed by a clerkship with justi Justice Thurgood marshall here at the Supreme Court. Then a law practice and in 1991 entering academia 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 as special counsel at the request of the chairman then senator joe biden. Two years later judge mikvah becomes white House Counsel for president clinton. Justice kagan is asked to come to the white house and serve as associate white House Counsel. Stays there a couple years in that role and then two more roles in domestic policy roles on behalf of the Clinton Administration in the white house. Then president clinton nominates Justice Kagan to be a judge on the d. C. Circuit but the republicans have no interest in confirming judges at that time. So that doesnt come to pass. 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. The first woman dean of Harvard Law School. Six years after that, president obama invites her to become solicitor general, the 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. She is now going into her tenth term here. And we are very privileged to have her as the host of this evening. Justice kagan. [ applause ] thank you jerry so much. As you can tell from that introduction before coming here i couldnt keep a job. [ laughter ] jerry, thank you for everything you do, for the Supreme Court Historical Society and everything that the Supreme Court Historical Society does for the Supreme Court. The Historical Society does extremely important 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 this year to dissents and the Supreme Court. On my way over here, professor justin driver and also jerry libben reminded me i have written a few of those. Tonights speaker is professor justin driver. He is professor of law at yale law school. He teaches and writes in the area of constitutional law. He is the author most recently of a book called the school house gate. Public education, the Supreme Court, and the battle for the american mind. 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 short listed for the Phi Beta Kappa Ralph Waldo Emerson award. Professor driver as a distinguished record in the nations leading law reviews on all manner of subjecting 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 american constitution societies academic advisory board. Professor driver received his b. A. From brown university, a masters in modern history from brown university, a masters in modern history at oxford, where he was a scholar and a law degree from Harvard Law School. After graduating from harvard, professor driver clerked for judge Merrick Garland, Justice Stephen brier and justice oconnor, sandra oconnor. I dont know where this ranks on the list of professor drivers accomplishes, but professor driver or as i used to know him, justin, was also a student of mine. And i can tell you from those long ago years that he is super smart. And super thoughtful. With a very keen eye for fascinating legal and historical subjects. So you are in, as im in, for a real treat. Justin driver. [ applause ] okay. 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 odd still is being in the audience when a mighty Supreme Court justice introduces a lowly law professor. It must feel a little like youre at a really fancy restaurant where the main course arrives before the appetizer. The sort of proper standard of affairs has been woefully inverted. Justice elena kagan did the introducing tonight makes this occasion 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. 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, you know, very esteemed federal judge that i was going to clerk for after i graduated. I understand these are very much firstworld problems. But woe was me. So, with all of the temerity that an entitled law student could muster, and i have it on Good Authority that thats a lot, i decided to place a phone call to the new dean and ask her about my predicament. And she might 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, you know, dean kagan, you know, 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 shes like, but merricks a friend. And then she went on to say, i think you would learn a lot from him. And by the intonation, it was clear that i had a lot to learn, like you know, dont call the dean of the Harvard Law School with your nonproblems and everything, all right . But dean kagans intervention was extremely helpful to me because my year with judge garland was lifealtering. Not only because he helped me get to the Supreme Court of the United States as a law clerk he 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 garlands towering intellect, integrity, and judgments. So im very grateful to you, dean kagan. Pardon me, Justice Kagan. Got a promotion, didnt you . Okay. I should also say that 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 anacostia river, you will understand that its far from inevitable my being before you. Its an incredibly 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. 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 virulently racist, a naked racist, a subtly unsubtle racism. So i went and 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. So, i thought, maybe theres really something to this project. And im going to take it up. 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. Okay, on march 12th, 1956, 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 congressmen signed, all from the former confederate states, and this is two years after brown versus board of education, and they say that it was wrongly decided. And they urge 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 a historic event has taken place today in the senate. Even those who disagreed with thurmond and the southern manifesto thought that he was correct in viewing it as a historic occasion. Senator Patrick Mcnamara of michigan said, yes, youre right, it is historic, even if its not the sort of history of which americans can be proud. So, in 1956, people were obsessed with the southern manifesto, certainly in law schools. Many of the towering figures of legal 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 thinking about the southern manifesto. As late as 1962 in the least dangerous branch, bickel dedicates several pages toward thinking about the southern manifesto. Today, it is safe to say that the southern manifesto no longer occupies a Central Place in the minds of legal scholars. Indeed, it risks only mild exaggeration to contend that the manifesto no longer occupies anyplace there at all. Instead, within the legal literature, the southern manifesto invariably appears in passing on the way to some other destination. In 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 manifestos mark diminution is documentable because the document and 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, of course, 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 pervasive stereotype that reads segregationists 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 over my next little 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, 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 that were tropes of the segregation opposition to segregation. In thinking about this concept, its helpful to think about the various strategies that southern segregationists came up with in fighting brown versus board of education. We think of the segregationists 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 is 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 than apology for the manifestos signatories. During a period when National Figures began in earnest to march toward racial justice, the manifesto backers rush headlong in the opposite direction. Their attempt to sustain the nations racial cast system was, i believe, an atrocity. I detest the cast system that they sought to defend. But vehement disagreement with the underlying views of the manifesto backers should not prevent us from understanding what arguments they advanced, why they framed those arguments as they did, and how those arguments resonated within the context of their times. This work is vital not only for appreciating one of the nations most significant legal transformation in all its complexity, but also for appreciating the continuities that stem from that earlier era. So, what was the southern manifesto . You know, when people think about it today, it is very much enshrouded in the mist of mythology, and to the extent that they think about it at all. We think of 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 latter day rebel yell. You know, when describing the manifesto in 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 that it seethed with anger, that it bristled with angry words and that it had an ugly vee a vehemence. People say about the signers that they were fanatic segregationists. This thinking finds its height in richard klugers simple justice, a magnificent work i hold in truly great admiration. Nevertheless, on this score, he says that the southern manifesto was an ejaculation of bile and an orgyastic declaration of defiance. Its incredibly evocative language, and if one reads it, its hard to square with whats actually there on the page. A close examination of the manifesto undermines the perception of southern politicians were universally blinded by rage. To the contrary, the drafters often advanced legal arguments opposing integration to contain considerably more nuance, subtlety, and sophistication than their detractors have allowed. Recovering those arguments in detail enables one to understand how the manifesto in significant ways should be viewed as the missing dissent to brown versus board of education. Okay, so, here im going to talk about the text of it. And when thinking about the text, it should not be surprising that its filled with legal arguments. After all, the people who sort of devised 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 the law school. So these people 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 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 sort of heated language, but i went back and looked to see where this language appeared. And even the most sober and buttoneddown academics used that very language at the time. Herbert wechsler, the columbia law professor, in his famous article toward neutral principles of constitutional law uses the same language about naked power with respect to brown versus board of education. So, focusing on that language alone sort of, you know, 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 originalism. 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 what constitutional law professors refer to as the modalities of constitutional interpretation, 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 the modalities of constitutional interpretation, i use the southern manifesto and ask students to identify the forms of argument. The first in the sort of dominant mode is, they say that the decision in brown betrayed the original understanding of the 14th amendment. They say, weve looked at the debates in congress, and theres no reason to believe that they thought that 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 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 controlf theory of constitutional interpretation, where you just try to see if its there, and if its not, then theres nothing to be done about it. People did push back on this idea at the time. Alex bickel said, you know, its le true that the term air force doesnt appear in the constitution either, but the president s authority as commander in chief is not consequently the less. They also spoke about precedent. Were thinking here about plessy versus ferguson from 1986 and also gonlong versus rice in 1927, a case that didnt 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 versus 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, not surprisingly, what they would have referred to as states rights. And they also say that this was illegitimate as a decision from the Supreme Court of the United States. The framers of the constitution have article 5, which goes to a constitutional amendment, and that is the proper place to lead to racial integration of schools. They also spoke about the separation of powers. Then they also spoke about tradition, or what professor bobbitt would refer to as 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 purist 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 tradition. 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 it may even lead to the closing of the Public School systems as a whole. And so, were going to get rid of our Public Schools. As i suggest, the southern s manifesto overwhelmingly ashoed the nakedly objectionable racial 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 white and negro races that have been created through 90 years of patient effort by the good people of both races. It has planted hatred and suspicion where there has been heretofore friendship and understanding. All right . We had a good thing here, you know, going, until brown versus board of education came along and ruined everything, right . People were getting along so nicely. Thats not, of course, 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, you know, our negroes dont want integration. They would say, i know black people dont want integration. I asked my cook and she told me no, right . And 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. But i do suggest that the marvel of the southern manifesto is not that some objectionable racial rhetoric creeped in but that so much was kept out. Okay. So, im just going to shift now to thinking about the context, including the things that were kept out that were commonly argued by segregationists. I contend that the most illuminating way to conceptualize the southern manifesto is to view it 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 reinforce it, but the similarities between the two documents go deeper than that, including with respect to 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, and you know, what sort of undergirded the southern manifesto and brown versus board of education. There are similarities with respect to tone. There are similarities or, you know, sort of converse of thinking about audience. The audience is a similar phenomenon, sort of 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 brown, he said that he aimed to achieve a tone that was unemotional, nonrhetorical and nonaccusatory in an effort to avoid alienating white southerners. So, while the manifesto today is understood to be, you know, sort of aggrieved and angry and nasty, thats not how it was understood at the time. Indeed, many people commented on the mild tone. I found comments from senators who said, this is noninflammatory. You might think that they were just attempting to be polite to their fellow senators and avoiding some sort of, you know, nasty confrontation, but even more detached observers, including in the new republic and the nation said 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, right . 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 shared 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 sought to plead their case directly to a nationwide audience. They wrote the manifesto not in order to sort of 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 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 whats really going on and whats on our mind and that they need to be aware of this in the north. And the new republic had a similartype statement. It was not only white people who thought this. A. Philip randolph, the head of the brotherhood of 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 quest for racial integration. And a. Philip randolph 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. And then with the question of unanimity. Obviously, earl warren, chief Justice Warren, wrote brown so as to be anonymous. It was important to him to make sure there were no dissenting opinions. He famously went to the last holdout in brown, Justice Stanley reid of kentucky, and he says, youre all on your own now. You have to decide whether this is in the best interests of the country. You know, 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 senator Lyndon Johnson of texas, senator Al Gore Albert gore, i should say, of tennessee, the Vice President s father, and senator estes keefehover. It raises an interesting question and ill drop a footnote about the unanimity of brown is. It proceeds along a funny set of subset of subsuppositions. Is it possible that had there been a dissent in 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, you know, belief, in my view. Seems to me that the south resisted brown versus board of education with plenty of ferocity, and they didnt need a decision from the Supreme Court of the United States to do so. Its also important to think about the way that even, you know, divided opinions, you know, are accepted over time. Think about say the texas versus johnson decision in the flagburning arena, or the very recent obergefell decision, a 54 decision involving samesex marriage. So, just because there is a dissent opinion, even in a highly salient, highly contested case, does not mean that it would not have been followed. Okay, im going to shift my attention now to think about the defense of White Supremacy and the tactics that in effect were left on the cutting room floor. You know, as i say, you know, 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 and in order to, you know, sort of anger people and get peoples dander up in the south. The most important move would have been what they would have referred to as misogynation of the races, 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 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 mongralize america. You know, black people dont have respect for themselves and theyre trying to get on the intermarriage turnpike, he says. So you think, well, this is mississippi. You know, surely, this is an outlier. Whats the sort of background of this person . Is he unusual . This is a man, tom brady, judge tom brady who was educated at the lawrenceville 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, if not talking about misogynation and mongralization, they would use the 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 and talk about the high rates of venereal disease and things in this register. You know, you see these sort of statements saying that, you know, its because of syphilis and gonorrhea that if you introduce the schools, that these especially black boys are sexually aggressive, and its going to spell doom for our blondhaired little girls, right . So, this is the sort of rhetoric, again, that is not in the southern manifesto, and that they eschewed in order to be more effective in reaching their intended audience. Okay. They also, contrary to 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 professionals in the audience. But the southern manifesto is a really interesting document, because it elicited an important debate about this idea of judicial supremacy, 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 about the southern manifesto is really remarkable, because its two years earlier, again, 1956, and it elicited a debate about the role of Supreme Court in american society. And whats striking is that the same sort of, you know, quite strong views about the courts role in society as articulated in cooper versus aaron, are already very much in widespread circulation, you know, 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 2, and its called for all deliberate speed. And so, they were attempting not so much to defy the law, but instead, to define the law, to shape the understanding of brown versus board of education and to tame the meaning of brown versus board of education. So, they spoke they said that they wanted reversal. That was the primary thing that they want. They said, well try to block people who believe that brown was correctly decided from being confirmed to the Supreme Court, and we also need to work the court of public opinion. Many people, including senator eislan said, we must place our case at the bar of public opinion. There was a Los Angeles Times columnist who wrote you wont hear it shouted from the rooftops, but one of the main purposes of the southern manifesto is to reform and resuscitate the Supreme Court. Then he quotes a southern congressman. He says, those political justices over there, a southern congressman told me with a jerk of his chin toward the Supreme Court building, are going to get the point of what were doing, all right . These are political figures. And if we sort of hold their feet to the fire, they will relent. He also said that we should think about a constitutional amendment. Obviously, this is an incredibly high threshold, in order to, in effect, reverse brown versus board of education. That may sound fantastical to you today, it may sound farfetched, but when gallop conducted a nationwide poll on this question in 1959, a majority of respondents supported amending the constitution to allow states to resolve the School Integration question on their own terms, all right . A majority responded. So, 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. They also said that we can think about, again, controlling the sort of doctrinal understandings of brown by influencing the lower court and their efforts. Senator stennis of mississippi said, im not going to be so presumptuous as to tell the District Court how to go about its business, again, sort of acknowledging judicial supremacy. And he says, but if you look at brown 2, theres more wiggle room than you traditionally understand. It was a very careful reading of brown 2, even though brown 2 is a prodian decision. We think of it synonymous with deliberate speed, but at the same time, there is language about making a prompt and reasonable start. So again, theyre trying to define and tame brown 2. They also said that we could achieve racial segregation with nonracial classifications. Senator thurmond spoke to a group of the Virginia State bar association, and he identified with a very recent decision from judge john parker. Where judge parker wrote 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 affirmative steps to bring about the mixture of the schools. It just wipes off from the books the formal racial segregation. So, you will not think of senator thurmond as being attuned to whats happening in lower courts, but this was only weeks after this decision was handed down, and people alighted upon it and said, ah, yes, theres a way to get around the dreaded interpretation of brown versus board of education, which would have led to racial integration. People also spoke about voluntary segregation. Senator sam ervin of North Carolina again. You know, he made a claim as the southern manifesto was introduced it was a really remarkable claim. He says, while a 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, all right . Its deplorable as a matter of constitutional law, but its also not as drastic as people think. Ill talk more about that in a moment. He says again with judge parker, it doesnt require the immediate integration of the schools and it would permit races to attend separate schools on a voluntary basis. Senator ervin says people attend different places of worship without violating the constitution of the United States, 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 on down here as well. Whatever theyre doing in harlem, we will bring down south. They were very frustrated in the sense that they felt that 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, you would have, obviously, black girls and white girls attending the same school and then black boys and white boys attending the same school. And this was designed, again, 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, then jumping up and down and screaming never, but in fact, they had several different approaches in order to sort of forestall meaningful racial integration. Okay, im now going to shift to 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 shaped and signed the manifesto might on this telling be viewed roughly as reenacting the fate of their 19thcentury forbearers. Like the southerners who fought to defend slavery during the 1860s, the battle to preserve racial segregation should be understood as the 20th centurys lost cause. In this vain, eisenhower attorney general Herbert Brownell has argued that signs of the manifestos demise appeared as early as 1957. Heres what attorney general brownell had to say. I can only conclude that eisenhowers Decisive Action at little rock obviously sending in the 101st airborne to little rock central crushed the forces behind the southern manifesto. In an important sense, commentators are correct to contend that the nation, the manifesto aimed to preserve has 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 could marshal to this effect, observing the lamentable state of racial integration in the nations Public Schools. Theres been a rise in recent years of something called apartheid schools. This is a term that 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 7,000 such schools, and that makes up more than 7 of the Public Schools in the entire nation. Relatedly, there are some School Districts School Districts, mind you, not schools, but School Districts that contain astonishingly tiny percentages of white pupils. 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 than any particular antiintegration tactic was the way that the manifesto backers succeeded in their larger effort to control the meaning of brown. While the manifesto was rhetorically positioned as opposing the courts decision, southern politicians in other contexts had already begun to argue in the alternative. Even though brown was unwarranted, they contended, it shouldnt 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 milieu that produced the manifesto contained the origins of the modern equal protection clause. The trajectory of southern segregationist attitudes towards brown can be traced by examining the evolving attitude of senator sam ervin of North Carolina. Hes the one, of course who said that brown was deplorable, but its also not as drastic as people think, right . 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 really concerted effort to, again, shape the meaning of brown, when he has attorney general Robert Kennedy before him in some hearings for the Senate Commerce committee. He does not at this point say brown is a terrible decision. Instead, again, hes attempting to drain the meaning from brown. He says, he heaps scorn on ervin heaps scorn on educators who want racially balanced schools, he says. Then he asks attorney general kennedy the following loaded question. He says, do you not agree with me that denying a school child the right to attend his Neighborhood School in 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 board of education . Kennedy is knocked off of, you know, his sort of, you know, his groove. And there were reporters in attendance who say that he twisted in his chair, and hes trying to be noncommittal. And then senator ervin poses this precisely worded question again, all right . Brown versus board of education prevents bussing is the core of that question, all right . And attorney general kennedy says, you know, i guess you could make an argument along those lines. And in response, ervin, senator ervin replies with a grin, and he says, i dont see how you can disagree with me. Okay, so, Flash Forward another few years into 1984 now. Obviously, senator ervin is still a senator. He writes his autobiography. Its called preserving the constitution. And he says in 1984, exactly three decades after brown versus board of education, that he has given what he refers to as the civil war amendments primacy of study. Hes really rolled up his sleeves and he has now come to the conclusion that brown versus board of education was correctly decided in the first instance. And he goes on to say, he says, the constitution is colorblind as the first Justice John Marshall harlan maintained in his dissent in plessy and requires the states to ignore the race of School Children in assigning them to their Public Schools. Right . Brown versus 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 tame and 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, senator ervin says, alas, while i accept brown, the modern Supreme Court has betrayed brown, because there are these decisions dealing with bussing 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. Case called green versus County School board, a case out of virginia from the 1960s. And another one, swan versus Charlotte Mecklenburg out of the 1970s where he says these decisions are wrong again because the judiciary is taking account of 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 versus seattle district number one. This was a case decided in june of 2007. I had the great, good fortune to be a law clerk to Justice Briar during this term. I was sitting right over there when this decision, you know, 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. Instead the School Boards get together and they say, we want our Public Schools to reflect the diversity that exists in these cities. So were going to think about race in making assignments. Theres a rank order referencing and then you 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 Briar, who a very long and in my unbiassed view wrote a convincing completely dissenting opinion and i wanted to talk about what the plurality had to say. In invalidating these plans, 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. This is me paraphrasing based on the color of their skin. It matters not one wit for constitutional purposes that in the battle days people took account of the color of the skin to keep people apart and black people racially subordinated and in the modern plans they were trying to bring people together. That mattered not one wit as a constitutional proposition. It goes on to say that the old evil of race consciousness in effect finds uncomfortable echos in these modern plans. He said 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 held that the opinion offered a contextualized structure of brown and ignored the caste system that brown versus board of education challenged. This criticism, in my view, hits the mark. In an important sense, though, chief Justice Roberts opinion was correct in contending that it articulated the views of the brown era. In my view, however, roberts opinion embraced not the majoritys opinion in brown, but that of the dissenting opinion, which is to say the southern manifesto. Somewhere senator sam irvin was smiling. Thank you very much. Thank you very much professor thank you very much professor driver, that was a wonderful lecture. I want to thank Justice Kagan for being here, being our host. We very much appreciate your bag here tonight. We have a reception downstairs in the lower grade hall following the meeting. And 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 the schoolhouse gate. You may want to take a look at that. Thank you all for coming tonight. We are adjourned. Youre watching a special edition of American History tv, airing now during the week while members of congress are working in their districts because of the pandemic. Tonight at 8 00 eastern, the Virginia Museum of history and unk e university of Oklahoma Center for the study of American Indian law chief Justice John Marshall and Supreme Courts decisions in the cases involving the forced division of thep p ch cherokee nation. Watch on cspan 3. Cspan has around the clock coverage of the federal response to the coronavirus paef. Its all available on demand at cspan. Org coronavirus. Watch white house briefings and updates from governors and state officials, track the spread throughout the u. S. And the world with interactive maps. Watch on demand any time unfiltered at cspan. Org coronavirus. In the 1873 slaughterhouse cases, the Supreme Court found that louisiana had the power to regulate sanitation conditions in slaughterhouses. A Butchers Association tried to block the sanitation rules, saying the regulations vltded the 14th