Attorney John Payton is one of the country's premier litigators, and he has a substantial civil rights practice. He has
litigated discrimination cases and served in leadership positions in civil rights organizations. In addition, he has defended
affirmative action in a range of contexts. Mr. Payton was a member of the National Association of Attorneys General, and he served on
the Executive Committee and Chaired the Supreme Court Committee of that organization.
In response to both Professor Tribe and Professor Parker's commentaries, Mr. Payton begins by expressing his belief that
"an awful lot of people underestimated just how deep inside our society race and racism had seeped." He asserts that "we underestimated
the breadth and the depth of these problems, and we are paying a price for that assessment right now."
Referencing his research on scholarly reactions to Brown, Mr. Payton emphasizes that the arguments written in support of
segregation were "naked racist arguments." Now, the test score gap issue is making people wonder again if there really is something
wrong with black people. "We need to solve the problem that's being seen for the entire country's sake" because undermining our
democracy is unbelievably corrosive. It is clear that the idea of white supremacy had permeated all societal circles, including the
intellectual circle, and it had become the frame of reference from which people understood these issues.
One of Mr. Payton's astonishing research findings was that most of the major American institutions of law (such as
Columbia, Stanford, and Chicago) did not make any mention of the case in their Law Reviews. Yale mentioned it only briefly, and Harvard
published a 1959 article by Herbert Weschler that completely misunderstood the whole issue of segregation. With these examples, Mr.
Payton illustrates that "the intellectual community was in complete denial about the larger issues presented by Brown."
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