The courts and public policy 1

1. The courts and public policy 1

2. Questions about the courts’role • What are the sources of legitimacy for the courts? • What is their relationship to the public interest? • What is the role of the courts in shaping policy and promoting social change? • Is it legitimate for them to play an active role? • Are there “mischiefs of faction” at play and what is the role of the court ?

3. Pattern of formal and informal segregation Began in the late 1890s Systematic effort to “codify (or strengthen) in law and state constitutional provisions subordinate position of African Americans in society:” “separating the races in public spaces”, and “preventing adult black males from exercising the right to vote.” R.. F. Davis, “Creating Jim Crow” http://www.jimcrowhistory.org/history/creating2.htm Jim Crow

4. Organized challenge to Jim Crow Invoked Equal Protection Clause of 14th Amendment Opens interaction in Courts that ties public policy to Constitution Establishes “separate but equal” as the law of the land Plessy v. Ferguson

5. Amendment XIV • Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

6. Supreme Courts Holding in Plessy v Ferguson • "That [the Separate Car Act] does not conflict with the Thirteenth Amendment, which abolished slavery...is too clear for argument...A statute which implies merely a legal distinction between the white and colored races -- a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color -- has no tendency to destroy the legal equality of the two races...The object of the [Fourteenth Amendment] was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.”

7. Harlan’s dissent in Plessy • "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law...In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case...The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to adopted the recent amendments of the Constitution."

8. “You could drive through Clarendon County, as I often did . . . and see these awful-looking little wooden shacks in the country that were the Negro schools. The white schools were nothing to be really enthusiastic about, but they were fairly respectable looking . . . The Negro schools were just tumbledown, dirty shacks with horrible outdoor toilet facilities.” Waties Waring in Kluger, Richard: Simple Justice. New York, Knopf. (1975) pp. 301-302 What did separate but equalmean?

9. End policy of moderating demands from Depression and WWII Provide opportunity for returning veterans who had sense of right and access to educational funds Renewed initiative to challenge Plessy

10. Separate but equal as practiced was a “false coin:” Focus on higher education Lawsuits will improve conditions; Raise costs of complying (teachers’ salaries also raised); Chip away at Plessy. NAACP’s strategy

11. 1936-1938 Gaines, an honor student, denied admission to law school because of race Court: Missouri must either build a separate law school or desegregate Gaines: an early decision

12. Sipuel vs. Oklahoma Board ofRegents • Sipuel denied admission to law school because a separate facility would “soon be ready” • State threatens to fine any school that offers biracial education • Initial ruling Sipuel could wait until practical • S.Court - must provide legal education in keeping with 14th Amendment • Oklahoma ropes off a section in the capitol and assigns 3 faculty: this arrangement upheld

13. Texas must create law school at Prarie View or admit Sweatt State provides makeshift schools in Houston then Austin This arrangement upheld 3 years to climb ladder to Supreme Court Sweatt eventually admitted to Univ Texas Sweatt vs. Painter

14. New strategy to shorten appeal process McLaurin admitted, but isolated Sharpens relief; Amicus brief attacks Plessy Fed gov’t also files amicus Appeal succeeded-- restrictions had to end-- but stopped short of overturning Plessy McLaurin v. OklahomaRegents

15. McLaurin deliberations • “Dear Chief: [The suggestions] are, after all, in the spirit of your opinions in that they seek to accomplish the desired result without needlessly stirring the kind of feelings that are felt even by truly liberal and high-minded Southerners . . .The problem is a perfect instance for requiring the widom of Bishop Brooks” [who replied to a criticism of relanting to wear orthodox dress] “If the other fellow is willing to take my ideas, I am ready to wear his clothes.”Justice Felix Frankenfurter in Kluger (1977) p.280

16. McLaurin holding • “Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court . . .Because of the traditional reluctance to extend constitutional interpretations . . . Much of the excellent research and detrailed argument presented in these cases is unnecessary to their disposition.” Chief Justice Vinson in Kluger (1977) p.282

17. McLaurin holding • “There is a vast difference--a Constitutional difference--between restrictions imposed by the state which prohibit the intellectual comminglin of students and the refusal of individuals to commingle where the state presents no such bar . . . Thre removal of the state restriction will not necessarily abate individual and group predilections and choices. But at the very least, the state will not be depreving appellant of the opportunity to secure acceptance by his fellow students on his own merits.”McLaurin Holding in Kluger (1977) p. 283

18. McLaurin holding • “Our society grows increasingly complex, and our need for trained leaders increases . . . Appellant’s case represents, perhaps, the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. State- imposed restrictions which produce such inequalities cannot be sustained.” Chief Justice Vinson in Kluger (1977) p.283

19. NAACP strategy • “We were saying that we’d still hedge on the strategy--that is, in any given case we’d argue that at the very least these facilities are unequal and therefore unconstitutional--but equality, so long as the facilities were separate, was not equality at all. There had to be an identity of facilites for equal protection to prevail. This is what we meant by the second string to our bow. We’d ask for integration forthwith, not at some vague future date, because that was the only way to grant equality--now. We never brought a case after that where we’d concede equality without integration, but it was done within the traditional framework so that at the very least we could fall back on the equal-facilities argument. The point was that if we didn’t win on constitutional grounds by getting Plessy reversed, we’d at least get the remedy we sought: integrated schools forthwith.” Wlm Coleman Jr. in Kluger (1977) p. 293

20. Complex background Local conflicts Attempt at direct appeal for reform fail Local NAACP appeals for help Brown willing, but not eager; a strategic choice as plaintiff Brown

21. Facilities substantively equal Plessy still law of the land A matter fact that segregation harms children especially when it “has the force of law” and “deprive[s] them of benefits they would receive in a racially integrated school system.” Initial ruling

22. 1st round with Vinson Court split;Constitutional groundsto overturn Plessyuncertain Delayed for reargument Vinson dies; Warren a moderate Republican like Eisenhower appointed What is the basis for the appointment that swings the Court? Brown argued 3 times

23. Violates Equal Protection Clause of 14th Amendment Foundation for separation eroded by prior decisions Demonstrated harm (introduces social science) Defense is respect of precedent Arguments in Brown

24. Unanimous Authored by Warren Short and accessible Reasoned discussion not an attack Limited: only public schools Compromse:segregationimmediately illegal;remedy delayed Brown I

25. Reaction to the Warrenopinion • “The genius of the Warren opinion was that it was so simple an unobtrusive. He had come from political life and had a keen sense of what you could say in this opinion without getting everybody’s back up. His opinion took the sting off the decision, it wasn’t accusatory, and it didn’t pretend that the 14th Amendment was more helpful than history suggested--he didn’t equivocate on that point.” B.Prettyman, Clerk to Justice Jackson in Balkin(2001) 38

26. Court conflicted over what sort of opinion would help Desegregate “with all deliberate speed” Discretion left to regional district courts Limited relief to parties not classes “Deliberate speed” used to justify delay and intransigence Brown II

27. Address segregation in the North Part of effort to extend scope of Brown to “de facto” cases Previous cases had extended, but not all the way No definitive Supreme Court ruling Morgan v. Hennigan

28. A pattern of government activity to create and renforce segregation Defense: pure defacto Keyes: “segregative intent” creates an even finer line Delivers comprehensive, tight opinion. Why? Upheld on appeal Garrity’s decision

29. Includes busing Provokes violence School committeedefies “city is occupied” Appoints team to brokera deal Garrity takes over the Boston schools Jurist vs. pragmatist? The remedy