Austria's pre-war Brown v. Board of Education.

• Author: Marcus, Maria L.

INTRODUCTION

On May 19, 1930, a Viennese newspaper published an article under the title, "His Magnificence The Rector: Scandal at the University of Vienna." (1) The author analyzed and attacked the government-sponsored University's new regulations dividing the students into four "nations"--German, non-German (e.g., Jewish), mixed, or "other." These regulations had been presented by the Rector as vehicles for voluntary association of students with common ethnic roots. The article noted, however, that under the new system, individuals were precluded from deciding themselves to which nation they belonged. A student would be designated as non-German even if he was a German-speaking Austrian citizen descended from generations of citizens, unless he could prove that his parents and his grandparents had been baptized. (2)

The newspaper's editor was criminally prosecuted for this publication on the grounds that he had failed to exercise "press prudence," and had defamed the Academic Senate and the Rector of the University of Vienna by accusing them of promulgating unlawful measures. (3) His defense was that the article had accurately characterized the university regulations as unconstitutional, and that academic officials had no authority to create such student groups. This legal analysis was grounded on the conclusions of an eminent authority, Dr. Joseph Hupka, a former Dean of Vienna Law School. (4) The trial court, presided over by the Justice for Press Affairs, admitted all the defendant's evidence and granted his application to petition the Constitutional Court--Austria's highest tribunal on fundamental constitutional matters--for rescission of the regulations in their entirety. (5)

In the hearing before the Constitutional Court, counsel for the defendant editor argued that equality of all citizens before the law prohibited differentiating individuals on the basis of ethnic group, language, or religion. In a chillingly prophetic comment, he suggested that if a government-operated university could lawfully mandate such student separation, then it would be possible for the government to do so in all situations, compelling residence in different parts of town and employment only by a person of the same religion. (6) The response by the Rector was that there was no constitutional defect in the University's regulations because the student groups all had identical rights. (7) Less than twenty-five years later in the United States, the Supreme Court unanimously rejected separate-but-equal claims in Brown v. Board of Education. (8)

Constitutional generalities such as equal protection, freedom of association, and rights of citizenship must be unpacked by focusing on their less appealing implications. Consider whether equal protection is satisfied if groups have equal rights but unequal power: whether freedom of association necessarily and invariably encompasses the freedom to exclude; and whether the prerogatives of generations of citizenship are inadequate to trump competing claims.

This Article analyzes these questions in two contexts: the little-known legal developments in pre-Hitler Austria that staved off the attempt to segregate University students, and the still-controversial formulation in Brown that sought to end racial segregation of students in America. The United States Supreme Court in the 1950's, like the Austrian Constitutional Court, was asked to interpret a constitutional equality principle that embodied the ideals of a democracy but was in conflict with a violent and historically-entrenched reality.

Part I will discuss the actual deliberations of the Austrian Constitutional Court Justices in this case and explore the shaping of their decision, a decision reflecting an uneasy synthesis of opposing views. The Justices rejected the Rector's jurisdictional objections, and instead undertook the responsibility of striking down the Student Orders on the basis of statutory violations. Yet the opinion also contained language that might guide the Academic Senate in future grouping of students by "nationality" if such division conformed to constitutional principles.

The Constitutional Court was denounced in the pan-German press as "an enemy of the German people in terms of blood and political policy," (9) and members of the German Student Body protested the decision by engaging in a campaign of brutal assaults against other students. (10) The Rector protected these assailants from arrest by the police. (11) The next few years produced not only a dramatic attempt to achieve segregation of University students through federal legislation, but also a new Constitution that substantially diminished the Court's powers and the rights of Austrian citizens to receive equal treatment. Nonetheless, the judiciary's rejection of Austria's first effort to separate citizens on the basis of religion and ethnicity was effective until the Anschluss of Germany and Austria seven years later.

Part II of the Article will consider the relevance of the Constitutional Court's ruling to Brown and McLaurin v. Oklahoma State Regents, (12) cases and underlying facts with curious parallels to the Austrian situation. The segregationist regimes in both countries invoked similar mystiques and developed similar prohibitions. There were also substantial differences: in Austria, the universities were receding from uneasy integration to (literal) dis-integration. In America, the trajectory was reversed.

Part III, however, suggests that Brown's prohibition against segregation in public universities has left unanswered questions about the conflict between First and Fourteenth Amendment purposes. Associational freedoms may be pitted against anti-discrimination policies and the compelling academic interest in a diverse student body recognized in the Supreme Court's Grutter v. Bollinger opinion. (13) Exploring concepts of association, equality, and diversity in the violent Austrian society of the 1930's can illuminate the present-day constitutional conflicts facing America's universities and courts.

I.

In my discussion of mandatory invidious separation of university students in Austria and in America, I interpret the term "racism" as implicating more than one group's consuming dislike of another. Under Professor George Fredrickson's brief and useful definition, "racism exists when one ethnic group or historical collectivity dominates, excludes, or seeks to eliminate another on the basis of differences that it believes are hereditary and unalterable." (14)

The University of Vienna's regulations--the Nazi Student Orders, as they came to be called--were the culmination of decades of strife that had complex political, religious, and economic elements. The Austrian Habsburg monarchy's multi-national empire had collapsed by the end of 1918, and post-war Austria was merely the bodyless head that remained after the break-up. (15) University students had bleak employment prospects in the diminished territory of the Austrian republic, with its enormous surplus of civil servants and soldiers. The rather high percentage of Jewish students, some from the former Austro-Hungarian eastern provinces, produced competition for jobs that helped to fuel an academic anti-Semitism exceeding that of Germany. (16) Professor Bruce F. Pauley has observed that this anti-Semitism was permitted by sympathetic university administrators and sheltered by a concept of academic autonomy, originating in the Middle Ages, which permitted universities to police (or decline to police) themselves. (17)

As will be shown below, Nazi power both inside and outside the universities increased in the 1930's, though not without conflict. Student groups fought for political dominance; the Justices of the Constitutional Court struggled for unanimity in disposing of the Nazi Student Orders; top federal officials launched a fresh legislative segregation package; and a new Constitution established an authoritarian corporate state that was later absorbed into a Third Reich in which one could be "German" but no longer Austrian and certainly not Jewish.

1. The Political Setting of the Constitutional Court's Decision: Student Polarization and Nazi Violence

   The Socialist administration of "Red Vienna" gave little thought to the economic insecurity of University students, perhaps convinced that most of them were anti-Semites and anti-communists. (18) Flowing into this vacuum, the German Student Body set up a foreign monetary exchange and provided cheaper meals for poor students. (19) Its members extolled manhood and honor in the field of battle, a battle against the myriad enemies they believed were encircling them. Recurring attacks against democrats, Socialists, pacifists, and especially Jews, were carried out by the German Student Body without interference by University officials during the 1920's and early 1930's. (20)

   To cite only a few examples, Nazi students from the Technical College invaded the lecture hall of a famous scholar at the Anatomy Institute in 1923, ordering that all Jews vacate the room. (21) The following day, Nazis stormed into the classroom of a professor at the College of International Trade and demanded, in the name of the German Student Body, the removal of all Jewish students. Those who did not leave within three minutes were beaten with sticks and rubber clubs, and thrown from the top of the ramp in front of the main University building. (22) Police officers posted nearby did not intervene because of "academic freedom"--not the students' freedom to study and do research, but the institution's protection from outside intervention. (23) This violence was so extreme that the Reichspost, the official daily newspaper of the Christian Social Party, called the riot "not only a great wrong, but also a great stupidity" because it would provide a strong argument for enemies of Christian German culture who wished to undermine the University's authority to govern itself. (24)

   During...