Of Local Lore & Lawyers

OF LOCAL LORE & LAWYERS By: Joe Jarret, J.D., Ph.D.

University of Tennessee

A COLD WAR CHRISTMAS

For many years, until age got the better of it, there was situated squarely in the middle of our Christmas tree a rough-hewn, but delicate ornament that clearly clashed with the more refined, store-bought ones. This one, a Christmas tree in miniature, was lovingly carved out of a single piece of pine by an elderly German man. He was a man whose tired eyes had witnessed the horrors of World War II brought to his homeland and the Russian occupation of his village upon the war’s end. Struck with polio at an early age, he was considered useless to the Nazi war effort as well as to the Russian occupation forces that confiscated his family farm and impressed his brothers and sisters into a work camp or gulag. He was left to fend for himself. When American occupation forces camped nearby, he went to them for refuge and found this group of victors kind, compassionate, and forgiving of his people. They also provided him with food, shelter, and a job working in the mess tent (mobile soldier feeding station), and allowed him to stay with the unit as it moved around the region.

I crossed paths with this gentleman on Christmas Eve, 1985 while serving outside of the German village of Bad Hersfeld as a United States Army, Armored Cavalry Officer. I was commanding a group of soldiers tasked with the security and defense of a remote stretch of the then East German/West German Border. Back then, a scant 12 kilometers from my outpost dubbed ”Observation Post Alpha,” lay a Soviet fighting force that outnumbered my little unit 10-1 in soldiers, main battle tanks, and other armored fighting vehicles. The physical border we patrolled no longer exists since the reunification of East and West Germany in 1990, but my memory of my time spent there will forever be with me.

On that Christmas Eve night, one of my forward observers called me on the radio and reported that there was “movement” along the narrow road that led up to the front gate of our outpost. I immediately went to investigate, taking with me a squad of six heavily armed soldiers. Walking slowly toward us on the frozen winter’s night was a group of 15 or so German civilians from the village. Holding lit candles, flashlights and gifts, the men, women, and children greeted us, in unison, with a hearty ““Frohe Weihnachten!” or Merry Christmas. In a mixture of German and halting English, the designated speaker, an elderly gentleman on crutches, said, “You and your boys so far away from home. We bring Christmas to you, Ja?

Needless to say, our regulations didn’t provide for allowing civilians access to our outpost. However, it was my call to make, and on that Christmas night, I gave the order to open the gate and let them in. We then ushered our well-wishers to the mess hall where we served up hot coffee, cocoa, and shared with our new friends, anything we could find, including coveted treats from loved ones back in the States, I then rotated my soldiers in and out of the celebration, and watched in delight as they feasted on an amazing array of breads, sausages, cheeses, sweets, and other delights. They also brought gifts. We responded the best we could. The children were delightfully satisfied with uniform patches and insignia, and anything American. The adults, with our beaming faces, friendship and gratitude.

After we sang a series of Christmas carols, some in English, some in German, all off-key, we loaded our Heaven-sent visitors in heated jeeps to spare them the five mile walk back to the village. As I was helping the elderly gentleman on crutches to his seat, he pressed into my hand the Christmas ornament I mentioned at the beginning of this story. With a broad smile he said, “Wir wissen, warum Sie hier sind!” meaning, “We know why you’re here.” Our German Christmas ambassadors left as quietly as they had come, leaving in their wake the beaming faces of a group of young men who, for a fleeting moment, forgot that they were so far away from home.

COVER STORY, continued from page 17

26 Id. As late as 1964, a full decade after Brown, just 1.2% of Black schoolchildren were attending school with Whites. In South Carolina, Alabama, and Mississippi, not one Black child attended a public school with a White child in the 1962-63 school year. See Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7, 9 (1994). 27 Rather, a school is desegregated and the federal courts are disempowered from mandating further integration, if the demographics of students in the schools reflects the local attendance zone. As such, desegregation was actually facilitated by White flight from urban school districts See Board of Education v. Dowell, 498 U.S. 237 (1991). 28 Milliken v. Bradley 418 U.S. 717 (1974). See also San Antonio Independent School

District v. Rodriguez, 411 U.S. 1 (1973) (concluding that grossly unequal funding of public schools based on local assessments was consistent with the Fourteenth Amendment’s Equal Protection Clause). 29 Kimberly Jenkins Robinson, Introduction: The Essential Questions Regarding a Federal Right to Education, in A FEDERAL RIGHT TO EDUCATION 9 (Kimberly Jenkins Robinson ed., 2019). 30 Elise C. Boddie & Dennis D. Parker, Opinion, Linda Brown and the Unfinished Work of School Integration, N.Y. TIMES (Mar. 30, 2018), https://www.ny-times. com/2018/03/30/opinion/linda-brown-school-integration.html. 31 M. Akram Faizer, Revitalizing American Democracy through Education Reform, 52 U. Mem. L. Rev. 95 (2021). A 2012 study found that nationwide, 43% of Hispanic and 38% of Black schoolchildren attend schools where fewer than 10% of their classmates are white and more than one in seven Hispanic and Black schoolchildren attend schools where fewer than 1% of their classmates are white. See Erwin Chemerinsky, Constitutional Law, p.765 6th Edition (Aspen 2020). Polarization is most pronounced in non-Southern cities with citywide school districts, e.g. Boston public schools are 12% white, Chicago is 8.8% white, Dallas is 4.8% white, Los Angeles is 9.2% white and Washington D.C. is 11% white. See National Center for Education Statistics, Characteristics of the 100 Largest Public Elementary and Secondary Schools in the United States, 2012-13, nces.ed.gov. 32 Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), ( The Court’s rationale was that achieving racially diverse public schools was not a sufficiently compelling interest to allow for use of race in assigning students consistent with the Fourteenth Amendment’s Equal Protection Clause). 33 Sweatt v. Painter, 339 U.S. 629 (1950) (concluding that separate but equal satisfied equal protection in higher education) see also 42 U.S.C. 2000d (disallowing racial discrimination by organizations receiving federal funds). 34 National Association of Law Placement (December 2017). 35 By contrast, 5.8 million of the country’s 10.8 million undergraduates enroll in unselective community colleges. See Faizer, supra. 36 488 U.S. 469 (1989). 37 579 U.S. 365 (2016). 38 See e.g. https://www.theatlantic.com/national/archive/2012/10/the-painful-truthabout-affirmative-action/263122/ 39 https://www.thecrimson.com/article/2022/5/26/post-sffa-harvard-commencement/ 40 https://www.thecrimson.com/article/2022/5/26/post-sffa-harvard-commencement/ 41 https://www.americanbar.org/content/dam/aba/administrative/legal_education_ and_admissions_to_the_bar/standards/2022-2023/22-23-standard-ch2.pdf 42 https://www.thecrimson.com/article/2022/5/26/post-sffa-harvard-commencement/ What I mean here is that a lot of evidence exists that racial affirmative action displaces Black and Hispanic students into elite universities from which they are graduated at or near the bottom of the class and this not only reinforces stereotypes but harms career growth. See e.g. https://www.theatlantic.com/ national/archive/2012/10/the-painful-truth-about-affirmative-action/263122/ 43 Hmong Cambodians in metropolitan Minneapolis-St. Paul and Burmese Americans suffer significant socioeconomic disadvantage as compared Indians and Chinese.

See https://www.pewresearch.org/fact-tank/2021/04/29/key-facts-about-asianamericans/ 44 169 U.S. 649 (1898). 45 323 U.S. 214 (1944). 46 Id.