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Assassination attack that left him seriously wounded. Exploring the american story. Watch American History tv. This weekend on cspan three. Let us go through a few cases that illustrate very dramatically in visually, what it means to live in a society of 310 million different people who helped stick together because they believed in the rule of law. Good evening and welcome to landmark cases. We are about two thirds of the way through our 12 week series looking at Historic Supreme Court decisions. Tonights 1954 case of school segregation. Brown v. Board of education. We are going to begin this evening by listening to linda brown on this case. My memory of brown began in the fall of 1950. In the quiet kansas town of topeka, where a mild mannered black man took his sevenyearold daughter by the hand and walked briskly, four blocks from their home, to the all white school and tried without success, to enroll his child. Black parents into peak felt that the day of trying to enroll their schools their children to schools was long overdue. Many were the evenings my father would arrive home to find my mother upset because i had to take a walk, just like she did many years before, and catch a school bus some two miles across town. I can remember that walk. I could only make half of its some days, because the cold would get to bitter for a small child to bear. I can still remember taking that bitter walk and the terrible cold that would cause my tears to freeze upon my face. That was linda brown talking about her experience as a school child into pisa, kansas, and how her story led her to the Supreme Court in one of its landmark decisions. Tonight, for the next 90 minutes we will learn more about that case and how it came to the court and what its implications are. Let me introduce you to our guests. Tomiko brownnagin teaches constitutional law at history. She is author of the long history of the civil rights movement. Welcome. Thank you. Jeffrey rosen is at the table tonight. Ceo of and has been a partner for this entire series. He is the author of numerous books on the Supreme Court, including the personalities and rivalries. Nice to have you at the table finally here tonight. Your team has done such a great job. As we get started here, let us talk about the big picture on the issue in this case. What was really the heart of what this was decided here . The Supreme Court in this case considered the question of whether the state mandated segregations and schools was constitutional under the 14th amendment and this was an opportunity for the court to reconsider the 1986 1896 case which found that segregation on rail cars was within the constitution. Jeffrey, why did this become a landmark decision . Because by overturning plessy, the court faced the stain of this decision and fulfilled the promise of the reconstruction of the amendments. The 14th amendment passed after the civil war which turns 150 next year. It was designed to ensure the quality of civil rights. Justice heartland in policy versus ferguson, thought it was obvious that a fundamental right like the right to travel on railroads was a fundamental civil rights. But the basic insight that the Court Finally recognize was that separate but equal is inherently unequal and to separate people because of their race is stigmatizing and degrading. The fact that it took almost 100 years to recognize what was obvious to anyone in the south is just as just as holland said, everyone knows that the purpose of segregation was to degrade African Americans, and the fact that it took so long for the court and the country to recognize that is what made brown such a landmark in the 20th century. It is known in our society simply as brown. But one of those old factoids that people who are learning about along with us would be surprised perhaps is that browns is not one case. Its really five cases. Explain how that works. There were a bunch of them. I have to have my sheets might cheat sheet. They are not wellknown today. One of them involved the d. C. Government, involving whether the federal government as well as states could have separate schools, and to decide that case, it was called bowling versus sharp. They could not use the equal protection clause. Im waiting for my chance to bring up my National Constitution it had to used the fifth amendment to the constitution which since congress to the due process of law and the court run into that class and equal protection component, it is a technical document called reverse incorporation, but there was said it would be unthinkable that the states cannot discriminate the d. C. Can. There were a bunch of other interesting cases including one that was prompted by protests by the plan toes. Here they are. It only went for the case called get heart versus out of delaware. That time it ordered that African Americans be admitted to the segregated schools. The davis decision came out of virginia which challenged segregation of Prince Edward county. Finally there was a case called briggs versus elliott from South Carolina, which was the first of the cases. There were human stories behind each of those cases and it is almost a coincidence that linda brown so movingly spoke, became the face of all five cases. How does the court decide to join cases like this until one specific case and then give that case a title . I think that in the circumstance, it consolidated these cases because they raised the same issue with the exception of boeing versus sharp which is what schiff talked about. They were consolidated for convenience and because it made sense to consolidate them and consider this issue as it was raised in the several states. The naacp strategy involved filing cases in the states where the issues were most stark as to the reality that they were able to show in brown, and that was that separate was never truly equal. That is what the court decided. That Justice Browns decision in plessy where he said that if there is a harm of separation, of segregation, it is only because blacks are putting that construction on it. In brown, the court rightly recognized that really, the problem with segregation in schools and segregation generally, the court went on to stipulate that it was a stigma. It was a sign that blacks were considered inferior. One of the things that has made the series interesting is your participation. There are several ways that you can do that. You can call us in another 20 minutes. Here are the phone numbers. 2027488900. Mountain and pacific time zone. You can also send us a tweet. Make sure you use the landmarkcases. We will see it in the twitter stream. Finally, a discussion underway on our facebook page. Cspan has a facebook site and we have the video that you just saw posted and there are comments coming in. We look forward to hearing what you have to say about this case and your questions about it. Lets spend more time on the history that goes into this case. I want to learn more about plessy versus ferguson, 1896. It was a transportation case. Jeffrey it was. This is a time when jim crow was not yet up and running. The law requiring segregation was not welcomed universally by railroads themselves. It was challenged as a violation of equal protection clause and Justice Brown held for the court as long as the cars are equal, there is no problem, because the equality of facilities is all that constitution requires. The imputation of inferiority is the problem of African Americans. I justices harlequin, one of the greatest defensive the 19th century this is a kentucky former slave state. He is a no nothing turned abolitionist. He says that would rather be white and be consistent. When he is writing the decision, to strike down the Civil Rights Act of 1875, his wife puts the pen that chief justice tani had used to write the dred scott decision. He realizes this is one of the great defenders of the promise of the reconstruction amendments of the 19th century. And in his spectacular dissent in place either says ferguson he basically says that everyone knows that the real purpose of the separation was not for convenience of both parties, but to degrade and stigmatize African Americans. In famous words, he said, in respect of civil rights, the constitution neither knows nor tolerate classes among citizens. The constitution is color blind. There is no cast here. There is an odd preface to his decision which is jarring by modern terms. He says, the ways the moment is preeminent, so it will continue to be fit maintains its traditions, but in respect exhilarates there is no the constitution is color blind. He is continuing the distinction that lincoln and other reconstruction people at the time, maintain between civil and social rights. He was saying, you have to give separates to everyone but were not mandating social equality. Nowadays it has an uncomfortable tone for us. I think that is right. It is almost as if what justice harlem is saying is that it is overkill to dirty up the constitution with these kinds of racial classifications. You can read the preface to the wonderful his opinion to where the constitution is color blind. In a way he is saying that because of social conditions, it is not necessary to stipulate in the law to have a constitution besmirch to buy this practice of segregation. This is so important. The big this dissent is so important that there were good marshall reads it before he argues brown versus board of education. Because we know, nowadays, and we will talk about this later in the show, the huge question is whether when hardline said the constitution is color blind, did he mean at all racial classifications are in permissible . Or was he saying something now with respect to civil rights, fundamental rights from the constitution camp on racial classifications. Is he saying no classification or is he saying only classifications that or from a cast system . This was the big debate. Really, the entire history of what the equal protection clause means its to set up in that civil dissent. That gives rise to the next question, which is the legacy that decision. It is so hard to compress the next 50 years into one couple of set sentences. Did plessy versus ferguson which legalize separate but equal there was a transportation case but it changed society. Did it give rise to jim crow laws or would they have happened anyway . That is a hard question, but it is probable that after the compromise of 1876, when the Propublica Party in exchange for winning this contested election got out of the business of enforcing reconstruction, would not have had the force of will to actually resist jim crow as it rose. I would not say i would be very we do with the south would do in terms of Race Relations. I need to fast forward to 1940. Where things are actually beginning to move in a more positive direction. Notably, the effect of the war, and the contributions that African Americans may during the war. In 1947, it was the desegregation of the armed forces in the sports world. Jackie robinson integrated baseball in 1947. How are things beginning to shift and society in the late 1940s . You put your finger on something thats really important. That is the impact of the war. In terms of African American serving in the war, but then, coming home to this country and being mistreated, including because of the segregation laws, being mistreated by virtue of the law, but also experiencing terrible incidents of violence and the juxtaposition of the soldiers having fought hitler and his creed. With their treatment here in this country where they felt as if they were experiencing the same kind of ideology in this country was enough to make the soldiers vital in the struggle for civil rights. Other things that were happening where that African Americans had migrated and substantial numbers to the north, which meant that they were forced in politics, which was important to changing a sense of where African Americans belonged in society. You mentioned the movements and sports which was very important. All of which was to say that African Americans were gaining stature, and they also were gaining more so than ever to think in terms of resisting these gym crow laws. Thurgood marshall is going to become an important player in this case. Later on in his life he becomes the first African American appointed to the Supreme Court. But in 1940, what was he doing . He has founded an acp canada in order to launch Illegal Campaign against segregation. He does so with a Strategic Panel brilliance that has come to be seen as decisive in the brown victory. He looks at the Public Opinion and he and the forces so well described. He knows that the presidency is turning against segregation because of the cold war. It is really bad. The russians are saying look at these hypocritical americans who are segregating. Truman desegregates the military and truman and eisenhower ministry administrations are supporting desegregation, but then the goal marshal looks there is still segregation and Public Schools. The majority of states have. It wants to start smaller by attacking segregation in law school admissions, graduate school admissions, and then, after having won those victories, attacking schools. He does not initially argue that plus events is ferguson should be overturned. Instead, he attacks unequal facilities and in the texas case, he says you are not even providing an education to African Americans in the separate law school that you set up is patently unequal. A graduate student is literally demeaned by having to sit separately within the school. He is humiliated and degraded and that is clearly an equal. After having establish those two president s, finally, there is the big debate about whether to actually call the plessy overturned and the Public School desegregation should be attacked. Let us take a look at the map which will show you what the Public School system looked like in terms of segregation in the early 19 fifties. Look on the screen. The reddish pink areas. Segregation in the south was required. They are no states with segregation locally determined. Blue states, no segregation laws. Green states, segregated segregation was gently prohibited. That was the situation going on. Of the using of the legal system to approach segregation. Schools that is at the heart of this case. We will listen to Thurgood Marshall next talking about the legal system and his thoughts on how to use the courts. To address the problem in america. What is strident to me is the importance of law in determining the condition of the negro. He was emancipated by law. And then, disenfranchised and segregated by law. In this country, he demonstrates the importance of getting rid seeking to secure the security of new, friendly laws, federal, state, and local. Either Civil Rights Activists which shoes different methods to make the case. Thurgood marshall chose the law. Can you talk more about . That sure. As jeff said, the strategy that was implemented by Thurgood Marshall and houston, the blueprint was, it was gradual. It was brilliant, ultimately. It also was daring and risky in the minds of others at that time who were equally committed to black freedom. People like a philip randall, Roger Baldwin at the aclu, were skeptical of using the courts and the law, emancipation, social change for African Americans. Partly this was because people like randall for interested and interracial Labor Movement as the path to equality. There were those like ralph who thought that the courts are only as good as the personnel on the court. It could be expected that the judges would reflect the Racial Attitudes of the majority of the population and therefore why think the courts would be a good venue for vindicating African American rights . And there were those who said that even if theyre good marshal and the Legal Defense fund were able to prevail. Excuse, me discrimination could continue notwithstanding the change in law which is perhaps the most profound criticism that could be made, and i have to say that all the critics were on to something. That is really the difference between constitutional and theory on the books and on the ground. Ultimately, all of these people were saying that individuals are the face of the law that people were saying that people were experiencing everyday. They were skeptical that individuals would come through in the way that martial imagined. Next you will learn how the story of the brown family before we do that lets go to your comments. First kathy is on twitter. She asks, did brown actually overruled plessy . Brown was limited to education. Did they say they were ever overruling . It brown did overrule plessy. It was applied to schools, and then in the subsequent cases the court applied to desegregates win in polls and other public facilities and so forth. The main question was, should pelosi be overturned and brown overturned . I will say, i think with the call or maybe getting at is the way in which the opinion was written and the fact that in the opinion, plus sworn overriding the court used language saying, to the extent that there is anything and plessy and consistent with what we are saying, then we pull back from the principle of plessy. It was not the kind of robust language of overruling that you might see and some other cases. I think that was by design. It was a strategy for the court to try to be a consensus court. There is another that is exactly right. There were other parts of the opinion that by failing to say segregation was wrong at the time of plessy and it is wrong now because it is stigmatizing and degrading, gave critics the chance to resist it. First, warren says, whatever may have been the state of Public Education at the time of the 14th amendment, now it is really important and it has to be governed on equal terms. But there was the famous in which the court coming off of the trial court, cited the studies of Kenneth Clark that had found that African American children have lower selfesteem and were more likely to choose white dolls and African American dolls and this was controversial and let people who are resisting the decision saying it was based on bad social science. Today its exactly right, the clearer overturning of plessy might have made it harder to resist browned and would have made it harder for critics of that footnote today, including Justice Thomas that if the court was wrong Justice Thomas would prefer that the court and brown simply say, the purpose and intent of segregation is to degrade and therefore plessy is overturned. Alberta was watching us from michigan. Good evening to. Good evening, susan. I want to congratulate you and mr. Rosen for this wonderful serious. Im thoroughly enjoying. To my question. My first question is, did the framers believe that segregation was a violation of equal protection of law, given the fact that the Nations Capital was segregated . And with this in mind, could the brown decision had been made using the religious interpretation . Final question, when the fifth amendment was passed, it did not have an equal protection clause, so in the bowling versus sharp case, could the bowling versus sharp case could have decided using this interpretation . Great question. I will give it a shot. Michael mcconnells great article. The virginia law review. It is the best attempt to create and originalist defensive brown. Here is the bottom line. Heres what we know. There were those in congress in 1868 who thought that basics laredo had to be available to all and wouldve allowed segregation there. At the same time, Felix Frankfurter commission is locked out to right along study. Its pretty clear that the people in 1868 who opposed the amendment ratified it and did not think schools needed to be desegregated. People actually stood up in congress and said dont worry this wont apply to schools so in order to say that schools are covered as an originalist matter, you really have to look more around 1875 when the congress was more liberal. This is a problem for as because if you really think what matters is what the framers and red virus thought, then brown is hard to justify as a way of original interpretation. No current justice has does a great job and explaining why it is consistent with original understanding. I will stop there because we will run out of time. We will get back to that later in the program. Falcon is watching us in silver spring, maryland. Youre on. Good evening. Yes. We are listening. Do you think that after hundreds of years of segregation and adverse Economic Impacts on black families, today and in the past, is there some type of reparation . That question has been debated by a lot of people. There are certainly good arguments to that effect. I think most people come to the conclusion that there are two problems. One of which is politics. The other of which is a concern about how one would actually assess the damages. If one could couldnt vince the right people that reparations were appropriate, how would one actually go about figuring out what was owed . One might say just give it a shot. Its a question that has been debated a lot, but really the problem is a political problem. Next is robert from frost brig, maryland. Hi robert. Good evening ladies and gentlemen how are you doing . Im a vietnam veteran. One of the things that has just devastated me is, first of all, democracy has not passed anywhere on earth and respected everywhere. Colonialism was driven out of the world in the last century. It is so intolerable to people. I thought in a war where we were driving out that colonial mentality of castration. Here, we talk about brown versus the board of education of topeka. We still all hold these stupid prejudiced. We had a civil war over this insanity. And yet, my beautiful country with all its principles that it has, we keep holding on to what was driven out. Whether it was violent revolution or nonviolent revolution, people are tired of racism. They are tired of it everywhere on earth. Thank you. First, i will say thank you for your service. The second thing i will say is you make a fantastic point. The u. S. Has been able to export democracy to many places and there are many nations that look up to us for our constitutional system. And yet, i would say there is still is a chasm, in many instances, between what i call before law on the books and our aspirations as a country and people and every day practice. Thats partly reflection of the fact that something i said before. Its something that the court was concerned about at various times. Thats the ability of law to change peoples hearts or everyday practices. In order for there to the social change in the way in Race Relations in the way that you aspire to win. It has to occur not only institutionally but inter personally. I want to show a piece of video next. This was used in one of the lower court cases that you described earlier. Its interesting because it documents the differences between white and black schools in this county in virginia. What is interesting about it is both sides, the plaintiffs and defendants, used these pictures stating they supported their positions. Lets watch. These photographs are exhibits in the court case of Dorothy Davis versus the school board of Prince Edward county. The davis case was wrapped into the brown v. Board case before the Supreme Court. What are we what we are looking at here is the story of the schools. Heres a white school. Its a two story brick structure with landscaping and sidewalks. Here, we have several buildings that compose a single school. Some are brick, some are tar paper and its in a rural setting. Now we move into the classrooms. Here we have a white school in Prince Edward county. Notice the students seem relatively comfortable while in the African American school, children are weighing coats, theres a large heater in the middle of the room thus showing how cold it was in these rooms. Moving on to other parts of the buildings. Here we have a home tech class in a white school. Notice that much of the furniture and appliances are relatively new and modern. And the African American schools, its a much different story. The materials are much older. You can tell theyre much more worn. These exhibits were submitted by both the plaintiffs and defendants to show, on the plaintiffs sides, that these facilities were unequal. Where is on the defended side, they want to show these facilities were just about equal. As we are looking at those we have to talk about how one of those cases, the brown versus board of education of topeka, made its way into the federal courts. First of all, is the brown we saw earlier linda brown . It is linda brown. Sorry she was the daughter of a welder in the shops of the santa fe railroad. He was also a parttime preacher. Some of the pictures you see of him wearing his color. He chose to wear his color and that adds a different dimension to this case. He was brought into the case. He was approached by the naacp. The fact that both sides in Prince George this case have the goal to actually present them and say they were equal was confusing according to martial. That is why he picked a school where there was no allegation of separate but equal facilities. He was stressing defect by that linda brown, as she said in that moving introduction, the fact she had to walk six blocks to school bus and then take a long ride to the segregated school. For her and her father, it was an indignity and an outrage that was self evident and did not rely on exactly whether the facilities were equal or not. It was filed in the u. S. District court february 28th, 1951. The arguments before the court. Naacp was represented by robert carter. It was a three judge panel, arthur huntsman, arthur mallet, and dallas hill. Judge Walter Huntsman wrote that opinion. Can you tell us anything about the opinion that we should know about . The important aspect of that opinion, i would say, is that although the judges rejected the application of sweats and make lauren which were two cases the naacp had prevailed. It did include a fact indicating thats a segregation of schools was harmful. That was incredible. Its precisely the issue that was so controversial before the Supreme Court. It was a decision that was adverse to the naacp, but in terms of that little finding effect, theres a little nugget in there that was helpful. Jeff rosen, can you explain then, once again, how these cases actually made it to the Supreme Court . Where the justice is looking for a case to decide this . What was the process for these five cases that were consolidated . I dont know that the justices were looking for it, but there was a disagreement among the lower courts which increases at the possibility that the court will take the case. It was very important that the president , both truman and eisenhower administrations, had filed briefs. A former clerk for phoenix frankfurter wrote a brief which he considered the most important of his career. He went through the Court Precedents and showed how they compelled the result and brown. I think, to a certain extent, the court felt it could not avoid it. But then something very dramatic happened. I dont know if this is the time to tell that story. Probably not. Okay. laughs lets take two more calls. Then we will talk about what the Supreme Court looked like in 1952. In fact, this case was her twice by two different courts. We will talk about the drama that caused that court to be different the second time around. Gary is in tampa, florida. Hi gary, welcome to our program. Thank you. While i am aware that there were impeachable signs on southern highways. What im curious is brown versus board of education was an issue in the 1956 or 1960 or 1964 campaign etc. I dont remember reading about it being a specific issue. Im curious to hear some feedback. I dont know if i can talk about president ial debates concerning brown versus board of education. I can say it was made a highly salient issue in politics. Certainly in the south where there was deep resistance to brown. If it was not debated informal terms, it was certainly something that was talked about. Warren was a person from which people wanted a pound of flesh. He was the representation of brown and the court and the sense that the court had been activist in a way it had never been before. I think its clear that brown was an issue in politics generally. Im sure that at various moments it was in issue in president ial politics. It certainly became an issue in president ial politics during the Nixon Campaign we. Later on, after the court had actually started to enforce the decision. Josh you are in iowa and you are on cspan. Welcome to lamar cases. Hi. I just want to say quickly that i hope i cspan will acts band on their landmark cases. My question was, just as you go black had been a member of the kkk we. Did he redeem himself by voting to End School Segregation . Just a great question. As you said, hugo black is appointed to the court by roosevelt soon after it is reported that he was in decline. There is an outcry. He gives a radio address. You can check it out on youtube. He stands before the mics and says i did join the clan either for resign. He was a lot to go on. The outcry which led to protests around his house must have left a deep impression on him. He joined some have breaking opinions recognize and racial inequality in cases. During the brown case, hes the one southerner in the initial vote who is very keen to vote to strike down segregation. Some speculated that it was to redeem the stain of his clan membership. Hes also the only southerner who says there will be blood and people are going to die. We should announce a clear rule and get out of here because the court cannot solve this. Hes really bringing his political wisdom to bear. Theres one final story that is interesting. Walter dillinger, former solicitor general, was in court for hugo black. At one point he asked the justice, so justice black, why did you join clan . And theres a silence. It cant believe he asked him. Black positive. He says, son, if you are running for senate in alabama in the 1920s who would join the klan as well. That was isnt cues excuse. Perhaps he did some of that with brown. My question is a segue into the prediscussion with the court look like in 1952. Chief justice was fred vincent. He was a truman appointee and he was joined on the court by justices hugo black law, tom clark, robert jackson, chairman and mr. Reed reed. He did not bring coalitions together and there was a very divided. Court 1952 is still very divided. Was he having a difficult time bringing together two groups within the court that did not see eye to eye . I think the basic problem with vinson is that his colleagues were not respecting him very much. He did not have the Institutional Authority that wants this airy to try to bring the justices together, is what i would say. The division that i think is most important to perhaps talk about as the rivalry between jackson and frankfurter on the one hand, and hugo black and douglas on the other. And with that represented in terms of how the justices thought about the constitution. Im sure jeffrey will have things to say about this. The thing to say about the first combination is that there was a belief in judicial restraint. A concern about justices issuing holdings that were Legal Holdings and not political. Until khoury a concern about how to deal with plessy. Plessy is a president that was on the books for very long time. Justice jackson and justice frankfurter were concerned about how to justify decisions to overrule plessy. Can i just pick up on the . Loyola tomiko so well describes this. A become manifest in the first conference over brown. As tomiko says, the colleagues dont respect vinson. Vincent had threatened to punch frankfurter in the nose. He was always condescending to him and treating him like a poker buddy. He did not respect them. The initial vote is Something Like four votes to track strike down segregation. Black, douglas, minton and burton. Stanley reid from kentucky, and tom clark from texas. And frankfurter and jackson seem undecided. They are in favor of judicial restraint. They dont like segregation. They dont think the court should be stepping in here. Initial vote is taken and it looks like segregation is going to win, then all of a sudden, before the court could decide the case, vinson drops dead of a heart attack. So on the funeral train on the way home from the funeral, Felix Frankfurter says to his colleagues, this is the first indication ive ever had that there is a god. It was not a nice thing to say. He was not a nice man. But then the court reargues the case. I want to get the attorneys on the docket for our viewers. There is a familiar name. The defendant attorneys included john davis who has now been and three of our landmark cases. Who was john davis and why was he at the helm of so many of these important cases . He was the president ial candidate. Unsuccessful president ial candidate. Turned one of the great courtly, silver haired, fifth. You could call him a strict constructionist. He did not believe in a living constitution, although i do think the constitution can occasionally adopt the clause shows. He did feel like he was defending southern traditions. For him this is an easy case. He says look a text does not forbid segregation. The original understanding clearly allowed segregated schools. He thought he was going to win easily, and for him he is so invested in this case, that after the argument, in the richard cougars book which i want all of our readers to read. The end of the oral argument, davis has tears in his eyes. That is how he actually was invested in maintaining segregation. On the other side Thurgood Marshall as we mentioned, i want to get other names in here. Robert carter was part of the naacp legal team. Robinson, arguing the virginia case. Lewis reading, Jack Greenberg argued part of the delaware case. George hays and james neighbor it. I want to show another video because you talked about the impact and social experiment on the justices thinking they have a video about kenneth and mimi clark who had conducted this case and we will talk about the impact on the justices deciding this case. The doll test was integral to the brown v. Board of education, because it clearly demonstrated that separate was not equal. Separate was not good. In fact, separate was an injustice. What we are looking at here are the dolls that the doctors kenneth and mamie clark used. The doll tests were a series of studies at mimi clark and Kenneth Clark did to try to determine racial awareness and Young Children with the implication being that in a segregated society, if children are aware of race and the differences in race, and the differences and how different racial is was treated it with impact how they felt about themselves. What they did that actually became very wellknown in part of the brown case, was that he showed Young Children black and white dolls. They would ask the children, show me the dull that is the best. Give me the doll that looks like you. More often than none, the black children showed the doll the nice stall was the white doll. The doll that was the best was then white doll. When you got that last question, give me the doll that looks like you, that is when the children would pause and be a bit more confused or look troubled as dr. Clark would say, because they had said in many cases, this is the bat dome. This is the nice stone. And so, remembering that they had said this is the bad doll, they now had to show the doll that looked like them. It was particularly difficult for them. Some children, some black children will choose the white doll. Because they could not embrace after having said this is bad, not nice, they could not embrace it. How often does the court rely on social science in making its decision . This is an unusual thing that this became part of their thinking . Thats a good question. Justice brandeis had introduced the reliance on social science into the practice, so it was not the first time in brown versus board of education that the court relied on the social science. I think though, that would made this different, was that first, overtime, im sure it was true then as well. There was some question as to how reliable the doll studies were. It really was sort of a simple kind of experiment. One could raise a question about the methodology about the things we think about today in terms of the reliability of social science. It was not altogether new, but on the other hand, the extent to which the brown opinion instead relying on the doll studies and on the idea that black children feel inferior because of segregation, i think was profound. We left the story with the death of the chief justice. Was it because of the chief justice is death that they decided to rehear the case or was that already going to be rehurt . That is an important question. I do not want to get it wrong. They did decide to rehear it because frankfurter asked for a rehearing. Was it right that he died after the rehearing or before . Im not sure about the detail. What role his death played in the hearing. But the court could not come to a decision after their after hearing the first round. They chose not to. They chose not to. They could have. Frankfurter who tried to take credit for everything insisted that he knew, first of all, he had special insight into the south because he had taught southern students in Harvard Law School so he knew how they would react. Then he said if we could Just Commission this paper about the original understanding of desegregation, that would give us some time and allow consensus to happen. Anyway, vinson dies. Frankfurter says there is a god. And earl warren is appointed by dwight eisenhower. He was the republican candidate for Vice President in 1948 when tom do we ran. And he is a tall, blond, all american moderate republican. This is someone who really made civil rights one of his callings in california and called for the people to be brought together. He does have one stay on his legacy. An important stand. That is, supporting the japanese internment that we talked about so vividly in the and has memories in 1976 where he finally expressed remorse for the japanese internment. He wept and reflected on what he had done. Nonetheless, remember, this is a time when the democratic within the party of segregation and the Republican Party was the party of lincoln so for warren to be in favor of civil rights at the time was on unusual. He had one of the first Supreme Court seats. Dwight eisenhower had promised to him. Warren says, give me the seat. Eisenhower said i never promise to make you chief justice. Warren says, you said the first seat is the first seat. So he held him to the deal. Eisenhower later since, it was the worst fool decision he ever made. The second set of oral decisions he made was 1953. Chief Justice Earl Warren hugo black, Felix Frankfurter, stanley reid, mr. Jackson. Did they differ very much the whole argument system were focused on these questions about original intent and the trouble there as jeffries already explained what the problems were, the 14th amendment or not social integration us in the way that we think of today and so the question that was put before the lawyers the naacp lawyers struggled and the problem was that the answer was not going to be found in the questions that had been put before the lawyers in the court. The seminal question before the court in this case does racial segregation of children in Public Schools deprive minority children of equal protection of the laws under the 14th amendment . I would like to have you tell the story how the chief justice decided that for this decision to work, it had to be unanimous. How did he get to unanimity . One of the great examples of traditional statement ship in american constitutional history. The arguments are heard. The justices have their vote in the private conference. Warned begins by saying this is an easy case. It is obvious that segregation has the intent and purpose and effective degrading African Americans. Then they take a vote. It is not entirely clear with the first vote was but it is at least six to three, maybe seven to two. There were two major holdouts. Robert jackson, the great advocate of judicial restraints and stanley reid from kentucky who argued segregation. Jackson is in the hospital. He has had a heart attack. Warren visits him and basically says it is very important for the courts that the speed unanimous. Jackson, he cannot see any original understanding or text or precedent or tradition, a reason for brown, nevertheless is a new deal and thinks it is important and he will join. Finally, it comes down to stanley reid, the last segregationist. He goes to visit reed in his chambers and isa stanley, it will look back for the court and bad for you if this is an eight to one decision with when being the segregationist from the south for the good of the court and the country, youve got to make it unanimous. Reed, who is an institutionalist and cares about agrees to make it unanimous. Warren then reads the decision to a spellbound courtroom and he says does segregation violent violate the 14th amendment . We believe it. Does Thurgood Marshall looks up at stanley reid and cannot believe that this ardent segregationist actually voted to strike down segregation and looks and asked the question, you stanley, you voted . He nonsense is yes, i voted for this. It was an electric moment. Its a real testament to warrens statesmanship that he was able to create. Let me read a little bit from chief justice and what he had to say. We conclude that in the field of Public Education the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal therefore we hold that the plaintiff and others similarly situated from the actions have been brought our by reason of the segregation, deprived of the equal protection of the laws guaranteed by the 14th amendment. I will let that stand and take a pause. Our time is going out quickly. Lets go to christopher who is watching in brooklyn new york. Yes. The majority of white people were against segregation. I actually i saw your preview of the baby situation. The white baby looks like an angel. The black baby looks like an eight. And death to the ok were were going to move forward. Dennis . Dennis, you are on. We are going to move on. Rahm . Yes. Good evening. This program and discussion and the show is so vital. Kudos and congratulations for your program. This is so vital for the survival my point is as what do we need to do to keep it going . This discussion has to keep going. Weve been robbed of our history. You guys are doing a phenomenal job. Whether we agree or disagree with you, weve got to keep it going, especially during the president s election. I love you. God bless you. That is very kind of you. We appreciate the good comments. Before we leave this, i would like to get another thing on the record, which is, you mentioned earlier in the cold war, and in fact, at least in the first case, the government filed that made the case of the justices about the United States International Reputation being damaged by segregation so i wanted to ask you both because often we are the court saying that it is insulated in Public Opinion. This is one of several cases in the landmark series where wars were going on, or in this case, the cold war, where there seem to be a determined impact on the outcome that the justices realization about the politics or policy impact of what they are reviewing. How people understand how the Court Functions and what it says, is an insulated study of the law environment. But we keep seeing instances where politics does impact the decision. It is so important to focus on this. We think of brown as a counter maturity decision. And unpopular decision that was imposing a rule of equality at a time where most of the country was in favor segregation. Because of the map you showed earlier. It was so pervasive. But in fact, 54 of the country supported desegregation at the time brown came down for the reasons we have been discussing. It was an International Embarrassment after world war ii and it was derided as a kind of, Something Worthy of defeat of nazism to have this kind of justice segregation inferiority, and opinion was shifting quickly. It was really the fact that the senate was controlled by senators to refuse to bring desegregation bills to the floor. The senate was thwarting Public Opinion. Both the truman and ice and highs are Administration Warren was a big mistake, but his administration does support desegregation. The court is aware of what congress is thwarting from doing an aware of what the executive is trying to do and knows about jackie robinson, and in that sense brown, far from thwarting the general of the court has tended to defile the Public Opinion, surprisingly supports. The to the micro and then to the macro. We will listen to linda brown talking about her reaction when they heard the courts decision. That is. Watch time stood still as the highest court of the land pondered over brown versus board of education. Until an afternoon in may of 1954 when i was at school, my father at work, and my mother at home doing the family ironing and listening to the radio. At 12 52 pm, the announcement came. The courts decision on ending segregation was unanimous. That evening in our home was much rejoicing. I remember seeing tears of joy in the eyes of my father as he embraced this repeating. Thanks be until god. So we move from linda brown to societal changes. What was the reaction in the country of the brown decision . Thurgood marshall was greeted as mr. Civil rights, as a hero, as an icon. There were many African Americans who were very excited about the decision, very hopeful about the decision. The court was viewed over time as a hero and protector of minorities because of the decision. The country a lot of people seemed to be moving in the right direction. On the other hand, there were those who thought that the decision was outrageous. That it was another judicial activism, that the court had not followed the law, that had not been faithful to its imperatives as an institution. That the court had put itself in the position of being a legislature. So there was a lot of pushback against brown versus board of education. Id like to have you talk a little bit about the Massive Resistance Movement. Weve got two statements. Went from a member of the house and one from the member of the senate who were involved in this. First is Josh Williams who made a speech in 1954. He said, among other things, the time is and hand when the states must reassert their Constitutional Rights or suffered their own destruction. If states are to preserve their sovereignty. If they are to preserve the constitution, they must declare the black monday decision, the brown decision, to be illegal and invalid and of no force and and effect within the territorial limits of their respective jurisdiction. And senator karen berke of virginia who organized the Massive Resistance Movement said, the unanimous decision of the Supreme Court to abolish segregation in Public Education is not only sweeping, but will bring implications and dangers of the greatest consequence. It is the most serious blow that has yet been struck against the rights of the states in a matter of vitally affecting their authority and welfare. They authored what is called the southern manifesto and it was signed by 19 senators and more and 80 representatives. All of them, southern democrats and congress. What was the effect of this . The effect of that, which you summarize so vividly. Can you imagine calling it black monday and then saying the southern manifesto, was precisely to encourage Southern States to resist in the ways that the manifesto demanded. And the resistance, as topeka suggested, it was powerful. In 1959, Prince Edward county virginia closed its entire Public School system rather than obey a court order to integrate and it was close for five years. The Public Schools and South Carolina were close for a great period of time. Charlottesville, warren county. Schools were all closed by state officials. Then finally, the resistance culminated in this next dramatic case. Central high school, little rock, arkansas, resistance to allowing integration is so great, that president eisenhower had to call in the National Guard. We can talk about that great case if you like. Let me take some calls. This is dennis in texas. Hi, dennis. Hi. Richard cruger its fantastic work. Its an epiphany for the southern boy who had only heard one side of the argument for most of my childhood, even into college. I wanted to ask about a law clerk by the name of william rehnquist, who, at his confirmation hearing in 1971 the issue came out that he had in fact written a descent for Justice Jackson in the brown case when it came before the war in court, and he set, and 71 that that was just they were just covering their bets, so to speak. He did not really feel that way. I just wondered if either of your guests have checked to see the veracity of Justice Rehnquists comments at his confirmation some 20 years later. You summarized it very well. It was an important controversy. The memo was quite vivid. Chief Justice Rehnquist and the law clerk said southerners do not like black people and they will never admit them. The truth is, i believe that plessy versus ferguson was good law. As you say, chief Justice Rehnquist, throughout his career had been writing in jacksons voice. Jackson had asked him to express his own thoughts because he was undecided. We know that Justice Jacksons secretary disputed rehnquists account and said that jackson had never asked for competing opinions to be written in his voice. According to her, rehnquist was expressing his own views. I think that is the most direct evidence that we have. Hello morris. You are on. Good evening to all of you. The 14th amendment does not apply. I think we feel that certain protections are so important that they appear twice, so so that the fifth and 14th amendments each have due process loss. The equal protection of the law is more explicit safeguard or prohibited unfairness then due process of law. I would not assert that that implies the two are always interchangeable phrases. How do you feel about the assertion that the concepts of equal protection and due process are not mutually exclusive . I think you are referring to the controversy over bowling versus sharp, where the court reads an equal protection component into the fifth amendment. There is a lot of discussion about exactly how the court does this, how the court explained that. I do not think the court goes very far towards an explanation. The fact of the matter is, that there was not going to be any way that you would get one holding in the four cases involving the states and a different holding in the case involving the district of columbia, therefore, we get this equal protection component read into the due process clause. As to how important that was, i tend to think that there is an understanding of due process that makes it a very robust concept. The due process clause is the basis that the court ends up using for fundamental rights analysis, so i would say that they are not the same, but there is an appropriateness to reading that component, the equal protection component into the fifth amendment under those circumstances. If i could just add one quick justice heartland who wrote that dissent and plessy, believed that exemption from class legislation or unfriendly legislation based on race was itself a privilege and immunity of citizenship and the court, read the closet of the 14th amendment as you well know. That argument is no longer available, but for some of the framers of the 14th amendment, it might have been a less closest case. A quick comment to the man from twitter. What did the brown decision due to the legacy to the place he the scent . It indicated him as one of the great profits of the 19th century. Next is chuck. From pennsylvania. Chuck, you are on. Although you say that brown reversed the bless eat the session, isnt it true that railroads continued to ignore the brown decision and continued segregating Passenger Rail cars until the Civil Rights Act . It is not just the railroads, it is all kinds of Public Institutions that dont exactly comply with brown. The latter of brown forthwith. It takes very long time, as you say, for brown to actually be implemented. As jeffrey pointed out, there is a decision where the court speaks to the issue of school desegregation. The problem is that, unless there is in the early years after brown if there is not these dramatic instances ever is assistance to the decision, and the School Districts are able to proceed whatever they see fit. For a very long time. It is not until the late 1960s after the Civil Rights Act that brown is implemented in any substantial way. Our next video is Thurgood Marshall. He gave an interview to mike wallace on cbs, on president eisenhower and what he thought of the president s decision. And his response rather, to the desegregation of schools. This was taped on april 16th, 1957. Lets. Watch i do not think that president eisenhower has done anywhere near what he could have done. I wonder whether it is too late. I dont think its too late. The president should have sharply after the decisions, at least by now, had gotten on a Television Network or radio and spoken as the chief executive of this government to the good people of the south, urging them to support the decision of the Supreme Court. It is the law of the land. Whether they believed in it or not. To use the full influence of this position as president. To bring about Peaceful Solutions to this problem. I think he was obliged to do that, and i think that his failure to do so does not help us at all, especially when we realize that as a result of the failure of the good forces to take over, we have allowed these other forces like the white citizens councils, planning to threaten and intimidate good people. How moral leadership should come from the Top Executive of the government. It is his responsibility. Five months after that decision, president eisenhower sent federal troops into enforce the desegregation in little rock, arkansas. So, walk us through president eisenhowers legacy in this. Cooper versus iron is also incredibly dramatic. We have a court order to integrate central high school. You have students who are being turned away by mobs. You have governor standing at the School House Door saying he will never allow the students to come in, and you have president eisenhowers decision to send the National Guard to ensure the admission of these kids, and you have a Supreme Court which is so afraid that its rule to integrate the schools will not be abate, because there are not sure what eisenhower will do. That each of the justices signs a decision in ink this is has never been done before. All the justices, to prove their unanimity. It seems like a show of strength, but in fact it is a sign that they are scared to death. That he really is not going to follow through. There is also language and judicial supremacy that almost overstates the case. This court is supreme and its interpretation of the constitution, suggesting that the president or congress has no role. Basically, these are nine men who literally do not know what the president will do. Not that he did send the troops and despite his grumbling about earl warren, did ultimately say, the Supreme Court has made its decision. I have to enforce the law. It helps mitigate eisenhowers legacy. There are some interesting you revisions in history saying behind the scenes, eisenhower was aware of the shifting politics, but he was more supportive of desegregation. I want to show one more video and id like to come back to and talk about this. This is actually earl warren taped in 1969 in an interview. He is talking about his frustration with the resistance to the brown decision. In some parts of the country, one could not help the impatient when it would see the orders of the court, and just not obeyed in any sense of the world and where illegal things were changed in form, but not in substance and carried on. Of course when feels frustrated at that. When the American People as a whole recognize that we have in the past, been wronged and deprived and certain minorities of their Constitutional Rights, when we make the decision to say that they will in the future have these rights, then i think we are on the way to solving most domestic problems. A couple of things. Big first of all, i agree that there is a revisionist scholarship on eisenhower that puts a different spin on his views. However, he sent the guard. Those are important. I think at the same time, the problem for eisenhower as it relates to school desegregation, is that there is a sense that he does not he is very supportive of state rights which is with the marshall was talking about. There is a sense that he is not really supportive of the principal of desegregation as a personal matter. There is the story about how at a white house dinner, he was overheard saying that the people of the south who were resistant were not that people. They simply were concerned about the little white girl sitting beside the overgrown black boy in the classroom. I do think that there was not that personal commitment to brown versus the board of education, and he, in that sense, was on the wrong side of history. Earl warren on the other hand, also a politician, and not a man who when he was appointed was respected as a great legal figure. His skills were political. Understood that having the office of the presidency behind the Supreme Court, having congress, having all three branches acting in the same way as we had after 1964, was really the only way that the decision would be enforced. Let me take a call from can watching us from new jersey. Hi, can. Hi. Thank you. I have two questions. Number one, it is my understanding that despite what you said earlier, that eisenhower said that appointing warren to the Supreme Court was one of his worst decisions. It is my understanding that at the time that he appointed warren, intentionally appointed him because of this case, and he wanted that to have a kind of a decision, and i would like to hear your comments on that. Secondly, it is also my understanding that when eisenhower sent troops into arkansas, it was also the first time that the president , that the executive had stood behind the Supreme Court, especially since president jackson in 1828, that i would like to hear your comments. I love the fact that you bring up jackson, and of course he did famously say in the cherokee indians case. He said at johns marshals decision, i, John Marshall has made his decision, not let him enforce it, confirming hamiltons a dodge that the Supreme Court has neither personal sort. I had not heard that eisenhower pointed worn because he wanted a positive decision the fact that he resisted making an appointment at all it seems to call that into question. I do agree with tomikos id be interested to know if you ares had a sight for that. Please tweeted in. We have ten minutes to talk about the six years of legacy of the brown decision which is impossible to do. We want to start with the legal legacy. Weve got four citations of brown. In 64, reynolds versus sims. 1967, loving versus virginia. It was racial integration and marriages. San Antonio School versus rodriguez. Planned parenthood versus casey in 1992. If you look at the legal legacy, what hasnt left the country with from that perspective . That is a really good question. The most important legal legacy of brown, i think goes back to the point that it established the idea that the Supreme Court cant be interventionists to protect individual rights in the most profound way. It was cited in various cases where the issue was not schools on that point. I would also say that brown has a mixed legacy, in part, because it could be interpreted in so many ways. San antonio versus rodriguez. There is a discussion of that decision by Justice Powell who writes san antonio, which is a case that holds that education that isnt consistent and a lot of peoples understanding of the consequences of brown versus board of education. When it came to the question of what it meant for education brown was not Persuasive Authority on that point. There are other examples. We are talking about the integration of schools. On twitter, so far you have not mentioned a hedge, using the phrase, integrating with all deliberate speed. How did this come into play . How instructive was the court and actually rolling out desegregation . Thank you for noting. That it is really important. The language came from our friend Felix Frankfurter what we set something up his sleeve. He knew from English Common law and principles of equity, that when you are not sure of a particular decree will be immediately enforced, you can give the parties a little bit of discretion and tell them they do not have to do it immediately and this principal was really resisted by hugo black who is from the south and he said he taught southern students. He said if you give the south any room, it is going to be worse. Frankfurter put in that language and there are lots of other hedges and that decision in brown as well, while giving way to public and private considerations, it should make a prompt unreasonable start. The courts cant consider problems related to administration, but disagreement the court did say, the vitality of the constitutional principles cannot be allowed to yield simply because of a disagreement with them. The bottom line is, with all deliberate speed was a huge pass to the south saying, go ahead, we are not going to be on you if you resist. It was not until the passage of the Civil Rights Acts in 1964, but the guidelines adopted by the department of Health Education and welfare just a few years later, threatened to withhold federal funding to schools that did not desegregate, only then did meaningful desegregation occur, so it took more than one decade after brown to actually achieve this promise. The court seems to continue to struggle, at least with the University Level with affirmative action cases, another win scheduled for this term. So it has really been the societal legacy of brown versus the board of education . Another big question. I would point as to parents involved which was a case about whether School Districts would voluntarily desegregate and there, the court held had struck down the policies which in louisville, had been adopted. A desegregation policy had been adopted after the School System was no longer officially under court order by consensus, large consensus of the community. It wanted to continue with its Integration Program and schools. It was considered a Model Community for integration and the court impeded that. They were saying that the principles established in the affirmative action cases regarding diversity really do not apply in the k through 12 context and then as you mentioned, there is the continuing controversy over affirmative action. The court is going to hear the case again. It will rule on the merits. It does not look good. To proponents of affirmative action and it may not be a sweeping holding, but the nature of the conversation at the court law, it really goes back to that word some would say, judicial supremacy. The court in the affirmative action context the saying that it needs to be satisfied, but there arent race neutral alternatives to these raids content policies and there are university officials, educational officials who would argue that they need to be in that position of exercising discretion about composing their student bodies. Here is a little bit of chief Justice John Roberts and the parents involved decision. The parents versus seattle in 2007. Before brown, children were told where they could go and could not go to school based on the color of their skin. The School Districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again, even for very different reasons. The way to stop discrimination on the basis of racist to stop discriminating on the basis of race. There is, a huge debate on the Supreme Court right now about the meaning of brown. It is a ban on all race sole classifications or is it a band on race youll subordination . This it demand or deciduous prohibit cast affirming laws that degrade . The court is deeply divided on this. The division itself could be found in the brown opinion which did clearly not get resolved whether it was demanding equality of opportunity. The anti formal segregation or equality of results actual integration. This continues to the state. All i can say is with cspan and the nash National Constitution is going to be hosting debates. We are putting a great win on the fischer case next week with our intelligence square. Even years after brown, 60 years after brown, we still have not resolved what the central meaning its, suggesting that the meeting of the reconstruction amendments continues to be contested and debated. My last piece of videos from Thurgood Marshall. He was the architect of the naacp Legal Defense strategy which decided to attack the segregation of schools as a process to help change the crowd. Theyre good marshall, as you know, went on to be appointed to the Supreme Court of the first African American justice. He served from 1967 through 1919 one. Heres Justice Marshall at the National Bar Association meeting in 1988. He is accepting tourist award and he talked a bit about the state of i dont care about the constitution alone. Or this declaration of independence. Or all of the books together. It is not that important. What is important, is a goal. A goal that is a basis of true democracy which is over and above the law. It is something that wont happen but you must pray for it and work for. That goal is very simple. That goal is that if a child a negro child is born to a black mother in a state like mississippi or any other state like that, born to the dumbest, poorest sheer crop or, is by merely trying its first breath in the democracy, their and without any more, is born with the exact same rights as a similar child who is born to a white man to the wealthiest person to the United States. No, it is not true. Of course it is not true. applause it never will be true. But i challenge anybody to take the position that that is not the goal that we should be shooting for, and stop talking about how far we have come, and Start Talking about how close we are. And with that thought, we have about a minute left for your comments on the brown v. Board decision of 1954. What has the significance been on American Society . I think it is a decision that was important and constitutional law. It is generally considered the most important constitutional law case of the 21st century and rightly so. It is a paradox as well. Because of all the things weve talked about. Brown was not considered to be a case that was actually based in the law. Right . There are many questions about the method that the court uses to reach the decision that over time it is accepted as the right principle and the court did the right thing. It sets a high bar. Hi aspirations for us, and as just as marshall said so many times, we are still climbing towards goals. Jefferson and the czech declaration of independence promised all men are created equal. Yet he owned slaves. He took lincolns new birth of freedom and gettysburg to make the promise of declaration. Something closer to reality. The civil war amendments, 13, 14 and 15th amendments it took a century after that for brown at least to begin to make the promise of the declaration and the reconstruction amendments a reality. We certainly have not come close to achieving the promise for reasons we have been discussing. Thank you to our guest for being with us for this series of the landmark cases. Looking at the 1954 decision of brown versus the board of education. Thank you for being part of our audience. Friday, on American History tv, our series landmark cases. Producing cooperation with the National Constitution center. We explore the issues, people and places involved in some of the most significant Supreme Court cases in our nations history. At eight eastern, we begin with that versus ohio. From the 1961 case protecting against unreasonable searches and seizures holding that evidence obtained through illegal searches not admissible in court. And then at 9 30 eastern, from the 1962 case baker versus car establishing the manner by which the state Legislature Abortion seats is a constitutional question, not a political question. And therefore, it can be decided by federal courts. Watch landmark cases. Friday on cspan three and anytime at cspan. Org. Spencer crew interim director of the National Museum of african American History and culture discusses the life of former Supreme Court Justice Thurgood marsll

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