Ginsburg gave this address at the Columbia School of Law.
Although the Brown decision did not refer to the international stage, there is little doubt that the climate of the era explains, in significant part, why apartheid in America began to unravel after World War II. Recall that the United States and its allies had fought, successfully, to destroy Hitler's Holocaust Kingdom and the rank racism that prevailed during the years of Nazi ascendancy in Europe. Yet our own troops, when we entered that War, were racially segregated. In the midst of the War, in 1942, Swedish economist Gunnar Myrdal published The American Dilemma in which he observed: "America, for its international prestige, power and future security, needs to demonstrate to the world that American Negroes can be satisfactorily integrated into its democracy."
Illustrative of the growing awareness as the War progressed, a young Rabbi, Roland B. Gittelsohn, then a service chaplain, delivered a eulogy over newly-dug graves of U.S. Marines on the Pacific Island of Iwo Jima. In words preserved at the Harry S. Truman Library, Rabbi Gittelsohn spoke of the way it was, and the way it should be:
"Here lie men who loved America because their ancestors, generations ago, help[ed] in her founding, and other men, who loved her with equal passion because they themselves or their [parents] escaped from oppression to her blessed shores. Here lie officers and men, Negroes and whites, rich men and poor, together. . . . Here no man prefers another because of his faith, or despises him because of his color. . . . Among these men there is no discrimination, no prejudice, no hatred. Theirs is the highest and purest democracy. . . . Whoever of us . . . thinks himself superior to those who happen to be in the minority, makes of this ceremony, and of the bloody sacrifice it commemorates, [a] . . . hollow mockery.
To this, then, as our solemn, sacred duty do we, the living, now dedicate ourselves, to the right of Protestants, Catholics and Jews, of white men and Negroes alike, to enjoy the democracy for which all of them have here paid the price."
The author of the Brown decision, Chief Justice Earl Warren, reflected some 18 years after the 1954 judgment:
The reversal of race relation policies in the United States "was fostered primarily by the presence of [World War II] itself. First, the primary enemy of the Allies, Nazi Germany, was perhaps the most conspicuously and brutally racist nation in the history of the world. . . . The segregation and extermination of non-Aryans in Hitler's Germany were shocking for Americans, but they also served as a troublesome analogy. While proclaiming themselves inexorably opposed to Hitler's practices, many Americans were tolerating the segregation and humiliation of nonwhites within their own borders. The contradiction between the egalitarian rhetoric employed against the Nazis and the presence of racial segregation in America was a painful one."
Remember, too, that the Cold War was in full sway in 1954. As Michael Klarman observed in his monumental work FROM JIM CROW TO CIVIL RIGHTS, published this year: "In the ideological contest with communism, U.S. democracy was on trial, and southern white supremacy was its greatest vulnerability, made all the more conspicuous by the postwar overthrow of colonial regimes throughout the world." President Truman's civil rights committee cautioned: "[T]he United States is not so strong, the final triumph of the democratic ideal is not so inevitable, that we can ignore what the rest of the world thinks of our record."
In an amicus brief for the United States filed in Brown, the Attorney General urged:
"The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills, and it raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith."
The brief included a letter from Secretary of State Dean Acheson on the adverse effects of race discrimination upon the conduct of U. S. foreign relations. Acheson wrote:
The United States is under constant attack in the foreign press, over the foreign radio, and in such international bodies as the United Nations because of various practices of discrimination against minority groups in this country. . . . Soviet spokesmen regularly exploit the situation in propaganda against the United States. . . .
[T]he continuance of racial discrimination in the United States remains a source of constant embarrassment to this Government in the day-to-day conduct of its foreign relations; and it jeopardizes the effective maintenance of our moral leadership of the free and democratic nations of the world.
Within an hour of the Chief Justice's announcement of the Court's unanimous conclusion that, "[i]n the field of public education, the doctrine of 'separate but equal' has no place," the Voice of America broadcast the news, in 34 languages, around the globe. The U.S. Information Agency promptly placed articles on Brown in almost every African journal. Time magazine commented: "In many countries, where U.S. prestige and leadership have been damaged by the fact of U.S. segregation, it will come as a timely reassertion of the basic American principle that 'all men are created equal.' "
Newsweek magazine observed: "[S]egregation in the public schools has become a symbol of inequality . . . . It has also been a weapon of world Communism. Now that symbol lies shattered."
The press in Western Europe similarly applauded Brown. Le Monde announced on its front page: "This long-awaited judgment marks a victory of justice over racial prejudice, a victory of democracy . . . ." The Times of London hailed the decision as "among the most important and far-reaching [the U.S. Supreme Court] has ever handed down." The Manchester Guardian expressed "immense relief" that the United States had "put behind it what has long been its worst reproach . . . ." The Swedish press (Dagens Nyheter) hailed Brown as of signal importance, a liberal, humanitarian decision that contrasted with the stain Senator Joe McCarthy, at that very time, had placed on American democracy. South of our border, the Municipal Council in San Paulo, Brazil cheered Brown as "establishing the just equality of the races, essential to universal harmony and peace."
In Africa, coverage was extensive. A dispatch from the American Consul in Dakar, Senegal reported that the decision was "greeted with enthusiasm in French West Africa although the press [there] has expressed some slight skepticism over its implementation." Afrique Nouvelle, a weekly paper, reported on Brown under this headline: "At last! Whites and Blacks in the United States on the same school benches." Black members of Kenya's Legislative Council expressed the hope that their country would follow suit:
"Here in Kenya we are supposed to create one nation of all races. If we are not educated together, we will live in fear of one another. If we are to stay together forever, why should we have separate schools? Children will learn to know each other intimately in the same schools and fear will disappear."
Not all reactions to Brown were positive. Communist presses downplayed or simply ignored the Supreme Court's judgment. A dispatch from the U.S. Embassy in Cape Town reported: "Most South African Whites are segregationists . . . [T]hough they may see some similarity in America's color problem, [they] regard their own racial situation as having no true parallel elsewhere. Their interest in the decision, then, would be very academic." But just four years later, British Prime Minister Harold Macmillan spoke in South Africa's Parliament against that country's system of apartheid. He referred to the "wind of change" blowing through the continent of Africa, change Brown helped to promote.
At the same time, a theme sounded in South Africa in the 1950s was to reverberate in the United States - the diversity theme most recently aired in Grutter v. Bollinger, the Michigan Law School affirmative action case decided by the U.S. Supreme Court in 2003. (Criticized most recently in an op-ed piece in today's New York Times, the diversity rationale is one of the reasons for affirmative action. It is in my judgment, as expressed in my dissenting opinion in Gratz v. Bollinger, not the only, or even the principal reason why affirmative action should be as vibrant today as it was in the 1970s.) The South African connection to the diversity idea was traced in recent commentary by my dear friend and former Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, Harry T. Edwards. Edwards recalled the forerunner of Grutter, Justice Powell's separate but controlling 1978 opinion in the Bakke case. On the freedom universities should have to pursue a diversity policy, Justice Powell quoted lines he attributed to Justice Frankfurter, a passage from a 1957 separate opinion in an academic freedom case, Sweezy v. New Hampshire:
It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevails "the four essential freedoms" of a university - to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.
Justice Powell did not indicate, Judge Edwards observed, that Frankfurter's 1957 statement was not his own. Frankfurter credited the source. The language came from a longer, eloquent statement made the same year, 1957, the statement of a conference of senior scholars from the University of Cape Town and the University of Witwatersrand. The South African scholars were reacting to the then South African government's proposal to enforce racial apartheid in educational institutions.
As massive resistance to Brown mounted in the South of the United States in the late 1950s continuing into the 1960s, foreign publications took note. Despite, or perhaps because of, the southern defiance, the world recognized that the Supreme Court had stepped ahead of the country's political branches and various communities in pursuit of equal justice under law.
That pursuit became part of the international human rights agenda. In 1965, the United Nations presented for ratification the International Convention on the Elimination of all Forms of Racial Discrimination. As of June this year signed by 177 States, and at last ratified by the United States in 1994, the Convention provides that the State Parties "particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction."
Of the enduring legacy of Brown, Richard Goldstone, retired Justice of the South African Constitutional Court, and Brian Ray, Justice Goldstone's 2003 term foreign law clerk, wrote that Brown had demonstrated "the ability of courts to promote human rights and [of] lawyers to effect social change."
Of lawyers enlisting the aid of courts to advance a movement for social change, Jack Greenberg is, of course, exemplary. In 1979 when Jack was Director of the NAACP Legal Defense and Education Fund, he played the lead role in establishing the Legal Resources Center in South Africa. In that successful endeavor to encourage black lawyers to use the law to help free black South Africans from oppression, another lawyer on the Brown team, U.S. District Court Judge Constance Baker Motley, had a large hand. Both Motley and Greenberg are Columbia Law School graduates, I might add. (The Library of Congress, which currently has an exhibition celebrating Brown, features Motley and a very youthful-looking Jack Greenberg, along with two much earlier Columbia graduates, comparative literature scholar Joel Spingarn and his lawyer brother Arthur. Both supported and served the NAACP when the organization was just getting off the ground, around 1910, and for decades thereafter.)
Goldstone and Ray referred to decisions in Canada, South Africa, Trinidad & Tobago citing Brown on the importance of education and equal access to it in a democratic society. Those authors also noted cases in New Zealand and South Africa citing Brown on the power of courts to "issu[e] orders that would impact budget decisions," orders that might require continuing court surveillance.
On a personal note, Brown and its forerunners, along with the movement for international human rights that came later, powerfully influenced the women's rights litigation in which I was engaged in the 1970s. Thurgood Marshall and his co-workers sought to educate the Court, step by step, about the pernicious effects of race discrimination. Similarly, advocates for gender equality sought to inform the Court, through a series of cases, about the injustice of laws ordering or reinforcing separate spheres of human activity for men and women. The ACLU's Women's Rights Project, which I helped to launch and direct, was among the organizations inspired by the NAACP Legal Defense and Education Fund's example.
Brown figured four years ago in a courageous decision by Israel's Chief Justice, Aharon Barak. The Israel Land Administration had denied the asserted right of Arabs to build their homes on land in Israel open to the general public for home construction. The Administration defended the denial on the ground that it would allocate land to establish an exclusively Arab communal settlement. Citing Brown, the Israeli Supreme Court ruled that such allegedly separate-but-equal treatment constituted unlawful discrimination on the basis of national origin.
Brown's example or inspiration on the tight tie between education and democracy, and on the role courts can play in advancing change in longstanding societal structures, is evident in a current controversy concerning the schooling of Romany children in Central and Eastern Europe. An organization called the European Roma Rights Center, one of many abroad influenced by the pathmarking work of the NAACP, charged in testing litigation, that, in the Czech Republic city Ostrava, Romany children are tracked into schools for children with developmental disabilities. The Roma Center alleged:
Romany children are assigned to special schools for the mentally retarded and socially maladjusted "in such overwhelmingly disproportionate numbers that, effectively, there exist two separate school systems for members of different racial groups - special schools (schools for the mentally retarded) for Roma [children], and basic schools for non-Roma [children]."
While fewer than 5 percent of all primary school students in Ostrava are Roma, the Center asserted, at least 50 percent of all special school students are Roma.
Unsuccessful before the Czech Constitutional Court, the Roma Center is now pursuing the case before the European Court of Human Rights in Strasbourg. Pleading for the Romany children, the Center referred to Brown and urged:
"As a result of [our] assignment to special schools for the mentally deficient, [we] have been forced to study in racially segregated classrooms and hence denied the benefits of a multi-cultural educational environment. It is widely known that racial segregation in and of itself is detrimental to education and to a child's emotional and psychological development. In Brown v. Board of Education, the United States Supreme Court held that racial segregation in education deprived children of the minority group of equal educational opportunities . . . ."
A similar complaint has been filed in Croatia challenging the maintenance of separate Roma classrooms in regular schools.
To sum up, Brown both reflected and propelled the development of human rights protection internationally. It was decided with the horrors of the Holocaust in full view, and with the repression of Communist regimes in the Soviet Union and Eastern Europe a current reality. It propelled an evolution yet unfinished toward respect, in law and in practice, for the human dignity of all the world's people.