Laurence H. Tribe is the Tyler Professor of Constitutional Law at Harvard, where he has taught since 1968. Mr. Tribe has
written over 100 books and articles and helped draft the Constitutions for South Africa, Russia, the Czech Republic, and the Marshall
Islands. Mr. Tribe is also a leading appellate advocate.
Professor Tribe opens this series of responses to John Payton by explaining that Weschler's article contained the simple
argument that freedom of association was the only neutral principle that could explain Brown. This principle accounted for a person's
right "to choose who their associates were," including the right of parents with respect to their children. Laws enforcing or
illegalizing educational segregation could thus deny the freedom of parents who wanted to send their children to school with children of
other races, and, paradoxically, parents who only wanted their children to attend school with same-race students. Several years later,
Charles Black reflected upon this supposed paradox, asserting that the neutral principle is that "you don't subordinate one race by law,
not the abstraction of freedom of association."
Professor Jack Greenberg was assistant and director-counsel to the NAACP Legal Defense and Educational Fund from 1949 to
1984. He argued the landmark case of Brown v. Board of Education in 1954. Professor Greenberg responds by recounting his
experience of finding an article in the Texas Quarterly in which Weschler recanted and adopted Charles Black's opinion. Weschler even
claimed that, from this perspective, Affirmative Action is justified.
Kenneth Mack is an assistant professor of Law at Harvard Law School. Mr. Mack speculates that the Weschler article in
question most likely concerned Angelo Herndon's appeal to the Supreme Court after being charged with a capital crime for leading a
hunger march in Atlanta in 1933. Herndon's trial lawyer, Benjamin Jefferson Davis, Jr., was an African American graduate of Harvard Law
School who was forced to endure great disrespect in the courtroom and subsequently joined the Communist party. Mack asserts that, if this
was indeed the case discussed by Weschler, "[Weschler] didn't understand the stakes behind the litigation he was participating in with
Charles Hamilton Houston."
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