Topic: Brown v. Board of Education - Segregation
Senator: Kennedy
Date: SEPTEMBER 13, 2005
Contents
SPECTER: Senator Kennedy?
KENNEDY: Thank you, Mr. Chairman.
That Street Law program is a marvelous program. I commend you for your involvement in that.
The stark and tragic images of human suffering in the aftermath of Hurricane Katrina have reminded us yet again that civil rights and equal rights are still the great unfinished business of America.
The suffering has been disproportionately borne by the weak, the poor, the elderly and infirm, and largely African-Americans, who were forced by poverty, illness, unequal opportunity to stay behind and bear the brunt of the storm's winds and floods.
I believe that kind of disparate impact is morally wrong in this, the richest country in the world.
One question we must consider today is how we can take action to unify our nation, heal racial division, end poverty and give real-life meaning to the constitutional mandate that there be equal protection under law.
I believe that the Constitution is not hostile to the idea that national problems can be solved at the national level through the cooperative efforts of the three coequal branches of government, the Congress, the executive and courts.
But not every president, not every legislator and not every judge agrees that the federal government has the power to address and to try to remedy the twin national problems of poverty and access to equal opportunity.
KENNEDY: I'm not talking about a handout, but a hand up, to give all of our citizens a fair shot at the American dream.
Judge Roberts, today we want to find out how you view the Constitution, our ability to protect the most vulnerable.
Do you believe that Congress has the power to pass laws aimed at eliminating discrimination in our society? Or do you believe that our hands are tied, that the elected representatives of the people of the United States are without the power to pass laws aimed at righting wrongs, ending injustice, eliminating the inequalities that we have just witnessed so dramatically and tragically in New Orleans?
The American people want to know where you stand. We want to find out your view of the rule of law and the role of courts in our system.
That's why it is so important -- and I hope we will receive your frank and candid and complete responses to the questions we ask today.
To start my inquiry, I want to discuss with you the Brown v. Board of Education, which you have already mentioned this morning, which I believe is the most important civil rights decision in our lifetime.
In Brown, decided in 1954, the year before you were born, the Supreme Court concluded unequivocally that black children have the constitutional right to be educated in the same classrooms as white students. The court rejected the old doctrine of separate but equal, finding that it violated the equal protection clause of the 14th Amendment.
In considering the issues raised by Brown, the court took a broad and real-life view of the question before it. It asked, "Does segregation of children in public schools solely on the basis of race, even though physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities?"
So do you agree with the court's conclusion that the segregation of children in public schools solely on the basis of race was unconstitutional?
ROBERTS: I do.
KENNEDY: And do you believe that the court had the power to address segregation of public schools on the basis of the equal protection clause of the Constitution?
ROBERTS: Yes.
KENNEDY: And you're aware that the Brown was a unanimous decision?
ROBERTS: Yes. That was the -- represented a lot of work by Chief Justice Earl Warren because. My understanding of the history is that it initially was not. And he spent -- it was re-argued. He spent a considerable amount of time talking to his colleagues and bringing around to the point where they ended up with unanimous court...
KENNEDY: And a lot of work by the plaintiffs, as well.
ROBERTS: I'm sure.
KENNEDY: First in reaching its decision, the court concluded that it must consider public education in the light of its full development and its present place in American life throughout the nation; that is that it must consider the conditions and impact of its decision in the real present-day world.
The court specifically declined to rely on the legislative history of the 14th Amendment. It looked instead to the facts and the situation as they exist in the case and in the world at the time of the decision.
Judge Roberts, do you agree that the court was correct in basing its decision on real-world consideration of the role of public education at the time of its decision rather than the role of public education in 1868 when the Fourteenth Amendment was adopted?
ROBERTS: Certainly, Senator.
The importance of the court's approach in Brown is, of course, to recognize that the issue was whether or not the discrimination violated equal protection. And you have to look at the discrimination in the context in which it is occurring.
I know there's been a lost recent academic research into the original intent of the drafters of Fourteenth Amendment. Professor McConnell's piece suggests that it's perfectly consistent the with the conclusion in Brown. And it's also -- the very point you mentioned was an important one, that the nature of the institution of public education wasn't formed to the same extent at the time of the drafting...
KENNEDY: In 1868. That's right.
ROBERTS: ... as it was at the time of the decision.
KENNEDY: The Brown court also held that it was important to look at the effects of segregation on public education. The court determined that education was so vital to a child's development and an opportunity for advancement in society that, where the state had undertaken to provide public education, it must be available to all on equal terms. Thus, it found that the separate education was inherently unequal.
KENNEDY: So it's fair for me to conclude you accept both the holding and the reasoning in the Brown case.
BROWN: Well, the reasoning, though, I think it's important. It is focussed on the effects, yes. But the conclusion was that they didn't care if the effects were equal.
In other words, the genius of the decision was the recognition that the act of separating the students was where the violation was. And it rejected the defense -- certainly, just a theoretical one given the actual record -- that you could have equal facilities and equal treatment.
I think the conclusion, if the record had shown -- which it did not -- if it had shown perfectly equal treatment in the African American school and the white school, that Chief Justice Warren's analysis would be the same because the act of separation is what constituted the discrimination.
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