Affirmative discrimination : schools (Episode 5 of 13); The law and society

Should Negroes be given preferential treatment in jobs housing and education to compensate for three centuries of deprivation. Should society compensate for its discrimination against Negroes by initiating a policy of discrimination for their benefit. Or is a policy of reverse discrimination however well-meaning equally racist. This is how Kaufman speaking from the Center for the Study of democratic institutions in Santa Barbara. The studies of the center. Now the main activity of the fund for the Republic are directed at discovering whether and how a free and just society may be maintained under the new conditions of the 20th century. During 1963 the entire summer was spent on the center's Continuing Study of Law jurisprudence and the Bill of Rights. One of the center's interests is to examine how law Aphex political developments in a democracy and how political developments at the law the effect of one upon the other can be seen and what is happening to negroes in America. In the past 50 years the negroes have made

more progress toward legal equality as a result of interpretations of laws made by the courts than as the result of acts of legislatures. But today many Negro leaders are looking to the legislatures for redress of assistance because they feel they have exhausted the resources of the court. We know what we want to go says Laura Miller an a CPA attorney. But we have run out of law. One reason for running out of law is that the constitutional guarantees apply only to persons and not to groups or races. Another reason is that the Constitution is supposed to be colorblind to pass laws to compensate Negroes for past inequities would be a return to racism argues one body of opinion since it would call for judgments to be made on the basis of race and color. The phrase the Constitution is colorblind was first uttered almost 70 years ago by Supreme Court Justice Harlan grandfather of the present

justice. Same name in the case of Plessy versus Ferguson which established the doctrine of separate but equal facilities for Negroes. Mr. Justice Harlan dissenting from the majority opinion wrote the right phrase deems itself to be the dominant race in this country. And so it is in prestige in achievements in education in wealth and in power. But in view of the Constitution in the eye of the law there is in this country no superior dominant ruling class of citizens. There is no caste here. Our Constitution is colorblind and neither knows nor tolerates classes among citizens of civil rights. All citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

Fifty eight years later the Supreme Court in Brown vs. Topeka vindicated Justice Harlan and ordered school to desegregate with all deliberate speed. The 1954 decision struck down the separate but equal doctrine in Plessy and reaffirmed the first Justice Harlan in his injunction that the Constitution is colorblind. The Brown decision for bed's classification based on race. Today a large body of opinion which hailed the Brown decision argues that it is not realistic to remain colorblind. It is not possible says this school of thought to test either the goodwill of the community in desegregating or the effectiveness of compensatory programs. Unless we can so to speak count heads according to color. Richard Lichtman a staff member at the center argues that the test of the forbidden classification is whether it is used to discriminate against a minority or to redress a previous discrimination against that minority rights become a kind of fetish.

Here the significance of colourblind. What. Context the function to be colorblind is not to make a certain kind of discriminatory. The only institutions of society pressed together to force a certain form of discrimination it would become idiotic not to recognize the fact that people exist to take the remedies which exist within the law to take those remedies which would redress the balance nothing to redress the balance. You don't know what the balance is and William garment also of the staff warns against rigid definition but this is the brightest. Text of the chine vs.. Public education issue. First to be blind. There was a story. That stood Lauren Miller NAACP attorney agrees it is necessary to use classification by race to correct all that business. Now of course we've got to the point where we use racial classification for so long to work adverse effects that unless we take it into account in the rectification scheme we should simply paint ourselves into a corner. It's very well now to say that you may not use

race but if you do not use race now to undo the effects of segregation then you will simply put a great deal of governmental approval on an existing situation which is growing up by government tolerance and often government support of racial classification. But Mr. Miller is not willing to give up a color blind or forbidden classification clause. I think that the forbidden classification doctrine must be held onto at all costs because I think that this is the inarticulate major promise in the old series of Supreme Court decisions the Supreme Court did nothing in the school cases except say to the states that for the purposes of school attendance you may not classify your. Students on the basis of race course it bootleg it back in. In the all deliberate speed aspect of it by saying that well you may for the moment use its classification and in the in the jury situation it simply says that

you may not use classification to exclude negroes from juries and the City NJ says it says the state may not classify its citizens on the basis of race to determine whether they may or may not enter a public restaurant or a place of public accommodation. So I would certainly restore this classification doctrine to its original basis and then of course I'm I am at the same time wanting to say that the court may take cognizance of the social realities and get off into this field of preferential employment or affirmative integration or thing to this guy. This of course I think was dealt with by the Supreme Court to a certain extent in the cases in which the assertion was made that fair employment statutes were invalid because they proceeded on a racial basis

this is Corsi vs. mail handlers Union the New York case Frankfurter has some ringing and resoundingly language in Corsi in which she says that it would be a perversion. Of the fundamental purpose of the 14th Amendment to deny to the states the right. Well really the right to take account of race in order to cure the inequities that have grown up as far as race is concerned. And I think that that is where that matter. Must stand. Now that because of the historical growth the and the use of the doctrine of racial classification that unless the states and the federal government can now take corrective measures based upon. The social reality is that we shall forever leave

not for ever because of course time will cure everything but for the moment we must leave the negro running 10 yards behind the white American and whatever race he runs whether in schools or in employment or you know that matters. Mr Miller's complaint that we know where we want to go but we have run out of law. Dramatize is the limitation of the courts in dealing with some aspects of school integration. It is not clear what the law is with regard to schools or what it should be or whether the program to integrate schools must remain a matter of public policy and moral commitment. For the Supreme Court's decision in Brown held only that it is unconstitutional to enforce segregation. Whether the court's order to desegregate implies also the obligation to integrate is not yet settled. And the decision in two cases heard in the lower courts are contradictory. And Bella vs. Gary Indiana the United States District Court decided

that where a segregated school was the result of segregation in housing the school board was under no duty to devise programs for integration. In Gary the segregation was found to be de facto a reality inadvertent and not specifically planned and thus the school board was released from responsibility to correct it. But in Jackson vs. Pasadena the California State Supreme Court held that residential segregation is in itself an evil where such segregation exists. The right to an equal opportunity for education requires that school boards take steps insofar as reasonably feasible to alleviate racial imbalance in schools regardless of its cause. But the decision in Jackson vs. Pasadena for all this resounding language may prove to be little more than rhetoric. The case is complicated by the fact that the school board admittedly for the sake of the argument that they had gerrymandered the district in order to segregate Negro and white students

it was therefore de jury. Segregation recognized and ordered as if by legal right at the School Board been able to prove it had acted in good faith in drawing the school district. It is not clear that the California courts would have decided differently from the Indiana courts. The meeting you are about to hear is a continuation of an earlier discussion that raise questions about proposals for mass transfer of students to effect full integration. How for example should a school board acting in good faith meet the Urban League demands for a 50/50 ratio of white and Negro students. How achieve such a balance in a city like New York where 70 percent of the students are Negro and 30 percent white. How achieve such a balance in Washington D.C. where 84 percent of the students are Negro. Where such geographic conditions exist by what measures shall school boards be tested as to their good faith in desegregating head when he done away former justice of the Supreme Court of the state of Arkansas begins the meeting by quoting from one of the

key school segregation decisions the court was of the opinion that a sample definition of a segregated school within the context in which we're dealing is a screw which a given student would be otherwise eligible to attend except for his race or color or a school which a student is compelled to attend because of his race or color. Add like snow if anybody has a better definition. If you read into this that the fact of the color. Preventing a tribe from going to one school we're going to go to another be the basis of segregation. That's certainly with it also. It's conceivable that you can read into that the housing. Problem from which the whole matter stems in other words taking a long range view you could say this child is not required to go to this school per se in terms of his color but is required to go to the school in terms of the district from which he comes from which he's been discriminated against in terms of housing so that in the long run it's the fact that he is a negro and forced to live in this neighborhood that requires him to go down to the

school. In that sense it's segregated but the problem is how far back do you want to trace the problem. Is it fair to take it back from the school to the housing problem and say this is he's a negro who was discriminated against in his housing he's therefore being discriminated against when he goes to school as a result of the housing from from one point it would make sense to me in from the point of what about this problem with young girls and how history does and that is not by any means a simple man I don't think it's easy either but this just seems to me to be part of the nature of the case and it's even regular color because segregation it was even more difficult because the housing is very seldom well involved and explicitly state institutions but since since want to help me with that let me just. Try to formulate what I think the whole matter is so difficult just to define logically. The problem is what would a neutral Casey it's a take of the other point of view. What would a nondiscriminatory situation be it would appear to be one in which the legal situation has never arisen and he could not come to this country as a slave etc. etc. etc.. Read up the whole fact of history and then try to reconstruct what the naturalization of a group would be in a

community. It's something impossible to make up in case I don't know if I'm making any sense to anybody here but if you want to know what the effect of discrimination has been you have to have some conception of what the absence of discrimination would have led to and that seems to lead me to such vague notions as the natural coherence or he shouldn't group target other groups that like to live together communities how about Armenians living here in the city or town is there someone with out of the services for the poor and the rich. Yeah well this is why I think it's a complete one to see our. I very point energy you sent one of the cases I was going to mention briefly and I'll. Come out of the sand first. This involved the New Rochelle. School district in New York and they apparently had had. Several cases in the majority found that the New York federal court this was in federal court. And after having appealed the court of appeals washed twice and gone back down the court again sustained the district court's finding that there was in fact a

deliberately created and maintained racially segregated school. I think it's pretty clear this was essentially a Negroni neighborhood. Which made it pretty much an integral school then the board adopted a policy of letting white students transfer out if they wanted to which made it a hundred percent. And this was a suit bias and they grow not to be required to register to go there but to go to another town and the court ordered that they could go under what they called a permissive transfer policy provided there was room some. Provided they provide their own transportation at the descent rate is the question they chewed it he said the record also show was true. This is practically 100 percent no gross coupe but the record also shows that there is one school which has over 90 percent Jewish pupils and one school which has over 90 percent of 10 people.

What are we going to do about that issue. Unfortunately this whole thing about Negroes happens to be in the Constitution. The quietness of the why wouldn't why could it not be read because of the problem and race color or previous condition of servitude it depends on your definition of race. Could any group of this on any person in the end have to lie any citizen equal protection laws and this is very meaningful. Are there a ball here Charles. Oh my God. The problem discrimination problems or even one with a rather distinct from the 14 member state was predicting discriminatory action by a public official and that. I think as I press the analysis that is almost entirely a matter of motivation. So you can say not segregation is presumably an objective condition which is difficult to describe and this is why people are forced to numbers point regardless of whether or not it's the result of a discriminatory action that may be possible for a school board to not act in a discriminatory manner to define itself in an objective

situation in which the school would in fact be segregated not as a result of discrimination but segregated if what one means by that is that the proportion of Negroes to one's friends and this is not random or does not reflect something of the sort. The intrusion of the notion of segregation here is an odd one. See the sense in which the Fourteenth Amendment prohibits the state or school board from acting in a discriminatory manner is distinct from and indifferent to the question of whether a segregated school which is a matter of fact might be heavily quoted was governed. Since there is no set of question as to whether it would let me call the burden of the discrimination is I was immune from because too small to be sure about that. I have a faint memory that jury cases years ago got to it affects a putative jury because of exclusion from the jury which was encouraged. Which is sort of the biggest Tootles of exactly Harry Barry and those jury cases there was direct state action and which Negra was word screwed no

matter the further or even worse like this they go get a building with they do something that should have the net result of producing the niggers of the jury for 30 years it would you know. Yeah but look here on the maps. Oh Im in point when the state attempted to remedy that. By trying to have neat rules on the juries of proportion to their proportion of the population the court knocked that down on civil as deliberate employment of systems. Now here we're suggesting that if you don't follow the jury line you say that it's permanent Judy to you. Schoolteachers who is their whole are. Remember there's a legitimate bet that you've got to write a brief defense for a position I don't really like here but it seems that it has. It makes more sense lately that I think we've made it so far that there's nothing wrong with asking voters to be able to read and write except when Alabama or someplace comes up with proposals for a literacy test that you just don't trust the people to use the test and therefore you think these are way out of that dilemma is to not have it. I think something like that might carry over here is a presumption against the school district being in these

difficult situations and then they go should be entitled to it overshoot the mark which is probably what they intend to run and inevitably end a question at some point you reach a point where the purpose of the court intervening and applying some kind of formula arbitrary and not to the school district. Is to redress the injustice it's been done to the Negro students. And you do this by exposing them to the best education available in the school district and you take into account the necessary admixture. At some point you come to the place where. In terms of the purpose of the school to educate the children you reduce the standard of education. Conceivably available to all children white and Negro. Then you're in the position of trying to correct one injustice by disadvantaging the point student and this is a it's a realistic situation that you'll get into Certainly for a long period of transition and it seems to me that raises a pretty knotty

legal problem doesn't it when it actually gets to that it can be demonstrated objectively that this is the case that you are in order to obtain some improvement on one end to pull the whole thing down. Roger I said I would I would bet it could damage that fire was equally lousy education for both rather than it's a very separate education preaching that you really get this something here that's very puzzling you would be able to go to the school unless you were a negro with the segregated school you would be able to attend if it were not for the fact the negro. Where you are. Out of the state because we live in the old district a school a. Forgiving student would be otherwise eligible to attend except for his race or color etc.. That's the good of an actor she has a good school. Now that's. That's peculiar because from the one point of view I want to separate out if I can from now just raise this problem. The discriminatory fact from let me say from what is the group

coherence factor group cohesion fact. The fact that he is a negro in the scrimmage against in terms of his housing is one of the facts which in the larger contexts makes it now unlikely or impossible for him to attend a white school that is even if the school board lets use of it introduce the term the term fairly. Let's say even if the school board districts Farrelly the fact that this child has previously been or discriminated against the fact that the trial has been previously discriminate against his housing would mean that even though the school board dealt with the family he would still end up with a segregated school because of the housing problem independent of the zoning problem. Now like when you come back to the problem of negroes being in a given geographical area. I seem to want to say to myself I don't know how I'm going to deal with that after I say it but I want to try to separate out the sense in which the Negro has been forced into the ghetto. On the basis of other discriminatory practices from the census which he would have naturally cohered

lived closely with other negroes on the basis of the eight decisively to be with people of his own I can't separate those two things. Doubt in my mind curiously enough and I can't even say to myself that there would be any sense of Negro cohesion I can't make much sense out of it except in the context in which the Negro has been discriminated against if you know how interrelated the phone call the problem becomes of me how much negro cohesion is due to the fact that he was not discriminated against. How many Jewish belief does not affect is due to the fact this is essentially not a Jewish culture and when those problems begin to become interrelated I see them in the I see the complexities being enormous I don't know much how to get them out. I'm inclined to say that my predisposition is to hold that the discrimination is played so large a role in even forming the group cohesion that I'd rather err on the side of giving in to the to the end the discriminatory policy in a sense which harms just making out the case if you will to come to school to prove that it was being absolutely honest and someone I get also into the problem of how much discrimination in housing and the whole back of the me that was a slip came as a slave and so on how much is that form than it was a group and therefore how much is in some sense is the whole system more

responsible for the fact that he was living in the ghetto and the segregated areas. And I don't know that's the price of a lot of the answer it's a good question a brazen answer that you leave that up to the negro as long as he feels that he's there and voluntarily when he wishes they can point you no longer have a phenomena of cultural cohesion and you've got the access of course out of that area. Reservations work for this and he feels his restraint there and wishes to get out of it though then you don't have the overt fact Asim a fair number of Negroes that wish to live next to each other the way any ethnic group there will then he's got to have open access in all the other areas and you'd like to have jobs applying for example. It's got to be able to pull into another house but you also have to have the job to provide it with the income so they can get a house when the season is utter etc.. The mother who wants to pursue this point to do want to talk on this point Bill because you want to speak a long time ago was going where the money went on and want to find out whether Mr. Garman wants to talk on this point because of Mr. Graham and does he's entitled to be heard. I have a point. That comes from looking at the current bill which

relates to the terminological thing. The definition of segregation and the actual context today. Is that I can get out quickly. Oh it isn't friendly very clear that one section of the bill said this entire desegregation of public education begins with a definition as a definition of the segregation the segregation means the assignment of students to public schools. And within such schools without regard to their race color religion or national origin. I mean it uses a negative term and in the definition of it it is a positive term assignment that's already kind of the killer but apart from that when it gets to the section assistants to facilitate desegregation is the title. But then all the paragraphs of that section assistance to facilitate desegregation in the whole sections of title desegregation. It carries along. Each time the commissioners offer example. A double pair the commissioners authorized to do such and such and such and such to render technical assistance in the preparation adoption and implementation of plans for the

desegregation of public schools for other one had designed to deal with problems arising from racial imbalance in public school systems go down to the next paragraph dealing the fact that it was special education problems occasioned by desegregation or measures to adjust racial imbalance. I don't have to go through in every paragraph there. Desegregation is balanced by consequences needing repair of racial imbalance or the facilitation of the problems occasioned by the nation of Gaza. It doesn't talk about its own opposed to the end and I didn't say there post I say I just read about us I just want to set the terms. Of the inbounds in the end that I am old enough. What. Are you trying to say is that it seems to me. This is directly relevant to the question we started out with about the definition of the segregation currently assigned mistaken there is de-facto segregation it's a piece of Ponce Isn't that so busy and

hard and shit. Yes. I guess that the other one is de jure. Segregation but the de facto segregation in the terms of those belts are pointing out this simply calling attention to educational problems occasioned by the existence of Gentilly. Whatever the numbers with the racial imbalance. The bill tends to have those problems. This is presumably not de jure segregation. This is a school that you can call de facto a segregated school but what do you mean de facto there are simply educational problems occasioned by the existence of racial imbalance. However that would be spelled out. Presumably it would be viably spelled out in each one of them. This pix of the hole then. All I'm saying is to call attention to the fact that the bill Lees intends to get around this problem. This definition problem we're talking about by saying there are really two types of problems a statutory race segregated schools and racial imbalance. Bad schools and both the commissioner should inquire and. Give effective aid to a public accounting

as regards the total acacia situation and those types. Nothing I would simply like to ask. What's wrong with that. As an initial classificatory procedure even though granted what constitutes racial bounds. And him so becomes terribly hard thereafter. The left corner of the road will just go along to the farm Rouge probabilistic proposes to face that. That's all I'm saying it doesn't help us to get hung up on this. Definition from. The way. It's been for Mr.. Skilling and if he is really put his finger on two things in this matter. Definition of desegregation. Mr. Rickman is bewildered as he always is because his philosopher and I told him so because he sees everything mankind and everything else Mr. Kalvin with a certain fine pragmatic intuition says that is the negro So this is a difference there is between and they do it of the philosopher and they find go. The Loire. I just like to say a few words about the distinction in any definition of segregation though

until some dissatisfied person gets up to carry the money anyone against the full definition of the question again who want to adopt it. Let's re-establish the legal interest the definition I think there's no problem here about what the definition is that Mr. Thompson was exactly right before in suggesting to clear meanings for there's a clear source of ambiguity here and so far that the tradition of this problem has been one of conscious official action motivated by a desire to use race as a criterion of choice. That's that's discrimination that's a clear idea. And definitely that seems to be quite satisfactory as a statement. The ambiguity arises if they were all sprawling it is not the inability to recognize that kind of a choice is discriminatory and is being so far the crux of the other problem is if you're going to permit what's been called de facto or inadvertent discrimination there's simply a choice which as a consequence of apparently duplicating what you get if you made a deliberately bad choice but in fact was not made for that motivation that was made for some other reason that comes out

with de facto segregation and the question accounting as to how much there is turns out to be the sort of the crux of the practical judgment one which is to make your point when we think about that that's only becoming a problem because of the desire to extend the range of legal intervention here into issues of inadvertent discrimination so I think no matter what the numbers were a conscious choice on the basis of race would be bad would make no difference what the factual base was. I think Colonel Ashmore. The whole expert testimony here and remind you what some of you may not know of a dark chapter in my past which I try to conceal. I once spent a year with Fund for the Advancement of education money with a staff of 30. God save the bark professors of education sociologist economist and law professors working for me this was in the period just the year before the Supreme Court decision. And we were trying to find out what the hell the school system in the south where they looked like what man was legally

segregated and what the problems would be if it were equalized or at a graded assuming of course that it was going to have to be integrated. Well let's let us off and some kind of a sociological examination of attitudes and where the resistance areas would be. And I found it very interesting in that situation we're in now to consider the implications of what we found then and what Lou Harris reported yesterday and I don't know how reliable this Paris poll is. But he made a poll in which he separated and tried to find out what the resistance was in the key categories of the whole Negro movement we're all tending to think about it as being one emotional uprising in that sense it's true. It's also true that in the south at least the resistance has been solid against any kind of integration wherever it turned up. But Harris found a very distinct scale aside from his figures which astonished me. You know the separation he made on a descending scale where the

public north and south was most amenable to Negro progress went building jobs accommodations housing and school. Greatest resistance in school and second greatest in housing third in Accommodations jobs in voting areas. While he didn't even put that in. But these are pretty much the current areas of controversy. Astonishingly enough areas found even in the south the majority of white support for voting rights without any limitation. And that says something about one of the myths that I hear around here. It works both ways it was an NAACP line at one time that said we're going to resolve these problems with a vote. And the South there was a great hue and cry at the new grab of votes freely will take charge of all politics. Fact of the matter is that very few situations in the south where a solid negro bloc vote would dominate a political organization and this is reflected in the sort of realistic view of most white southerners that go ahead and let them vote. Now the

importance of this I think if you're trying to figure out what the legal basis is going to be of some of the decisions that have to be made taking into account the reality of both the demands of the Negro community and the resistance of the white community in this now on a national basis. I think you can make a clear distinction between what can be done by law and the case of the first four years. It seems to me there is a way to provide an absolute basis in law to rule out any kind of discrimination that can be demonstrated in voting jobs public accommodations and even housing. The sociological reason why I'm hopeful that that could be accepted without great dislocations turns on the earlier discussion we've had about trying to find some new distinction between what is public and what is private. The definition of privacy and so far as it turns on private ownership seems to me clearly to be

out the window. The question that the courts are wrestling with of attempting to establish whether something is public by virtue of its state action or licensing or any direct state action. I think you've gone by the boards. There remains a question of privacy in terms not of the proprietor of a given establishment but in terms of the person who's using the establishment. Take the white man who is going into a restaurant. Maybe because he's a bigot he objects to having negroes in there. But I think it can be argued that he has no essentially private right when he goes in even if Negroes aren't there. This is the classification test that Lauren Miller was talking about. If I go into a restaurant I can't choose the other people in the restaurant. I have to take my chances on who's in there. I have no inherent right of privacy there I have no inherent right of privacy in employment. I can't choose who works with me. If I had been employed by somebody somebody else is going to choose that. In the case of housing where

I think the president's already pretty clear I have no right to choose my neighbors. Therefore logically leaving out emotion I'm not losing anything by this change if I am a white man. I'm not losing anything really that I have now. And no really practical problems I've been forced to association come up it seems to me in any of these areas. There's no requirement if I sit in the same saloon with a colored man that I associate with. We're just there to connect talk to him. Same thing is true of the fellow who lives next door and the changed condition under which most people live in this country now even in the south I think that's the reality even though sentimental it isn't recognized that neighborhoods are practically lost there meaning that might give some force to the social argument whether it be a good or a bad one. But now when you get to schools you've got I think an entirely different situation. And in many ways the most complicated one not leaving out any question of

justice and morality. Here you have to take into account the purpose of the school and the effect on whatever arrangement may be made on that purpose and leaving out all questions of bias at least seem to me to be very profound and they seem to be questioned. The court's going to have to recognize that one of the difficulties in all of the court decisions on these school cases is that the courts have cast themselves and the role for which they're not adapted they've had to do this because there's been a default on the part of Congress now on the part of the legislatures in passing laws and because of the obvious fact in the South and many other places of bad faith on the part of the school administration. But I remind you that under Plessy Plessy incidentally was a highly sociological opinion and one in which the judges took the broadest possible judicial notice and in which they did apply the 14th Amendment of the first the Bill of Rights under the 14th Amendment by declaring that it was a federal government.

Responsibility to determine standards of equal treatment and they did determine standards of equal treatment they said that they could be separate but equal and that brought them up a long line of cases that we don't hear much about these days. It came up in the 30s and in the first years after the war under the Plessy doctrine but where Negroes were going to court to sue for actual equality of schools they could demonstrate that in the school district the white school was a period of the Negro school. And along one of those cases and as they went on the courts found themselves involved in all kind of damned elaborate involved administrative determinations of what the hell constituted an unequal school things like the distance a child had to go from his house to the school room. Of course the obvious thing of the pupil teacher ratio questions of qualifications of teachers they had to pass on and when they got beyond the question of what degrees they had into the real quality of the educationist became argot they

found themselves functioning as a school board. And I've always thought that one of the reasons not the sole reason at all but one of the reasons they moved as they did in Brown was to get this burden off their back and they were attempting to get out of the school administration. Strange in business and there's a kind of a plaintive line in the Brown decision which says neither this court nor the courts below constitutes itself as a school board to determine administrative matters they were trying to set a standard of saying that equality can only be achieved by opening the schools without any discrimination. You couldn't separate them anymore well they're right back there again 10 years later of all of these complicated centrally administrative matters of determining and school district lines and transfer policies and all that and I think it's an intolerable situation. Well the answer to it might lie part and some legislation but I suspect. You're going to have to go back and achieve a kind of

negotiated settlement. In most of these situations it terribly difficult to do unless it has the force of the demonstrators in the street and the law behind the school boards to get them to move in good faith but I can't see myself how you're going to be. Well that's all you can. It seems to me to make the kind of arguments for negotiation on the first four voting jobs a common housing that you make in the case of schools because something's going on in the school to the centrally different from all the others. There are questions raised their objective we raise if you don't count any other place on a now and what's wrong with Justice Harlan's the Sandown classic case sign the Constitution is colorblind. You take the position that no governmental agency at least. My classify on the basis of color. Then what you'd have to do in order to meet the points raised in the

Pasadena gallery cases is to get legislation or get to additional decisions directed against a specific evil that is involved namely segregated housing. And you go on down the line saying wherever you need legislation trying to get it. But based on the proposition that the Constitution is colorblind it seems to me that the problems that you get into are not very difficult if viewed in that light at least they're clear you know what they are. And it does imply a definite rejection of the notion of affirmative integration at least by judicial decision. Well I think you're exactly right Anderson and that the American Civil Liberties Union in Los Angeles and their plan for energy grade schools. And conclusion we would call attention to the key recommendation of ACLU.

It is at the board make partial reversal of its policy of blandness to color which seems to me an odd position then be taking. And ma'am main objection to this bit is and you noticed a guest there Lawrence said if we have to give this thing up we're going to hold on to the knowable classification by race at all costs. It was interesting that the he admitted he did the minute he stated that the Brown case does not require more of the color blindness of the Constitution school. Right but you get a wire the same way that they're getting out of the position similar to that equal protection clause has the meaning and our will is an animal farm that all pigs are equal but some are more equal than others and I don't I don't I don't care much for the. Doctrine of neutrality toward religion has been announced by the Supreme Court but it seems to me that this is a case where the word might be useful to achieve a colorblind Constitution and all of its appropriate application.

It seems to me that theoretically and in practice if I were alone period you would have relieved the worst of the difficulty. But it would be a question of a generation to try to take into account generation or two anyway. Well if you take into account the problem that they collect when he goes back to and I think can make a persuasive case on moral grounds that you need some kind of an affirmative policy to compensate for the disadvantage these people have suffered previously. Might you go out by agitation by legislation but you don't you actually don't expect to get it through a judicial decision. Any more I want to know I have a little I should have a limit it seems to me every few minutes they animated or if you hold the colorblindness test you're going to have to throw out a lot of legislation and if you literally hold to it and then the question is going to be can you can you begin to redress this imbalance by non-lethal means by negotiation by pressure from Negroes themselves and by a greater acquiescence on the

part of the white community. I could make a case for being fairly optimistic about moving on this. Let me see if I can make a case for doing something positive with respect to active integration in school doesn't it. It seems to me we start with the proposition that the distinction Negro is an irrelevant one. And that's what the Constitution is colorblind means in fact one of the definitions that we haven't had around here is what is a Negro which is a also difficult one to reach. But. If we didn't have the distinction in our in our modern society we wouldn't have any problems as far as I understand any of the kind that we've been talking about large numbers of white people and negroes and particularly the negro middle class and the white middle class have no association whatsoever with each other and have no communication and we have taught Negroes over longer. Have time to lie to white people about what they're feeling

what they want and so forth. There's a set of bad social habits in existence. One way it would it seems on the face of it to deal with these problems is to bring about the association of Negroes and whites in such a relationship that they learn to regard each other as individuals so that individuals also become colorblind is making the kinds of personal distinctions that lead to social and political action. I don't think you can accomplish it until you enforce given the present situation. An association of the kind that takes place in a school. Wise especially when you are Negroes than any other kinds of ethnic. It's only more needed for the historical reason. It's only more needed because there are a series of however created historically or otherwise sets of irrelevant distinctions in people's minds that are prohibiting some people from having advantages that they deserve a citizen. So what we're going to get over that problem. You

now have to do and i thought Lauren was perfectly clear on this yesterday. What we want ultimately he says is a situation in which the classification Negro does not exist at law which the negroes are also treated as individuals. My degree. Yet to read all. But to get to it you have to go through a time in which you make a more positive action to give negro's advantage until such time as new growth can stand up like the only question would be whether the euro should do that by law or usually rely principally on the law you know are you willing to do what we are writing. Learned you were my very own voluntary of the group the only question I am trying to write is I don't mean to answer it is rather the legal method is the only method when the best method a primary method of throwing a school board has a particular policy as regards signing students that's within the legal order.

Thank you Ed.. Who needs and who doesn't enjoy a show major additional off. Whether we should rely on litigation to redress the imbalance of history. Do federal statutes could provide for special remedial negro programs without violating a colorblind interpretation and I sure wish they could just on the ground it till you can look after underprivileged coarse farmers and it yourselves on your last leg on a classification not a Negro question actually. The urban areas of public address there. I mean you said justice and morality aside and you know and if I understood you that's negotiated something or other I mean negotiated within a given school district to get a policy by the school district which has a status in the law which is not hardline and tall but pays attention to color differences or race differences religious differences are not as such. Therefore no violation of the earlier Constitution by this kind of blindness in the context of achieving the purposes of public education which you refer to to be blind there would seem to be

stupid and blind looks at it if you're a school board member and I have a son estimate of the purposes of a public school. I'm attention to all the differences that have been hacked and nobody to education this is not the time. All I want to say is this is not contrary if I understand you to obtaining redress for underprivileged persons simply don't state your legal position in terms of their car and your fine and New York as a matter of fact for the Puerto Ricans are just as bad off as something wrong. With my arm while driving. We're going to get that when I talk about negotiation I'm assuming an absolute legal standard for kids any kind of discrimination you get if you can show discrimination you can always go to court. Core issue school board. But the kind of situations that you get into. What I'm suggesting in order to try to get the school board in good faith trying to make redress to the situation as it now exists

does not yield itself to the kind of court decision you have in the Garrett case where the court's got to decide all kind of arbitrary things about gerrymandering. That's a last resort you can go in and say that what they're doing is discriminatory. But I'm concerned about is a position taken that Ed read from the ACLU in the statement it presented to the Los Angeles School Board and which the ACLU supported by the NAACP at least nominally has said that the colorblind interpretation of the Constitution is no longer adequate. We want under law all. Things done to remedy this past. This is one of the of the Negro people has just exactly this line in the same day you open up an entire orphanage. Of Mines become a kind of fetish here the significance of colorblindness Indian Why does context the function of being colorblind is not to make a certain kind of discriminatory act. But then all the institutions of society pressed together to enforce a certain form of this grim anation it would become idiotic

not to recognize the fact that evil exists and to take the remedies which exist within the law but he saw it was that which is question whether they do exist within the law to take those remedies which would redress the balance now how do you redress a balance if you don't know what the imbalances. What can you how can you remove an evil If you're going to shut yourself off to the evil which exists it doesn't seem to me to be a society which is remembered is that it is the province of government and governmental action to do this sort of redress the imbalance. System and not the protection in the US to be dealt with that's the part of the family so this kind of difficulty to the crews to Mexicans and orientals in the West Coast and do all kinds of other ethnic groups throughout the country ought to be dealt with on its own terms. Oh I'm sorry. For instance you know Shorty marching there are disadvantages too. I don't agree with Harry's limits on what he'd do but. Unlike. Some of the folks in my part of the country at think that these demonstrations have done more. In the last

six months. And the threat of additional ones is doing more right now to break down these discriminations that all the laws that you could banish you have been listening to the first of two discussions on affirmative or reverse discrimination. The discussion was led by Ed when he Dunaway former Supreme Court justice of the state of Arkansas and was recorded at the Center for the Study of democratic institutions during the two month conference on law jurisprudence and the Bill of Rights. Participating in the discussion with the chairman Robert M. HUTCHENS Harry Calvin Jr. of the University of Chicago Law School because of Passman University of California Berkeley and the following staff members of the center. Richard LICHTMAN Harvey Wheeler Harry Ashmore W.H. Barry William Garman John Wilkins and myself.