Remarks of Nicholas Katzenbach
Athenaeum Hotel
Chautauqua, New York
April 28, 2004
It is a great pleasure
for me to be here at the Jackson Center on an occasion which celebrates the
most significant decision of the Supreme Court in the past century. Justice
Jackson was an important member in helping Chief Justice Warren to achieve
a unanimous decision in Brown, and the Court, appreciating the strong public
reaction, needed to be unanimous. No Justice predicted – or could have
predicted – the impact of the decision as it has evolved. But they all
knew it was a turning point in our long history of racial prejudice and the
subordination of African American citizens to the white majority.
The problem the Court faced – and had circumvented in prior decisions – was the 1896 decision of the Court in Plessy v. Ferguson. That case held that a black passenger could be compelled by state law to use separate but equal railroad accommodations. Simple segregation of the races did not violate the Equal Protection Clause of the Fourteenth Amendment. The Court’s rationale was that this was a legitimate exercise of the state’s police power which did “not necessarily imply the inferiority of either race to the other” so long as the separate accommodations were equal. The Court explicitly used segregated public schools to demonstrate the reasonableness of its conclusion.
Plessy, of course, became the Constitutional – and in a sense the political
– justification for the Jim Crow Laws of the former slave states. It
is hard today to imagine that the implication of inferiority was not apparent
to all. Throughout the 1940s and 50s the NAACP and its Legal Defense Fund
were working to secure equal treatment for black citizens in the courts despite
Plessy – nothing was ever in fact equal – and there were stirrings
against racial discrimination elsewhere in our society during and after WWII.
President Truman integrated the Armed Forces and the Court had decided cases
in graduate education – especially legal education which they probably
best understood – finding the separate accommodations not equal. Charles
Houston and Thurgood Marshall believed the Court was ready to face Plessy
head on, and they were right. All the Justices came to disagree with the rationale
of Plessy but there was understandable concern about the public reaction,
especially in the South. They were also aware of the administrative problems
accompanying school desegregation; hence the famous – or infamous –
“With All Deliberate Speed.” But I cannot help but wonder if they
fully anticipated the revolution that Brown unleashed.
Brown and its companion cases held that state laws requiring or permitting
separation of the races in schools violated both the Equal Protection and
Due Process clauses of the Constitution. Such laws made an invidious distinction
between the races which prejudiced learning by black students. And in short
order became obvious that any state-ordered segregation was a violation of
the Equal Protection Clause.
The reaction to Brown in the Southern states was, I think, even more resistant
than had been predicted. There simply was no intention on the part of state
officials from the governors down to comply with the decision. It wasn’t
a question of time; they simply were not going to voluntarily comply. The
LDF brought cases which were stalled, delayed, appealed and so forth. And
when, in Arkansas, the public school in Little Rock was ordered to admit a
few black students, Governor Faubus turned out the State Guard to block their
admission. After negotiations continued to fail, President Eisenhower, to
his great credit, used federal troops to enforce the court order. And even
after admission the young students needed army protection.
But these efforts to desegregate schools were not the only results of Brown.
In 1957 and again in 1960, Congress made efforts to enact modest Civil Rights
laws – efforts which would not have been attempted before Brown because
of the legitimacy given racial discrimination by Plessy. Because of Southern
opposition and the ability of Southern senators to filibuster – and
because enthusiasm elsewhere for equal rights for blacks was somewhat tempered
– the laws did not amount to very much. In fact Thurgood Marshall spoke
here in 1957, highly critical of what he regarded as the rather puny efforts
in Congress.
The most important impact of Brown was probably less on school desegregation
than on the politics of equality. Martin Luther King and the Southern church
leaders seized upon it to demand rights far in excess of what the Court had
decided. Sit-ins in restaurants and lunch counters that were segregated by
custom more than law began taking place and arrests for trespass followed.
While Dr. King, like his model Gandhi, preached nonviolence to his followers,
their nonviolence was almost certain to induce violence on the part of others.
The resistance of the white South to integration and the determination of
blacks to gain equal treatment was leading to increased danger of more and
more violence. The struggle for African American rights was no longer confined
to judges, courthouses, and the efforts of the LFD.
When John Kennedy became President and I joined Bobby Kennedy’s Justice
Department, the LFD was bringing some of its cases to fruition and Martin
King was demonstrating with sit-ins and marches. The Civil Rights Division
was expanded under Burke Marshall, a brilliant lawyer who became the architect
of the government’s racial policy. The federal government could enforce
the law, a few executive actions could be taken, but there were few laws to
enforce and enforcing Brown on any scale took both time and resources. How
many school districts are there to sue? Thousands I would guess. Even if we
had the resources, we did not have the time. Litigation is a painfully slow
process. Legislation was needed to preserve order – and meaningful legislation
was unobtainable.
The first crisis was the freedom riders – well meaning Northern liberals
who decided to ride an integrated bus through the deep South. Violence occurred.
And it showed the world that the federal government had limited resources
when it came to protecting unpopular free speech. There was no national police
force to maintain law and order and the order which local and state authorities
enforced was to arrest blacks and their supporters for causing a disturbance.
Essentially the federal government had to choose between the army and trying
to use courts to establish rights with court orders that even then were difficult
to enforce. The Kennedys made extensive efforts to persuade or cajole Southern
governors – who, after all, were democrats – to obey the law without
avail.
The second crisis was Ole Miss. We joined the LDF suit to get James Meredith
admitted to the University and tried to persuade Governor Ross Barnett to
comply with the order of the Supreme Court. No success. To get Meredith admitted
we had to use federal troops, as had Eisenhower at Little Rock, to quell the
riot which occurred that Sunday night. It has been called an Insurrection,
I think correctly – and I was there. People were killed and wounded
simply to get one black student admitted to his state university.
I do not intend to recount the history of civil rights but merely to point
out that if Brown was slow to open schoolhouse doors, it was encouraging blacks
to fight the caste system which had so long suppressed them. Other violence
occurred and we in the Justice Department felt frustrated. Essential to resolving
the problems in our federal system was for Southern state authorities to recognize
their law and order obligations and to fulfill them in a constitutionally
responsible way. The only alternative was federal troops.
As violence continued and as Southern law enforcement continued to harass
peaceful demonstrations with water cannons and hoses, cattle prods, and nightsticks,
the situation became increasingly explosive. Thanks to television public opinion
in much of the country was disgusted and angered. For many it was not, I think,
because they supported blacks as much as because they were offended by the
conduct of sheriff’s deputies and police. When George Wallace postured
by standing in the door at the University of Alabama, President Kennedy decided
to risk seeking real legislation. The demonstrations with all the dangers
they involved would only cease if real rights could be achieved through legislation.
But passing such legislation might not be possible. It would require the support
of both political parties and the defeat of a filibuster in the Senate, which
at that time meant sixty-seven votes.
The Civil Rights Act of 1964 was passed with bipartisan support and followed
the next year with the Voting Rights Act. Both were surprisingly well compiled
within the South in contrast to the Court’s decision in Brown. The 1964
act brought the federal government, through HEW, into the business of desegregation
– an administrative task the courts were hardly equipped to cope with
– as well as assuring public accommodations and non-discriminatory employment
to blacks. But what in retrospect is puzzling and somewhat uncertain is to
what extent the Congress and the public appreciated the commitment to equality
implicit in the legislation. In principle it was clearly accepted; in practice
I am less sure that the costs and consequences to whites were fully understood.
The effort to achieve real equality meant that blacks would be competing with
whites for jobs, for higher education, for political office.
While the South was fiercely resisting Brown, the North was seeking to understand
the obligations state and local governments and school boards had. Brown had
only ruled unconstitutional state required or permitted formal segregation.
But its rationale included schools segregated by school districts, housing
patterns – so called de facto segregation. After all, the invidious
lack of equal education for blacks in predominantly black schools existed
here without legal compulsion. From an educational viewpoint wasn’t
this just as bad and didn’t something have to be done about it? The
issue was complicated further by the clear existence of past discrimination
in housing, employment and schooling even if the racial discrimination could
not be traced to state action. In the late 50s and 60s, and especially after
the 1964 Act, large urban centers were into integration through bussing and
similar devices to achieve the goal, if not the narrower holding, of Brown.
Federal courts were heavily into the business normally done by state educational
administrators. Bussing was distinctly unpopular with whites for a variety
of reasons, the most important of which was that they saw their children going
to schools with very large numbers of blacks and believed that the education
of their children was therefore inferior. More often than not that may well
have been the case – more easily suffered by whites when it applied
only or mostly to blacks.
After Brown I think it is fair to say that for some time the Equal Protection
Clause was read as guaranteeing minorities equal rights. Legislation or administrative
orders designed to assure those rights were not subject to any serious constitutional
test of validity. The clause was read as a check on what a white majority
could inflict on a black (or other) minority. It was essentially a one-way
street. The predominantly white legislature did not have to act to benefit
a racial minority, just not to penalize it. If it wished to benefit that minority,
the clause was no obstacle to doing so. The Fourteenth Amendment was, after
all, a product of the Civil War and designed to give all the rights and privileges
of the white majority to the black minority.
Racial prejudice in the United States has by no means been confined to the
South. It took its most blatant form there in terms of Jim Crow Laws, but
for much of our history most whites have tended to regard blacks as inferior.
Outside the South prejudice took the form of social segregation, discrimination
in employment, housing and in urban centers inferior schools. While northern
whites could support Civil rights legislation, it was generally perceived
as having little affect on them. As Senator Dirksen sought to moderate the
bill before passage to satisfy the more conservative members of his party,
the modifications were always aimed at insuring that the Act would have relatively
little impact in home states such as Illinois. Indeed, a cynic might have
said that Republicans supported the bill because they knew it would have little
impact on their constituents while the Democratic Party would lose the solid
South.
But school desegregation in urban centers was having an impact on their constituents
and the riots of the late sixties in Los Angeles, Chicago, Newark and Washington
left a bitter taste. While Civil Rights continued to be supported and it was
bad form to openly express prejudice, a great deal remained – and remains
today – although in a sense it has gone underground. In 1968 the segregationist
George Wallace got 13% of the popular vote, much of it in the North, by appealing
in subtle ways to racial bias and prejudice. He talked about welfare, education
and crime as surrogates for racial inferiority, techniques not lost upon other
politicians and which still occur in campaign ads and rhetoric today. As John
Ehrlichman put it, these issues can be presented in such ways as to permit
a voter to believe he was not attracted by a racial appeal.
During the Nixon administration some of the legacy of Brown underwent subtle
change. Brown could be read in at least two ways without affecting its result:
Was segregation unconstitutional because of the demeaning harm caused by imposing
segregation by law? Or was segregation in education unconstitutional because
racial separation as such – whether or not compelled – was harmful
to blacks? In the 1960s there were many courts and commentators who took the
more expansive view of Brown and viewed even de facto segregation as a violation
of the Equal Protection clause. Still others took the view that while not
unconstitutional per se, nothing in the Constitution prevented states from
adopting policies designed to achieve racial balance. It was in these debates
that the extent of the Constitutional prohibition on using race as a classification
device began to take on different and new meanings.
In the 1970s challenges began to be made to various forms of affirmative action
designed to improve the status of blacks, all of which were, of necessity,
race conscious. One cannot create racial balance in schools without taking
race into account. But the use of racial criteria to redirect resources from
whites to blacks in school desegregation programs or in employment began to
be questioned both politically and in the courts. Some argued that such programs
would foster racial antagonism and looked for constitutional restraints on
how far even a benign white-dominated government could go in helping blacks
at the expense of whites.
Since the 1970s the constitutional issues have all been framed in terms of
racial classification – that fact that racial classification must be
“strictly construed” – doctrine that made eminently good
sense when one could suspect the motivation is to deny a benefit or cause
a harm to a minority. But much of the public began to see harm being imposed
on whites to benefit blacks and argued that such reverse discrimination had
all the evils of racial discrimination. To a considerable extent that view
was vindicated by Justice Powell in Bakke. There he pronounced that the Equal
Protection clause applied to whites as well as blacks. Voluntary efforts to
desegregate could not be based on the stigma attached to separation and there
was no constitutional distinction between harm inflicted by separation on
blacks and the harm of affirmative action inflicted on whites. Gentleman that
he was he did leave the door slightly ajar in educational terms by his approval
of diversity as a legitimate objective. A bare majority walked – perhaps
staggered – through that door in the recent University of Michigan cases.
So where do we as a nation stand after Brown? Should we be celebrating all
that we have accomplished or be saddened by where we still are? I think both.
If we think of Brown simply as desegregating education we would have to see
it largely as a failure. Schools in this country are today at least as segregated
in fact as they were fifty years ago. That is discouraging but the fault is
neither that of Brown nor the Court. The Court could and did eliminate state
supported segregation. It could not and did not eliminate that segregation
caused by a host of other factors: property taxes, housing patterns, school
district lines, and so forth, including to some degree racial bias. Efforts
to solve problems of inferior education for so many African Americans through
enforced desegregation simply did not work sufficiently well. We can have
a form of affirmative action in the guise of diversity at elite universities
and that is helpful. But it would be far more helpful to insure that all our
children, black and white alike, got a good education in grades K-12. Given
the international economy we live in and dependence on technology, education
remains a priority problem to solve.
If we think of Brown in political terms it has accomplished much. It abolished
state supported segregation in all segments of society and opened the door
to legislation that has truly changed our society. It inspired African Americans
to insist on the rights to which all of us are entitled, to take political
action and the result has been a growing and prosperous black middle class.
When I see the America my grandchildren are growing up in and compare it to
that in which I lived at their age, it is a different and a far better place
in terms of race. We have not solved the problem; more racial bias than most
of us, black or white, will admit still exists. I am unhappy that the Court
which gave us Brown has thrown what I believe to be unnecessary roadblocks
on speeding up the process of racial integration. But the direction we are
moving is clear even if the pace is slower than it should be. And, in the
final analysis, we owe that to the Court which with courage and unanimity
decided Brown.
Let me conclude by repeating what I said here forty years ago on the anniversary
of Justice Jackson’s death. “He viewed the law as a tool to build
a better society and recognized, unafraid, the demands of a changing world
and a changing society. The role of government was not to bar change, but
to see that necessary change occurred, in an orderly, thoughtful, manner.”
I think that was what Brown was all about.
Transcribed by Charlene J. Peterson, 2004