"Press prudence," Nazi student orders, and Jim Crow.

• Author: Pollak, Louis H.

INTRODUCTION

In this year in which we in the United States take note of the fiftieth anniversary of Brown v. Board of Education, (1) and ponder its enduring significance, Maria Marcus requires us to look abroad, and has made a significant scholarly contribution to the commemorative conversation. (2) She directs our attention to the decision of the Austrian Constitutional Court, in 1931, twenty-three years before Brown, declaring invalid the rules promulgated by the University of Vienna's Rector and Academic Senate--rules harmonious with the rising tide of Austrian Nazism--which undertook to separate the student body into four ethnically-defined "nations." (3) The principal purpose of the enterprise was to protect Austrian "German" students from the risk of contact with other Austrian students who, notwithstanding that they might have had generations of German-speaking ancestors, were, nonetheless, said to bear the ineradicable taint of a forebear or two as to whom there was no clear demonstration of baptism, with the result that the luckless student descendants were to be classified, willy-nilly, not as "germans" but as "Jews." (4)

As Professor Marcus demonstrates, the University of Vienna case is strikingly similar not only to Brown, but to Brown's precursor higher education cases, most particularly McLaurin v. Oklahoma State Regents" for Higher Education. (5) In McLaurin, the Supreme Court unanimously struck down, on equal protection grounds, the University of Oklahoma's bizarre requirement that a black doctoral candidate sit in a "reserved for Colored" row in the lecture hall, study at a separate table in the library, and eat at a separate table in the cafeteria. (6)

As Professor Marcus also observes, however, the University of Vienna case is, in one crucially important respect, unlike Brown and the related American cases striking down racial segregation in public schools and public universities. (7) The American cases invalidated legally mandated regimes of racial segregation that had been in force for half a century under the protective mantle of Plessy v. Ferguson, (8) the opprobrious 1896 "separate but equal" decision (Justice Brown for the Court; Justice Harlan, dissenting; Justice Brewer not participating) that Brown jettisoned. (9) In contrast, the University of Vienna case frustrated the proposed regime of racial separation at its inception. (10) The government's attempt in 1932 to secure legislation overturning the Constitutional Court's decision of a year before was unsuccessful. (11) And so, notwithstanding the growing strength of Austrian Nazism throughout the thirties, oppression of Jews by law (as distinct from steadily escalating personal and institutional anti-Semitism, including violence) was not accomplished until the Anschluss in 1938. (12) Viewed in this light, it may be said that in 1931 the Austrian Justices did the job for law in Austria that in 1896 the seven-Justice Plessy majority so dismally failed to do for law in the United States.

I.

From an American perspective, an intriguing aspect of the Vienna University case is that, in striking contrast to Brown (and, indeed, to Plessy), the litigant challenging the separate-but-assertedly-equal Nazi Student Orders was not within the class of persons whose conduct was to be governed by the Orders. (13) Ernst Klebinder was not a student, Jewish or otherwise. He was the editor of the Wiener Sonn-und-Montags Zeitung, and he wrote and, on May 19, 1930, published in his newspaper the article--Seine Magnifizenz der Rektor: Der Weiner Universitaets Skandal--which precipitated the litigation. (14) The litigation was a prosecution in a District Criminal Court. The presiding judge was a Justice for Press Affairs. Journalist Klebinder was accused of a failure to exercise "press prudence" (15) in publishing an article stating that the enactment by the Rector and Academic Senate of the Nazi Student Orders was unlawful--a "scandal." (16) As Professor Marcus points out, Klebinder's charge that the Orders had no proper legal basis drew upon a legal opinion to that effect--"Die Studenten Ordnung der Universitat Wien" (17)--authored by Dr. Joseph Hupka, (18) a former Dean of Vienna Law School. (19) It is noteworthy that, notwithstanding that Dean Hupka's memorandum appeared in the public press--the Neue Freie Presse--on April 23, 1930, some three weeks earlier than Klebinder's article, Professor Marcus's narrative does not suggest that either Hupka or the editor of the Neue Freie Presse was prosecuted for failing to observe "press prudence." (20)

Was Klebinder an object of selective prosecution? Did the Viennese political/academic establishment regard Klebinder (perhaps because he used non-lawyerly words like "scandal," or perhaps because his newspaper commanded a large and/or influential audience) with particular distaste? We do not know.

If the prosecution of Klebinder had been characterized by the Justice for Press Affairs, or by the Constitutional Court, as a case addressing the...