Justices
Ruth Bader Ginsberg & Arthur
Chaskalson
Discuss Brown v. Board of Education
By Joan Baum,
Ph.D.
Citing “education” as
key in continuing the drive for racial equality that was
advanced in one of the 20th century's most significant Supreme
Court case, Brown v. Board of Education (1954), U.S. Supreme Court Justice Ruth Bader Ginsberg
and South African Chief Justice Arthur Chaskalson spoke eloquently
about the heritage of Brown, one
of the court's most controversial cases. Its legacy is ironic,
they pointed out—a unanimous decision that many legal
scholars have judged wrong on the law though right on morality.
The justices appeared at the Columbia Law School Green Auditorium
in the final lecture of the 50th anniversary series
on Brown that
has been running all year at the university. Their particular
perspective was to view both the evolution and the effect of Brown in
the international community. For Justice Chaskalson, who was
appointed to head South Africa's highest tribunal by Nelson
Mandela, the occasion also marked an opportunity to celebrate
the ten-year anniversary of the end of apartheid.
The speakers were
introduced by the famous NAACP attorney, later dean of Columbia
College, Jack Greenberg, whose pioneering work on behalf
of civil rights was acknowledged in 2001 when he was awarded
a Presidential Citizens Medal, and whose continuing reputation
was confirmed when he made the list of Columbia's 250 most
distinguished graduates. Noting that he came in at number
18, in a roster that includes the likes of Hamilton, he joked, “at least I'm alive.” No
doubt most of the SRO crowd that night knew that Professor
Greenberg was one of those who had argued Brown. What they may not have known was that he had also
been active in assisting Justice Chaskalson in writing South
Africa's post-apartheid constitution, which established the
Constitutional Court.
Both justices commented on the fact that Brown not only influenced other countries to strengthen
civil and human rights laws but in some cases was surpassed
in those countries by more sweeping and rigorous constitutional
guarantees against discrimination. Justice Chaskalson noted
that the Canadian Supreme Court has a “more flexible
approach” to anti-discrimination cases, and that South
Africa includes in its equality clause impairment of “dignity”:
has discrimination been “hurtful and harmful” to
an individual or a group? In South Africa equality delayed
is considered equality denied. In impassioned tones, Justice
Chaskalson observed that the South African constitution has
the “most extensive bill of rights in the world,” binding
on all public and some private institutions. Unlike jurisprudence
in the U.S., South Africa takes a “remedial or restitutionary” view
of equality, according to which protection of a vulnerable
group takes precedence over punishment of those practicing
discrimination.
Justice Ginsberg, a
Columbia Law School alum (class of '59) was surprisingly
feisty and subtly humorous in the Q & A
session that followed their formal remarks. She reminded her
audience of America's racial divide during the war years but
also suggested that disgust with the racist policies of Nazi
Germany actually “propelled human rights protections.” No
surprise, of course, that Brown, set in the context of the McCarthy cold war period,
was not universally applauded: communist countries downplayed
the decision, while some who heralded its principles expressed
skepticism about its implementation. No one, however, could
deny Brown's impact. The “watershed” case became
a rallying cry for those who supported and those who opposed
the power of courts to change social policy through decision-making.
Today, as Justice Ginsberg noted, Brown is cited by the European Court of Human Rights as
it reviews the “special” education (racial segregation)
policies of central European countries that track Romany children
into schools for the mentally retarded and socially maladjusted.
The evening came to a sobering close, with both justices noting
that Brown has lost its symbolic influence internationally,
with other countries having incorporated more explicit protections
against discrimination, and as many of the expectations of Brown having yet to be realized in this country. The
Supreme Court does not have agendas, Justice Ginsberg concluded,
but lawyers should, and it is their responsibility to educate
judges by taking up cases they want heard. As Justice Chaskalson
remarked earlier, if change could come to segregationist South
Africa, it can come anywhere.#
