 Hello everyone. Hello. Good evening. My name is Colleen Chogan. I'm the Archivist of the United States and I want to welcome you to the National Archives. Of course as the Archivist of the United States my job is to preserve, protect, and share our nation's records. With 13 and a half billion records here at the National Archives we certainly have a lot of stories to share and to tell. But the story of our nation really begins upstairs with the Declaration of Independence. When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them to another and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature's God entitle them a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. Notice what words appear in the first paragraph of the Declaration separate and equal. Separate but equal was a cruel play on those words of the Declaration. And Brown v. Board reclaimed those words. So I can't take credit for that insight. It comes from my friend Danielle Allen who is a political scientist and a philosopher at Harvard. And it comes from a conversation that I had with her on the meaning of the Declaration of Independence. She wrote a very thoughtful book about the Declaration and I was privileged enough to interview her about that book and that insight came up and always stuck with me about the importance of those words. The Brown decision was certainly a pivotal point in our nation's history. With his victory Justice Marshall laid the groundwork for the civil rights movement and our ongoing pursuit of a more perfect union. He spent the rest of his life building upon that foundation. As he said in one of his last major speeches nearly 40 years after Brown the legal system can force open doors and sometimes even knock down walls but it cannot build bridges. That job belongs to you and me. Afro and white rich and poor educated in the literate our fates are bound together. Here at the National Archives we hold the records of the five cases that constitute Brown and the many civil rights cases that came after it. So I'm glad we've come together this evening to hear from two jurists who personally clerked for Justice Marshall to explore the impact and legacy of Brown through the lens of 70 years of history. It will be a great conversation and really a fitting conversation to have here at the National Archives. I want to thank the National Archives Foundation for their generous support and also for Verizon for sponsoring this program and bringing us together this evening. Now I'm going to turn it over to our National Archives Foundation chair Secretary Rodney Slater. Thank you. Thank you Dr. Shogun. By the way today is the first anniversary of Dr. Shogun's service as our National Archivist. The first woman to hold that post and she's doing a tremendous job. Let me also acknowledge William Miner who is the counsel for the Archives Board and also Riley Temple. Riley is a former member of the board and was very instrumental in helping to secure a number of our speakers for tonight's program. And so Riley we thank you and William we thank you and to the other members of the Archives Board we thank you for your leadership. My name is Rodney Slater and I am the chair and the president of the National Archives Foundation Board. The foundation is the nonprofit partner of the National Archives and for over 30 years we have supported the incredible work and the important mission of this agency to provide public access to its vast holdings and to increase civic engagement with the citizens of our country. Programs like tonight afford us an opportunity to not only point to big events like this particular case but also some of the untold stories of individuals who were involved and who have been involved in moving our nation forward as we seek to become a more perfect union. Before going on with my comments about the specific court decision tonight that we'll celebrate I'd like to introduce an individual by the name of Kenneth Miller. Mr. Miller was a young student in July of 1952. His mother, Louise Miller actually sued the District of Columbia Board of Education because he needed the assistance of being admitted to Kindle School for the death. Mr. Miller is with us tonight along with his wife Carol and other members of his family and we'd like to just acknowledge him and the members of the family. Again, programming like this allows us to focus on big cases like this one of the most important cases decided by the United States Supreme Court but also individuals, some known and some unknown, and to tell their stories and to acknowledge them and to lift them up that we might be inspired by their example. Tonight we celebrate the 70th anniversary of the landmark court decision, the Brown v. Board of Education, and we discuss its legacy, the importance of this decision. For it was 70 years ago tomorrow that United States Supreme Court Chief Justice Earl Warren delivered the unanimous decision, the unanimous ruling indicating a critical turning point in our nation's history. It signaled an end of legalized racial segregation in schools of the United States, overruling the quote separate but equal principle set forth in the 1896 Supreme Court case Plessy v. Ferguson. The foundation would like to also thank Verizon for its support of the National Archives and its mission again to engage our citizenry and to tell the untold stories and sometimes familiar stories of how our nation has come to be the nation that it is today. I now have the pleasure of introducing Tony Lewis. Tony Lewis is the Vice President of Public Policy at Verizon. Tony is responsible for shaping and advancing Verizon's public policy and he directs Verizon's philanthropic activities in this region of the U.S. He serves on various boards including Fight for Children, the Alvin Ailey at American Dance Theater, Johns Hopkins University Carey School of Business and KIPP DC. KIPP as you know is a network of high performing public college preparatory charter schools which serve under resource communities across Washington, D.C. Mr. Lewis is also the Chairman of the Board of Directors of the Washington Nationals Youth Baseball Academy and the former Chairman of the Board of Directors of the Greater Washington Board of Trade. Ladies and gentlemen, please join me in welcoming Tony Lewis to the podium. Thank you, Mr. Secretary. Good evening, everyone. Yes, you made a wonderful choice of being here this evening. You can already tell how special this is going to be. It's special for me because Mr. Secretary introduced me. That is one I can write home about. I want to quickly say a big thank you on behalf of Verizon but I want to start with this. The thought of only being a creature of the present and the past was troubling. I longed for a future, too, with hope in it. The desire to be free awakened my determination to act, to think, and to speak. That was Frederick Douglass. Those words rang true to me when I read them this morning because of what we're experiencing here. This partnership, this opportunity for Verizon to stand before you and partner with this historic place is all based on the same fundamentals, the values that we hold as Americans. The opportunity to connect our citizens around the world with this amazing place with all of the data that you've heard about. And, as Mr. Secretary said, engage, one of my favorite words, because of Verizon, what we do day in, day out is find ways to ensure that you, our customers, our consumers, our friends and family and neighbors have the opportunities to engage in the ways that you want and need to. And to have the opportunities to see this information, to experience this information and to take this information in any place that you'd like, in any form that you'd like, as much as you'd like. So there is no better partnership for us than this partnership with the archives. I want to thank the entire staff for the opportunity to do this. They are marvelous. I wish you could meet them all. And we're looking forward to many, many more opportunities to experience these types of monumental opportunities to celebrate something as important as this decision which literally placed me in this position to speak to you tonight. Thank you. And so, next I have an opportunity to introduce heroes. And I literally mean heroes. It's my pleasure to introduce our distinguished panel. We are joined by two individuals who served as law clerks with Supreme Court Justice Thurgood Marshall. Cheryl D. Cashin is the Carmack Waterhouse Professor of Law, Civil Rights and Social Justice at Georgetown Law. She is a frequent speaker, contributor and writer, and an author of four books. Her most recent book, White Space, Black Hood, examines the role of residential segregation in producing racial inequality. Randall L. Kennedy is the Michael R. Kline Professor at Harvard Law School where he teaches courses on contracts, criminal law, and the regulation of race relations. Mr. Kennedy writes for a wide range of scholarly and journal interest publications and has authored several books himself, including Race, Crime and the Law, for which he was awarded the 1998 Robert F. Kennedy Book Award. And moderating tonight's panel is the honorable Michael K. Powell, President and CEO of NCTA, the Internet and Television Association. Chairman Powell is the former chairman of the Federal Communications Commission and currently serves as the chairman of the Mayo Clinic Board of Trustees, chairman of the William & Mary Foundation Board, and vice chairman of America's Promise Alliance. Please welcome the panel to the stage. Well, what a great crowd. Good evening, good evening. Welcome to tonight's program on the eve of one of the most monumental Supreme Court decisions in the history of the United States, Brown versus Board of Education. And I am pleased and honored to have the opportunity to discuss this important case and its history with two of the most distinguished professors in this field, Randall Kennedy from Harvard Law and Cheryl Cashman from my alma mater at Georgetown University Law Center. So we have a limited amount of time and a lot to cover, so I do want to get started. So we need to set the stage in the years following a terrible civil war in the United States. In a very short period of time, the United States adopts three monumental constitutional amendments, the 13th Amendment abolishing slavery, the 14th Amendment providing the equal protection of the laws, and the 15th Amendment guaranteeing the right to vote. You can imagine this didn't necessarily go over well in parts of the country. And since we're at the archives, I think understanding history is important. So help us understand what was going on in this period, and what were some of the ways that states were working to circumvent what was this new muscular federal authority in the intervention of their daily lives? I want to defer to the man who taught me race and race racism and American law on this part. Thank you. Well, it's wonderful to be here this evening. So you're asking about the reconstruction era and what happened. So it was a civil war which put an end to slavery, and then the party that prosecuted the Civil War, the Republican Party, was successful in spearheading three constitutional amendments. You mentioned the 13th Amendment does away with slavery, the 14th Amendment does a variety of things. One of the things that the 14th Amendment does is for the first time in American history, determine who is a citizen of the United States. In 1857, the Supreme Court of the United States in Dred Scott versus Sanford said that African-Americans could not be, under any circumstances, citizens of the United States. Well, the 14th Amendment changed that, and the 14th Amendment also stipulated that all states had to provide all persons the equal protection of the laws. And then there was the 15th Amendment. The 15th Amendment said that the states could no longer exclude people from the ballot on the basis of race, color, or previous condition of servitude. Now, that was a tremendous amount of reform, and that tremendous amount of that reform effort triggered resistance, much of it violent resistance. And, you know, the fact of the matter is we're still in the grip of that violent resistance. And I think that that's the backdrop to our story here. Yes, yes. Can I add one thing? So, the 13th, 14th, and 15th Amendment was a compromise, a coalition of radical Republicans, my heroes, Thaddeus Stevens, Charles Sumner, who I learned about in your class as the first person to introduce me to him. These guys were ready for black equality, but the moderates, the moderate Republicans were not. And so basically what they coalesced around was suffrage, and the idea was, well, if we give the black man suffrage, they can protect their own rights through politics. And there was some debate about civil rights versus social rights, right? And so not everybody in the Republican coalition was ready to accept the kind of equality, like, you know, going to the same schools, and those kind of things. So that was still contested despite the fact that we had the 13th, 14th, and 15th Amendment. Yeah, I'm just going to say, picking up, I think that you're absolutely right to use the word compromise. So the 14th Amendment is very central to our concern tonight, Brown versus Board of Education. And the 14th Amendment was very much a matter of compromise. So, for instance, there were some people who wanted the 14th Amendment to say that states would be prohibited from drawing racial distinctions. There were some abolitionists, for instance, who took that position. The Congress, the framers of the 14th Amendment were not willing to go that far. Right. And so they gave us what we currently have, which is a very ambiguous proposition, the equal protection of the laws. Well, that can mean a whole lot of different things, hence our dispute. And we've been fighting about it ever since, to this day. What do those four words mean? Right, five words. It's interesting, Cheryl, you highlighted this question in the compromise about social equality, which really finds its way into the predicate case of Plessy. So the state of Louisiana passes a statute in which it makes it unlawful for blacks to ride in the white cars of trains, or whites to ride in the black cars of trains. And Homer Plessy intentionally boards the white train, is ultimately charged, goes through a series of trials, and we land in the Supreme Court in this relatively famous opinion of Plessy versus Ferguson. So tell us a little bit about the court and what it held, and what it found in the case of Mr. Plessy. So first thing I want to mention is that Homer Plessy didn't just do this on his own. Right. He lived in a neighborhood of activist black people, and there was a committee that decided they wanted to do this, and they recruited Homer Plessy. He was a really interesting lead lawyer in the case, Albion Terji, who was, you can Google him, he's a really interesting figure, but a white guy who was down with black freedom well before a lot of other people. And he's the one who introduced this idea that justice should be colorblind here. So what did the Supreme Court hold famously? The majority held that black people could ride in the black car, and so they were formally equal with whites who had the white car, and Justice Harlan famously dissented in that case. I'll let you add. Just one thing, you know, we're talking about segregation, and segregation was a cruel lie, and Justice Harlan and his dissent in Plessy vs. Ferguson really does do a great diagnosis of the cruel lie of separate but equal. I mean, the idea was, the idea behind it, and it had a real grip on the American legal imagination for a long time, the idea behind it, the theory was, well, this is not a violation of the Equal Protection Law because everybody is operating under the same law. So in Plessy vs. Ferguson, white people cannot be in the same car with black people if a black person wants to be in the ride with a black person, they can't do it. If a black person wants to ride with a white person, they can't do it. Nobody can complain. They're all under the same law. They're all being equally restricted. That was the theory. And, you know, it seems to me that one thing that we ought to keep in mind is how powerful an idea that was. I mean, from 1896 to 1954, that's a long time. That's a long time. And, you know, if you ask the question, who were some of the people who were flummoxed by that lie? Well, Oliver Wendell Holmes Jr., Justice Oliver Wendell Holmes Jr., Louis Brandeis, and the list goes on. So, I mean, this idea was a very powerful idea. And that's one of the reasons why, you know, Brown v. Board of Education is so important, is because the justices in 1954 really had to overcome a lot to reach the conclusion that they reached. But I want to point out really quickly, people got to ride where they wanted to during reconstruction. You know, in New Orleans. This was a clawback. Right, right. People got to ride, so black people had been riding on the trains. Schools actually were integrated in New Orleans during reconstruction. So, it's a clawback. And when the court decides this fake principle, it was particularly fake because people in New Orleans had been used to mixing, right? It encourages the proliferation for the next six decades of Jim Crow laws. This is like the beginning, but Jim Crow politics becomes like the only game in town. So, everybody is falling over themselves. It's like, well, I'm going to segregate. I'm going to make things so that black people and white people can't play checkers. And if you vote for me, I will segregate the books. I learned this in your class. Some schools even required that the books that children learned had to be segregated. And so, that was like the central organizing principle in southern society for six decades. And it dominated the politics. We'll say this, though. What was the case that first announced separate but equal? It wasn't a southern case. Boston. It was Boston. Roberts versus Boston. Yes, yes. Boston. In the 1850s. 1850s. Yes. Law professors start fighting. Okay. I teach that case. But let me just say. Charles Sumner and Robert Morris, a black lawyer and Charles Sumner fought that case. They lost. But within five years, they succeeded in getting the legislature in the state legislature to repeal it. So, anyway. So, let's move forward. Yeah, move forward. Law nerds. Law nerds. Law nerds. So, yeah, seven and one decision, a single dissent, famous dissent. I pulled out one quote from that case, just gives you a flavor of it. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. Inherently rejecting the idea that the law would try to cure problems of social discrimination. And as Cheryl pointed out, we have this enormous six-decade period of Jim Crow laws that our parents, at least my parents, grew up in. My mother grew up in Birmingham, Alabama. My parents told me many stories of not being able to stay here or drink from that water fountain. That's important to remember. That's not a generation ago. That's one generation ago. So, we fast forward nearly 60 years and we're on the doorstep of Brown, where the Supreme Court is going to be asked anew this question, whether separate but equal is unconstitutional in the context of public schools. And of course, the man who will argue this case, a lion of the law and your former boss, Justice, later Justice Thurgood Marshall, before we get in the case, let's talk about him. Tell us about him. What drove him in this work? How did he strategize about getting to the Supreme Court? He did a lot of work prior to this case to set the predicate for the court's case. You all got to spend some time with him. Tell us about it. I'll be happy to talk about Mr. Civil Rights, who in my view is the greatest lawyer in the history of the United States. Amen. Just quickly though, before that, I want to pick up on a point that Secretary Slater mentioned at the very beginning of these proceedings. Because Justice Marshall, I mean, we all know Justice Marshall. Justice Marshall was the Solicitor General of the United States. Justice Marshall was a Court of Appeals judge. Justice Marshall was one ninth of the Living American Constitution as a Justice of the Supreme Court. He got a lot of, he got a lot of plaudits during his lifetime, as he should have. There are other people, however, there are other people who enabled Justice Marshall to do what he did. And there were other people who enabled the Supreme Court to strike a blow for decency. And those other people often do not get much attention at all. I just want to mention one. I'm going to mention one. I'm from South Carolina. One of the cases of Brown versus Board of Education, Briggs versus Elliott, Clarendon County, South Carolina, there was a man named Harry Briggs. Harry Briggs and his wife, Elizabeth Briggs. Harry Briggs, very modest man, worked in a filling station. His wife was a maid. They became plaintiffs in Briggs versus Elliott. Briggs's boss, who was a actually pretty decent man, says, Harriet, I read in the paper that you're a plaintiff in this case. You know, I can't employ you if you're going to be a plaintiff. So take your name off of it. Briggs refused. He was fired. His wife was fired. Reverend DeLane, who was really the spiritual guardian of the plaintiffs in that case, was run out of South Carolina. These are the people that really sacrifice, and all too often we forget about them. It's people like that who are always beginning things, a case that the justices don't begin anything. The justices are always there as sort of ratifying things that have begun. It's these people who actually got the ball rolling, and they did have a great, they did have a great legal guardian, Mr. Civil Rights, Thurgood Marshall. And I'm going to be quiet. All I'm going to say is it was one of the great privileges of my life to be able to work for him. You're here. Well, how do I follow that? Same here, same here. I worked, I clerked for Thurgood Marshall in his last active year on the court. Let me just quickly answer your question for the benefit of the audience. You know, you know, you know, there are other people who were on this team. Thurgood Marshall was the chief oral advocate. I always like to tell my students that he argued 32 cases before the Supreme Court and won 29 of them. Many of the ones that he did win when he was the chief legal counsel for the NAACP were knocking down planks in Jim Crow. Now, how did he become Thurgood Marshall? Well, the quickest story is to I credit or academics who follow this story credit Charles Hamilton Houston. Charles Hamilton Houston who graduated, was he the valedictorian of his class? I know he was on the Harvard Law Review, but I know he was the valedictorian of his class in Amherst, right? He was a law graduate. He was the dean of Howard Law School. He remade that law school into a civil rights firm, his attitude was if you come to Howard Law School, you will work harder than you ever had. And the role of a lawyer, a Negro lawyer, that was the term then, is to be of service to his teacher, to be of service to your people, or you're going to be a parasite. That was what he said. Thurgood Marshall under his tutelage, he kind of played around when he was an undergrad. He got very serious in law school. He graduated first in his class and he and Charles Hamilton Houston kind of invented the civil rights law firm and they started filing cases together and it was really Charles Hamilton Houston who had this incremental strategy. His thought process was that black Americans, Negroes then, were not ready to protest. And he felt like they had to go slow to get to the point where our people were willing to be plaintiffs. We're willing to challenge Jim Crow. So they started incrementally and they had won some victories particularly at the graduate school level particularly involving the University of Texas Law School. They got the court to say in that case, Sweatby Painter, right? They got the court to say that separate is inherently unequal so the principal was there and because there were people like the Briggs family and Linda Brown's family and others willing to line and contest they eventually got to Brown. Yeah, it's interesting that he pursued graduate education first. It's interesting in the University of Texas case the holding really was that the two institutions were unequal. Texas had hastily stood up a black law school not having one in an effort to cure their problem and the court ultimately said it wasn't equal. So we get to Can I just interrupt? Yeah, yeah. This issue was really quite personal with Justice Marshall. He was from Baltimore, Maryland. He goes to Lincoln University predominantly, you know historically black institution as an undergraduate he comes back, he wants to be a lawyer his family lived in Baltimore it would have been very easy for him to have gone to the University of Maryland law school. He could not attend the University of Maryland law school because it excluded blacks. That is what prompted him. It was one of great irony. It was probably a good miss because then he comes to Howard and falls under the sway of the great Charles Hamilton Houston. Now Thurgood Marshall's first big case as a civil rights lawyer is a case against the University of Maryland He has a friend he has a friend, younger friend who sues and Marshall succeeds in getting the courts of Maryland to say well there's not a black school in this state that's open to blacks who want to become lawyers so you've got to admit Murray versus Pearson got to admit this black student Justice Marshall decades and decades and decades later love talking about that case and would always say sweet revenge very good best served cold it's interesting you note that he could not attend a school in his neighborhood in essence which really is one of the foundational circumstances that brings Brown to the fore young Linda Brown seven years old in Topeka, Kansas goes to a black school but it's very far away from where she lives she has to pass white school to do it and her father chooses to attempt to enroll her in the white school so we heard mentioned earlier this is really a consolidation of multiple cases with similar circumstances and in the case Marshall goes directly at Plessy, yes tell us a little bit about his theory that separate is inherently unequal no matter how good the quality of the two schools because by some analysis the schools in Kansas happen to be quite similar even the plaintiffs would argue they were getting a good education at the black school but there was this belief that they're inherently unequal you could start first I'm going to answer this with a little story the year I clerked for Justice Marshall there was a lot of news about an effort to start a new public school academy for black boys and this sparked a lot of conversation in chambers among my co-clerks and him and he basically said he told this story about a separate unit in World War II which unit is going to be asked to go do the most dangerous mission and he said if there's a potential budget cut he felt like a school like this would just make black kids vulnerable which is going to be the first on the chopping block going to be a budget cut and so I kind of learned in that moment that you know he was concerned about equality but he had a very pragmatic understanding this is a person who went to HBCUs he believed in black excellence he believed that people could thrive with the right resources but he was I think pragmatic about the reality that separate actually almost never was equal and wasn't going to be equal in terms of access to resources but I also you know believed that he like my parents generation as well I mean he was my grandfather's generation by the way Thurgood Marshall and my grandfather Mark Carpenter were fraternity brothers along with Langston Hughes at Lincoln Alpha Phi Alpha that helped me get the job in addition to his recommendation so but he believed that the caste system had to be dismantled and he believed that the Equal Protection Clause demanded the dismantling of a caste system so that's my understanding I agree with all of that I would want to add though and here's where I think the mystification of segregation is actually still with us because I think we're you know we're what's wrong with it what's wrong with it it was a purposeful insult you use the word caste really about what it was really about and Harlan says this in his descent in Plessy versus Ferguson it was about protecting white people from contamination it was a quarantining that's what it was about it was not it was unilateral it wasn't a negotiation it was white people the white power structure calling the shots putting black people not only apart but down if you go take a look at the statutes what do the Jim Crow statutes actually say one place you can take a look at this by the way a wonderful resource here is Pauli Murray's great collection of race laws in the United States in mid 20th century and you read through these laws and they say things like in many of the states to go back to Plessy versus Ferguson railroad cars black people cannot sit with white people white people cannot sit with black people but there is an exception what's the exception servants servants you can have maids you can have maids now you know because it was understood well if it's a maid then you know it's understood this person is lower this was a this was repression this was insult this was a way of putting black people down and that's why it was inherently and unavoidably inconsistent with any sensible notion of equality in America and it was also backed by virulent nasty violence you know the slightest infraction particularly by a black man of the code could get you killed this seems so compelling to us today but it was a pretty radical proposition to put before the court difficult to imagine how it was going to be proven and Marshall cracked that they tried everything we mentioned the long period you take a look at their briefs they were making various arguments it shows they were up against so much the racism was so deep was so pervasive that it was actually hard to make an imprint and so they had to try various ways in which to try to reveal the unfairness now on our side of things it looks obvious right on our side of things it seems so clearly unfair but on that side of things it did not and the fact of the matter is that segregationists had a lot going for them text the text of the constitution does not expressly forbid government separating people on a racial basis it just says you just got to treat everybody with equality equality before the law well segregation says the segregation segregation is equality before the law so the text was ambiguous if one turns to originalism originalism is really big right well if you go back and take a look at well what were the framers and ratifiers of the 14th amendment saying in 1868 there's a very strong argument that the majority of ratifiers and framers of the 14th amendment did not intend to strike down segregation or segregated schooling schools were segregated in the district I believe they were and in fact in most states where there was public schooling there was a strong argument that as an originalist matter segregation okay not to mention segregation with respect to matrimony and then third precedent by 1954 there had been many many many cases in which courts including the Supreme Court of the United States had said segregation is compatible with the United States Constitution so the segregationists had a strong argument so what got to the court so it's interesting the Kenneth Clark Dahl study seemed to I don't know whether it okay so Kenneth and Mamie Clark sociologist had conducted a study in the 40s right in which they and you can go watch videos of it which they would put a black and a white doll in front of black children and ask questions which is the nice doll which is the beautiful doll and tragically a lot of black kids pointed to the white doll but not all of them did it's interesting if you actually look at the data black children in the north were more likely to point to the white doll than black children in segregated southern schools that said you know a large number of black kids were pointing to the doll and I believe it was in the Briggs case I think it was Robert Carter who introduced the Kenneth Clark study in the Briggs case at the lower level it was either that it starts in Kansas but then it does go in South Carolina as well yeah okay so you know Earl Warren former governor of California former attorney general of California was a politician and he was trying to build he wanted a unanimous opinion and my guess is he found the doll study to be an empathetic way to get to bring people along why that stuck when other things didn't but the gravamen of the case what he says is separate schools send a message that generates feelings of inferiority of black children development the NAACP had argued in their brief about what segregation also did to white children feelings of superiority they didn't talk about that but for whatever reason that was the central to the logic of why they said we can no longer have state sponsored segregation of public education you know I think legal doctrine is important that's how I pay my mortgage off but I don't think it's actually often it's not the most important thing so if you ask me what is it that really gets us to Brown versus Board of Education I would say things like World War II where I was going the Nazism puts a real sting on racism and there are lots of people who say well gosh there are a lot of people who died fighting Nazi racism how can we fight Nazi racism and have Jim Crowism I think that was important another argument number 42 Jackie Robinson popular people doing things in society and doing things in a fabulous way a great way breaking down barriers here and there Marion Anderson I think that there are various things that are happening in society that move people move the politicians and then finally move the jurists I think and then the doctrinal stuff is often that's the way in which people rationalize what they're ready to do they're ready to do it Russia also was embarrassing us we had the Cold War going on and it's getting more and more inconvenient this is an interesting point the Justice Department filed an amicus brief and the vast majority of the amicus brief was actually related to foreign policy concerns this is the Cold War when the United States is running on the world fighting with Russia over whether countries will become democracies or communist countries and what the US is running into overseas is how can you come here selling democracy when you have a country that has separate but equal and it had become an embarrassment and a Cold War disadvantage and it's fascinating to see the Justice Department comes in and says this is a foreign policy problem which most people didn't realize Earl Warren puts this thing together interesting fact this case was argued in 52 the Chief Justice of the Supreme Court dies after oral argument Chief Justice Vincent who was believed to be leading toward dissenting he dies and gives the president opportunity to appoint a new justice who happens to be Earl Warren an integrationist from California who then comes on the court and leads this consensus this opinion is remarkably concise it's I thought it was 13 pages I looked at the originals it stops at 12 the internet's wrong by the way chatGPT was wrong on this as well caution to everyone Randall I saw you write once that this was probably intentional and perhaps wise but then you went on to say but it rendered the opinion pallid what did you mean Chief Justice Warren right before handing down the opinion writes a memo to his colleagues describing what he's attempting to do and he says I want to write an opinion that is brief write an opinion that regular people can read and write and he says and above all write an opinion that is non accusatory now he wanted to write an opinion that was non accusatory in large part because he wanted to preempt opposition there were some members of the court in particular you mentioned Vincent but Vincent had passed away but then there was another member of the court Justice Reed from Kentucky wrote a memo to give up segregation and Warren Howard wanted a unanimous court and so he wanted to write an opinion that would get what he wanted that is to say the striking down of de jure segregation with respect to public schooling but he wanted to lessen the amount of reaction against his opinion so he writes his opinion like you said it's a very short opinion it's a very short opinion and it's an odd opinion in the sense that I mean here we are the National Archives we're talking about this we're talking about what a landmark opinion it is but if you actually just read the opinion if you didn't know about American history you would not really know what the fighting is all about you would not know from reading this opinion you would not know what segregation was about there is no there's no is racism in that opinion? no is the cruelty of segregation described in that opinion? no is the way in which separate but equal was administered in a grotesquely unfashioned way is any of that mentioned? no it's a very short opinion and one of the things in fact I would say the most striking aspect of this opinion is that this is the most honored race relations opinion delivered by the supreme court of the United States and is also an opinion that declines to candidly grapple with racism well so I write about Brown as one of a trilogy first of all a couple things I want to bring out the first federal court to take on to say that separate was inherently equal was a case out of California Mendes the Westminster I believe it is but it involved a litigation a segregation of Latino students out in California and I believe Warren was attorney general at that time right and as a result of that case they ended up changing the legislation so Warren did have some experience with when he was governor he had some experience with integrating schools so yes but I will say as attorney general he reported the internment of Japanese people so some ways I think of Brown as maybe his own personal atonement he wasn't a great liberal during Japanese internment so I just wanted to bring that out but where I was going was that I think of Brown as part of a trilogy Warren wrote three unanimous opinions one that people don't talk about very much a case called Texas decided two weeks before Brown I do teach this class do you teach this case? okay you didn't teach this case to me though I had discovered on my own but it was the first case to apply the Equal Protection Clause by the Supreme Court to Hispanic people basically it was a case about excluding Hispanics from juries in Texas so that's unanimous and he says in that case that discrimination is not static it comes in all forms and the Equal Protection Clause should be available to anyone who singled out for different treatment than from a community norm it doesn't name the norm it's whiteness right then in Brown another unanimous opinion yes you could say it's pallid there are a couple of notes in there that I think are very patriotic that remind me a bit of the Declaration of Independence it has some values you can grab on to which is the ideas that you know he talks about the public school house the common public school is so important to cultivated citizenship I think it's as close as he can go to saying you know white folks you need to be part of this project you'll only be part of this project of learning together and having values common values but it's only after a social revolution civil rights movement and I think the biggest lasting legacy of Brown is that it captured the imagination of young black people who said hey I'm free I should be able to participate in whatever institutions the state is sponsoring and that generation is willing to go you know in a thousand places within what like six seven years you know thousands sit in all over the place demanding to be free but after that social revolution by 1967 you get another unanimous opinion by Warren loving versus Virginia in which he does name twice it's the only supreme court opinion first and the last in which they say this law is about white supremacy and we can no longer he's basically saying we can no longer square white supremacy racial hierarchy with the equal protection class then he pretends yes this is revisionist he pretends that it's not consistent with who we are you know he makes it seem like the supreme court has always been fighting that fight when the fact from the founding forward until brown until the Warren court the supreme court actually had acquiesced in reified reinforced racial hierarchy I was not putting Warren Chief Justice Warren down Chief Justice Warren was a great jurist and did a lot of good work he was up against something yeah he was I think he went as far as he could go he was a statesman and it was strategic so you know sometimes you can't say everything that's on your mind sometimes obfuscation is actually a smart way to go and that's what he was doing Brown versus Board of Education his opinion obfuscation but he was up against it and I would say to people I think nowadays when people look at Brown versus Board of Education they actually forget how bad things were and have forgotten the constraints under which those justices were working let me put a pin in that I want to encourage the audience if you are make your way to the microphones one thing that we haven't gotten into depth though that I think would be incomplete is the court didn't tell the country how to do it and the years that followed were pretty bloody, pretty violent the resistance pretty amazing they closed the schools in Virginia instead of Integrate National Guards had to be called out George Wallace famously standing on the steps so very, very tough and then we did get the Civil Rights Acts of 64 and 65 as a catalyst lots of questions sir you're first thank you so much for being here today my name is Nathan White my recent graduate of Montgomery College here in the Washington D.C. area and thank you thank you and I'm hoping ultimately I'm hoping ultimately to teach Civil Rights in American History and my question is my question is one aspect of the one aspect of the Briggs vs. Elliott case that I found particularly interesting was the role of Judge Julius Wedis Warring and his relationship with Thurgood Marshall and how Judge Warring really was quite important in making the case an attack an attack on segregation as a whole and I was wondering if you would be able to speak some about Judge Warring's role in the Briggs vs. Elliott case and his relationship with Thurgood Marshall succinctly okay just quickly Judge J. Wedis Warring was a white jurist he was part of the upper crust of Charleston society he had been a thorough going segregationist and then he had a total change of heart and mind and went against segregation and in he dissented in Briggs vs. Elliott and in an opinion that is actually much more aggressive than Brown vs. Board of Education really does attack segregation but what's so striking about this man Judge Warring is the turnabout because he had been thoroughly in league with the white supremacist of South Carolina and then he becomes their nemesis great man yeah hi my name is Steven Lincoln Spitz I'm 12th which is why Lincoln is my middle name in Chicago I have a question about whether or not there was evidence in the Brown case in Topeka about the facilities what was stipulated that assuming the facilities are equal and the reason I'm asking that question is when I was a lawyer across the mall at the Department of Health Education we got a lawsuit claiming that the schools in Topeka, Kansas, the 73 were unequal in facilities and still segregated and I personally went to all the junior high schools in 1973-74 with a facilities expert and believe me they were very unequal at the time for example the science labs had individual gas electricity fire for in the white junior highs but none of the black junior highs so I was wondering what kind of evidence there was about the facilities in the time of the litigation in the 50s in Topeka my understanding is that all the lawyers were willing to stipulate that they were equal even if they weren't just so they could get to the question of whether separation was inherently unequal but I'm not sure. I think that in virtually in the cases the way in which for instance in Kansas in South Carolina and in Virginia the lower courts conceded that the black schools had been deprived of what was due to them the courts conceded that but what they were not willing to concede was the inherent was the invalidity of segregation so in South Carolina the lower court said fine we're going to rule in favor of the NAACP but in ruling in favor of the NAACP we want equalization not an end to segregation but equalization they did that in Kansas they did that everywhere and you know that would have provided actually an out to the Supreme Court had they wanted to take it but they had finally come to the conclusion that they were finally willing to grab the nettle and invalidate segregation hello my name is Gavin Newbauer I'm a public policy student at the University of Maryland so the fight was very interesting and personal to me I was wondering I wonder a lot about this studying public policy and law but how does it really change the culture and it feels notable that in this country a lot of it happened in the courts and a lot of it still happens in the courts but there's always this question about legitimacy because it's not being passed in Congress and there's always this fight this backlash that happens after every major case like that county in Virginia that shut down all of its public schools and gave vouchers to white kids and I wonder when in the aftermath of a monumental case when all the fighting is at its peak what fight happens after that what does it take because it seems like the dust settles eventually but I know there's an incredible fight with law and smaller courts that happens afterwards and I want to know more about that story when it comes to Brown v. Board of Education well very quickly Brown doesn't get enforced until we get a social revolution that results in the Civil Rights Act of 64 that has a Title VI in which the Federal Government can withhold funding and threatens to withhold funding from school districts unless they desegregate and that's what really gets desegregation started so you know there is something to this idea that I mean Supreme Court doesn't have an army you know there was massive resistance for more than a decade right so it took a social revolution and legislation passed by Congress to begin to give meaning to Brown I'd agree with that so courts are very important you mentioned the word legitimacy hugely important I mean when people for instance there are people who suggest that well Brown v. Board of Education didn't amount to much I think they're totally wrong on May 16th 1954 it was legitimate for states to be constitutionally legitimate for states to purposefully and openly separate people in schooling on a racial basis Brown v. Board of Education comes down on May 17th on May 18th it is no longer legitimate for states to do that that's hugely important legitimacy matters it's not just in the courts though I mean what changed things you know there were these great lawyers that helped there were the students who sat in that helped there were people who engaged in boycotts that helped there was Martin Luther King there was Fannie Lou Hamer there was Bayard Rustin there was Malcolm X there were people who were fighting the good fight in lots of different places and that is required for society to change it's not going to be just the courts though the courts are important yes ma'am hello my name is Sakina I have two light hearted one and then a serious one the light hearted one would you consider Thurgood Marshall to be funny he was beyond funny very funny he was the best storyteller he could make you laugh so hard tears streaming down your face it was he was delightful I love that okay and then my serious question um what the climate that we're in right now do you think there is a chance that Brown v. Board of Education could be overturned by the Supreme Court no as bad as things are and I think things are actually very bad but no I think that I think that Brown v. Board of Education has sunk such deep roots in American society that no it's not going to be uprooted though though you know one cannot be complacent one cannot be complacent we have seen you you began with the first reconstruction we began with the first reconstruction after all during the first reconstruction there were black people who you know during the first reconstruction the senator from Mississippi was a black man right lots of things changed in the first reconstruction it was rolled back things can go backwards so we cannot be complacent I do think however that Brown v. Board of Education thank goodness remains vital well let me say this the values of Brown are betrayed every day in this country right everybody in this room knows that we have separate and savagely unequal schools and parents work really hard to avoid the low performing not very good schools right so you know the Roberts Court would never overturn Brown I think you know Roberts is very proud of the progress you know he touts Brown as great social progress but conservative justices and far right you know I would say extremist elements in this country they have reduced reduced Brown to a requirement for colorblindness a requirement that all it does is say you cannot the state cannot use racial classifications right so they read it in a narrow way in which it makes it a lot harder for any state to engage in repair you know race conscious kind of repair right so Brown has been limited and undermined but the fundamental principle that we will not have state sanctioned racial cast I don't see that being overturned Riley Temple thank you if we are limiting our discussion to Brown as a function of or having the desire to increase the quality of public education how would you assess today Brown's success or failure we're putting a lot of weight on one case before you answer because I have more notes yesterday I read Axios article the headline was school segregation surging after 70 years the article said that the number of intensely segregated schools defined as schools that are 90 to 100% non-white students have tripled from 1988 to 2021 according to a UCLA analysis so in some ways we have a lot of work still to do I think we do have a lot of work to do I think that people use I think people are a little bit too loose in their language so that article and there are many articles that say things like there's as much school segregation now as you know in 1954 no no I think we ought to remember exactly what it was that Brown versus Board of Education was targeting in 1954 in South Carolina the state constitution of South Carolina said that white and colored children were to be educated in different facilities forever that is what Brown versus Board of Education was targeting now again yes there are lots of problems in the United States but I would set forth the following proposition there is no place in the United States today no place in the United States today where a government can say with proper authority that it is purposefully separating people on a racial basis that was an accomplishment it was an important accomplishment and you know I don't think it should be it wasn't a little thing it was a major thing it has its limits does that bring us socially quality in full but it was an accomplishment and we need to be very clear about that so I just want to quickly say I agree with everything Randy said but and I read that article too because my husband put it in my face the Axios and the stat from that jumped out at me the Axios piece is that the average existence for a black or Latino child in public education today is one where three quarters of their peers are minority and you know according to the Civil Rights Institute project out at UCLA at least half of their peers are poor often it's a lot more than that right and meanwhile the average experience for white and Asian children is the opposite they tend to be in middle class schools right that are better resource in my view that's a class system it's no longer it's no longer required in the state constitution but I got to tell you there's a lot of publicly sanctioned policies that encourage rather than discourage this type of systemic segregation so Sarah we're getting to the end here let's get to the last question thank you for a great discussion on Brown this is my colleague Everett Bellamy I served as a dean at Georgetown when Chairman Powell was a student when I got in trouble they would send me to him so great to see you here could you take a moment please to talk about the second Brown which was decided in 1955 the next year Chairman Powell you talked about the resistance to Brown and the backlash and all white schools being established and so private white schools being established the need for Brown 2 and you're talking about Brown 1 being short Brown 2 was real short what is the phrase with all deliberate speed could you please comment on the need for that Justice Marshall like to tell this story you came down and said all deliberate speed they went secretary got the dictionary and looked it up and said deliberate it means slow right there you have it right we've been moving slow last question good evening my name is Solomon Palmer and I'm just an ordinary person who serves an extraordinary God period with that said I've always been fascinated by the unanimous decision Dred Scott dissent Plessy dissent but Brown dissent and I want to suggest also the role that I believe and can argue based on brother Charles Oguchi's book makes the argument that faith played in it because Oliver Brown was a minister of the AME church in Topeka, Kansas so can we speak to for us this evening what role faith could also have possible in determining for the first time a unanimous decision thank you I will let you have that one well sir is an important aspect of Brown the Chief Justice Warren really thought that it was very important Justice Marshall thought it was very important to have a unanimous court there are people who more recently have questioned that and I think there's good reason to question it um could it be that Chief Justice Warren paid too high a price for unanimity I mean after all the Supreme Court cases that are not unanimous but you know you have 5 votes and you have the Supreme Court um would it have been better maybe think about this it's sort of a counterfactual let's suppose the Supreme Court instead of going the gradualistic route Brown too for instance just suppose the Supreme Court had said we want immediate desegregation and just suppose the Supreme Court had been very forthright and candid and clear in its denunciation of segregation and let's suppose there had been some Justices who would have dissented would that have been so terrible seems to me I could easily imagine a scenario in which no it wouldn't have been so terrible maybe that would have been a better route to have gone I don't think that we should view unanimity as sort of and untouchable it's what we got maybe it was a good thing on the other hand you know there are alternatives that are certainly plausible you could have had another Worcester versus Georgia though remember there was a famous case in which would you say that we did get that yeah you're right we did it was unanimous let us in on this case sorry Worcester versus Georgia involved the Cherokee tribe it was one of the Cherokee cases out of Georgia and Chief Justice Marshall wrote a very pro Cherokee opinion and sided with them and Georgia just ignored it and the apocryphal story is that the president said you know you have your opinion let you enforce it but we did have massive resistance right so we're coming to the end of the evening and I just want to give each of you a final reflection on the legacy of this case and or extraordinary example that they're a good Marshall gave us Cheryl do you want to go first? you go first I have to think about it just a couple of things remember one I'd like to thank very much the sponsors of this evening it's been certainly a privilege for me and one can only applaud civic events like this and trade information so I'm very grateful with respect to if there was one thing that I'd like to leave people with the Thurgood Marshall's name has been mentioned over and over and it should be it should be if there was one person if you just had to choose one person who would be the you know the exemplar of struggle for racial justice under law that person would be Thurgood Marshall and this case would be probably the most important of the cases that that he helped to bequeath to us so thank you I want to thank the sponsors too it's such an honor to be here and get to talk about this in front of my twins sons force them to listen to me they're like why did you do that embarrass them they're both in advanced US history and doing well so the story I want to leave you with it's kind of painful I clerked for justice Marshall his last active year on the court and we had a case that year involving the city of Oklahoma's school district a case called Dowell Oklahoma City versus Dowell and I think it's okay for me to say I supported him all the clerks supported him in this case but I got to see him and we didn't know then that this was his last active year on the court first week Brennan retired my first week on the job and my last week on the job justice Marshall retired but I watched him struggle to convince his colleagues not to send send the message that it was time to stop desegregating schools Dowell was trying to get out from under a desegregation order they had waited 18 years to enforce Brown and had integrated schools for a very brief period and wanted it to be declared unitary and get out from under it and in chambers he was very upset he practiced aloud with us the things he would say in conference and he wasn't just partially effective his colleagues adored him one of his best friends on the court was Antonin Scalia Scalia would come and talk to him but they waited until he died in that case they kind of just hinted at what would be necessary to stop enforcing desegregation orders they waited until he died but in the 90s in a series of cases culminating from Missouri versus Jenkins basically the court said to the extent that school segregation patterns just reflect segregated neighborhoods that's not the district school district's fault and so we will no longer force them to have integration pants to overcome residential segregation and that's the main reason we have rapidly re-segregated and Justice Marshall was devastated after the opinion came down he came back in the office his jolly self and his attitude was each generation has to just pick up the fight so you young people in the room you gotta pick up the fight