Post Date: May 10, 2004
Professor Charles Ogletree Jr. ’78, whose new book “All Deliberate Speed” explores the impact of the Brown v. Board of Education decision, discusses the landmark case, public education in America and the change in HLS from the time he was a student.
Was the compromise that Chief Justice Warren struck in Brown–no immediate desegregation in return for a unanimous decision–worth it?
I am very troubled by the compromise. The initial Brown decision said segregation and “separate but equal” are unconstitutional. And Brown II, decided more than a year later, said that we need to end this evil institution, but we do so with all deliberate speed. My sense is that a brilliantly crafted end of segregation was compromised by the court’s fear of violence and resistance. The courts, I think, played into the politics of the day by not enforcing its order in a forthright matter. And the resistance that started from the time the case was decided has, in some respects, continued with the court’s own withdrawing of the mandate in the ’70s and ’80s.
So 50 years out, was the decision a success?
Brown was a success. Outlawing the wholly racist and incredibly unfair system was significant and important, but the courts unwillingness to put some real commitment behind its original decision has led to a trail of decisions that have undermined what I think were the core principles in Brown. So we’ve made incredible progress and changed the way the world functions. By the same token, we still have increasing evidence of re-segregation in urban America, and many of the problems that the Brown case was designed to resolve are still with us in the 21st century.
Some people argue that integration has harmed African Americans.
A number of scholars and jurists have talked about whether ending the separate but equal doctrine was a good thing. My colleague and mentor Derek Bell has questioned whether the Brown result was the right result and whether another might have been in the better interests of the African American community. Even Justice Thomas in his dissent in the Grutter case raised the question of whether or not African Americans are actually harmed in the process of forced integration. I respect those arguments but disagree with them. I think that there’s incredible value in people with diverse perspectives, from different cultures, different backgrounds, coming together to make a better whole. And I also worry that we romanticize the good old days of segregation because there were some pockets of success, and we ignore the exponential benefits of integration and opportunity for African-American communities.
Chief Justice Warren wrote that education was perhaps the most important role of government. Do you think the government is failing children?
I think the government is failing children in a variety of ways. The first is that we have not given education the same priority that we have given the criminal justice system and our correction policies. We put much more money in crime prevention and incarceration than we do in early childhood education and development. This isn’t an issue about race, this is an issue about reason; and the more reasonable, rational, and sane policy would be to make sure that we push real hard to improve our education system.
My ideas might be somewhat provocative, and go beyond what others would advocate. I think that we make a mistake by having a school day that ends at two or three o’clock, rather than five or six o’clock, when more time could be used more fruitfully. I even think we might consider having a Saturday morning educational opportunity for children and for some parents. We have a generation of parents in these urban settings who are undereducated and who could certainly benefit from a remedial opportunity, and we should find ways to give them that.
In “All Deliberate Speed” you describe coming to HLS in the ’70s and being disappointed by the lack of political activism among the students. Did you ever think, “What am I doing here? I’ve made a mistake. “
Not only did I think about it, but I almost decided to leave law school after my first year because I thought that what I was doing was irrelevant to the broader things happening around me. I spoke to two of my professors in particular, Milton Katz and Richard Parker. They both told me that it’s important to be concerned and passionate about issues, but [I should] get the legal training through law school and then take on these important concerns. Of course my wife Pam was the most persistent, saying, “Look, we moved all the way here. We’re married. We have a family, and now you have these silly ideas about rethinking your life. You should have done that before you married me. Stay the course and let’s do our job.” And they were all right. I know that those idle thoughts were really a reflection of a guilty feeling of not being able to do as much as one would like to do while being trained to be an advocate down the road. They encouraged me at the right moment to stay the course and I’m grateful for it.
Do you think law students here still suffer from apathy?
I’m teaching a fabulous group of energetic and opinionated and diverse first-year students in criminal law class. The last thing I would describe these students as is apathetic. They are passionate; they are intelligent; they have very diverse perspectives. The overwhelming majority of the students in the class and in the first year are going to be doing public service work while they are here. That tells me that there’s been a sea change at Harvard Law School. The students are deeply committed to a wide range of issues and are very open in talking about issues that matter to them. I can’t think of a better time other than perhaps the era of Brown in the 1950s to be a lawyer, a law student or a member of the legal profession.
Tell me a bit about Charles Hamilton Houston (’22, S.J.D. ’23).
Most non-lawyers don’t know that the architect of the Brown decision was not even there when the case was argued or decided. Charles Hamilton Houston was the first African American on the Harvard Law Review and the first to get an S.J.D. He then went back to Washington to become the Vice-Dean of Howard Law School. He trained a generation of African American lawyers, including Thurgood Marshall, to become what he called “social engineers,” committed to justice and the public good. He was the one who started collecting evidence, building the case against discrimination in the ’30s and won some important cases way before Brown was even known. However, in 1950, after a struggle with health problems through the years, he died. He was only in his fifties. He’s the often-overlooked person responsible for all the groundwork that was done to build the platform on which the Brown decision rests. And he, by many perspectives, is one of the most distinguished and most successful graduates in Harvard Law School’s history.
Harvard Law School has changed since Houston graduated in 1923. When Elena Kagan became the first woman dean, she also chose to become the Charles Hamilton Houston Professor of Law. As long as she is dean, that name, and that great Harvard alumnus, will be associated with the dean of this law school.