[SOUND] I said that there's three kinds of racial classifications on the face of law. What is laws that impose the disadvantage and minorities? The second is a law that imposes a burden on both whites and minorities. An example of this was a very important case from 1967 called Loving v Virginia. It was a case that I mentioned earlier when I was discussing the right to marry. Virginia had a law that prohibited interracial marriage, it's a law that existed throughout Virginia history, throughout the history of many states. It wasn't until the 1940s that the California law of prohibiting interracial marriage was declared unconstitutional. If you think about the Virginia law from an equal protection perspective, the question is, is anyone really discriminated against? In fact, Virginia's argument to the Supreme Court was the 14th Amendment says that no state can write equal protection laws. Whites and blacks are treated the same under the law. A white can't marry a black, a black can't marry a white. Therefore, where is the denial of equal protection? But the Supreme Court unanimously declared the Virginia law unconstitutional. The court said it's clear that the Virginia law was based on the assumption of the superiority of one race, and the inferiority of another. The legislative history of the Virginia law is deeply disturbing. The defense of the the Virginia law is deeply disturbing, it's all about, let me quote, the mongolization of the white race. And so, the Supreme Court said even through the law burdened with whites and blacks, it still could violate equal protection. Another example of this was a case, Palmore vs Sidonia. Parents went through a divorce. The mother was awarded custody. The mother then became involved in a interracial relationship. The father asked to have custody transferred to him. The family court judge did just this, the family court judge, said that given the nature of this community, the child having interracial parents would mean that the child was taunted and teased. It would be better for the child to be with parents of the same race. The Supreme Court, an appeal by Chief Justice Warren Berger, declared this unconstitutional. The Supreme Court said that it violates equal protection for the government to use race in this way. Doesn't matter whether whites and blacks are treated the same, it's still a racial classification, it still was unconstitutional. The third kind of racial classification that exist on the face of the law, a law's that require separation of the races, laws that require that the races be segregated. I said, starting with the end of reconstruction, Southern states had adopted laws that required separation of the races in literally every aspect of life. White and black children had to be born in separate hospitals. They had to play in separate parks, they had to attend separate schools, they had to drink from separate water fountains, they had to use separate bathrooms, they had to eat in separate restaurants. Stay in separate hotels, ride is separate railroad cars, be buried in separate cemeteries. Whether this is constitutional initially came to the Supreme Court in a case called Plessy v Ferguson in 1896. Plessy v Ferguson involved a Louisiana law that required that whites and blacks ride in separate railroad cars. The question is, does that violate equal protection? The Supreme Court, with only one dissenting justice, upheld as constitutional. The court said so long as it is separate but equal, there is no denial of equal protection. Now, the challengers to the Louisiana law said it's all about the assumption of the superiority of one race, and the inferior of another, the government can't act on such an assumption. But the Supreme Court rejected that argument. In fact, the majority opinion said, if blacks see it that way, it's because of their own problems, the law, so long as it's separate but equal, is constitutional. Only Justice John Harlan dissented. In an eloquent opinion, he said, there is no caste system in the United States. Separate can never be equal. And yet, from 1896 to 1954 separate but equal was the law of the land. As I mentioned, as you know, Southern states had laws that required segregation every aspect of life. Border states often had this, Southern areas of Northern states had this. It wasn't until 1954 that the Supreme Court overruled Plessy v Ferguson, at least in part. And so, Fressy is the first step in this chronology. The next step to tell is Brown v Board of Education. After World War II, the NAACP Legal Defense Fund began a coordinated strategy to challenge the Jim Crow laws. Now, they faced the question of what aspect of segregation should they focus on? After all, as I said, every aspect of sudden life was segregated. They chose to focus on schools. Is this a wise choice? For one end, schools and education are the path to equality. If ever we're going to eliminate inequalities, if ever we're going to be a more equal society, it will be through education. On the other hand, nothing is more likely to provoke resistance than desegregating schools. Parents will respond very strongly if they oppose desegregation, because it was their children that were involved. Also, desegregating schools is more difficult than desegregating many other aspects of government services. A park can be desegregated, or a beach can be desegregated, just by pulling down the sign whites only, having police to enforce desegregation. But we have a tradition of neighborhood schools in this country. And neighborhoods were often segregated on the basis of race. So, merely taking down the signs, whites only, wouldn't be enough to desegregate schools. Would it have been better for the NAACP to focus on something else? Also, the NAACP had to focus where to bring the challenge? They decided to bring challenges simultaneously in many places. In fact, when Brown v Board of Education came to the Supreme Court, it was separate cases consolidated through a number of places. Brown v Board of Education was filed in Kansas. In fact, the full name was Linda Brown versus Topeka Board of Education. There is also a case from Delaware, a border state, from South Carolina, a Southern state, from Washington DC. The NAACP on the defense found it very important to challenge the segregation of the District of Columbia schools. After all, it's the nation's capital. Challenging its segregation had real symbolic importance. These cases were litigated in the late 1940s and early 1950s, and they all made their way to the Supreme Court. In October term 1952, the term that began in October 1952, and the cases were argued to the Supreme Court that year. By the spring of 1953, it was clear that there was no consensus on the Supreme Court. In fact, William Douglas wrote in his autobiography, The Court Years, that if the Supreme Court decided in the spring of 1953, in five votes to uphold the separate but equal, only four to overrule it in the area of education. But the court was very splintered, in terms so they came to these 5-4. Tradition is that the justices will decide all of the cases argued in the year by the end of June of that term. So, all of the cases argued these term of the court be decided by the end of June. Occasionally though, when the justices are not ready to decide a case, they put it over for new argument. That's what they did in Brown v Board of Education. Specifically, they asked the lawyers for new briefs, and they did new oral arguments on the question of what did the framers of the 14th Amendment intend with regard to school segregation. In the summer of 1953, the Chief Justice of the United States, Fred Vinson, died of a sudden massive heart attack. Felix Frankfurter, who's a justice on the Supreme Court, later remark that Vincent's sudden death was the only proof of God that Frankfurter ever saw in his lifetime. It's pretty mean and cold, but it's certainly a reflection of the significance of Vincent being replaced. President Dwight Eisenhower appointed the Governor of California, Earl Warren, to replace Fred Vinson as Chief Justice. Warren was an enormously popular politician in California. He had been four times elected Governor, one time unopposed. It's said that Eisenhower promised Warren the first vacancy on the Supreme Court was a way to keep Warren from being a challenger to Eisenhower. When the first vacancy in the Eisenhower presidency was Vincent's death, Warren went to get his appointment. And Eisenhower said well, I didn't mean Chief Justice. But Warren said you promised the first vacancy, and Warren was named the Chief Justice of the United States. Warren was a recess appointment to the Supreme Court. He was selected by President Eisenhower while the Senate was in recess. Warren presided over the oral arguments in Brown v Board of Education before he was confirmed by the Senate. He, of course, was then confirmed. On May 17th, 1954, the Supreme Court headed down its decision on Brown v Board of Education, it was unanimous, but we know now the unanimity was not easily to cheat. In his magnificent book, Simple Justice, Earl Warren as an experienced politician, thought it was essential that the decision be unanimous. He said it had to send a clear message to the South that they had to comply with the decision. Warren, according to Kluger, persuaded Felix Frankfurter, who then convinced Sherman Mitton and Stanley Reed to go along. According to Kluger, this left one hold out justice, Robert Jackson. Jackson had a law clerk who'd written memos to him urging that Jackson continue to uphold separate but equal. That law clerk was William Rehnquist. According to Kluger, Earl Warren went to see Robert Jackson in his hospital room, Jackson was recovering from a heart attack. And all we know is that Warren came back from talking with Jackson and said it's unanimous. And Brown v Board of Education was handed down. The opinion in Brown v Board of Education was quite short. It focuses very much on education, it talks about today, education is the most important service provided by the government. The court says doesn't matter what was thought in 1868 when the 14th Amendment was adopted, because we can't turn back the clock to them. The court said it would assume that the education of these states was tangible in all of regards, and the question is, is separate educate a denial of equal protection, even though it's tangibly equal? And the court said that separate can never be equal in higher education, that separate schools inevitably undermine the educational confidence of African American students. There's many things that are worth noting about Brown v Board of Education. Many things worth asking, whether the court could have done them better. Notice that the court never expressed the view that laws requiring segregation are inherently a denial of equal protection. The court just said, in the area of education, separate is not equal, because it undermines education. Should the court have made a broader, clearer statement, as to why segregation is incompatible with equal protection? If that court had done so, it probably could not gotten a unanimous opinion. Also, it's worth noting that the court says it doesn't have to pay any attention to history, and the original understanding of the constitution. Now, the reason of the court did this the same Congress that voted to ratify the 14th Amendment, voted to segregate the District of Columbia public schools. But does that then mean that Brown v Board of Education was wrong? Especially if one takes an originalist perspective. The court said that it would assume that the schools were tangibly equal in all respects, but the schools were terribly unequal. In South Carolina, there was an enormous difference between the student faculty ratio, the per people expenditure, and the white schools opposed to the black schools. But the court never discussed that. Now, in all likelihood, the court didn't do so, because they wanted to say we don't want to get in arguments, but where the resources are equal. Laws requiring segregation are unconstitutional. But on the other hand, the court was saying that separate can never be equal. Is it showing the inequalities in separate schools, one way of demonstrating that? The court relied a great deal on social science studies to show that black children are hurt in segregated schools. In a famous footnote, the court cited to these social psychological studies. And yet, many have criticized the court for doing this. One of the studies was done by Kenneth Clark, and it involved getting black children dolls, and it ask him to choose whether you play with the white dolls and a black dolls. And Clark found that black children wanted to just unfortunately play with the white dolls, and he said this shows the harm of segregated schools, but does it really? And should a constitutional decision of the Supreme Court be based on social science studies like that? What if later social science studies proves that black children better in segregated schools? Would that justify continued segregation? Most of all, in criticizing and questioning Brown, is worth knowing that the court did not prescribe a remedy. The NAACP ask the Supreme Court order immediate end at segregated schools. The Supreme Court said nothing about remedy, that the Supreme Court ask a new briefing, a new oral arguments, that next year, October term 1954, on the question of, what's the appropriate remedy for segregated schools?
