BROWN AND THE CHALLENGES OF EQUALITY

Gene Nichol, Dean of the University of North Carolina School of Law, addressed the MCB’s first luncheon series program in October, reprising a speech he had given at the Levine Museum in June honoring the 50th anniversary of Brown v. Board of Education of Topeka, Kansas. His remarks appear below.

Like a lot of other constitutional lawyers and civil rights activists, I’m delighted about the various celebrations of Brown -- the greatest decision ever handed down by an American court. Saying, I’ve always thought, some very simple and straightforward things: That the constitution means something; that it’s to be seriously enforced; that it’s not a fraud; that we won’t be relegated to rank hypocrisy; and that it belongs to us all. Simple things. Majestic things. Controverted things. Words that changed America when it needed changing. And it needs changing still.

I’m of that generation who decided to become lawyers because of Brown. There was a good deal of idealism in the air then -- when I was in college -- the late 60s and early 70s. A lot of that was due to the Kennedys and to Dr. King. But I think a lot of those of us who became lawyers did that because of Brown. We wanted to be Thurgood Marshall and Robert Carter and Jack Greenberg and Earl Warren and William O. Douglas.

One way of making that point concrete -- I grew up in rural Texas. The civil rights revolution was slow coming to my family’s house. And in Texas, we were fortunate to have one of those great, courageous southern federal judges -- like Judge McMillan here in Charlotte -- and ours was aptly named Judge William Wayne Justice. That meant about once a week at our breakfast table my father would read in the paper that Judge Justice had taken over the schools or the prisons or the legislature, and he would growl, "That goddam Judge Justice." Being a teenager, I thought anybody who could consistently make my old man that mad must really have something going for him. Years later I was on a panel with Judge Justice and I was able to tell him that I became a lawyer because my father hated him so much. And I thanked him for it.

But for us, for my generation of lawyers, we thought that Brown was the promise of America. That it was both a celebration and a challenge; an inspiration and an indictment; a dream and a rebuke. And what was true in 1954 can still be true 50 years later.

There is, in Brown, much to celebrate. Almost more than can be stated. The unfathomable courage of the plaintiffs who stood up -- I think particularly of Rev. DeLaine and the Clarendon County, South Carolina plaintiffs -- heroes beyond comprehension. I think of the brilliance of the NAACP’s strategists; the power and character of their claims.

Robert Carter arguing for recognition that black Americans are ‘first class,’ ‘fee simple’ citizens. Thurgood Marshall stating powerfully: "these infant appellants are asserting the most important claims that can be set forth by children -- the claim to their full measure of a chance to learn and grow, and the inseparably connected but even more important claim to be treated as entire citizens of the society into which they have been born." I love that phrase: "to be treated as entire citizens of the society into which they have been born."The Question of Right and Wrong

Jack Greenberg wrote years ago, "the other side’s brief was about federalism, separation of powers, and textualism. Ours was about right and wrong." And, for once, American constitutional law was made to face the question of right and wrong.

But if we asked, as students of American constitutionalism, what Brown has meant, we’d talk of other things as well. First, as a foundation for modern constitutional and civil rights. Even though much of Brown’s educational promise has been unmet or broken or abandoned, without Brown there is no civil rights act 10 years later; no voting rights act in 1965. Without Brown, there is no Reynolds v. Sims -- one person, one vote; no New York Times v. Sullivan, with its powerful and lasting embrace of free speech; no protections against sex discrimination, discrimination against illegitimates, against lesbians and gay men; no strong application of the Bill of Rights against the states; no right to privacy; no right to choose. Brown has been the indispensable fountain -- the necessary trigger -- of modern constitutional law. The meaningful judicial protection of civil rights in the United States began May 17, 1954. And it has, quite literally, lifted our nation.

I think something we haven’t focused on as much -- and maybe in the broad sweep of things it is less important, but I’m not certain that’s so. I think Brown also worked to save the United States Supreme Court as an institution -- to secure for the Court a vital and necessary role in America government. The Supreme Court has a long history. And it has not generally been glorious.

It declared the power of judicial review over acts of Congress in the early 19th century, but it didn’t really use it strongly until the disastrous decision in Dred Scott -- a ruling that required a civil war for reversal. In Plessy v. Ferguson in the late 19th century, it wrote the Equal Protection Clause out of the Constitution. It battled with the Roosevelt administration over unrestrained capitalism, and it lost. It battled with the Congress for decades over what was local versus national, and it lost. When we interned 120,000 Japanese-Americans in World War II, and when the McCarthy movement gutted free expression a few years later, the Court didn’t intervene. It continued to lie face down on the mat. Immobile and inadequate. Not up to the task.

So, until Brown, it’s fair to say that the major lessons of the Court had been lessons of failure. And, as of 1950, many constitutional lawyers thought the best thing you could hope for from the Supreme Court was that it would shut up and not get in the way of progress coming from the other branches of government. Now -- given Brown’s legacy and its fundamental success is saying that the Constitution is serious business and that it belongs to us all -- the Supreme Court potentially plays a very different role in American life. We know, of course, that can be risky too. But I’m convinced we are better served if one of the principal institutions of American government sees itself charged with enforcing our foundational promises of liberty and equality. And if we have that, we have it because it started with Brown.

There, for the first time, the Supreme Court learned that its power could be exercised in dramatic ways to bolster and sustain the operation of democracy, rather than to thwart it. The judges saw, first hand, that they could open the channels of democratic participation, rather than merely trumping the fruits of political choice. The Court learned that it could use constitutional command to reach for our best aspirations, to tap our better angels, rather than to merely drag the nation’s feet against the tug of progress. It could provide what Alexander Bickel called "the sober second thought" -- asking in fact whether we were, as a society, living up to the promises we have made to each other and to ourselves.

And finally, Brown taught that an independent, unshackled, unelected judiciary could be worthy after all. It could help us take strides as a people that we apparently wouldn’t take otherwise. It could supplement the elected branches of government to help make the promises of democracy real.

It is true, in short, that the justices’ efforts in Brown did much for the civil rights movement. But the civil rights movement also did much for the Court. And the justices’ embrace of equality in Brown eventually made the United States Supreme Court an institution worthy of its calling.

But I want to focus, in the time I have left, on another feature of Brown. My own favorite core of the decision. Because I’m convinced that there’s a central component of Chief Justice Warren’s opinion in Brown that still has the capacity to stir American constitutional law, with all its flaws and all its challenges. If you remember, Chief Justice Warren admitted in Brown that the Court had been asked to struggle with the historic meaning and the legislative intention of the majestic phrase, "equal protection of the laws." And after arguments and rearguments and debates and white papers and supplemental and amicus briefs, Warren effectively threw up his hands saying he found the examination "inconclusive."

Warren said "inconclusive" -- but it was clear he really meant "beside the point." "Beside the point" because given the breathtaking harshness of the discrimination pressed in Brown, and given the overarching importance of the rights at stake, Chief Justice Warren concluded that if the American idea of equality was untroubled by this kind of crushing subordination, then, frankly, the American idea of equality wasn’t worth much. We might talk about it in the Declaration of Independence and pledge our mythical allegiance to it. But, in fact, it was a sham, a fraud. And that conclusion -- the idea that the American aspiration to equality was worthless -- Earl Warren, to his eternal credit, was both unable and unwilling to accept.

Does the American Idea of Equality Mean Much?

And surely, this afternoon, 50 years later, Warren’s questions about the reality of the American commitment to equality should be our question as well.

We could ask, this day, if the American idea of equality means much if, as our federal government claims, a United States citizen can be grabbed off the streets of Chicago, declared an enemy of the state, thrown in a Navy brig in South Carolina, no charges, no lawyer, no hearing, no jury, no trial, no law. Made a stranger to the Constitution by the signature of a single politician. As if anyone in our system of government had that much power.

And we could ask, does American equality mean much if the wealthiest nation on earth, the richest nation in human history, allows almost one in five of its children to live in crushing poverty – a record far worse than other major industrial nations. Nations who don’t talk so much about equality. Almost a quarter of Black and Latino kids officially poor. As if any theory of justice or virtue could explain the exclusion of innocent children from the American dream.

And does the American idea of equality mean much if all over North Carolina and the nation, we countenance rich and poor public schools. Not just private schools, mind you, but rich and poor public schools. As if it were thought acceptable for our governments to treat some of our children as second- and third- and fourth-class citizens. Our religions teach that every child is equal in the eyes of God. We fund our schools as if we don’t believe it.

And does the American idea of equality mean much if over 43 million of us have no health care coverage of any kind -- 1.4 million North Carolinians. Leaving us standing alone among the major nations in failing to provide universal coverage. We spend more per capita on health care than any country in the world. But we also leave more of our fellows outside the system, in the shadows. Though, as Martin Luther King reminded: "of all the forms of inequality, injustice in health is the most shocking and inhumane."

And does the American idea of equality mean much IF OUR OWN SYSTEM -- the legal system -- is perhaps the most inequitable of all. Jimmy Carter wrote years ago that "90% of the lawyers represent 10% of the people -- we are over-lawyered and underrepresented." That may be an exaggeration. It may be. But the legal system surely prices out a huge segment of the community. Study after study finds that about 80% of the legal need of the poor and near poor goes unmet. It goes unmet by at least that high a figure in North Carolina today. Less than one percent of our total national expenditure for lawyers goes toward services for the poor. Making "equal justice under law" a mockery on our courthouse walls in every state, and every city, and every county of this country.

And does American equality mean much if here, and across the nation, we yield to a growing trend of resegregation -- exacerbated by economic inequalities and a regime of claimed public educational accountability -- that allows some of us to purchase advantage for our children while others remain locked at the bottom of our economic and social life?

And does the American idea of equality mean much if here and across most of the South the children of undocumented workers – who against all the odds navigate our middle schools and graduate from our high schools -- no matter how hard they work and how challenging their schools, they are locked out of our public universities and community colleges and their chance for a powerful future, as if they were strangers to the states in which they have lived most of their lives? Members of a permanent sub-class, welcomed here for cheap labor, but denied the broader benefits of their communities.

And does equality mean much if almost 5 million Americans can be denied the fundamental right to vote because of felony disenfranchisement laws? With Blacks and Latinos heavily overrepresented in that 5 million?

And does American equality mean much if we accept a growing and seemingly inexorable trend toward economic apartheid. Embracing tremendous disparities in wealth -- distinctions that sweep aside our rhetorical claims to equal citizenship. Granting the greatest opportunities to those who are already blessed. Refusing to offer the dignity of health care to many of our fellows -- though we could obviously afford it. Offering only a feigned justice -- opening the judicial doors to those who cannot afford to walk trough -- and calling it fairness. As Cesar Chavez would say, "the stench of such injustice should offend every American."

The greatest lessons of Brown for us, then, are that Brown’s questions must still be our questions; and that Brown’s challenges -- which go to the heart of the promise of America -- must remain our challenges as well. Brown’s challenges must be our own.

Brown’s Challenges Must Be Our Own

Brown’s challenges must be our own because we’re in the South, the native home of American poverty. Where we produce more poor people, and more political leaders who are untroubled by it, than the rest of the country. Where we have the longest history of government aimed at separating the royalty from the riff-raff, the chumps from the swells. Where we tend to believe, all facts to the contrary, that the only thing wrong with America is that those at the bottom have too much and those at the top don’t have enough.

And Brown’s challenges must be our own because we’re North Carolinians, and we take seriously Frank Porter Graham’s charge "to build a nobler and fresher civilization in this ancient commonwealth."

And Brown’s challenges must be our own because these rank denials of equality represent a marginalization that is contrary to the most basic promises we make to each other as a nation. And it’s not a close call. As Lyndon Johnson used to put it, "we may not know everything, but we know the difference between chicken shit and chicken salad."

And Brown’s challenges must be our own because we believe, with Dr. King, "that the arc of the moral universe is long, but it bends toward justice."

And Brown’s challenges must be our own because, in Barbara Jordan’s words, "the obligation to remove the barriers to equality that arise from race, sex and economic condition is indigenous to the American ideal."

And Brown’s challenges must be our own because, as Robert Kennedy claimed, "history will judge us on the extent to which we have used our gifts to lighten and enrich the lives of our fellows."

And Brown’s challenges must be our own -- even when this work’s not as popular or as shared or as supported as it ought to be. Because Fannie Lou Hamer didn’t do an opinion poll when she started the Mississippi Freedom Democratic Party, and Rosa Parks didn’t conduct a focus group before she sat down for freedom.

And Brown’s challenges must be our own because the virtue of our nation is still in the making; our contributions -- this generation’s contributions -- are still on the line; we are called upon to add our chapter. We too are charged to help achieve our country. And in the crucible of this time -- this immensely challenging and dangerous time for civil rights -- it is vital that we become fully engaged in what Daniel Webster called "the great work of humans on earth, achieving justice."

A couple of years ago, I read Ralph Ellison’s book, Juneteenth. There he said, "we are a nation born in blood, fire and sacrifice. Thus we are questioned, judged, weighed by the ideals and events that marked our founding. These transcendent ideals interrogate us, judge us, pursue us, in what we do and what we do not do. They accuse us ceaselessly, and their interrogation is ruthless, scathing. Until, reminded of who we are, and what we are about, and the costs we have assumed, we lift our eyes to the hills, and we arise."

Our ideals of equal justice question and interrogate us. They examine us and find us lacking. The excuses we offer and the answers we provide, do not satisfy. Not if we are what we claim to be. So Brown’s challenges must be our own because we cannot escape responsibility for the society we create.

I close with a statement of Lord Brougham -- a 19th century Scottish lawyer and statesman -- a charge that is more essential today than even when he spoke it; and a charge that I hope will remain close to the core of all those lawyers and aspiring lawyers in the hall:

"It was the boast of Augustus that he found Rome brick and left it marble. A praise not unworthy of a great prince. But how much nobler would be our sovereign’s boast when he shall say that he found law dear and left it cheap; found it a sealed book, left it a living letter; found it the patrimony of the rich, left it the inheritance of the poor; found it the two- edged sword of craft and oppression; left it the staff of honesty and the shield of innocence."

So Brown’s promises must be our own -- because the greatest American value is that we are all in this together -- one nation, indivisible, seeking providence, committed to human dignity and liberty, and charged with Brown’s promise of equal justice for all.

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