Brown is the first Supreme Court case whose existence I ever became aware of, and it is the first public, moral issue that I ever recall having been engaged with. In 1964, pursuant to Brown, the elementary schools of lower Marion Township were integrated. An elementary school, which had previously been almost entirely African American, was closed. The students were allocated to a variety of other schools. The elementary school that I attended was integrated. That was actually not something that I noticed or understood, but did not think of as a very big deal.
But I was a member of Cub Scout Pack 247. I was a member of Cub Scout Pack 247 mostly so that I could play on the Cub Scout baseball team, which was what substituted for the little league in those days. My mother was the den mother and my father was the pack father, or whatever it was called. We were in the Cub Scouts, and there was a problem at the pack meeting. There was a decision made that the pack, which had previously been open to all elementary school kids who went to Penn Valley Elementary School, would henceforth be open to all the elementary school kids who went to Penn Valley Elementary School who lived in Penn Valley, and not those who lived in Arden. My parents were appropriately outraged at that decision, and we had a family discussion on what was to be done – I’m not sure I’m very proud of what was done. I can only plead that I was 9 years old. My parents decided to withdraw from their participation in the pack, because it was so outrageous. The question was, was this outrage perpetrated by this pack a reason why their son could no longer play little league baseball? They decided not to remove their son from the pack. I have to say, at that time, it probably was the right decision, though I must say, looking back on it, that I’m not sure that it was. But, of course, we spent a long time talking about it – what this was all about, what the Supreme Court had done, how wrong the attitudes that those other parents had taken were. This was really the first vivid moral memory that I have.
It is actually a rather striking fact that more than one-eighth of the Harvard Law School faculty clerked for Justice Marshall. It speaks nine out of 70, and it speaks, I think, to Justice Marshall and the remarkable group he had as clerks. It speaks to the Harvard Law faculty and the moral commitment of so many of its members. Harvard has always been distinguished as a University, and it has been distinguished in its Law School by a commitment to the highest intellectual standards, but also a commitment to making the world a better place and serving society. That’s what its faculty does when it clerks for the Supreme Court. That’s what it has done from the beginning. Whether it was the brief that Harvard University filed in the Bakke case; whether it was Archie Cox arguing that case; whether it was Larry Tribe helping the University draft the amicus brief in the recent Michigan cases; whether it is the empirical work in the Civil Rights Project that has contributed so much to our understanding of racial inequities; whether it is the work of Professor Ogletree, who has done so much to clarify what is right and what is wrong; whether it is Professor Kennedy’s work that has helped us understand some of our innermost feelings and the ambiguities associated with them; whether it is the work of many other people whom I could name; whether it is the Harvard Law School students who marched in the South in the early 1960s – this University can be proud of its Law School and its Law School’s commitment to the vision of Brown.
These are not tasks that are finished in our society. We may have reached a point of understanding and of fairly universal acceptance of some of those basic moral principles, but acceptance of those principles is not genuine equality and it is not genuine fairness.
There is a passage in a celebrated biography of Justice Powell, in which there is a description of the colloquies surrounding the Bakke opinion. The question arose how long affirmative action would be necessary, and in what was, by that biography’s description, the most explosive moment in a tense time for the court. Justice Stevens said that it would be 10 more years – this was 1978. Justice Marshall exploded that it would be a century. And we’ll see. Justice O’Connor’s 25 years will take us to half a century-splitting the difference between Justice Stevens’ view and Justice Powell’s view. None of us can know how this will play out, but all of us can share the hope that equality will be more real and more genuine, more quickly.
I share the sentiments just expressed that there is something precarious about resting constitutional truth on the precarious sands of social sciences’ current views…. But I do believe that this is an important lesson here, and I suspect it’s an important lesson in many areas of the world. The moral principle may now be relatively clear, but the practical question is of what a society can do to assure that every young person is prepared with basic intellectual skills that are necessary to succeed. That, more than any question of preferences in one direction or the other, is the defining challenge before us. It seems to me that is the question that will be addressed by those who think very hard and in very moral ways, but think very carefully, about what we might read in these experiences. There was no greater challenge for the United States in the last half of the last century than carrying forward on Brown. It remains a challenge for America and for this University in the next half century.