(article is from the news section of the Jamestown Post-Journal)
4/29/2004 - By JOHN WHITTAKER
Four former U.S. Supreme Court clerks are setting the record straight about
recent criticism of the Court's decision that ended legal recognition of segregation
in public schools.
Former clerks John Fassett, Frank E.A. Sander, E. Barrett Prettyman and Earl
Pollock spoke about their experience with the 50-year-old Brown v. Board of
Education decision during a nearly three-hour discussion Wednesday at the Robert
H. Jackson Center.
''We are privileged to have four of the law clerks who worked in private, in
confidence for four of the principal justices who participated in the deciding
of the Brown case in 1954,'' said John Q. Barrett, St. John's University law
professor and moderator of Wednesday's event.
Brown v. Board of Education of Topeka, Kansas, was one of five cases filed in
Kansas, Maryland, South Carolina, Delaware and the District of Columbia challenging
the legality of school segregation under the 1897 Supreme Court decision in
Plessy v. Ferguson.
In Kansas, Oliver Brown brought the case to the Topeka chapter of the National
Association for the Advancement of Colored Persons on behalf of his daughters,
Linda and Cheryl Brown. The Supreme Court heard arguments in the case twice
before rendering a unanimous decision on May 17, 1954.
In the 50 years since the decision, there has been criticism that it was not
forceful enough and did not do enough to end all segregation in public schools.
Pollock, who was responsible for transforming Chief Justice Earl Warren's handwritten
notes into the opinion, said there was no other way to decide the case in 1954.
Ordering schools to desegregate immediately or making the decision apply to
all forms of segregation, in Pollock's view, would have further inflamed resistance
to desegregation in southern states and would also have ended any chance for
a unanimous decision by the Supreme Court as several Justices would likely have
filed either concurring or dissenting opinions.
''There would have been no authoritative voice of the Supreme Court on this
issue,'' Pollock said. ''It's very easy for some authors today to look back
and say it would have been better if we had done it that way. I just don't think
it's realistic.''
Sander, who clerked for Justice Felix Frankfurter, said that it is interesting
that the decision is being criticized by African-American authors who argue
that separate can indeed be equal and that the Supreme Court should have stood
behind Plessy v. Ferguson.
For Sander, it is important to separate the disappointing effect the case has
had on school desegregation from its impact on the civil rights movement.
''In terms of integration, we haven't come very far,'' Sander said. ''The real
meaning of the case is in terms of a statement of a national ideal and policy
and proclamation of the Constitution. ... I think one has to separate what the
case means in the broader sense, which I think is terribly important, to its
narrow effectuation, which I think has been disappointing.''
Fassett clerked for Stanley Reed, a justice who is often derided as a racist
because he was one of the last justices to join with the rest of the court.
Fassett disputes that view of Reed and states that the Brown case is the cornerstone
of dealing with racial equality.
''The big picture of Brown is not just public schools and desegregation,'' Fassett
said. ''In every area of our society, that all goes back to Brown v. Board of
Education. We've got problems with housing and economics and parental control
and what not, but that decision was not a negative. There are many positive
things to come out of it.''
As a clerk to Robert H. Jackson, Prettyman saw a draft concurring opinion that
the area native worked on before Jackson joined the unanimous decision. Prettyman
agreed that the history since Brown has been disappointing for education, though
the case's impact shouldn't be limited to school desegregation.
''Overall, we are seeing more and more segregated schools, for whatever reason,''
Prettyman said. ''But, Brown was the beginning of a dramatic change.''