Dimond, Paul R.

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Fordham University School of Law

Fordham Law Review Volume 61 Issue 1 Article 10 1992 Symposium: Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, Panel II, Concluding Remarks Paul R. Dimond Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Paul R. Dimond, Symposium: Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, Panel II, Concluding Remarks, 61 Fordham L. Rev. 63 (1992). Available at: https://ir.lawnet.fordham.edu/flr/vol61/iss1/10 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. PANEL II: CONCLUDING REMARKSPAUL R. DIMONDA S I was so intimately involved in trying all aspects of Milliken, Iwould like to begin by sharing my seasoned observations about thatcase. First, in considering the meaning of Milliken, it seems to me thatthe public message of Milliken IV and Milliken 11,2 in combination, isthat racial segregation in metropolitan America is innocent once you getbeyond the inner-city boundary: it's no one's fault and it's no one's re-sponsibility. At the same time, the Burger Court bent over backwards topermit an order against a state authority to infuse funds into an inner-city school district proven guilty of de jure segregation. In its own way,Milliken can best be understood as a "separate but equal" result for ourtimes.Second, I want you to think with me about the choices made in theprocess of this major constitutional litigation. In Milliken, we had fifty-seven trial days to make our case in the trial court. At the start of thetrial, District Judge Stephen Roth, an immigrant from Hungary, said, "Imade it, and I don't understand why Blacks cannot." He invited us outof his courtroom, literally, twice in preliminary motions. Yet, like thejustice of the peace that he was, Judge Roth agreed to sit there and hearall the evidence. By the end of that fifty-seven days, he was convincedthat the State of Michigan was an integral part of a system of racial ghet-toization in which there was an expanding core of Black families in Blackneighborhoods always confined within a line separate and distinct from areceding ring of White schools and White neighborhoods.When it got near the end of the trial, in what has been described asthinking about remedy while hearing the evidence of violation, I recallJudge Roth said, "My God, if I'm going to limit remedy to the boundaryof the school district of the City of Detroit, I'll merely be imposing-andgiving my imprimatur to-the latest line of containment of segregation."As it came about, when the case hit the Supreme Court, the remedythat Judge Roth then contemplated, which involved some fifty-fourschool districts, had been vacated by the court of appeals on proceduralgrounds. As a result, the only issue before the Supreme Court waswhether or not Judge Roth's conception of violation was accurate,whether or not even one single Black child would be able to cross thatlatest line of racial containment.And yet, as I noted earlier, courts make choices when they hear cases.In Milliken I, the majority chose to ignore their opportunity. Instead,the Burger Court's majority opinion proceeds with a recitation of howthe district judge was a radical who unilaterally reached out to rope in all1. Milliken v. Bradley, 418 U.S. 717 (1974).2. Milliken v. Bradley, 433 U.S. 267 (1977).FORDHAM LAW REVIEWof the suburbs through massive cross-district busing, because he did nothappen to like the racial composition of majority-Black schools. Themajority opinion has no conception of the Court's opportunity to issue aBrown I violation ruling for our time by deferring the consideration ofremedy for another day. The opportunity was before the Burger Courtto find a violation which would have required no remedy at that point intime, which could have permitted a remand for exactly the type of trans-formative political, judicial, and social result that followed from BrownII. Instead, because the Court was so concerned about, let's say, thepolitical ramifications of what it was doing-and I will add, at least inpart, because it was so focused on remedial considerations-it never eventhought about grasping this opportunity.3Finally, let me share one final irony in Milliken. Timing, as some say,is everything. Justice Harry Blackmun was the swing vote in the 5-4majority in Milliken I. Three years later, four years later, and five yearslater, he was the swing vote that provided the victories for the plaintiffs,not only in the central school district cases from Dayton4 and Colum-bus,5 but also a statewide, cross-district, metropolitan case from Wil-mington, Delaware.6Think about Supreme Court Justices. Theirs is not the single case thattests whatever their ideology or judicial philosophy may be against theweight of evidence; rather, it is the series of cases that come before theJustices over a course of years. I ask the question, then, if Milliken hadonly come three years later, where would the law and the national con-science of the country be today with respect to the issues of racialdiscrimination?As we close this symposium, I would like you to turn from such specu-lation about the past in order to think about the future of judicial reviewin race cases. Think, for a moment, about the possibilities for change ifwe focus more of our energy, more of our evidence, more of our politicaldebate, and more of our legal argument on the actual violation. Considerthe possibilities if we infuse our proof of violation with a greater reachand worry less about the extent of court-ordered remedy. Could thisprovide a way to continue the debate, as Ted Shaw called it, in order toassure a more open judicial process than that discussed by the secondpanel?Do not despair about the potential for such a transformation simplybecause of the narrowing of the Burger and Rehnquist Courts. After all,in a tribute to Justice Marshall, I think it is appropriate to note that oursituation today is far less bleak than was his. Today, there are no laws onthe books that exclude anybody by race from jobs, from public accom-3. See Paul Dimond, Beyond Busing (1985) [hereinafter Beyond Busing] for a de-scription of this entire litigation.4. See Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977).5. See Columbus Bd. of Educ. v. Panick, 443 U.S. 449 (1979).6. See Delaware State Bd. of Educ. v. Evans, 446 U.S. 923 (1980).[Vol. 61PANEL 11-CONCLUDING REMARKSmodations, from public facilities, from public schools, from conveyances,from owning property. There are no signs on drinking fountains or bath-rooms saying "Whites only."The Civil Rights Acts of both the first Reconstruction and what is nowthe second Reconstruction-although how long this second phase willcontinue may be an issue-are on the books. Although the Congresssometimes has to step back in to give these civil rights laws a broadermeaning in the face of a restrictive reading by the Rehnquist Court, thelaws still provide avenues of redress.So, rather than further bemoaning the narrowing of civil rights underthe Rehnquist and Burger Courts, I ask you to look forward with me.Let us ask whether we can change the terms of the debate about discrimi-nation as it may still exist in the country.I do not want to suggest a grand political, or even litigation, strategy inorder to give greater public meaning today to Justice Marshall's greatvictory in Brown. Allow me, instead, to suggest a narrower principle. Ithas three elements:First, the legal basis for the claim of discrimination must be broadenough to include all racial, ethnic, and gender groups.We can see the future of the country in the three fastest growingstates-Florida, Texas, and California. By the year 2000, the majority ofthe children in those states are going to be minorities, and the largestminority in each of those states is going to be Hispanic, not African-American.Second, the legal basis for the claim of discrimination must be deepenough to admit all manner of proof of wrongdoing. It is essential thatthere be room for evidence of a dominant majority, singling out andmarking by caste, a particular minority group for abuse, neglect, or disre-gard, whether in single acts-no matter how isolated-or in complexpatterns-no matter how interwoven. A no-fault theory of discrimina-tion has no moral claim on the conscience of any court or on the country.Third, the basis for the discrimination claim must be restrainedenough to recognize that the first obligation is to plumb the full extentand depth of any such caste wrong, not to evaluate the extent and limitsof the courts' remedial powers.We should concede that the more massive and entrenched the wrongof discrimination, the more important it is for the courts to declare thefull extent of that wrong. The courts must also permit the ultimate rem-edy to be worked out in a political process in which those who are ag-grieved will at least have a continuing claim that the declared wrongcannot be remedied in the courts alone.77. See generally, Beyond Busing, supra note 3, at 395-96; Paul R. Dimond, The Anti-Caste Principle-Toward a Constitutional Standard for Review of Race Cases, 30 WayneL. Rev. 1 (1983) [hereinafter Anti-Caste Principle]; Paul Dimond, The Judicial Dilemmain Cases of Entrenched Discrimination, The Urban Lawyer (forthcoming 1992); Gene B.1992]FORDHAM LAW REVIEWBy now, we should all be mature enough to understand the limits ofcourts in exercising their countermajoritarian powers and their functionof judicial review. I suggest that we ought to think about doing so withrespect to remedy-much as the Warren Court did in Brown II.This restrained approach to court-ordered remedies in cases of en-trenched discrimination will have one additional benefit. It will en-courage the building of political coalitions and affirmative remedies thatare sufficiently inclusive as to make irrelevant remedial classificationalong the lines of the original discrimination.With respect to remedy, I also think we need to recognize that in a freesociety empowering real personal choices for individuals is not necessar-ily inconsistent with remedying even the most entrenched discriminationagainst minority groups.'In sum, I ask that you consider whether we should seek a rebirth ofwhat I have dubbed elsewhere the "anti-caste principle." I believe thisprinciple undergirds the Fourteenth Amendment as originally inter-preted in Strauder v. West Virginia9 and explains and informs Brown.1"The alternative, it seems to me, is to continue with a suspect classificationanalysis, some kind of modified two-tier approach, in which the only ju-dicially cognizable claims of wrongdoing will be those rare aberrant actstoday when somebody makes a mistake and speaks explicitly of race. Infact, the primary cases that will be challenged under this wooden ap-proach to judicial review of racial discrimination will be those in whichthe majority, for whatever reason, decides that it wishes to try to provideaffirmative relief to minorities.What is the risk of trying the anti-caste principle? Isn't the risk thesame as it was in 1896 at the time of the Plessy v. Ferguson I decision?Couldn't the Rehnquist Court say "There is no longer any caste discrimi-nation in America based on today's facts?" 2 Yet, let us consider what isdifferent about today from 1896. We have the right of free speech guar-anteed, and we have the right for all to vote guaranteed. If such an awfuljudgment emerged from the Rehnquist Court, we would at least have theSperling, Note, Judicial Right Declaration and Entrenched Discrimination, 94 Yale L.J.1741 (1985).8. See Beyond Busing, supra note 3, at 395-96; Anti-Caste Principle, supra note 7, at45-60.9. 100 U.S. 303, 307-08 (1880) ("The very fact that colored people are singled outand expressly denied by a statute of all right to participate in the administration of thelaw, as jurors, because of their color.., is practically a brand upon them, affixed by law,an assertion of their inferiority.").10. Brown v. Board of Educ., 347 U.S. 483, 494-95 (1954) ("The policy of separatingthe races is usually interpreted as denoting the inferiority of the Negro group ... Anylanguage in Plessy v. Ferguson contrary to this finding is rejected.").11. 163 U.S. 537 (1896).12. See, e.g., Delaware State Bd. of Educ. v. Evans, 446 U.S. 923, 923-28 (1980)(Rehnquist, J., dissenting); Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 512-13 (1979)(Rehnquist, J., dissenting).[Vol. 61PANEL 11-CONCLUDING REMARKSopportunity to continue the debate in the political arena on terms thatinvolve fundamental right and wrong.I would like to leave you with this last thought. I submit that the anti-caste principle can empower us to debate, both in the Court and acrossthe country, in this decade and into the next century, whether the secondReconstruction should continue. Keeping this dialogue with conscienceopen is a far worthier legacy of Brown and Justice Marshall than al-lowing a conservative Rehnquist Court to slowly but surely shut the doorof the Court, and with it the conscience of the country, to virtually allclaims of wrongful discrimination.1313. Several months after the symposium, the Supreme Court issued its ruling in thehigher education case arising in Mississippi, United States v. Fordice, 112 S. Ct. 2727(1992). Although one ruling in a particular case is not dispositive, I am encouraged thata clear majority on the Rehnquist Court found a continuing violation in the dual systemof higher education and remanded without specific instructions as to remedy so that theparties-within the political process--would confront the unremedied wrong. That thiscase arose in the context of voluntary choices in higher education (rather than the condi-tions of mandatory assignments in elementary and secondary schooling), may well havehelped the Court to examine the extent of the wrong and to accept the limits of court-ordered remedies more fully. See generally Anti-Caste Principle, supra note 7, at 45-50.1992]

Symposium:  Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, Panel II, Concluding Remarks

Fordham Law Review Volume 61 Issue 1 Article 5 1992 Symposium: Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, Panel I, Concluding Remarks Paul R. Dimond Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Paul R. Dimond, Symposium: Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, Panel I, Concluding Remarks, 61 Fordham L. Rev. 29 (1992). Available at: https://ir.lawnet.fordham.edu/flr/vol61/iss1/5 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. PANEL I: CONCLUDING REMARKSPAUL R. DIMONDn UR next panel will explore the limits of Brown in the 1970s and1980s, particularly in the area of segregation and education law. Inevaluating the transforming power of Brown discussed by the first panel,let us first consider the nature of the basic choices made by courts.The choices that a court makes in arriving at its constitutional deci-sions have great and long-standing consequences. For example, in Plessyv. Ferguson,2 the Supreme Court chose to adopt the premise that segrega-tion of the races did not stamp Blacks with a badge of inferiority.3 Con-sequently, a spate of Jim Crow laws were enacted by state legislatures4and a regime of racial subjugation under the law ensued for generations.Plessy, however, had its own limits. Within its limits, of course, was theerroneous premise that state-enforced segregation did not impose a castelabel of subjugation on Blacks, a veritable mark of inferiority on the fore-head of every African-American.In focusing on the fate of Plessy in Brown I, the Warren Court finallychose to reject this segregation standard. In an infrequently quoted, andprobably less-remembered line, the Warren Court cited the district courtfinding that segregation is usually interpreted as denoting the inferiorityof the Negro race, and held that "[a]ny language in Plessy v. Fergusoncontrary to this finding is rejected."5In Brown I and Brown II, however, there is, at best, an opaque stan-dard for the actual constitutional violation. It is not entirely clearwhether it is a type of suspect classification, as in Bolling v. Sharpe,6where, in essence, the Court stated that there was no rational reason forseparating children on the basis of race in schools.7 In fact, Brown Ihints that an anti-caste principle should guide the jurisprudence of thecourts in future years.' In Brown II, there is again a hint of a massiveconstitutional violation. Recognition that an entire system of segregatedschooling was at stake, however, is the reason given for the delay in theadmission of the named plaintiffs to otherwise Whites-only schools.9Moreover, for the next fourteen years the Court steadfastly refused to1. See Brown v. Board of Educ., 349 U.S. 294 (1955) (Brown I1); Brown v. Board ofEduc., 347 U.S. 483 (1954) (Brown 1).2. 163 U.S. 537 (1896).3. See id. at 550-51.4. See Paul R. Dimond, The Supreme Court and Judicial Choice 31-59, 105-17(1989); Paul R. Dimond, The Anti-Caste Principle-Toward a Constitutional Standardfor Review of Race Cases, 30 Wayne L. Rev. 1, 19-21 (1983).5. Brown v. Board of Educ., 347 U.S. 483, 494-95 (1954) (Brown 1).6. 347 U.S. 497 (1954).7. See id. at 499-500.8. See Brown 1, 347 U.S. at 493-95.9. See Brown v. Board of Educ., 349 U.S. 294, 300-01 (1955) (Brown 11).PANEL II:CIVIL RIGHTS AND EDUCATION AFTER BROWN

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Symposium: Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, Panel II, Concluding Remarks

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