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tv   Supreme Court Landmark Case Brown v. Board of Education  CSPAN  November 23, 2015 9:00pm-10:31pm EST

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board of education. after that panel examines the future of europe following terror. >> all persons having business he for the honorable, the supreme court of united states. >> landmark cases, c-span's special history series produced in cooperation with the national constitution center, exploring the human stories and constitutional dramas between -- behind 12 supreme court decisions. petitioner versus arizona. row against way. >> and are most famous decisions, --
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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. susan: good evening and welcome to landmark cases. s of the way through our decisions. tonight is school segregation, brown v. board of education. evening byin this listening to linda brown. linda: my memory of brown began in the fall of 1950, and the client kansas town after peak -- topeka. where a black man took his seven-year-old daughter by the hand and walked briskly, four
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blocks from their home to the all-white school and tried without success to enroll his child. black parents and topeka felt that trying to enroll their children in the school nearest to their home was long overdue. my father would arrive home to find my mother upset because i had to take a walk, just like he did many years before, and catch the school bus and go some two miles across town. i can remember that walk. i could only make half of it some days because the cold would get to better 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. brown that was linda
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talking about her experience as a schoolchild in topeka, kansas, and how her story letter to the supreme court and one of its landmark decisions. we will learn more about the case and how it came to that court and how -- what implications are. tomiko brown-nagin is at harvard university where she teaches constitutional law and history. welcome. jeffrey rosen is at the table tonight. from the constitutional center in philadelphia where he is the president and ceo. he has been our partner throughout this entire series. he is an author of numerous books on the supreme court. it is nice to have you at the table finally tonight. jeffrey: wonderful to be here. it is a thrill. susan: thank you for all your help. as he get started, let's talk big picture on the issue in this case.
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what was really the heart of what was decided here? professor brown-nagin: the supreme court in this case consider the question of whether state-mandated segregation in schools was constitutional under the 14th amendment, and thus it was an opportunity for the court to reconsider plessy versus ferguson, the 1896 case in which it had found that segregation on rail cars was within the constitution. susan: why did this become a landmark decision? jeffrey: by overturning the plessy decision, the court faced the stain of this decision and that filled the promise. the 14th amendment passed after the civil war, was designed to ensure a quality of civil rights. and the justice in his dissent of plessy versus ferguson thought it was obvious that a fundamental right like the right
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to travel on railroads was a fundamental right. the basic and site the court finally recognized was that separate equal is inherently unequal and two separate people because of their race is stigmatizing and a grating. the fact that it took almost 100 years to recognize what was ,bvious to anyone in the south justice harlan said that everyone knows that 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 such a landmark in the 20th century. susan: it is no in our society simply as round. -- brown. brown is not one case but really five cases. explain how that works. the consolidation. jeffrey: i need my cheat sheet to get them out. whether theinvolved federal government as well as
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state should have separate schools and to decide that case -- the court could not use the equal protection clause because that only binds the states. i will bring him a national constitution center pocket constitution, they had to use the fifth amendment to the constitution. of dueiving any person process of law. there was equal protection component. basically, they said it would be unthinkable. if the states cannot discriminate but washington, d.c., could. there are other interesting cases, including one prompted by protests. by the plaintiffs. here they are. double --in for the and icp was a case -- naacp was in delaware. the davis decision came out of
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virginia. it challenged segregation. finally, there was a case 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 became the face of all five cases. susan: how does the court decide to join cases like this into one specific case and get that case a title? professor brown-nagin: i think that in the circumstance, a consolidated because they raised the same issue with the exception of one case. 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. naacp strategy involved filing cases in the states where the issues were most stark as to the
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reality that they were able to and that was that separate was never truly equal. that is what the court decided. justice brown's decision in plessy where he said that if there is a harm of separation, it is only because blacks are putting that construction on it. in brown, the court rightly recognized that the problem with segregation in school and thatgation, generally, was it was a stigma. it was a sign that lacks were considered inferior. -- blacks. susan: one thing that makes this series is your participation. you can call us. you can call us in another 20 minutes. here are the phone numbers.
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202-748-8901. mountain and pacific time zone. you can also send us a tweet. make sure you use the #len marquesas. we will see it in the twitter stream. finally, a discussion underway on our facebook page. c-span has a facebook site and we have the video that you just saw posted and their already common coming in -- comments coming in. we look forward to hearing what you have to say about this case and your questions about it. let's 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.
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courte brown held for the , as long as the cars are equal, there is no problem because the quality -- the quality of facilities is all that the constitution requires. justice harlan, in one of the greatest defense of the 19 century -- a kentucky former slave state. he turned into an abolitionist. he said he would rather be right than consistent. ,hen he is writing the decision that theputs the pen chief justice had used to write the dred scott decision. he is one of the great defenders of the promise of the reconstruction of the 19 century. and his dissent in plessy versus ferguson, he says that everyone knows that the real purpose of
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the separation was not for convenience of both parties but to degrade and stigmatize african-americans. in his famous words, he said in respect of civil rights, the constitution neither knows nor tolerates classes among citizens. the constitution is colorblind. there is no caste here. there's an odd reference to this decision -- he says the white race at the moment is preeminent, so it will continue to be if it maintains its traditions. in respect to civil rights, the constitution is colorblind. there was a continuing distinction that lincoln and other reconstruction people at the time maintains between civil and social rights. civil rights have to go to everyone that we are not mandating socially quality. professor brown-nagin: i think that is right. it is almost as if what he is
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saying is that it is overkill to dirty the constitution with these kinds of racial classifications. preface to that wonderful part of his opinion where he says that the constitution is colorblind. in a way, he is saying that because of social conditions, it is not necessary to stipulate in the law to have a constitution besmirched by this practice of segregation. susan: a question. jeffrey: this is so important. this dissent is so important that thurgood marshall reads it before he argues brown versus board of education. as we know, we will talk about this later in the show, the huge question is whether when he said the constitution is colorblind -- did he mean that all result -- racial classifications are impermissible?
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saying, no classifications were only classifications that a firm a -- system?irm a caste then: that gives rise to next question, which is the legacy of that decision. it is so hard to compress the next 50 years. did plessy versus ferguson -- which legalizes separate but equal, a transportation case -- did it give rise to jim crow laws or would they have happened anyway? jeffrey: that is a very hard question but it is probable that after the compromise of 1876 when the republican party in exchange for winning the 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
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very interesting -- i would not say that plessy caused jim crow. professor brown-nagin: i think that is exactly right. i would not describe to the supreme court that kind of power at that time. it is pretty late in the day. politics of the situation that jeff describes are really important. an important indication from the court. court -- n from the there had been -- of race relations.
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creation of the late 1940's. you put your finger on something really important. the impact of the war. in terms of african-american in coming toe war this country and being mistreated including because of alsoegregation laws experiencing terrible incidents of violence and the juxtaposition of soldiers having fought hitler and his creed. with their treatment here. they felt as if they were experiencing the same kind of ideology in this country was
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enough to you -- the struggle for civil rights. other things happening were that african-americans have migrated in 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 in sports which was very important. all of which was to say that african-americans were gaining stature and they also were regaining more so than ever to think in terms of resisting these jim crow laws. an important player in this case. he becomes the first african-american appointed to supreme court. in 1940, what was he doing? he has founded naacp.
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in order to launch a legal campaign against segregation. he does so with strategic brilliance that has come to be seen as decisive in the brown victory. he looks at public opinion and the forces so well described. presidency -- he it is really bad. the russians are saying look at the center critical americans segregating. both supporting desegregation. segregation in public schools have cause the majority of states to have it. he wants to start smaller by attacking segregation and graduate school admissions. after having windows victories, attacking schools. he does not initially argued
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that plessy versus ferguson should be overturned, he just attacks -- >> you are not providing education to african-american and his law school that you set up his patently unequal. a graduate student. he is demeaned by having to sit separately within the school. he is humiliated and a graded and that is clearly unequal. finally, there is the big debate about whether to actually call -- public school desegregation should be attacked. susan: let's take a look at the map where we will show you what the public school system looks like in terms of segregation in the early 1950's. the red location is segregation and the states was required. withare not states segregation locally determined. blue states, no segregation laws. segregation was
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gently prohibited. that was the situation going in. of the using the legal system to approach segregation in 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 this 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. demonstratesry, he the importance of getting rid -- seeking to secure -- the security of new, friendly laws, federal, state, and local. susan: other civil rights
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activists would choose different methods to make the case. thurgood marshall chose the law, can you talk more about that? professor brown-nagin: as he said, the strategy lamented by thurgood marshall, the blueprint was that it was gradual and it was -- it was daring and risky. others who are equally committed to black freedom. people like -- aclu wholdwin at the is skeptical of using the court and the law to achieve emancipation and social change for african-americans.
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continue. notwithstanding the change of law which is perhaps the most profound criticism. could be made and i have to say that all of those critics were onto something. betweenthe difference constitutional law 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 experience every day. they were skeptical that individuals would come through
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in the way that marshall imagine. how -- ext you'll learn first, did brown actually overrule plessy? it was limited to education -- brown did overrule plessy. it was applied to schools and then in subsequent cases the court applied it to desegregate summing pools and other public facilities and so forth. the main question was should plessy be overturned and brown overturned. professor brown-nagin: i think what the caller may be getting at is the way in which the opinion was written. opinionfact that in the , justice warren was writing for the court using language saying, that to the extent that there is anything in plessy with what we
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are saying, then we -- what we pull back from the principle of plessy. it was not the kind of robust language of overruling that you might see in some other cases and i think that was by design. it was a strategy for the court to try to be a consensus court. >> that is exactly right. there are other parts of the opinion that by failing to say segregation was wrong at the time of lassie and is wrong now because it is stigmatizing and grading gave critics the chance to redo -- resisted. first, he says that whatever may have been the state of public education at the time of the 14th amendment is now really important and it has to begin to everyone on equal terms. of thert -- coming off trial court cited the things
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that all studies of kenneth clark that have found that african-american children have lower self-esteem or are more likely to choose white dolphin african-american dolls and this is controversial and let people resisting the decision to say it was based on bad social science. a clearight, overturning of plessy might have made it harder to resist brown and would have made it harder for critics of the footnote today, including justice thomas that if the court was wrong -- justice thomas would prefer -- the purpose and intent is to degrade and plessy's overturned. susan: we have a fewer. >> my question.
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is, did thequestion framers believe that segregation was a violation of equal protection of the law? given the fact that the nation's capital was segregated? with this in mind, good decision had been made using a religious interpretation? when the fifth amendment -- case havee, could the been decided using this interpretation? jeffrey: great question. toit is the best attempt create a defense. here is the bottom line. here is what we know. civil rights had
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to be available to all. at the same time, he commissioned his law clerk to write a proposal. and proposed, did not think schools had to be -- people stood up and said, do not worry, this will not apply to schools. -- this is ato say problem for original lists because if you really think what the framers and ratifiers thought, no current justices would have done it a great job in explaining why it is consistent. >> i am going to stop there. we have a color, good evening. >> yes.
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>> we are listening. is, do you say after hundreds of years of segregation and its adverse affect on black families today and in the past, is there some type of reparation it to the justice system for black american families? beenn that question has debated -- >> that question has been debated. i think there are good arguments. most people come to the conclusion that there are two problems. one of which is politics and the other of which is a concern about how one would actually could the damages, if one convince the right people that
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reparations were appropriate how about figuring out what was owed. given at say, just shot. but it is a question that has aen debated a lot it is political problem. evening. i am a vietnam veteran. hasof the things that supremacy andis capitalism has been driven out the world. just driven out. it is so intolerable to people. where weht in the war were driven out.
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that's colonial mentality. brown versus about the education system. , it is so in saying that we still hold all of these stupid prejudices. country, with all of the respected has, we keep on holding on to what was driven out to all over the world. whether it is our revolution or another revolution. people are tired of racism all over earth. thank you. >> first, i will say thank you for your service. the second thing i will say is thatake a fantastic point the united states has been able to export democracy too many places and there are many forons that look up to us
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our constitutional system, and yet it is true, i would say that there still is a chasm in many instances between what i call before law on the books and our aspirations as a country and as a people and everyday practice. partly that is reflection of something i said before, which is something that the court was concerned about at various times, and that is the ability of law to change peoples hearts or everyday practices. in order for there to be social innge in the race relations the way that you aspire to rightly, it has to occurred not only institutionally that interpersonally. i want to show a piece of video.
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davis versus county school board of virginia. it is interesting because it documents the difference between black and white schools. let's watch. >> these photographs are exhibits. the davis case was wrapped into the brown case before the supreme court. what we are looking at here are the exteriors of the schools. notice the brick two-story structure, neighborhood, landscaping, sidewalks. buildingsave several that compose a single school. some are brick, it is in a rural setting. now to the classrooms. here we have a white classroom.
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notice the students seem comfortable, while week in take --ook at an american african-american school, children are wearing coats, there is a large heater in the middle of the room showing us how cold it was in the rooms. moving on to other parts, here we have a home act class in a -- -- room in ahool school. in the african-americans goal, it is in a basement. the materials are older and worn. show thee submitted to facilities were on equal, whereas on the defendant's side, they wanted to show these were just about equal. karen: as we are talking about those, we want to talk about how
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it made its way into the federal .ourts forced -- courts first of all, is this linda brown? yes. she was the daughter of oliver in topeka, he was a welder for the santa fe railroad. was also a part-time preacher. in some of the pitchers you see him wearing his collar, which adds another dimension. >> he does. it was very powerful. he was approached by the naacp, he did not seek them out. one reason thurgood marshall chose that was to dispute whether or not those facilities were equal. prince george's would be able to say a was able after looking at it was
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confusing to marshall, that is why he picked a school where there was no allegation of separate but equal facilities, he was stressing what linda brown said that as her tears froze up as she walked to school. she had to walk six blocks to school and then take a bus to the segregated elementary school. there was another school, sumner elementary which was seven blocks that she could have walked two. for her and her father, it was an in dignity and outrage. the arguments before the court, naacp was represented by greenbergter and jack and it was a three-judge panel. can you tell us anything about the opinion?
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>> i would say that although the judges rejected the application of two cases where the naacp had prevailed, it did include a finding of fact indicating that segregation of schools was which was incredible for the naacp editors precisely the issue that was so controversial before the supreme court. wasas a decision that adverse, but in terms of the finding affect, there is a nugget that was helpful. >> can you explain how these cases made it to the supreme court? where the justices looking for a
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case to decide this? process where these five cases were consolidated and the judges agreed to hear them? >> i do not know that the judges were looking for them, but there was a disagreement which increases. the possibility they would take it. both the truman and eisenhower sir administrations had fired -- filed briefs. one went through the courts previous precedents is and showed how they compelled the court in brown. to a certain extent, the court felt it could not avoid it. then something dramatic cap, i don't know if this is the time to tell it. >> probably not. >> let us take two more calls and then we will talk about what the court looked like in 19 15.
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-- 1952. this court was heard twice by two different courts and we will talk about the drama that caused the court to be different the second time around. hi gary, you are on the air. >> thank you. were himm aware there teach girl worn signs on highways, i am curious about the brown versus education in the camper camp gains -- gains, i do not remember reading a i can say that it was made highly salient issue in politics, certainly in the south, where there was deep resistance to brown. in formal't debated terms, it was certainly something that was talked about.
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it was a focus, warren was a , thease -- a person from representation of brown and the court and the sense that the court had been activist in a way that it had never been before, i think it is clear that brown was an issue in politics generally, i am sure that at various moments, it was an issue in presidential politics, certainly it became an issue in presidential politics during the nixon campaign and later on, after the court had actually started to enforce the decision. >> josh in iowa, welcome to landmark cases. >> i wanted to say quickly, i hope c-span will expand on their historic cases and do another 12 cases in a little bit. , did justiceas
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hugo black, who was a member of the kkk, and the majority opinion, redeem himself by voting to end school segregation? >> a great question. hugo black was appointed by roosevelt. soon after, it was reported that he was in the klan. he gave a radio address, check it out on youtube. i says, i did join the klan. resigned. this is all i have to say. justice really done it, black. you answered all our questions. the outcry, which led to protests at his house, must have made an impression. he recognized racial equality and criminal procedure cases. during the brown case, he is the one southerner, in the initial vote, who actually was very keen
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to vote to strike down segregation. how much speculation it was to actually redeem the extent of his membership, the only southerner in congress. there will be blood. politically, he is wanting. -- to learn about the
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justices issuing holdings that were legal holdings, not political, so a lot of concern about how to actually deal with plessy. plessy is a precedent that was on the books for a long time.
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justice jackson and justice frankfurter were concerned about how to justify the decision on overruling plessy. the fishers ons the court that become manifest in the first conference over brown. frankfurt,ues don't, vincent initial vote is something like four votes to strike down segregation. possibly.s stanley reed from kentucky. tom clark from texas. two, who seem undecided. frankfurter and jackson. they are in favor of judicial restraint and they do not like segregation. they are new deal democrats and they do not think the court should be stepping in.
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the initial vote is taken and it looks like segregation will win. all of a sudden, before the court can decide the case, he drops dead of a heart attack. on the way home from the funeral, he says to his colleagues, this is the first indication i have ever had that there is a god. court re-argues the case. attorney on the docket for our viewers, because there is a familiar name. john davis. who has been in three of our landmark cases. who was john davis and why was he at the home of so many important cases? >> he was the presidential candidate. unsuccessful presidential candidate. he turned one of the great appellate lawyers of his age. he had silver hair. you could call him a strict constructionist.
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he definitely said i do not believe in a living constitution, although i think the constitution can occasionally adopt. he really did feel like he was defending southern traditions. it was an easy case. the court repeatedly affirms segregation. the text does not forbid segregation. the original understanding clearly allows segregated schools. he thought he was going to win easily, and for him, he is so invested in the case that after the oral arguments. the end of your argument, he has tears in his eyes. thurgood marshall says that is how invested he was. >> on the other side. let me get these other names in here. robert carter. part of the naacp legal team. robinson, arguing the virginia case.
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jack greenberg, part of the delaware case. george hayes and james neighbor. i want to show another video next because you talked about the impact of the social science experiment on the justice's thinking on this. we have a video about kenneth and maybe clark. we will talk more about the deciding the justices this case. integral totest was the brown versus board of education. because, it clearly demonstrated that separate was not equal. and separate was not good. in fact, separate was an injustice. what we are looking at here are the dolls that the doctors used in their doll studies. they were for a series of clark andat amimamie
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kenneth clark did to try to determine racial awareness and young children. the implication being 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. part of the brown case was that they showed young children, black and white dolls, and they would ask the children, show me the doll that is nice. give me the doll that is the best. give me the doll that looks like you. not, the black thatren showed the doll was nice with the white doll.
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the doll that was the best was the white doll. to 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 the troubled. he said because they had said in dollcases this is the bad this is the nice doll. so, remembering that they had said this is the bad doll, they now had to show the doll that looks like them. it was particularly difficult for them. some children, some black children, -- some chose the white doll that look like them. -- afterd not embrace theyg said this not nice,
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could not embrace it. how often does the court rely on social science in making its decision? was this unusual? >> that is a good question. had introduced the reliance on social science into the lawyer practice. inwas not the first time brown versus board of education that the court relied on the social science. i think, though, that what made this different was that at first, over time, and i am sure it was true then, too, there was some question as to how reliable the doll studies were. it really was a kind of experiment. one could raise questions about
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the methodology and all of the would think about today, in terms of reliability of social science. i know it was not altogether new, but on the other hand, the extent to which the opinion ends up relying on the doll study and on the idea that black children feel inferior because of segregation, i think was profound. >> so we left the story with the death of the chief justice. was it because of the cheese -- the death that they decided to review the case was that already going to happen? >> that is an important question. ity did decide to rehear because frankfurter asked for a rehearing. was it right that he died after her before? >> i'm not sure about that detail, whether -- >> the court could not come to a decision after hearing the first round of oral arguments? >> they chose not to.
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>> they could have. frankfurter who tried to take credit for everything, he knew -- yet special insight into the south. he taught southern students at harvard law school so he knew how they would react. he said, if we commission this paper about the original understanding of desegregation, that will give us time and allow a consensus to happen. dies and frankfurter says that there is a god. warren is appointed by dwight eisenhower. he is the former governor of california. he was the republican candidate for vice president in 1948 he is tall, blonde, all-american, a moderate republican. this is someone who really made civil rights one of his callings in california and called the people to be brought together. he has one stain on his legacy
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and that is supporting the japanese interment that you talked about so vividly in the korematsu case and as attorney general of california he had supported that. it was not until the end of his life, and his memoirs, he finally expressed remorse for the japanese internment and he wept when he reflected on what he had done. he was, nevertheless, very moderate. this the time the democratic party had been the party of segregation. the republican party was the party of lincoln. for a war on to be in favor of civil rights at the time was not unusual. he had -- earl warren says give me to see. eisenhower says he did not promise to make you chief justice. he says, the first seat. this is the first seat. eisenhower appoints him and letter says that it was the worst decision he ever made. >> so, the second set of oral arguments were heard in 1953.
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again, -- what was the length of oral arguments the second time around and did they differ very much? >> the oral arguments the second time around were focused on these questions about original intent. there, as isble already explained, the framers of the 14th amendment were not social integration us in a way that we think of today. so, the question that was put before the lawyers struggled. problem was that the answer was not going to be found in the questions i had been put before
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the lawyers in the court. >> the seminal question before the court in this case, does racial segregation of children in public schools deprived minority children of equal protection of the law under the 14th amendment? you tell ake to have story because the chief justice decided that for this decision to work and had to be unanimous. >> this is a riveting decision. and a riveting story. one of the great examples of judicial statesmanship and american constitutional history. the arguments are heard. the justices had their vote in the private conference and he begins by saying that this is an easy case. it is obvious that segregation has the intent and purpose and effect of degrading african-americans. they take a vote. it is not entirely clear what the first vote was, but it was at least 6-3, maybe 7-2.
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there are two major holdouts, robert jackson, the great advocate of judicial restraint and stanley williams from kentucky, and ardennes segregationist. jackson is in the hospital with a heart attack and earl warren's attendance is it is very important for the court to be unanimous. who could not see in the original understanding or condition of reason for brown, nevertheless is a new dealer who thinks it is important and he will join. finally, it comes down to stanley reed. earl warren goes to visit him and says, stanley, it will look bad for the courts and bad for you if this is an 8-1 decision with the dissenter being a segregationist. who cares about the court as an institution agrees to make the unanimous. well worn thin rates the decision to a spellbound courtroom.
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he says the question is, does segregation violate the 14th amendment? we believe it does. they're good martial looks up at stanley reed and cannot believe that this segregationist voted to strike down segregation and looks up and says, you voted? and stanley reed nods down silently here it a real testament to earl warren's statesmanship that he was able to create unanimity. >> let me read a little bit of chief justice warren who wrote the opinion for the court. >> 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 -- ated for whom deprived of equal protection of the laws guaranteed by the 14th amendment.
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i will let that stand and takes a more calls. let's go to christopher was watching in brooklyn, new york. people wereof white against segregation. saw your preview of the baby situation -- the white baby looks like an angel and the black baby looks like an ape. dennis, and palestine, texas. hello. onto east, chicago. >> good evening. i want to real quickly say that while this program and discussion and this show is so vital for our survival, congratulations to your program, this is so vital for the
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survival of america -- my question is, what do we need to do to keep this going? beeneighborhoods have robbed of our history and you guys are doing a phenomenal job. whether people agree or disagree with you, we have to get going. as specially during the presidential election. i love you. thank you very much. >> that is very kind of you. what i would like, before we leave, i want to get one other thing on the record. you mention the cold war and in fact, at least in the first case, the government filed a brief that made the case about the u.s. international reputation being damaged by segregation. i want to ask you both, because often we hear the court saying that 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, are there seems to
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be a determined impact on the outcome on the realization of politics or policy impact of what they are reviewing. help people understand how the court functions. instances where politics does impact the decision. >> it is so important to focus on this. as a counterrown and unpopular decision. imposing a quality when most people were in favor of segregation. it was so pervasive. in fact, 54% of the country supported desegregation at the time that around came down for the reasons that we have been discussing. it was an international embarrassment after world war ii. it was to write it as a kind of -- something worthy of --
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opinion was shifting quickly. that theally the fact senate was controlled by a group of seven hours who refused to bring desegregation bills to the floor. >> the court is aware of what congress has been doing, aware of what the executive is trying to do. it knows about jackie robinson. followedense, brown public opinion, surprisingly. >> from the micro to the macro, we will listen to linda brown talking about her reaction to the first decision. time stood still.
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until an afternoon in may 1954 when i was at school, my father at work, and my mother at home doing the ironing and listening to the radio. 12:52, the announcement came, the court's decision on ending segregation was unanimous. that evening was full of rejoicing. i remember seeing tears of joy in the eyes of my father and he embraced this, repeating, thanks be unto god. >> we move from linda brown to the changes. what was the reaction to the decision? was greetedmarshall as a hero and icon. there were many african-americans who are very
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excited about the decision, very hopeful about the decision. viewed over time as a protector of minorities because of the decision. the country seemed to be moving in the right direction. on the other hand, there were those who thought the decision was outrageous, that it was the mother of judicial activism, that the court had not followed the law, had not been faithful to its imperative as an institution, that the court had put itself in a position of being a legislator. there was a lot of pushback the boardown versus of education. >> some of that pushback occurred in congress. i would like to have a talk a little bit about the massive resistance movement. i have two statements, one from
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the house and one from the senate. williams.n bell handid, the time is at when the states must reassert their constitutional rights or suffer their own destruction. >> senator harry byrd of virginia who organized the massive resistance movement said : >> the authored what is called the southern manifesto and it
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was signed by 19 senators and more than 80 representatives, all of them southern democrats. >> the effect of that -- can you monday calling it black in signing the southern manifesto precisely to encourage southern states to resist. the resistance suggested powerful. people across the south said a private academies to educate their kids. county inrince edward virginia closed its public school system rather than obey court orders to integrate purity was closed for five years. public schools in south carolina were closed. norfolk, warren county, schools statell closed by officials. finally, the resistance culminated in this next genetic ine, central high school
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little rock, arkansas, the resistance to allowing integration is so great that president eisenhower has to call in the national guard. this is dennis in palestine, texas. >> i just want to say jeffrey rosen is correct that richard work. has done fantastic i wanted to ask about a justice by the name of william rehnquist who, at his confirmation in 1971, the issue came up that he in thetten a dissent
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brown case when it came before said,r and court and he he wanted -- he did not really feel that way. i just wondered if either of your guests have checked to see the professor be of justin rehnquist's comments. it very well at it was an important controversy. then memo was quite vivid. is that the fact southerners don't like black people and will never admit them and the truth is, i believe that pressey versus ferguson -- plessy versus ferguson was good lot. had asked him to express his own thoughts because jackson was undecided. 's secretaryson
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disputed rehnquist's accountant said that he had never asked for competing opinions to be written in his voice and according to her, rehnquist was expressing his own views. that is the most direct evidence. >> maurice is in memphis. >> good evening. the 14th amendment does not apply to the federal government. although we feel that certain fundamental projections are so important that they appear twice so that the fifth and 14th amendments each have due process was. of the lawrotection is in more explicit safeguard of 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
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are not mutually exclusive? i think you are referring to the controversy over bowling versus sharp with a court reads an equal protection component into the fifth amendment. there is a lot of discussion court doesly how the this, how the court explains it. i don't think the court goes .ery far toward an explanation the fact of the matter is that there was not going to be anyway that you would get one holding in the four cases involving the state in a different holding in the case involving the district of columbia, therefore, we get this equal protection component read into the due process clause.
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i tend to think that there is an understanding of due process that makes it a very robust concept. the due process clause is based news is the court uses up using for fundamental rights analysis so i would say that, you know, they are not the same, but there is an appropriateness to reading that component, the equal protection proponent into the fifth amendment under the circumstances. add one quickjust -- justice harland believed that exemption from class legislation or unfriendly legislation based on race was itself a privilege and immunity of citizenship in the court read the clause out of the 14th amendment as you well know.
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for some of the framers of the 14th in, it might have been a less closed case. on twitter -- >> likeat did it do to them -- what is a digital legacy >> -- it indicated him. > next is chuck. yes, we can hear you, go ahead. although you said that brown reversed the plessy decision isn't it true that railroads continue to ignore the brown decision and continued segregating passenger rail cars until the civil rights act? >> it is not just railroads, it
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is all kinds of public institutions that don't exactly comply with brown. the -- it takes a very long time for brown to actually be implemented. as jeffrey pointed out, there is a decision whether court speaks to the issue of school desegregation. their problem is that unless there is in the early years after brown -- if there is not these dramatic instances of resistance to the decision, then the school districts are able to proceed in whatever way they see fit. 1960's,t until the late after the civil rights act, that brown is implemented in any substantial way. >> our next video is thurgood marshall, giving an interview to on presidenton cbs
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eisenhower and what he thought .f the presidents decision this was take on april 16, 1957. >> i do not think that president eisenhower has done anywhere near what he could have done. i wonder whether it is too late. i think 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, whether they into usein it or not the influence of his position to bring about peaceful solutions to this problem.
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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 other forces like the white citizens to threaten and intimidate good people. how moral leadership should come from the top executive of the government, it is his responsibility. months after that decision, president eisenhower sent troops into enforce the desegregation in little rock. walk us through president eisenhower's legacy. cooper versus iron is incredibly dramatic. you have a court order to integrate central high school. you have students who are being turned away by mobs.
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you have the governor standing at the schoolhouse door saying he will never allow the students to come in and you have president eisenhower's 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 obeyed cause they are not sure what eisenhower will do that each of the justices signs a decision in ink -- this is never done before -- the prove their unanimity. it is a sign that they are scared to death that he is not going to follow through. of judicialguage supremacy that almost overstates the case, this court is an supreme in its interpretation of the constitution, suggesting that the president or congress has no role.
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basically, these are nine men who literally don't know what the president will do. despite his grumbling, ultimately said the supreme court has made his decision, it helps mitigate eisenhower's legacy. they are interesting revisionist histories that say behind the scenes, eisenhower was aware of shifting politics and he listened more that she was more supportive of desegregation. >> this is actually a robe or in taped in 19's -- this is actually hurled more and --earl warren. >> in some parts of the country one couldn't help the inpatient when they would see the orders and just is not
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obeyed in any sense of the word legal things were changed in form but not in substance and carried on, one feels frustrated at that. when the american people that we have, in the been been rough in -- wrong and depriving 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're are on the way to solving most domestic problems. a couple of things. first of all, i agree that there is a revisionist scholarship on eisenhower that puts a different spin on his ears.
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, he sent in the guard. those are important. i think the problem for eisenhower as it relates to desegregation is that there is a sense -- he is very supported of there is a sense that he is not really supportive of the principle of desegregation as a personal matter. about how at ay white house dinner he was overheard saying that the people of the south were not that weree, they simply concerned about the little white girl sitting beside the overgrown black boys in the classroom. there was not that personal commitment to brown versus the board of education
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and he in that sense was on the wrong side of history. rren,warren -- earl wa not a man who was respected as a great legal thinker, his skills thatpolitical, understood having the office of the presidency behind the supreme court, 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. >> we will take a call from ken in new jersey. >> thank you. i have two questions. it is mye, understanding that despite what you said earlier, that eisenhower said that appointing warren to the supreme court was one of his worst decisions.
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it is my understanding that at the time that he appointed warren, he intentionally and pointed him because of this case and he wanted that to have a decision and i would like to hear your comments on that and secondly, it is also my understanding that when eisenhower sent troops into arkansas, it was also the first thatthat the president, behindcutive has stood the supreme court, especially since president jackson in 1828 and i would like to hear your comments. >> i love the fact that you bring up jackson and he did famously say in the cherokee said, johne, he marshall has made his decision now let him enforce it, confirming his adage that the supreme court has neither person no sword. i have not heard that eisenhower appointed warren.
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the fact that he resisted the -- it seems tons call that into question. tomiko that despite revisionism, he was on the wrong side. i would be interested in your tweets about that story. >> we have 10 minutes to talk about the 60 years of legacy, which is impossible to do. legalt to start with its legacy. we have four citations of brown, reynolds versus sins, loving antonioirginia, san school district versus rodriguez, and planned parenthood versus casey. if you look at its legal legacy, what has a left the country ec?
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>> that is a big question. [laughter] the most important legal legacy goes back to the point 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 where the issue wasn't school. legacy, inn next part because it can be interpreted in so many ways. he site san antonio versus rodriguez. there is a response to that thation, which is the case holds that education is not a fundamental right, that is inconsistent with thurgood
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marshall and a lot of people's understandings of the consequences of brown versus the board of education. who when it came to the question -- was notmeant persuasive authority on that point in their other examples. >> when talking about the integration of schools, from twitter, so far you have not using thethe hedge phrase, integrating with all deliberate speed, so how did this come into play? how instructive was the court in the role that of desegregation? >> thank you for noting that. the language came from felix bradford who always had something up his sleeve. he says, i know from english common law that when you are not bee that a decree will enforced, you can give the parties discretion and tell them they don't have to do it
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immediately. this principle was resisted by hugo black who was from the south and he said, you give the south any room, it is going to be worse. there was lots of other hedges in that decision. giving weight to public and private considerations, they should make a prompt and reasonable start, the courts consider problems related to administration, but disagreement -- the court did say the vitality of the constitution of principles cannot be allowed to yield simply because of a disagreement -- the bottom line is, with all deliberate speed was a huge pass to the south basically saying, go ahead, we are not going to be on you if you resist. it was not until not only the passage of the civil rights act, but the guidelines in the department of health and education and welfare threatened
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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 actually achieved its promise. >> the court continued to struggle with affirmative action cases, another one section -- scheduled for this term. what has been the societal legacy? >> another big question. important -- i was appointed to a case about whether school dishes could voluntarily desegregate in there that court held -- instruct on , in louisville, had been adopted, a desegregation policy, i'd opted, after the school system was no longer officially under court consensus, large
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consensus of the community, it wanted to continue with its integration program in schools that was considered a model community for it creation and the court in. that the principles established in the affirmative action cases regarding diversity k-12y don't apply in the context and then as you mentioned, there is the controversy over affirmative action, the court is going to hear the fisher case again. it will rule on the merit in it doesn't look good. two -- doesn't look at proponents of affirmative action and it may not be a sleeping holding but the nature of the conversation at the court is having is really goes back to that word of judicial supremacy. the court in the affirmative action context is saying that it is to be satisfied that there aren't alternatives to these race content policies and there
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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, from seattle in 2007. before brown, children were told where they could go to school. the school districts have not carry 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 race is to stop discriminating on the basis of race. >> there is a huge debate right now that the meaning of brown. is it a ban on racial classifications? or is it a ban on racial subordination? doesn't demand, blindness or does it prohibit -- does it
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demand colorblindness? the court is divided on this question. the division can be found in the brown opinion and in brown to which did not resolve whether it was demanding equality of opportunity the end to formal equality ofor results actual integration. this continues to this day. with c-span, we will be hosting a series of debates on all of these questions including a great one on the fisher case next week. the fact that even years after brown, we still haven't resolved its essential meaning suggests that the meaning of the reconstruction amendment continues to be debated. video is thurgood marshall. marshal was the architect of the and strategyefense
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which attacked the segregation of schools as a process to change in society. thurgood marshall was appointed thehe supreme court as first african-american justice, serving from 1967-1991. 1988is justice marshall in . about the state of race relations. care about the constitution alone or the declaration of independence or all of the books together. it is not that important. the goalmportant is toward which you are moving, the goal that is the basis of true democracy, which is over and above the law, and is something that won't happen unless -- and for it in that goes is very --
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and that gold is very simple -- , at goal is, that if a child negro child is born to a black mother in a state like mississippi or any other state dumbest,, born to the sharecropper, by merely drawing is first breath in a democracy, there in without any exact samen with the rights as a similar child born and thete parent wealthiest person in the united states. of course it is not true. [applause] it never will be true. but i challenge anybody to take
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the position that that is not the goal that we should be shooting for an stop talking -- and start talking about how close we are. >> with that, we have one minute left for your comments. >> it is a decision that was important in constitutional law. it is generally considered the most important constitutional law case of the 20th century. paradox because of all of the things we have talked about, brown was not considered to be a common-law case. there are many questions about the vestiges the court uses but over time, it is expected

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