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Frosh rescinds pre-Civil Rights Era advisory opinions that ‘stained’ his office

Maryland Attorney General Brian Frosh. (File)

For about 50 years last century, Maryland attorneys general issued advisory opinions accepting of the state’s laws banning interracial marriage and supporting racially segregated public schools without questioning the acts’ constitutionality until the U.S. Supreme Court struck such statutes down.

On Monday, retiring Maryland Attorney General Brian E. Frosh took a step toward changing that.

In a superseding opinion, Frosh stated that his predecessors’ views were wrong then and are certainly wrong now in light of the Supreme Court’s 1954 Brown v. Board of Education and 1967 Loving v. Virginia decisions that desegregated public schools and overturned anti-miscegenation laws, respectively.

“As much as we might prefer otherwise, our research showed that the Office of the Maryland Attorney General was sometimes complicit in the state’s history of racial discrimination,” Frosh wrote in the opinion sent to Maryland Senate President Bill Ferguson, D-Baltimore city, and House Speaker Adrienne A. Jones, D-Baltimore County.

“Both before and during the Civil Rights Movement, prior attorneys general were asked questions about the interpretation and the enforceability of racially discriminatory laws,” Frosh added. “(I)n some cases, the opinions explicitly advised that racially discriminatory laws should continue to be enforced and, in other cases, interpreted or applied racially discriminatory laws or legal principles without acknowledging or grappling with the constitutional problems they raised.”

In his opinion, Frosh recounted Maryland enactments dating from 1664 through 1935 that banned marriage between whites and Blacks until the Loving decision.

He also noted that Maryland schools were segregated from their establishment under the state’s 1864 constitution until the Brown decision. An 1865 implementation law, for example, said White students would attend free public schools while Black pupils would attend schools funded by donations, Frosh wrote.

Attorneys general, beginning with the office’s first formal opinions in 1916, defended these laws as statutorily sound without questioning whether they complied with constitutional guarantees of equal protection and substantive due process, Frosh added.

“Even though some of these prior opinions were framed as resolving questions of statutory interpretation and so did not expressly consider the constitutionality of the underlying laws, they nonetheless applied and interpreted the laws as if they were constitutional,” Frosh wrote. “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.’”

In the overruled portions, attorneys general advised county clerks to deny marriage licenses to interracial couples based on the law, Frosh wrote. With regard to segregated schools, attorneys general questioned neither the legality nor constitutionality of the race-based separation and resulting disparity in the quality of the education White and Black students received, he added.

These advisory opinions “were long ago rendered unenforceable by changes in the law” but “continue to serve as a reminder of the history of racial injustice perpetuated through the legal institutions of our state government,” Frosh wrote. “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 law.”

Frosh said in a statement Monday that he hopes his opinion “will help remove the stain of those earlier, harmful and erroneous works. We will continue to fight to stamp out racism and hate in all of our work for Maryland.”

Frosh will retire as Maryland’s elected attorney general in January, having served since 2015. He will be succeeded by Anthony G. Brown, a fellow Democrat who will become the state’s first Black attorney general.


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