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tv   Supreme Court Landmark Case Brown v. Board of Education  CSPAN  April 5, 2016 10:00pm-11:34pm EDT

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discuss her article on hold based nutrition and bmi screening for students. some evidence shows the methods are triggering deadly eating disorders in children. be sure to watch these fans "washington journal" beginning live wednesday morning. join the discussion. >> landmark cases, cspan's cspan's special history series produced in cooperation with the national constitution center. exploring the human stories and constitutional drama between 12 historic supreme court decisions. >> number 750.
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we hear arguments number 18. >> quite often in many of our famous decisions are ones that the court took that were quite unpopular. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who stick together because they believe in a rule of law. >> good evening and welcome to landmark cases. we are about two thirds the way through our 12 week series looking at the historic supreme court decisions. tonight is a 1954 case of school situation. brown versus the board of education.we will begin by listening to linda brown on the roots of this case. >> my memory of brown began in the fall of 1950. in the quiet kansas town of topeka where a mannered black
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man took his 7-year-old 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. that parent in topeka felt the day of trying to enroll their children in the school 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 mp be best to miles across town. i can remember that walk. i can only make half of it some days because the cold would get too bitter for a small child. i can still remember taking that bitter walk. i can remember the terrible hold
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that would cause my tears to freeze upon my face. >> that is linda brown talking about her experience as a school child in topeka kansas and how her story led her to the supreme court with one of its significant she teaches constitutional law at harvard university. she is author of courage to defend. welcome. >> thank you. >> jeffrey rosen is at the table
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he has been our partner for this entire series which i think you four. he is the author of numerous books on the supreme court including the supreme court, the personalities and rivalries that defined america. nice to have you at the table. >> it's wonderful to be here. congratulations on the series put your team has done a great job and it's really a thrill. >> thank you for all your help as well. as we get started, let's talk big picture on the issue in this case. what was really the heart of what was decided here? >> while the supreme court in this case consider the question of whether state-mandated segregation in schools was constitutional under the 14th amendment. it was an opportunity for the court to reconsider segregation on cards wasn't within the constitution. >> by over turning it, the court had faced this decision and fulfilled the. it was designed to ensure a quality of civil rights.
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they thought it was obvious that the right to travel on well rhodes was a fundamental civil right. the basic insight that the court finally recognized was that two separate people because of their race is degrading. the fact that it took a most 100 years to recognize what was obvious to anyone in the south. he said everyone knows the purpose of segregation was to degrade african-americans and the fact that it took so long for the court in the country to recognize that is what made brown significant. >> it's known in our society simply as brown. one of the factoids that people are learning about would be surprised perhaps that brown isn't one case but five cases. >> explain what that means you
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have to have my cheat sheet because they're not well-known today. one of them involves the d.c. government as well as if states could have separate schools. they had to use, and i'm waiting for my chance to bring out my notes, they had to use the fifth amendment to the constitution which prevents congress from defining any person of due process of law. basically they said it would be unthinkable it was prompted by protest.
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they ordered african-americans be admitted to the segregated rules. the davis decision came out of virginia which challenge segregation in prince edwards county and finally there was a case in south carolina which was the first of the cases. there were stories behind each of those cases and it's almost a coincident that linda brown so movingly spoken became the face of all five cases. >> how does the court decide to enjoin cases like this into one specific case and then give that case the title? >> while i think that in the circumstance, they consolidated these cases because they raised the same issue with the exception, they were consolidated for convenience because it made sense to consolidate them and consider this issue as it was raised in the several states for the end
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aa cp strategy involved filing cases in the states where the issues were stark as to the reality that they were able to show and that was that separate was never truly equal. that is what the court decided. they decided that justice brown's decision where he said that if there is a harm of separation of segregation it's only because blacks are putting that construction on it. in brown, the court rightly recognized that really the problem with segregation and schools and segregation generally, the court went on to stipulate, it was a sign that blacks were considered inferior
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use the # landmark cases. we will get your comments in. finally there's a discussion under on our facebook page, cspan is on the facebook site and we have this video that you just saw posted and there's comments coming in. then you can be part of that discussion as well. we look forward to seeing what you have to say about this case and your questions about it. but spends more time on the history that goes into this case. i do want to learn a little more about the ferguson case. you mentioned it was a transportation case. >> it was. this was a time when jim crow was not yet up and running. a law requiring segregation was
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not welcomed universally. he was challenged as an equal rights. he would say as long as the cars are equal that's all the constitution requires. this is a kentucky, former sleeve state. he said i'd rather be right than be consistent. he put the pen and he was one of the great defenders in the
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19th century. in his spectacular dissent, he basically says everyone knows separation was not ford both parties but to degrade and stigmatize afghan americans. then he said in respect of civil rights, the constitution neither knows or tolerates segregation. there's an odd preface to his decision which is jarring by modern terms. he says the white race at the moment is preeminent so it will continue to be if it maintains its traditions but in respect to civil rights there is, the constitution is colorblind. he was continuing the distinction that lincoln had between civil and social rights. he was saying you have to give civil rights to everyone but were not mandating social equality. that is an uncomfortable tone
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for a. >> i think that's right. it's almost like what he is saying is that it's overkill. they say you can read the preface to that wonderful part of his opinion where he says the constitution is colorblind and in a way saying that because of social conditions, it's not necessarily to stipulate in the law to have our constitution. >> can i say one thing on this because it's so important and interesting. this is so important, as we no, we'll talk about this later in the show, the huge question is whether when they said the
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constitution is colorblind, did he mean that all classifications are impermissible or was he saying something that was just with respect to physical rights. is he saying no classification or is he saying classification without a firm cast system? really the entire history of what the protection clause means is set up in that single discussion. the next question is the legacy of that decision. it's so hard to compress the next 50 years into a couple sentences. so there is a transportation case that change society. did it give rise to the jim crow laws or whatever it happened anyway? >> that's a very hard question.
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they would not have had the force of will to resist jim crow as it arose. i wouldn't say that. i wouldn't say cause jim crow but it could've come out the other way. >> i think that's exactly right. i would not describe to the supreme court that kind of power at that time. it was pretty late in the day with politics of the situation and they're really important, but it never was an important indication from the court. for which there was no great outcry in the public. they're suggesting that by this time there had been a consensus reached that the south would do what the south would do in terms of race relations. we need to fast-forward where things are beginning to move in a more positive direction.
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notably, the effect of the war and the contributions that african-americans made during the war. in 1947 there was the desegregation of the armed forces. in the sports world, jackie robertson integrated baseball. how are things beginning to shift in society in the late 1940s? >> you put your finger on something that is really important and that is the impact of the war. in terms of african-american serving in the war, and then coming home to this country and being mistreated including because of the segregation laws, but also by virtue of the law. the soldiers having fought in their treatment here in this country where they felt as if they were experiencing the same
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kind of ideology in this country was enough to make those soldiers vital in the struggle for civil rights. other things that were happening where that african-americans had migrated. that meant they were a force in politics which was important to changing a sense of where african-americans belong in society. you mention the movements in sports which was very important. all of which was to say african-americans were gaining stature and they also were beginning more so than ever, to think think in terms of resisting these jim crow laws. so he will become an employee important player in this case. later on he becomes the first player in the supreme court. in 1940 what was he doing?
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he launched a legal campaign against segregation. he does so with a strategic brilliance that has come to be seen as decisive in the brown victory. he looks at public opinion and sees the forces that are so well described. he knows that the presidency is turning against segregation because of the cold war. the russians are saying look at these hypocritical americans who are segregating. the majority of states have it. he wants to start smaller. then after having one those
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victories, attacking schools, he doesn't argue that it should be overturned. instead he says unequal facilities where he says you're not even providing any says it's unequal he is humiliated humiliated. finally there's the big debate. >> let's take a look at this map which we will show you what the public school system look like in terms of segregation and early 1950s. if you look on the screen, the red area had segregation required in the south.
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segregation was strictly prohibited in the midwest. that was the situation going into the sense of using the legal system to approach segregation in schools. that's really at the heart of this case. we will listen to sarah good marshall talking next about the system and his thoughts on how to use the courts to address this problem in america. >> the importance of law in determining the condition of the nigro. he was emancipated i law. then his franchise was segregated by law. we demonstrate the importance of getting rid of laws and sticking to security of new friendly laws
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, federal, state and local. can you talk more about that. >> the strategy that was implemented by thurgood marshall , the blueprint was that it was gradual and it was brilliant. it was also daring and risky in the mind of others at the at the time who were committed to black freedom. they were skeptical of using the court and the law for using that for social change for african-american's. partly that was because they were interested in and interracial labor movement.
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there were those who thought that the court is only as good as the personnel on the court. it can be expected that the judges would reflect the racial attitude of the majority of the population. therefore why think they would be a good even if they were able to prevail, discrimination could continue, notwithstanding the change in the law which is perhaps the most profound criticism. all of those critics were really onto something. that is the difference between constitutional law in 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 experience every day.
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they were skeptical that individuals would come through in the way that marshall imagine before we do that let's mix in your comments. first, on twitter, they asked did brown actually overrule plessy? >> yes. it was applied to schools. the main question was should it be overturned and brown overturned it. >> i think the way in which the opinion was written, and in the opinion justice worn or the court used a language saying, to
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the extent that there's anything in pressey, then what we pull back from the principle of it. so it wasn't the kind of language of overruling you might see in some other cases. i think that was by design. there was a strategy for the court to try to be a consensus court. that's exactly right. there were other parts of the opinion that by failing to say whatever may have been the stated objective of the 14th amendment, now it has to be done unequal turn terms.
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they had found that african-american children had lower self-esteem and warm more likely to choose white dolls over african-american dolls and that was controversial. it led to people who were supporting it to say it was based on bad social science. some of those may have made it harder to resist brown and made it harder for critics today. they might prefer that they say the purpose is to degrade and therefore it's overturned. >> good evening. >> i'm calling from ann arbor michigan. >> okay.
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>> i want to congratulate you on a wonderful series. i'm really enjoying it thoroughly. now gets my questions. >> were listening. >> okay. my first question is, did the framers believed that segregation was a violation of the laws given the fact that the nation's capital was segregated and with this in mind, could have been made with an interpretation? when the first amendment was passed, it didn't have an equal protection clause. in the bowling versus shark cake case could it have been decided using interpretation? >> great question. i give it a shot. so michael mcconnell's great article, it's the best attempt to create a defense of brown. here's the bottom line. here's what we know. with those in congress and what we know, they felt basic rights
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had to be available to everybody. at the same time they commission their clerk to write a study. others did not think it had to be segregated. they said don't worry, this doesn't apply to school. then you have to move to 1875 when the congress was more liberal. this was a problem for originalist because if you really think what matters, then it's hard to justify as an interpretation. they did a great job in explaining why. >> i'm at a stop there because we will run out of time. we'll get back to that later in the program. >> good evening. >> yes do you think that after
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hundreds of years of segregation did they deserve some sort? >> the question has been debated by a lot of people and they think there are certainly good arguments. i think most people come to the conclusion that there are two problems. one of which is a politics and the other of which is a concern about how one would actually assess the damages if one could convince the right people that
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they were appropriate. how does one actually go about figuring out what was owed. one might say just give it a shot. it's a question that has been debated a lot, but really the problem is a political problem. >> hi robert. >> good evening. how are you doing? yes ma'am, i'm a vietnam veteran. one of the things that has just devastated me is democracy has never lost. [inaudible] last century it was driven out all over the world it was just driven out of their lives because it's so intolerable to people. i fought in a war.
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here we talk about brown versus the education system. it is so ingrained that we still hold onto the stupid prejudice that we had in the civil war over this insanity. yet my country with all of the beautiful letter has, we keep on hold and on to what was driven out all over the world. whether it's a valid revolution or non- valid revolution. they're tired of it everywhere on earth. thank you. first, thank you for your service. the second thing i will say that you make a fantastic point and that's that the u.s. has been able to export democracy too many places and there are many
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nations that look up to us. i would say there is a chasm in many instances between what i call before law on the books and our inner aspirations as a country and our people and every day process. partly that is a reflection of the fact of something that i said before which is something that frankly the court and that is the ability of law to change people's heart are everyday practices. in order for there to be social change in the way that you aspire to, it really has to occur all not only institutionally but interpersonally. i want to show a piece of video.
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this was used in one of the lower court cases that you described earlier. it's interesting because it documents the differences between white and black polls and what's interesting about it is that both sides, the plaintiffs and defendants state that they support their positions. let's watch. >> these photographs are exhibits in the court case. the davis case was wrapped into the brown v case before this court. what we are looking at are the exterior of the school. notice it's a brick two-story structure and a neighborhood with landscape sidewalks. here we have several buildings that compose a single school, some of which are brick or tarpaper and it's in a rural setting. now we move inside to the classroom. here we have a white school in
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prince edward county. notice that the students seem comfortable while we take a look at an african-american school and their wearing coats and there's a very large heater in the room and showing us how cold it was in the rooms. moving on to other parts of the building, here we have a home at class in a white school. much of the furniture and appliances are relatively new and modern while in the african-american school, it's a much different story. in the basement, materials are older and much more worn. on the plaintiffs side, they were unequal wear on the defendant side they wanted to show that these facilities were just about equal. >> so as were looking at this, we have to talk about one of
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these cases, the brown versus board of education of topeka made its way into the federal court. first of all is the brown what belinda brown that we saw earlier. >> it is and she is the daughter of mr. brown who is in topeka and he was a welder. >> he was also a part-time teacher. in some you see he's wearing his collar which adds another dimension to this case. >> is very powerful. but he's approached by the naacp. the reason that thurgood marshall chose the brown case and not the other case was to avoid a dispute about whether or not they were equal.
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it was confusing according to marshall and that's why he picked a school where there was no allegation of separate but equal. he was assessing the fact of what she said of her upbringing. the fact that she had to walk six blocks to a school bus and take a ride to another school which was seven blocks from her house. for her and her father it was an and it indignity. >> it was filed in 1951. the argument was represented by carter and greenberg. they were arguing for lester caddell.
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the judge wrote the opinion. can you tell us anything about that opinion that we should know about the stories. >> i would say that although the judges rejected the application of two cases where the naacp had prevailed, it did include an effect that segregation of schools was harmful which is incredible. it's precisely the issue that was so controversial before the supreme court. it was a decision that on the merit was adverse to the naacp and in terms of that little finding of fact, it was very helpful. >> can you explain then, how these cases actually made it to the supreme court. were they looking for a case to
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decide this? how did the court agreed to hear them? >> i don't know that the judges were looking for it, but there was a disagreement among the lower courts which increases the possibility that the lower court will take the case. it was very important that they had filed briefs. he filed briefs that he considered what he thought were the most important of his entire career. to a certain extent they felt they couldn't avoid it. >> i don't know if this is the time to tell this but it's an important story. >> let's take two more calls. then we will talk about what the supreme court looked like in 19
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because this case was heard twice by two different courts. gary is in tampa florida. hello. you were on the air. welcome to our program. >> i was aware that there were signs on southern highways. what i'm curious about was brown versus board of education and an issue saying it was in 1960 campaign. i don't remember reading about a specific issue raised in any debate and i'm curious to hear feedback. >> i can say that it was an issue in politics, certainly in the south where there was deep resistance to brown. if it wasn't debated in formal
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terms, it was talked about or it was a focus, he was a person who one wanted a pound of flesh. he was a representation of brown and the court in that the court had been activists in a way that it had never been before. i think it's clear that brown was an issue in politics, generally. certainly it became an issue in presidential politics. later on, after on the court started to enforce it. >> i hope c-span will expand on
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their historic cases into another 12 historic cases here in a little bit. >> the question was, did justice hugo black, was he a member of the kkk and did they redeem himself by voting to end school segregation? >> hugo black is appointed by roosevelt soon after he was in the clan. there's an outcry and he gives a radio address because you should check it out on youtube. i did joined the clan and then i resigned. i never rejoined and that's all i have to say about the matter. he was allowed to go on. in fact, the outcry which led to protest around his house must've made a deep impression on him because he joins other opinions recognizing segregation
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inequality. he's the one southerner who actually is very keen to strike down segregation. some felt it was to redeem the stain of his clan membership. he's also said there's going to be blood and people are going to die and we should announce a clear rule and get out of here because the courts cannot solve this. he is really bringing this political is him to bear. there's one final story. at one point they asked the justice, justice back black why did you join the clan. they couldn't believe he asked it. he said son, you were running for senate in alabama in the 1920s, you would join the clan to. i think he felt the need to redeem himself and perhaps he
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did some of that with brown. did the chief justice, if if you watch our series last week you'll remember that fred vinson was it truman and pointy and described as a truman crony. he was joined on the court. last week we heard he did not do a very effective job at bringing
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coalitions together. in 1952 it was still very divided. was he having a difficult time bringing together two groups within the court that really didn't see eye to eye? >> i think the basic problem is that his colleagues did not respect him very much. thus he did not have the institutional authority that was necessary to bring the justices together, is what i would say. the visions i think is most important to talk about is the rivalry between jackson and frankfurter on the one hand and hugo black and douglas on the other. what that represented in terms of how the justices thought about the constitution, i'm sure he will have a thing to say about it. the thing to say about the first combination is that there was a belief in judicial constraint and a concern about the justices issuing holdings that were legal holdings and not political. there were a lot of concerns about how to actually deal with plessy.
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justice jackson and justice frankfurter were concerned about how to justify the decision to overrule it. >> they become manifest in the first conference over brown. they say that colleagues don't respect him. he at one point threatened to punch him in the nose. it was a harvard professor who was always condescending to him and treating him like a true poker buddy and didn't respect him. the initial vote is something like four votes to straight down segregation, three votes and two that seemed undecided.
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they don't like segregation but they don't think the court should be stepping in. the initial vote is taken and it looks like the segregation is going to win. all of a sudden he drops dead and has a heart attack. on the way home from the funeral he says this is the first indication i've ever had that there is a god. then the court re- argues the case. first i want to get to the attorneys on the docket. it included john davis who has been in three cases. he was in unsuccessful candidate turned one of the great
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appellate lawyers of his age. you could call him a construction is pretty definitely said i don't believe in a living constitution although i think he did think he was defending southern conditions. it was an easy case. plus he's on the books, the text doesn't forbid segregation, the original understanding clearly allowed it. he thought he was going to win easily. he's so he's so invested in this case that after the oral argument davis has tears in his eyes. he said that's how he actually was invested. >> on the other side, robert
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carter was part of the legal team, lewis redding, george hayes and others. i want to show another video and that's because you talked about the impact of this social science experiment on the justices thinking on that. we have a video about kenneth clark who conducted this test and we'll talk more about its impact on this case. let's watch. >> the doll head was integral to the brown versus board of education because it clearly demonstrated that separate was not equal. separate was not good and in fact separate wasn't injustice. what were looking at here are the dolls that they used in the doll study.
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the doll had was a series of study that clark did to try to determine racial awareness in young children. the implication was that in a segregated society, if children are aware of race and the differences in race and the differences in how different racial groups are treated, that it would impact how they felt about themselves, what they did that actually became very well known in part of the brown case was they showed young children, black and white dolls and they would ask the children, show show me the doll that's nice. give me the doll that's the best. give me the doll that looks like you. more often than not the black children showed the doll as the
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nice stall was the white doll. the doll that was the best was the white doll. when we got to the last question, give me the doll that looks like you, that's when the children would pause and be a bit more confused or looked troubled and doctor clark would say, because they had said in many cases, this is the sad doll, this is the nice stall and so remembering that they had said this was the bad doll, they now had to show that this was the doll that looked like them. it was particularly difficult for them and some children would choose the black children and
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some chose the white doll because they couldn't embrace. after having said that this was not nice, they couldn't embrace it. how often does the court rely on social science in making its decision? they had introduced the reliance on social science and so was not the first time in brown versus education that they relied on the social science. i think what made this different was that first, over time, and i'm sure that it was shown then too, there was some question as
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to how reliable the studies were it really was a simple experiment and one could raise questions about the methodology. it wasn't altogether new, but on the other hand, the extent to which the brown opinion ends up relying on the doll study and on the idea that black children feel inferior because of segregation, i think it was profound. we left the story with the death of the chief justice. was it because of the chief justice or was already going to be reheard? >> that is an important question frankfurter asked for a rehearing.
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the court can come to a decision after hearing the first round of oral arguments. >> they chose not to. >> they could've voted. he tried to take credit for everything and insisted that he knew. and had special insight from the south. he said the understanding of desegregation could give us some time to understand it. then vincent dies and he's appointed by dwight thousand higher. he was the governor of california. he is a tall blonde all-american moderate republican.
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he called for people to be brought together. he does have a stain on his legacy and that is supporting the japanese that you talked about so vividly and is atty. general he supported that. it wasn't until the end of his life in his memoirs that he finally expressed remorse. he wept when he reflected on what he did. he was nevertheless a very moderate, remember this is a time, he had one of the first supreme court seats. eisenhower promised it to him. then warren said give me the seat. eisenhower's that i didn't promise to make you chief justice. and then he said you promised the first seat and this is the first seat. he honored the deal and later
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ice eisenhower said it was the worst decision he ever made. [inaudible] what was the length of oral argument for the second time around and did they differ much from the arguments made the first time question. >> they were focused on these questions on original intent. the trouble there, they were not social integration lists in a way that we think of today and so, the question that was put before the lawyers struggled a bit. the problem was the answer was
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not going to found in the questions i have been put before the lawyers and the court. does racial segregation in schools i would like you to tell a story because the work had to be unanimous one of the great examples in constitutional histories, the arguments were heard in a private conference. they begin by saying this is an easy case it's obvious that segregation has the attent and purpose of degrading african-americans.
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then they take a vote and it's not entirely clear what the first vote was but it's at least 6 - 3 or 7 - 2. there are two major holdouts. jackson is in the hospital with a heart attack. worn visits him and basically says it's very important for the courts that this be unanimous. jackson, who is not seeing the original understanding a reason for brown is a new dealer who thinks it's important and will join. finally it comes down to stanley reed. is going to look bad for the court and bad for you reed, who is in institutionalist degrees
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to make it unanimous. he says the question is does segregation by the 14th amendment and we believe it does thurgood marshall looks up and says you stanley reed, you voted it's just this electric moment. a real testament to the statesmanship that he was able to create unanimity. >> he said we conclude 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 for who actions have been brought are, by reason of
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segregation are violating the law by the 14th amendment. i will let that stand and take some more calls because our time is running out. let's go to crystal. christopher. >> the majority of white people are against segregation and i actually saw your preview of the bb situation. the white baby looks like an angel and the black baby looks like an eight. >> were just gonna move on here. >> hi dennis, you're on. last driver dennis. >> okay on to ron. good evening.
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>> this show is so vital for our survival. kudos to your program. it's so important for the survival of america. my question is what do we need to do to keep this going. this discussion has to keep going. we've been robbed of our history and you guys are doing a phenomenal job whether people agree with you or disagree with you, we we have to keep it going, especially during this time. i just want to say thank you. >> thank you i appreciate the good comments. before you leave, i did did want to get one other thing on the record, you mention the cold war earlier. in fact, in the first case the government made the case about the international reputation being damaged by segregation.
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i want to ask you both because often we hear the court saying it's insulated from public opinion but this is a case in where wars were going on where there seems to be an impact on the outcome about the politics and policy impacts of what they're reviewing. help people understand how the court functions and what they think is an isolated study of the law environment. we keep seeing instance where politics does impact the decision. >> it's so important to focus on that. we think of it as a decision that was imposing a rule of inequality where most of the time the country was in favor of segregation. in fact, 54% of the country supported desegregation at a time brown came down.
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oh pinion was shifting quickly. it was really, the fact that it was controlled by a group of --dash both the truman and eisenhower administration does support breaking down desegregation. for all these reasons they are aware of what the congress is doing. in that sense they tend to follow public opinion. and they surprisingly supported.
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so the micro and then to the macro. we will listen to linda brown talking about her family's reaction when they heard the court's decision. let's watch : >> i remember seeing tears of joy in the eyes of my father as he embraced. thanks be to god. >> so we moved from linda brown to societal changes, what was
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the reaction in the country for the brown decision. >> guest: thurgood marshall was greeted as mr. civil-rights, as an icon, there is many african-americans who are very excited about the decision, very hopeful about the decision and the court was viewed over time as a hero, a protector of minorities because of the decision. the. the country, to a lot of people seem to be moving in the right direction. on the other hand, there are those who thought the decision was outrageous. that it was the mother of judicial activism. that the court had not followed the law, it had not been faithful to its imperatives of an institution. the court had put itself in a position of being a legislature. there is a lot to push back
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against brown versus board of education. >> some of that pushback occurred in the congress of the united states. i would like to have a talk about the massive resistance movement. we have two statements, one from a member of of the house and one from the senate who were involved in this. first is josh bell williams who made a house floor speech in 1954. he set among other things, the time is at hand when we must reassert the constitutional rights are separate their own destruction. the states are to preserve their sovereignty or if there preserve the constitution they must declare the black monday decision, brown decision to be illegal, invalid and have no force or effect within the territorial limits of their respective jurisdiction. then siri haired harry byrd of virginia who organized 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
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has yet been struck tickets the rightful states in a matter vitally affected their authority and welfare. they authored what was called the southern manifesto and it was signed by 19 senators in more than 80 representatives, all of them southern democrats in congress. what was the effect of this? >> the effective that they summarize so vividly, can you imagine calling it black monday and this is southern manifesto was to encourage seven states to encourage southern states to resist in ways that the manifesto demanded. and resistance as suggested was powerful. people across the south set up private cat a means to educate their kids. in 1959, prince edward prince edward county virginia closed its entire public system rather than obey a court order to integrate. it was closed for five years. the public schools in south carolina were close were great. of time. norfolk, cheryl charlottesville,
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schools were all close by state officials and then finally, the resistance culminated in this next dramatic case. central high school, little rock, arkansas the arkansas the resistance to allowing integration is so great that president eisenhower and we can talk about that great case. >> let me take some calls. this is dennis and texas. you're on the air. i dennis. >> i just want to say that jeffrey rose is correct that the justice the fantastic work and was anything for me for the southern boy who had only heard one side of the arguments for most of my childhood and even into college. i wanted to ask about a law clerk or justice jackson by the name of william brenda quist
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who, at at his confirmation hearing in 1971 the issue came up that he had in fact written a dissent when it came before the warren court and he said in 71 that they were just covering and so to speak and he did not really feel that way. i just wondered if it either of you thought to see if that was true. >> you summarize it very well. it was an important controversy. the memo. the memo was quite dithered in which chief rehnquist said basically the fact is that southerners still like black people and they will never admit them, the truth is i believe that it was good law. as you say, chief justice
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rehnquist throughout his career maintain, he had been writing a jackson's voice but jackson asked him to express his own thoughts because jackson was undecided. justice jackson secretary disputed rehnquist accountant said jackson had never asked for competing opinions to be written in his voice. according to her, rehnquist was just expressing his own views. i think that's must wrecked evidence. >> murray's, and memphis. >> good evening to all of you. the 14th amendment does not apply to the federal government. i think we feel there are certain fundamental protections are so important that they are twice so this -- 14th amendment has a due process clause. the equal protection of the laws of more explicit safeguard of the prohibited of fairness and due process of law. i would not assert that that
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implies the two are always interchangeable raises. how do you feel about the assertion that the concept of equal protection and due process are not mutually exclusive? >> i think you're referring to the controversy over boeing versus shark where the court weaved to the equal protection component into the fifth amendment. there is a lot of discussion about exactly how the court does this, how the court explains it, i don't think the court goes very far toward an explanation. the fact of the matter is there is not going to be any way that you would get one holding in the four cases involving the state and a different holding in the case involving the district of columbia.
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therefore, we get this equal protection component read into the due process clause. as to how appropriate 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 of the court ends up using for fundamental rights analysis. i would say that they're not the same, but there is an appropriateness to reading that component, the equal protection component into the fifth amendment under the circumstances. >> i just have one quick note. justin's harlan believe that exaction from class legislation or unfriendly legislation based on race what itself a privilege
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and immunity of citizenship. in the court read that out of the 14 amendment. as you well know if you watch the episode that argument is no longer available but for some framers of the 14th amendment it may have been a less close case. >> and what did the brown the word do to justice on harlan for his dissent? >> it vindicated him as one of the great prophets of the 19th century. >> next is chuck from pennsylvania. high. >> chuck, your earlier. >> can you hear me. >> yes go ahead please. >> hello? hello? you say brown reversed the policy decision isn't it true that railroads continue to ignore the brown decision and continue segregating passenger
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rail cars until the civil rights act? >> was not just railroads, it's all kinds of a public institution that don't exactly comply with brown. the letter brown. it takes a very long time as you say for brown to actually be implemented, as jeffrey pointed out there is another 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 of resistant to a decision, then the school district are able to proceed in whatever way they see fit for a very long time. it's not until the late 1960s, after the civil rights act that
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brown is implemented in any substantial way. >> our next video is thurgood marshall and he gave an interview to mike wallace of cbs on eisenhower and what he thought of the president's decision and a response rather to the desegregation of schools. this this was taped on april 16, 1957. >> i did not think that president eisenhower has done anywhere near what he said. i wonder whether it's to light, personally i don't think it's too late. i think the president should at least by now had gotten on a television network or radio is 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 as
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the law of the land, whether they believed in it or not. and to use the full influence of his position as president to bring about peaceful solution of this problem. i think he was obliged to do that and i think 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 white citizens council and the clan tooth rented and intimidate good people. leadership should come from the top executive of the government. it's his responsibility. >> five months after that decision president eisenhower spent federal troops into force desegregation in little rock arkansas. so walk us through president eisenhower eisenhower's legacy on this. >> as if that wasn't dramatic
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enough, you have a court order to integrate central high school, you have students who are being turned away by mobs. you have a good understanding of the school outdoor saying he is never going to allow the students to come inches and. then you have president eisenhower's decision to send the national guard to ensure the admission of the schoolkids. then you have the supreme court which is so afraid that it's rule to integrate the school will not be obeyed because were not sure what eisenhower will do. each of the justices signed the decision, in ink, this is never done before, all of the justices to prove their unanimity, sign it, it seems like a show of strength, in fact it's a sign that they're scared to death that he is not going to follow-through. there's also language of judicial supremacy that
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overstates the case that this court is supreme in its interpretation of the constitution. assuming the president has no role, that's not what john marshall asserted. basically these are nine men who don't know what the president will do. he did send the troops and despite he did ultimately say that it helps mitigate eisenhower's legacy. it's interesting saying that behind the scenes eisenhower was aware of the shift in politics but he was more supportive. >> i want to show one more video in the comeback to talk. this is earl warren taped in 1969 in an interview. his talking about his frustration with the resistance to the brown decision. >> in some parts of the country,
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yes warren could become impatient when he would see the orders of the court's and where the illegal things were changed in form but not in substance and carried on. of course, one feels frustrated when the american people as a whole recognize that we have, in the past been wrong in depriving certain minorities of their constitutional rights. when we make the decision to see that they will in the future have these rights, then i think we are on the way to solving most of our domestic problems. >> a couple of things to say.
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personal, i agree that there is a provision of fun, eisenhower that put a somewhat different spin on his views. however, and there is cooper versus aaron where he sent the guard, those are are important. at the same time i think the problem for eisenhower as it relates to school segregation is he's very supportive of state rights, and there is a sense that his not really supportive of the principle of desegregation is a personal matter. so there is a story about how at a white house dinner he was overheard saying that the people of the south who were resistant were not bad people. they simply were concerned about the literal white girl sitting
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beside overgrown black boys in the classroom. so i do think there is not that personal commitment to brown versus board of education. at that since he was on the wrong side of history. earl warren on the other hand also politician and not a man whose, certainly when when he was appointed was respected as a great legal thinker, his skills were political, understood that having the office of the presidency behind the supreme court, having all two branches acting in the same way as we had in 1964 was really the only way the decision was being enforced. >> i'll take a call from ken in somerset, new jersey. >> hi, thank you. i have two questions. one, it's my understanding that despite what you said earlier,
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that eisenhower said that appointing warren to the supreme court was one of his worst decisions, it's my understanding that at the time he appointed warned he intentionally appointed him because of this case and he wanted to have that kind of decision. i like to hear your comments on that. secondly, it's also my understanding that when eisenhower sent troops into arkansas it was also the first time the president at the executive has to behind the supreme court. especially since president jackson in 1828. i would like to hear your comments. >> i love the fact that you bring up jackson. he did famously famously say on the turkey indians case, that john marshall's decision, perhaps john marshall made into his decision now let him enforce it
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confirming hamilton's adage that -- i had not heard that warner eisenhower pointed because he want a positive decision, the fact that he resisted making a decision at all say night at meanie fruit chief seems to call that into question. i do agree with tamika's encounter that despite the encounter on the whole he was on the wrong side. i'd be interested if any have a site for that. it be interesting, i have not heard that story. >> we have ten minutes to talk about six years of legacy of brown versus decision. i just want to start with the legacy, these have four citations of brown and 54 reynolds versus simpson 1967, loving versus seven, loving versus virginia which was a racial integration and marriages.
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san antonio independence school district in 73 and planned planned parenthood the casey in 1992. if you look at the legal legacy what hasn't left the the country with from that perspective? >> that's a really good question. i would say, the most important legal legacy of brown i think is back to the points that it established the idea that the supreme court can be interventionist to protect individual rights. in the most profound way. it was cited in various cases where the issue was not school on that point. but i also say that brown has a mixed legacy in part because it could be interpreted in so many ways. when you cite antonio versus rodriguez there is a discussion of that decision by justice
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powell who writes san antonio which is a case that holds a suspect in education is not a fundamental right. that it is inconsistent with thurgood marshall and a lot of people's understanding of the consequences of brown's versus board of education. so when it came to the question of what it meant for education itself, they were not a persuasive authority on that point. >> so i want to get into it because with the integration of schools on twitter they say so far you have not mentioned the hedge of the supreme court using the phrase integrating with all deliberate speed. how did this come into play? so how instructive was the court and rollout desegregation. so thank you, and noting that it came from our friend felix and he said once again, i know from
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english common law that when you are not sure a particular decree will be immediately reinforced you can give the parties a little more discretion tell them they don't have to do it immediately. this principle was resisted on mike franklin he said he taught southern loss students. frankfurt put in that language and there's lots of other hedges in that decision in brown two. they should make a prompt and reasonable start, the courts consider problems trawl administration but the court did say vitality of the principles cannot be allowed. the bottom line is it was a huge past this so basically saying if you resist. as was a subtle point that not
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only to the passage of the civil rights act and 64 but the guidelines adopted by the department of health education just a few years later only then did meaningful segregation occur. it took more than a decade after brown to actually achieve its promise. >> the court seems to struggle at the university level at least with affirmative-action cases and another scheduled. so what has been the societal legacy of the brown versus board of education? >> i would point about k-12 education and whether school districts could voluntarily desegregate. there, the court court held and struck down the policy that were at issue. which in louisville have been adopted at desegregation policy
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was adopted after the school system was no longer officially under court order. back large consensus of the community wanted to could to do with integration schools that was considered a model community for integration. the court impeded that. saying the principles established in the affirmative-action cases regarding diversity really do not apply in the k-12 context. then as you mentioned there is the continuing controversy over affirmative action. the court is going to hear the fisher case again. it will rule and it doesn't look good to proponents of affirmative action. it may not be a sweeping holding but the nature that they court is having goes back to that word that summer same of judicial
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supremacy. the court in affirmative-action says it needs to be satisfied that there are not ways into alternatives there are university officials who would argue that they need to be in that position of exercising discretion about composing their bodies. here's a little bit about chief justice roberts of the parents involved decision. it was heard in 2007, some of what he wrote is this. before brown, schoolchildren were told where they could 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 we should allow this once again even for very different reasons. the way to stop discrimination is to stop discriminating on the basis of race. >> there's a huge debate on the meaning of brown. is is it a ban
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on all racial classifications or is the ban on racial subordination? does it demand colorblindness or just prohibit has to affirming laws that do grated. the court is divided on this question. the division itself can be found in the brown opinion and then brown to which did not clearly resolve whether it was demanding equality of opportunity to end formal segregation, this continues to this day. all i can say is with c-span their hosting conversation on all of these including a great one on all of the fisher case next week the fact that even years after brown you still have it resolved with the central meaning was and it continues to
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be contested and debated. >> my last videos with thurgood marshall who is the architect of naacp which decided to attack the segregation of schools, thurgood marshall as you know when i'm to be appointed to the supreme court as the first african-american justice who served from 1967-1991. here's justice marshall at the bar meeting at 1998, excepting eight, excepting a century award and talked about the state of racial relations. >> i don't care about the constitution alone, or the declaration of independence, or or all of the books together. it is not that important, what is important is a goal towards
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which you're moving. a goal that is the basis of true democracy which is over and a of law and if something don't happen you must pray for it, work for and that is very simple. 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, sharecropper is by nearly drying its first breath in democracy, there and without any more is born with exact same rights as a similar child born to white parents of of the wealthiest person in the united states. no, it's not true.
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[applause]. of course it's not true. it never will be true. but i challenge anybody to take a position that is not the goal th we should be shooting for. and and stop talking about how far we have come and start talking about how close we are. >> without we have about one minute left for your comments on the boundary board decision in 1954 and really what the significance has been in society. >> i think it is a decision that was important in constitutional law. it was generally considered the most important constitutional law case of the 20th century. and rightly so. it is a paradox though because of all the things we have talked about. brown was not considered a law case that was based on law.
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there are many questions about the message the court uses to reach its decision. over time accepted as white principle. the court to the right thing, that's important. it sets a high bar as justice marshall said, so many times we're still climbing towards its goal. >> jefferson and the declaration of independence promised all men are created equal yet he owned slaves, took lincoln's promise of declaration closer to reality. the civil war amendments, the amendments try to enshrine that but it took a century after that for brown at least to begin to have the promise. >> arse thanks to tamika and
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others are being with us, looking looking at the 1954 decision brown versus board of trade board of education. thank you for being part. ♪ ♪ ♪ ♪
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♪ ♪ >> c-span's original series, landmark cases continue tomorrow with ohio, the 1961 fourth amendment protection against unreasonable searches and seizures making it illegal for evidence obtained without a warrant to be used in a criminal trial in state court. this five - four decision is one of several cases decided by the warren court in the 1960s 60s that expanded the rights of criminal defendants. >> book tv has 48 hours of nonfiction books and authors every weekend. here are some of the program's watch for. starting saturday at 1:30 p.m. eastern, p.m. eastern, book tv is live at the 21st annual festival of books. taking place at the university of southern california.


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