Feature Story from TomPaine.com
Alan Jenkins
August 14, 2007
Alan Jenkins is Executive Director of The Opportunity Agenda, which hosts the Robert L. Carter Legal Fellowship Program. Jenkins served as a law clerk to Judge Robert L. Carter from 1989 to 1990.
Last week I had the privilege of attending a tribute to a genuine American hero. The event honored Judge Robert L. Carter, a prime architect of the Brown v. Board of Education desegregation cases, a distinguished jurist, and a constitutional visionary. He turned 90 this year and marked his 35th year as federal district court judge sitting in New York City.
The evening's hosts were Theodore Shaw of the NAACP Legal Defense and Educational Fund, Professor Charles Ogletree of Harvard Law School's Charles Hamilton Houston Institute, and renowned defense attorney Ted Wells. The crowd included a remarkable assemblage of civil rights lawyers and luminaries, from prominent figures like Lani Guinier and Derrick Bell to lesser-known legal stars like Norman Chachkin and Judith Reed who, collectively, have helped to transform American society through the lens of our Constitution and laws.
The timing of the event was apt, as it came just weeks after the Supreme Court's decision in voluntary school integration cases from Louisville, Ky. and Seattle, Wash. The Court split 4-1-4, with Justice Anthony M. Kennedy's controlling opinion endorsing affirmative efforts to promote integration while narrowing the ways in which race may be considered in doing so.
The Court's four most conservative members-John Roberts, Antonin Scalia, Clarence Thomas and Samuel A. Alito-would have outlawed all forms of voluntary integration. And, amazingly, they argued that such an outcome would be consistent with the goals that Judge Carter and the other Brown attorneys sought before the Court back in 1954. The conservative bloc of Justices argued, in other words, that modest efforts to keep schools integrated are the moral and constitutional equivalent of Jim Crow segregation. "What was wrong in 1954," Justice Thomas wrote, "cannot be right today."
It's hard to find words to explain how misguided and troubling that argument is. But Judge Carter found the words when he addressed the crowd last week.
He made no mention of the schools cases. But he reminded the group that the target of the Brown strategy and all that has come after it was racism, subordination and "white supremacy." The segregated system was built on the idea that whites are superior to non-whites and must remain separate and unequal in order to reinforce and maintain that superiority.
As Earl Warren wrote for a unanimous Supreme Court in Brown, "To separate [black students] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."
The point was never that any consideration of race for any reason necessarily violates the Constitution, but that legally enforced racial inequality clearly does. As Chief Justice Warren wrote, "Separate educational facilities are inherently unequal."
Moreover, our nation's civil rights history shows that carefully considering race to undo segregation is, at times, not just lawful, but necessary. The mere passage of time, unfortunately, does not eliminate segregation or its continuing effects.
A story from Judge Carter's youth, recounted in his wonderful book, "A Matter of Law", brings home what the old system was really about, even in the North where it was often more practice than policy.
Judge Carter grew up in New Jersey and attended a public school with a swimming pool. During most of the week, only the white boys in his class were allowed to use the pool as part of physical education. Once a week, the black boys had access to the pool, after which it was drained, cleaned and refilled before the whites were to use it again the following week.
After reading that the New Jersey courts had ordered the desegregation of all public facilities, young Robert Carter insisted that he be allowed to swim in the pool during the regular (heretofore white) swim period.
School officials tried ignoring him, threatening him, and then pleading with him to reconsider. But young Robert would not budge. Finally, they agreed to let him swim during regular hours. But none of the white boys in his class would swim with him. And the black boys in the class were afraid to do so. Robert could not swim, and the teacher would not teach him.
So this young man got in the pool, week after week, and clung to the side of the pool for dear life. No one else ever got in the pool with him. And no teacher or school official ever tried to assist him. But he clung to the side, nonetheless, every day until the end of the school year.
The story says volumes, of course, about the young man who would become a legal and moral giant a few years down the road. But it also reminds us of the cruelty and degradation, the badge of white supremacy and black inferiority, that segregation represented—even in its relatively mild northern incarnations. The idea that modest efforts by Louisville and Seattle to promote classrooms that look like America have anything to do with those noxious principles simply defies reason.
Fortunately, Justice Kennedy's controlling opinion in the Louisville and Seattle cases rejected the conservative bloc's jaundiced reading of history and our Constitution, as did the opinions of the Court's four more progressive members. But as Judge Carter reminded his audience last week, the fight for equality in law and society is an ongoing one. The New Jersey Department of Education building in Trenton now bears Judge Carter's name, but de facto segregation in our nation's schools is actually increasing in many parts of the country.
As the room full of young and old civil rights crusaders last week made clear, Judge Carter's mission, like his legacy, will stretch well into the 21st century.
© 2007 TomPaine.com. All rights reserved. Used by permission.
