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1995-2000


DECEMBER 2004

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.#
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