Arthur E. Sutherland, Bussey Professor of Law, took strong issue yesterday with Gov. George C. Wallace's charge that the 1954 desegregation decision was a "wanton seizure of legislative power" and at abandonment of judicial precedent.
"I don't see how anyone with any legal knowledge could have been shocked by the decision," he declared. "Since 1927, there has not been one case decided by the U.S. Supreme Court against the Negro on racial grounds."
Sutherland, who chaired the Sanders Theatre speech of Gov. Wallace Monday night, maintained that the 1954 decision could have been reached on the basis of legal precedent alone.
A 1950 case concerning a graduate student at Oklahoma State University, together with earlier decision, could have served as ample precedent, he claimed.
The constitutional law expert also rejected Wallace's charge that the decision was based on the "fraudulent testimony" of sociologist Kenneth B. Clark.
Fraud, even if proved, "would be totally irrelevant to the real issues," Sutherland contended. He pointed to the decision in Bolling v. Sharpe, announced the same day as Brown v. Board of Education. In this case, the Court held that "segregation in public education is not reasonably related to any proper governmental objective."
By basing this decision on due process rather than equal protection of the laws, Sutherland maintained, the Court made any sociological testimony irrelevant. "Race was simply outlawed as a proper ground for government regulation."
Cites Other Decisions
Sutherland also pointed to a whole chain of post-1954 decision involving buses, parks, golf courses, and other public facilities in which child psychology was not an issue. "It is fairly clear that the expert testimony of Clark has little to do with the constitutionality of segregation," he stated.
He similarly challenged Wallace's contention that the justices who reached the 1954 decision were unqualified because of their lack of judicial experience. "Are we to say that we will never have another John Marshall, or Felix Frankfurter, or Louis Brandeis?"
Sutherland also pointed to Chief Justice Warren's experience as attorney general of California, and as governor. "As Gov. Wallace known, experience as governor of a state brings one into close contact with problems of federalism."
Praising the conduct of the audience at the Wallace speech as a "great credit to the University," Sutherland said, "This was a fine example of a civilized people listening to arguments with which they disagree.