6.7: Civil Rights Case Study--Race

“We claim exactly the same rights, privileges and immunities as are enjoyed by white men—we ask nothing more, and will be content with nothing less.”

—Declaration of the Colored Mass Convention in Mobile, Alabama in April 1867 ⁽¹⁾

“In affirming that Black Lives Matter, we need not qualify our position. To love and desire freedom and justice for ourselves is a prerequisite for wanting the same for others.”

—Belief Statement of Black Lives Matter, retrieved in 2020. ⁽²⁾

African Americans is one group that has experienced discrimination at the hands of the government, corporations, or their neighbors. The legal changes that resulted largely from the black Civil Rights Movement have revolutionized life in the United States for all people.

Race and Civil Rights Before and After the Civil War

Prior to the U.S. Civil War, most African Americans were slaves, and the legal position of free blacks was tenuous. The Supreme Court’s decision in Dred Scott v. Sanford (1857) is particularly instructive in this regard. Dred Scott, a slave from Missouri, sued his owner for freedom based on the fact that his owner had taken him to Illinois, a free state, and to the Wisconsin Territory, a free territory. Chief Justice Roger Taney ruled that Scott did not have standing to sue and even summed up free blacks’ precarious position when he answered his own summation question: “Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?” The Court answered a resounding “No,” which was its way of saying that blacks—slave or free—could not ever expect to become full and equal members of the American political community.

In the wake of the North’s victory in the Civil War, Congress passed three amendments to the Constitution commonly referred to as the Civil War Amendments.

• Thirteenth Amendment abolished slavery
• Fourteenth Amendment’s civil rights clause mandated that all people receive “equal protection of the laws.”
• Fifteenth Amendment provided that citizens shall not be denied voting rights based on “race, color, or previous condition of servitude.” (NOTE: Women were not still now allowed to vote.)

In order to give the civil rights clause practical effect, Congress passed several Civil Rights Acts during Reconstruction (1865-1877). The Civil Rights Act of 1875 stipulated that people must be allowed full and equal access to public accommodations—public facilities as well as private businesses that serve the general public, like theaters, inns, restaurants, etc.—regardless of their race or color. When President Rutherford B. Hayes removed federal troops from the South in 1877, whites moved quickly to reinstate a racial hierarchy resembling the one that had developed under slavery.

The majority of Southern whites had no intention of allowing free blacks to vote, to be treated equally by the law, or develop economic independence. Immediately after the Civil War, a series of laws passed that would become known as Black Codes. Blacks were forbidden from self-employment, and thereby denied trades like blacksmithing, which they may have learned while they were slaves. More importantly, Black Codes required blacks to sign “annual labor contracts with plantation, mill, or mine owners. If African Americans refused or could show no proof of gainful employment, they would be charged with vagrancy and put on the auction block, with their labor sold to the highest bidder. . . [If] they left the plantation, lumber camp, or mine, they would be jailed and auctioned off.” ⁽³⁾ And, of course, whites discriminated rampantly by not allowing blacks to access basic commercial businesses.

African Americans continued to be refused service on account of their race at inns, hotels, railroads, and theaters around the country. In Tennessee, Sallie J. Robinson purchased a ticket to ride on the Memphis & Charleston Railroad, but was removed by the conductor because she was black. In Missouri, W. H. R. Agee was denied accommodation at the Nichols House Inn because he was black. Similarly, Bird Gee was not allowed to eat at an inn in Topeka, Kansas because he was black. In San Francisco, George M. Tyler was not allowed to attend a production at Maguire’s Theatre because he was black. ⁽⁴⁾ These four cases reached the Supreme Court, were decided together as the Civil Rights Cases (1883), and tested the meaning of civil rights and the Fourteenth Amendment’s mandate that no state may deny any person equal protection of the laws. Eight of the nine Supreme Court justices ruled in favor of private business owners and overturned the 1875 Civil Rights Act as unconstitutional. The Court ruled that while states must not discriminate, the owners of private businesses were free to discriminate against potential customers on the basis of race. The decision sent a huge message to businessmen that the United States Constitution would not stand in the way if they wanted to refuse service to blacks. Many did just that—and this behavior was not limited to the South, nor was it only targeted at African Americans.

The Supreme Court sent an even more disastrous signal in the case Plessy v. Ferguson (1896). In 1890, the Louisiana legislature passed the Separate Car Act requiring that all trains operating in the state be segregated by race and forbidding people from “going into a coach or compartment to which by race he does not belong.” Most train companies resented the costs of putting extra cars on their trains to meet the Separate Car Act requirements. Train companies and a New Orleans civil rights group known as the Committee of Citizens worked with New York lawyer Albion Tourgee to bring suit against the law. On June 7, 1892, Homer Plessy purchased a first-class ticket on the East Louisiana Railroad’s train running from New Orleans to Covington, Louisiana, and took a seat in a car reserved for whites only. A married shoemaker whose heritage was African and French was asked by the train conductor to identify his race before he was arrested for being in the “wrong” car. According to the Committee of Citizens, surely this arrest was a violation of the civil rights clause of the Fourteenth Amendment: Here is a state law that mandates segregating train passengers according to race. But the Supreme Court held that no civil rights clause violation had taken place because the passengers were all treated equally, albeit in a segregated fashion. This reasoning became known as the separate but equal doctrine.

Categories of Racial Discrimination in the Twentieth Century

Discrimination against African Americans took many forms. Here are five main categories.

Segregated Public Accommodations—Using as precedents the Civil Rights Cases (1883) and Plessy v. Ferguson (1896), states and businessmen freely segregated and excluded African Americans as well as other racial and ethnic group members. This practice was not restricted to the South. Public accommodations such as trains, buses, drinking fountains, hospitals, cemeteries, parks, beaches, and swimming pools were segregated. Private business owners from gas stations, hotels, inns, theaters, restaurants, lunch counters, and the like were free to refuse service to African Americans and others.

Sign Put up in 1942 Outside a New Housing Development in Detroit

Segregated Housing—Many cities used overt city ordinances that divided the town into racial zones and mandated that residential property in “white” areas be purchased by whites, while property in “black” areas be purchased by nonwhites. The Supreme Court ruled these kinds of city ordinances unconstitutional in 1914, but the practice continued as a matter of custom. Another form of housing discrimination was restrictiveracial or religious covenants, which were agreements entered into between buyer and seller that restricted the future sale of the property to only certain kinds of people. The Court ruled against these kinds of covenants in 1948, but it was very difficult to enforce the Court’s ruling until the Fair Housing Act passed in 1968. The third form of housing discrimination took the form of redlining, which was a practice once encouraged by the federal Home Owner’s Loan Corporation in which minority neighborhoods found it very difficult to get loans. This institutionalized discrimination in government-backed mortgages made it difficult for black families in particular to build home equity, which is the primary way that most families build wealth. ⁽⁷⁾

Segregated Education—The separate but equal doctrine was applied to education with a vengeance. Even school districts outside of the South were segregated, including the schools in the nation’s capital. In 1946, the 9th Federal Circuit Court struck down separate “Mexican schools” in Orange County, with the Court saying that “A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage.” ⁽⁹⁾ However, the most economic was Brown v. Board of Education of Topeka, Kansas (1954), in which the Supreme Court ruled 9-0 that segregated schools were inherently unequal, reversing the Plessy doctrine as it applied to education. Thus, de jure, by law, segregation is unconstitutional, but de facto, in fact, segregation is alive and well in America’s schools. ⁽¹⁰⁾

Poll Tax Receipt for Odell McElrath in 1924

Voter Discrimination—The Fifteenth Amendment guaranteed the right to vote regardless of race. After Reconstruction ended in 1877, state legislatures undertook several measures to keep blacks from voting. One measure was extralegal and consisted of outright intimidation. Groups like the Ku Klux Klan lynched blacks, shot those who were politically active, bombed their houses, got them fired from their jobs, burned crosses to frighten communities, and spied on civil rights organizations. In many southern states, literacy tests were used to keep African Americans from registering to vote. Potential voters were required to take an often-subjective “test” of their literacy, their knowledge of the federal or state constitution, or their knowledge of completely arcane bits of information. Literacy tests were combined in some cases with good character clauses, in which people needed to be certified as being of good character in order to register. Grandfather clauses automatically registered anyone, whites, whose male ancestors were eligible to vote at some date before the Fifteenth Amendment passed. Southern states instituted white primaries, in which nonwhites were barred from voting. Poll taxes were also used to discourage blacks from voting. Finally, whites used racial gerrymandering to design election districts that bisected African Americans populations, thereby diluting their numbers should they actually register to vote.

Affirmative Action for Whites—Ira Katznelson, Columbia University political science and history professor, has documented how twentieth-century government policies designed to help all Americans ended up being tailored in ways that disproportionately helped white Americans. Many of the New Deal programs (1930s) were specifically designed to disadvantage most African Americans. Social Security is a classic example. According to Katznelson, fully 65 percent of blacks were excluded from the program because of concessions to politicians. The same thing can be said of the National Recovery Administration, the National Labor Relations Board, and the Fair Labor Standards Act.

Important Civil Rights Legislation

Beginning in 1957, the federal government passed several civil rights laws: Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Civil Rights Act of 1968.

President Lyndon Johnson Signing the Civil Rights Act of 1964

Civil Rights Act of 1964—Demanded by civil rights leaders for decades, proposed by President John F. Kennedy, and pushed through by President Lyndon Johnson after Kennedy’s assassination, the Civil Rights Act of 1964 was a monumental political achievement. It was truly bipartisan legislation, with a majority of congressional Republicans and Democrats supporting it. The Civil Rights Act of 1964 did the following:

• Outlawed discrimination in voter registration, but this section had poor enforcement language.
• Established that “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.”
• Authorized the U.S. Attorney General to sue in cases where people were denied the equal protection of the laws, unequal access to public accommodations, or equal access to public schools and colleges.
• Banned discrimination in programs that receive federal assistance.
• Banned employment discrimination directed at “any individual because of his race, color, religion, sex or national origin.” This includes hiring, firing, conditions of employment, and compensation.
• Created the Equal Employment Opportunity Commission (EEOC), which is empowered to make prosecution recommendations to the U. S. Attorney General regarding employment discrimination. ⁽¹²⁾

Voting Rights Act of 1965—During the 1965 State of the Union address, President Johnson vowed to “eliminate every remaining obstacle to the right and the opportunity to vote.” The Voting Rights Act was designed to shore up a weakness of the Civil Rights Act—namely, that it was insufficiently aggressive in defending the right of all people to vote regardless of race. Passed later in 1965, the Voting Rights Act did the following:

• Established that “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
• Established that whenever the U. S. Attorney General was engaged in a proceeding against a state or district that was violating the right to vote, federal authorities were empowered to come in and take over the voting registration and election management from local authorities until the problems were rectified.
• Established that “no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State” that has used such tests or devices to disenfranchise people on the basis of race or color.
• Established a pre-clearance provision whereby states or political subdivisions of states who have engaged in racially motivated voter discrimination need to submit “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964” to the Justice Department for approval.

In Shelby County v. Holder (2012), the Supreme Court struck down the Voting Rights Act’s important “pre-clearance” provision, allowing primarily Southern states to change their voting laws without having them approved ahead of time by the Justice Department. This ruling allowed many Republican-led state legislatures to pass onerous voter I.D. laws that fell heaviest on the poor, the elderly, and people of color. Writing in dissent, Justice Ginsberg argued that “Throwing out preclearance because it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” ⁽¹³⁾

Civil Rights Act of 1968—The Civil Rights Act of 1968 was primarily designed to address two issues that previous legislation had not—namely, applying the Bill of Rights protections on Native American reservations and equal access to housing. Thus, in popular parlance, the Civil Rights Act of 1968 encompasses the following two main pieces:

• Indian Civil Rights Act—This part applied most of the Bill of Rights and Constitutional protections to Native Americans living under the various tribes’ jurisdiction. It stipulated that no Indian tribe shall prohibit free exercise of religion, free speech, free press, or the right of people to assemble peaceably and petition for redress of grievances. Further, no Indian tribe violate the Fourth Amendment’s protections against unreasonable and warrantless searches and seizures. Indian tribes were forbidden from conducting unreasonable and warrantless searches and seizures, taking of private property without just compensation, violating fair trial procedures, and inflicting cruel and unusual punishments.
• Fair Housing Act—This part outlawed housing discrimination. The Act made it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” Further, it made it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” Another interesting part of the law is that it made it unlawful “to represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.”

These three laws set the framework for

• de jure discrimination—that is, discrimination written into laws and official policies at the federal, state, local, and company levels.
• de facto discrimination, which is discrimination in everyday life that is unsupported by law or policy.

According to civil rights leaders, the nation is still dealing with the lasting impact of past de jure discrimination, discriminatory policing, social prejudice affecting how people interact in all sorts of settings, and unequal access to economic and educational opportunities. Some of these challenges can be addressed by public policy, while others are difficult to address via government action.

References

1. Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution. New York: W. W. Norton & Company, 2019. Page 94.

2. No author, “What We Believe,” Black Lives Matter. No date.

3. Carol Anderson, White Rage. The Unspoken Truth of our Racial Divide. New York: Bloomsbury. 2017. Page 19.

4. Peter Irons, A People’s History of the Supreme Court. New York: Penguin Books. 1999. Page 212.

5. This account is drawn from Steve Luxenberg, Separate. The Story of Plessy v. Ferguson, and America’s Journey from Slavery to Segregation. New York: W. W. Norton. 2019.

6. Jacinda Townsend, “How the Green Book Helped African American Tourists Navigate a Segregated Nation,” The Smithsonian Magazine. April, 2016. Available here.

7. Tracy Jan, “Redlining Was Banned 50 Years Ago. It’s Still Hurting Minorities Today,” The Washington Post. March 28, 2018.

8. Tim Wise, “White America’s Greatest Delusion: ‘They Do Not Know It and They Do Not Want to Know It.'” Alternet. May 6, 2015.

9. Mendez v. Westminster (1947).

10. Emily Richmond, “Schools Are More Segregated Today Than During the Late 1960s,” The Atlantic. June 11, 2012.

11. Ira Katznelson, When Affirmative Action was White. New York: W. W. Norton. 2015. Page 60. This whole section draws from this source.

12. The Civil Rights Act of 1964 at Our Documents.

13. Michael Waldman, The Fight to Vote. New York: Simon & Schuster, 2016. Page 233.

Media Attributions

• Whites Only Housing © Arthur S. Siegel is licensed under a Public Domain license
• Poll Tax Receipt © Levine Museum of the New South is licensed under a Public Domain license
• Civil Rights Act 1964 © Cecil Stoughton, White House Press Office is licensed under a Public Domain license