March24, 1999

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The Continuing Evolution
Of 'Equal Justice Under Law' 

By Constance Baker Motley

In 1955, no one would have predicted that, even with ‘all deliberate speed’ as the standard, more than 40 years later the court would still be dealing with recalcitrant state governments

Since 1954, the Supreme Court's decision in Brown has had profound effects on the social, political, and economic texture of American society. Notwithstanding that the decision was limited to racial segregation in public school education, at least four major societal consequences are apparent: first, the complete elimination of state statutes, rules, and regulations requiring segregation of the races; second, the legal requirement of no discrimination in any privately owned facility or service receiving substantial public assistance; third, Congress's enactment of anti-discrimination laws affecting federally aided programs, privately owned places of public accommodation, private employment, and private housing; and fourth, a continuing demand that state governments use affirmative action not only to merge separate educational systems but to diversify de facto one-race public institutions not clearly resulting from state policies. In the 1990s, challenges to voluntary state affirmative action plans have moved from ominous offstage warnings to a critical center-stage threat to continued progress in desegregating American society.

In 1955, when the Supreme Court rendered its decision on how to implement its 1954 decision, no one would have predicted that, even with "all deliberate speed" as the standard, more than 40 years later the court would still be dealing with recalcitrant state governments at the higher education level and that the Supreme Court (unanimous in 1954) would be divided over the constitutional limits of voluntary state affirmative action programs designed to ameliorate the effects of past racial discrimination and segregation.

Ask yourselves: Where would African-Americans be today if the Supreme Court's 1896 decision in Plessy had gone the other way?
Now, after a presidential proclamation in 1948 ending racial segregation in our nation's armed forces (the premier symbol of American racism) and the Supreme Court's 1954 decision and its progeny, striking down state-enforced racial segregation in the public domain--the Civil Rights Act of 1964 and its amendments, the Voting Rights Act of 1965, and the Fair Housing Act of 1968--voluntary race-based affirmative action plans have been derailed by the Supreme Court's application of the "strict scrutiny" test.

Ask yourselves: Where would African-Americans be today if the Supreme Court's 1896 decision in Plessy had gone the other way? What if blacks had never been segregated in the public domain? Now we must ask ourselves: What would 21st-century America be like if Justice Marshall's plea to apply the "reasonably related" standard to the substantial state interest in eliminating the effects of past societal racial discrimination had been adopted by the majority as the test for evaluating voluntary affirmative action plans instead of the strict-scrutiny test?

We end this century with the realization that racism, a problem we should have resolved with strong and consistent national leadership, will follow us and bewilder us in the next.

Today's white majority is largely silent about the race question that has brought us domestic unrest in many places both North and South for two centuries now. Their silence does not necessarily suggest unawareness. What it means, I think, is that they would rather not be involved in race matters. Many have been able to live out their lives without having any personal association with blacks.

During the 1960s, the most tumultuous years of the civil rights struggle, black Americans managed to garner support from a large segment of the white population. Many whites realized a special kinship with the black population which they had not felt before. This segment knows that there has been a permanent change in American society--that blacks now have first-class-citizenship status under the law, a constitutional guarantee.

The problems that remain for a substantial segment of the black population are of a different, far more complex order--one of economic class. However, the difficulties of economic class are a reality facing many white Americans as well. All blacks suffered equally the effects of racist policies and practices as this century began. With the elimination of official segregation and some private discrimination, there is no longer a single common impediment to blacks emerging in this society.

The black population now consists of two distinct classes--the middle class and the poor. Within each of these classes are, of course, subclasses. The middle class, as in the white population, encompasses a wide swath. There are at least two subclasses in the group--the upper-middle class and the lower-middle class. Among the poor, we all recognize the working poor, those on welfare, and the physically and mentally disabled who do not even apply for welfare.

Too many whites still see all blacks as a group apart, permanently excluded by skin color and hair texture from the majority white society. The black population, on the other hand, is now painfully aware that there are two black societies--one thriving in the new economic climate and the opportunities created by integration efforts, especially affirmative action, and the other languishing in black ghettos, both urban and rural, some of them newly created by black flight.

Just as the black middle class in this society led the charge against the effects of official racial segregation in 20th-century America, the same group will lead the charge in the 21st century against our remaining slave legacy. Existing black poverty is directly related to our former slave status. Segregation was harmful.

There can be no single blueprint for eliminating poverty in the next century. There are far too many economic, political, and social factors today that directly affect this poverty problem. I see a need for organizing, strategizing, planning, and forming alliances such as we had in the civil rights movement. But I need no crystal ball to see that the newly emerged, educated, and greatly strengthened black middle class will provide the necessary energy and cooperation.

Excerpt from "The Supreme Court and Affirmative Action" from Equal Justice Under Law by Constance Baker Motley. Copyright © 1998 by Constance Baker Motley. Reprinted by permission of Farrar, Straus & Giroux Inc.

Constance Baker Motley is a senior judge and a former chief judge of the U.S. District Court for the Southern District of New York. As a law student in 1945, she joined the team of lawyers at the NAACP Legal Defense and Educational Fund headed by Thurgood Marshall. She was later chief counsel for James Meredith in his fight to become the first black to attend the University of Mississippi and and argued 10 cases before the U.S. Supreme Court. This selection is excerpted from her 1998 autobiography, Equal Justice Under Law, and is reprinted with permission.

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 © 1999 Editorial Projects in Education Vol. 18, number 28, page 47