Acknowledging Error: How State AGs Can Address Historic Injustice

This is the third piece in a month-long blog series that celebrates Black History Month.

Many lawyers may be unfamiliar with a source of law that nonetheless plays an important role in how their governments function: state Attorney General opinions.  In most states, the Attorney General has a duty to give formal legal opinions, on request, usually addressing unsettled questions of state law.  These opinions generally are not binding on courts, but courts often treat them as persuasive authority, and they provide guidance to state government officials in areas where courts have not yet spoken.  However, like other forms of law, Attorney General opinions can cause harm or reinforce inequity.

The Maryland Office of the Attorney General, at the direction of former Attorney General Brian Frosh, recently took an important step to address that inequity by formally overruling racially discriminatory and now-rejected legal principles found in certain past Attorney General opinions.[i]

The Maryland Constitution requires the Attorney General to “[g]ive his opinion in writing . . . on any legal matter or subject” upon request.[ii]  Since 1916, our Office has collected and published these opinions in annual bound volumes, creating a permanent record of the views of Attorneys General spanning more than a century.  State and local officials across Maryland sought these opinions, and relied on them in determining what the law required of them.[iii]  Unfortunately, some of these opinions relied on, promoted—or at the very least unquestioningly accepted—racially discriminatory legal principles that we now recognize as unconstitutional.[iv]  In particular, a number of opinions accepted the idea of segregation in public facilities and public education under the doctrine of “separate but equal,” repudiated in Brown v. Board of Education (1954).[v]  Another line of opinions adhered to the notion that the State could bar individuals from marrying on the basis of their race, a doctrine  rejected in Loving v. Virginia (1967).[vi]

Of course, nobody reading those opinions today could believe that the discriminatory legal principles they cite, or implicitly accept, are consistent with the Constitution.  But those statements remain in our volumes of opinions, volumes that we still cite for other principles of law, and lawyers and members of the public can still find them in law libraries throughout the State and on our Office’s website.

That’s why Attorney General Frosh (inspired by a similar project of former Virginia Attorney General Mark Herring[vii]) recognized the importance of identifying and formally repudiating these outdated opinions to the extent they relied on racially discriminatory legal principles.  Our Office, with the invaluable assistance of two summer law clerks, conducted a thorough review of each volume of our past opinions dating back to 1916: a time when Maryland’s primary and secondary schools were fully segregated; when none of the State’s public institutions of higher education admitted Black students; when Baltimore City was still defending in court an ordinance that segregated the City’s neighborhoods by race; and when attempts to add a disenfranchising “grandfather clause” to the State constitution were still in recent memory.[viii]

Our research identified 22 opinions, with dates as recent as 1967, that cited, relied on, or accepted without question one of the two racially discriminatory legal principles mentioned above.  Based on that research, we were able to release a new opinion, this past November, that formally overruled the unconstitutional legal principles contained within those 22 opinions.  As Attorney General Frosh put it in the official opinion:

Although, as a practical matter, those aspects of the opinions were long ago rendered unenforceable by changes in the law, we recognize that the opinions continue to serve as a reminder of the history of racial injustice perpetuated through the legal institutions of our State government. We thus formally overrule the portions of those opinions that upheld or relied on the erroneous view that the State could prohibit interracial marriages and impose the segregation of public facilities under the doctrine of “separate but equal.” Renouncing these unfortunate opinions cannot change the past, but we hope that it will serve to reinforce our Office’s current commitment to equality under the law.[ix]

Maryland’s current Attorney General, Anthony Brown, who is also our State’s first Black Attorney General, has said that “[t]he pursuit of equity and justice is where we in the Office of Attorney General stand every day.”[x]  The first step toward promoting equity in the law is to recognize and confront the ways in which our legal institutions have bolstered, and continue to bolster, inequity.  Thus, even though nobody would think the discriminatory principles in those old opinions were still good law, explicitly rejecting them still served an important purpose.

For us to rest on the idea that others have pointed out our errors, as the U.S. Supreme Court implicitly did in Brown and Loving, would not be good enough.  We owed it to history and to the State we represent to acknowledge those errors ourselves.

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[i] 107 Md. Op. Att’y Gen. 140 (2022).

[ii] Md. Const., Art. V, § 3(a)(4).

[iii] See, e.g., 46 Md. Op. Att’y Gen. 44, 44-48 (1961) (advising the Clerk of the Circuit Court for Harford County that he should continue to enforce the State’s ban on marriage between a white person and a Black person), overruled by 107 Md. Op. Att’y Gen. 140.

[iv] See, e.g., id.; see also, e.g., 41 Opinions of the Attorney General 120, 127-29 (1956) (advising, even after Brown v. Board of Education, that “training schools,” a type of juvenile correctional institution, should remain segregated), overruled by 107 Md. Op. Att’y Gen. 140.

[v] 347 U.S. 483.

[vi] 388 U.S. 1.

[vii] Va. Op. Att’y Gen. No. 21-103, 2022 WL 173637 (2022).

[viii] See 107 Md. Op. Att’y Gen. at 141 & n.2, 147; see also Garrett Power, Apartheid Baltimore Style: The Residential Segregation Ordinances of 1910-1913, 42 Md. L. Rev. 289, 313 (1983).

[ix] 107 Md. Op. Att’y Gen. at 152.

[x] Anthony G. Brown, Prepared Swearing-In Remarks (Jan. 3, 2023), https://www.agtransition23.com/transition-updates/prepared-swearing-in-remarks.

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Equality and Liberty, State Attorneys General, Truth, Racial Healing, & Transformation