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Monday, June 30, 2014

'LBJ's second great battle: Enforcing the Civil Rights Act'

Wednesday, July 2, marks the 50th Anniversary of the signing of the Civil Rights Act of 1964 by President Lyndon B. Johnson. The title of this post comes from playwright Robert Schenkkan's op-ed 090119_lbj_middletonin yesterday's LATimes examining the president's subsequent efforts to enforce the hard-won law. He writes:

Jim Crow began to die, in part because LBJ well understood that passing laws was one thing and enforcing them quite another. Just as he had been determined to muscle the bill through Congress, Johnson was determined to see the law carried out by every executive power at his command.

 

Title II (public accommodations) of the act overturned state and local segregation laws, and the Supreme Court helped by upholding its application to the private sector through the commerce clause.

 

There had been chilling resistance in some quarters. In Jonesboro, La., that summer, the public library and swimming pool remained off-limits to blacks, and when local youths protested, 40 of them, and some of their parents, were arrested. To drive the point home, the Ku Klux Klan paraded through the black neighborhood in full regalia, carrying guns, led by a sheriff's patrol car.

 

Both sides began to arm themselves, and a very real race war was only averted by a federal injunction and the personal intervention of administration officials, including Humphrey, who by then was vice president.

 

Title VII (workplace discrimination) created the Equal Employment Opportunity Commission. Women had been given special protection under the new law, not out of any moral imperative but as a poison-pill amendment introduced by Virginia Rep. Howard W. "Judge" Smith, who hoped that Northern senators sensitive to union concerns would not support a bill that granted women equal rights. He was wrong. And to everyone's surprise, Title VII would profoundly alter the legal and cultural landscape for women as well as blacks.

 

Title VI (discrimination in government-funded activities) was even more immediately successful. Swift directives from the White House to the Department of Health, Education and Welfare to cease giving federal dollars to segregated hospitals transformed facilities overnight. Where moral suasion had failed, the threat of defunding worked wonders.

 

President Johnson was determined to see the [Civil Rights Act] carried out by every executive power at his command. 

 

Similarly, a quick ruling by U.S. Commissioner of Education Francis Keppel announced the withholding of federal funds ($4 billion) from school districts in 17 long-segregated states. In one year, there were more public school desegregation commitments than had been achieved over the previous decade. To ensure this was more than lip-service, the Office of Education developed objective, quantifiable measures to evaluate progress.

 

In 1965, the Voting Rights Act was the final nail in the coffin of Jim Crow. Six days later, Watts erupted in violence, the first in a series of urban riots as the long-simmering frustration of blacks trapped in city slums sought release. At the same time, the white backlash and subsequent political realignment that LBJ had predicted was already underway.

 

The South, once solidly Democratic, would become a Republican stronghold. And the civil rights movement would meet its Waterloo not in Southern cities but in Boston and Chicago, where Northerners would discover that the limits of their racial tolerance ended in their own neighborhoods. Politicians who could no longer get away with using the vilest excesses of racial language communicated in coded but comfortable phrases like "law and order" and the "intrusive federal government."

 

Today, even after the election of a black president, men and women of color still suffer disproportionally against almost every measure of American life. So how should we feel about the 1964 Civil Rights Act? We should feel proud of an achievement that brought us closer to the founding ideals of this country. We should feel humbled by the sacrifice of millions of people over decades of hard and painful work to bring that change about. And we should feel challenged because the work is not yet complete.

June 30, 2014 in Civil Rights Act, Civil Rights History | Permalink | Comments (2)

Friday, February 28, 2014

The Origins of Arguments Over Reverse Discrimination: Lessons from the Civil Rights Act of 1866

The title of this post comes from this recent paper by Professor George Rutherglen linking the debates over the Civil Rights Act of 1866 to modern ones over affirmative action policies. Here's the abstract:

Disputes, disagreement, ambiguity, and ambivalence have marked the law of affirmative action since it came to prominence in the Civil Rights Era, nearly 50 years ago. These current controversies might be attributed to modern attitudes, and in particular, the need to delay enforcement of a strict colorblind conception of prohibitions against discrimination until the continuing effects of racial and ethnic discrimination have been eliminated. But a look at the origins of the civil rights law in Reconstruction belies this modernist perspective, which foreshortens debates to the aftermath of Brown v. Board of Education rather than rediscovering their origins in Reconstruction. This article attempts to rediscover those origins by re-examining the legislative history and immediate reception of the Civil Rights Act of 1866 as it bears upon race-conscious remedies for racial discrimination. The argument proceeds in three parts. The first concerns the 1866 Act itself and the congressional debates over it, which featured charges of special treatment despite the neutral terms of the act. The second compares the act to the legislation authorizing the Freedmen’s Bureau, where arguments of special treatment carried more force, so much so that the authorization for the bureau had to remain temporary and it lapsed well before Reconstruction ended. The third part briefly considers the implications of this comparison for modern civil rights law, and in particular, for constitutional arguments over affirmative action. No one-to-one correspondence exists between the legislative debates in 1866 and constitutional arguments today, but the debates then have left their traces now in concerns over special remedies for discrimination, and in particular, over how long they last.

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February 28, 2014 in Affirmative Action, Civil Rights Act, Civil Rights History | Permalink | Comments (0)

Friday, November 29, 2013

Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe

The title of this post comes from this paper examining the Supreme Court's early interpretations of Section 1983 and how changed social circumstances influenced the outcomes of these cases. Here's the abstract:

Section 1983, enacted in 1871, famously provides a damages remedy against state and local government officials and local governments for violations of constitutional rights. But it was only in 1951, in the seminal decision of Tenney v. Brandhove, a legislative immunity case involving an admitted Communist, that the Supreme Court for the first time expressly interpreted the language of section 1983. Ten years later, in 1961, the Court handed down another seminalsection 1983 decision: Monroe v. Pape involved a section 1983 claim brought by an African-American alleging police misconduct. Both cases pitted two influential Supreme Court justices and FDR appointees, Felix Frankfurter and William Douglas, against one another in majority and dissenting opinions. Justice Frankfurter was an unremitting advocate of federalism, deference to politically accountable bodies, and judicial restraint. In contrast, Justice Douglas was an ardent proponent of individual rights who had relatively little concern for federalism.


I tell of the birth of section 1983 jurisprudence through the stories of these two cases. Their stories are contained in the papers of Justices Frankfurter and Douglas and in their majority and dissenting opinions. They are also contained in the parties’ petitions for certiorari and briefs and in Monroe’s oral argument. Finally, these stories can only be understood against the background of the political and social settings in which Tenney and Monroe arose. The Cold War and anti-Communist sentiment situate Tenney while the Civil Rights movement and the post-Brown era situate Monroe.


These stories are of interest both to section 1983 scholars and to historians of civil rights and constitutional law. First, Justice Frankfurter played an outsized role in both decisions. Second, these decisions demonstrate that the early and deep tension between individual rights and federalism — a tension that began with the Fourteenth Amendment and continues to this day — was present at the very beginning of the development of the Supreme Court’s section 1983j urisprudence. The certiorari petitions and briefs in these cases and the oral argument in Monroe also articulate this tension. Finally, the different political and social contexts in which Tenney and Monroe were decided illuminate the decisions themselves.

 

November 29, 2013 in 42 U.S.C. § 1983, Civil Rights History | Permalink | Comments (0)

Thursday, November 28, 2013

Bad Behavior Makes Big Law: Southern Malfeasance and the Expansion of Federal Judicial Power, 1954-1968

The title of this post comes from this paper arguing that the Warren Court's confrontations with Jim Crow and Southern legal authorities more expansively transformed American jurisprudence than contemporary narratives suggest. Here's the abstract:

The story of the Warren Court’s impact on the U.S. South is of course far larger and more wide-ranging than just the direct legacy of Brown v. Board of Education. Indeed, this is a question of not just “Beyond Brown,” or, better yet, “Beyond Brown and Baker,” but of appreciating how the obstructive behavior of the South, in the face of Warren Court rulings, affected the wider judicial decision-making of the Court just as much as the Court’s holdings altered so many aspects of southern life, both public and private.


Brown is a major part of that story, as is Baker and its decisive, Deep South progeny, Reynolds v. Sims. Yet there are at least four other important and often-overlooked chapters in this story as well: first, the Court’s own frightful and halting behavior in other, little-known and sometimes tragic race cases in the immediate wake of Brown; second, the ways in which the Court’s belief in racial equality significantly spurred its efforts to reform criminal justice procedures nationwide; third, the tremendously under-appreciated manner in which the activism of the southern Black freedom struggle stimulated the Court to vastly expand federal judicial jurisdiction in ways that helped protect the constitutional rights of any citizen prosecuted in a southern state court; and fourth, the degrees to which even ostensibly unrelated areas of substantive federal law, ranging from First Amendment rights of association, to the law of libel, to the procedural protections afforded public aid recipients, all were likewise transformed on account of the collision between the Warren Court and white public authorities in the South. All told, that larger story is one whose scope far exceeds the standard narrative about Brown and race, or even the more expansive one about Brown and Baker’s explicitly shared grounding in the fundamental guarantees of the Equal Protection Clause.

 

November 28, 2013 in Civil Rights History | Permalink | Comments (0)

Friday, November 22, 2013

AALS Scholarly Paper Award winner examines how sit-ins challenged role of courts

The Association of American Law Schools recently announced that Christopher W. Schmidt has won its Scholarly Paper Award for his article examining how the views of parties to the conflicts of the

Civil Rights Movement differed as to the judiciary's role in reforming (or not) the law. Titled Divided by Law: The Sit-Ins and the Role of the Courts in the Civil Rights Movement, Schmidt's paper evaluates how the interaction of various perspectives affected movement organization and related outcomes.

Here's the abstract:

The lunch counter sit-in movement of 1960 was a contest not only over nondiscriminatory access to public accommodations, but also over the role of the courts in the developing civil rights movement. The students who launched the sit-ins explicitly defined their protest as an alternative to litigation-based reform tactics. Leading civil rights lawyers, in contrast, urged the students to rely on the judicial process. White business owners and local officials also divided over whether criminal prosecution of the protesters would best serve their interests. These divergent attitudes toward the courts derived from differences of strategy and ideology. They were also affected by developments in Fourteenth Amendment doctrine: by 1960, whether the non-discrimination principle of Brown v. Board of Education reached (or would soon reach) privately owned public accommodations was an open question. Conflict over the appropriate role of the courts ultimately worked to the students’ advantage. It contributed to their collective identity as a protest movement, helped secure outside support, and divided their opponents. Attention to the expectations diverse people placed upon the courts offers a vehicle for charting the ways law and perceptions of law shaped the sit-in movement at various levels—in the streets as well as the courts, among laypeople as well as lawyers and judges. This approach suggests new insights into the intersection of formal legal change and social movement mobilization.

Congratulations Professor Schmidt!

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November 22, 2013 in Civil Rights History | Permalink | Comments (0)

Tuesday, November 12, 2013

CRL&P Daily Reads: Nov. 12, 2013

Monday, November 4, 2013

US Supreme Court rejects Killen's appeal for new trial in 1964 'Mississippi Burning' slayings

The Supreme Court has rejected the appeal of a man found guilty of killing three civil rights workers in 1963, a crime for which he was not convicted until 2005. The title of this post comes from this article from the Associated Press, which states:

The U.S. Supreme Court has rejected the appeal of Edgar Ray Killen, convicted in 2005 for the 1964 slayings of three civil rights workers in Mississippi.

The court ruled Monday that it won't review lower-court rulings that found no violations of Killen's constitutional rights during his trial in Mississippi.

Killen, now 88, was convicted of manslaughter 41 years to the day after the slayings of Michael Schwerner, James Chaney and Andrew Goodman. He is serving 60 years.

On June 21, 1964, Schwerner, Chaney and Goodman disappeared in Neshoba County. The FBI found their bodies buried in an earthen dam Aug. 4, 1964, in what became known as the "Mississippi Burning" case.

 

November 4, 2013 in Civil Rights History, Prisons and Prisoners, Right to Vote, Theories of Punishment | Permalink | Comments (0)

Sunday, October 27, 2013

Restroom battles emerge in transgender rights cases

The title of this post come from this article about the recent victory of two transgender individuals before the Iowa Civil Rights Commission. Although born as men, these two women will now be able to use women's restrooms in public places. The article states in part:

These cases, along with milestones such as the University of Northern Iowa's crowning of transgender student Steven Sanchez as its homecoming queen this month, bring visibility to a new set of rights issues in Iowa.

"Civil rights for black people didn't happen overnight, and it won't happen overnight for trans people, either," said Jodie Jones, an Iowa City transgender who won a dispute over whether she could use the women's restroom at the Johnson County Courthouse. "But I feel like we've moved the ball forward."

Continue reading

October 27, 2013 in 14th Amendment, Civil Rights Act, Civil Rights History, Civil Rights Litigation | Permalink | Comments (0)

Friday, October 25, 2013

CRL&P Daily Reads: Oct. 25, 2013

Gun-rights advocates are planning to start collecting signatures in an attempt to recall California lawmakers who supported proposed gun regulations.

Greensborough police captain's civil rights lawsuit alleging discrimination by PD moved to federal court.

American Prospect argues that the Surpreme Court's reliance on two post-Reconstruction decisions have limited available remedies to victims of sexual assualt.

ACLU files amicus brief on behalf of secure email service provider facing contempt charges for failure to cooperate with U.S. government.

N.C. Attorney General and potential gubernatorial candidate speaks out on new voter ID law.

Homelessness among American K-12 students is growing.

 

October 25, 2013 in 14th Amendment, Civil Rights Act, Civil Rights History, Civil Rights Litigation, Election Law, Equal Protection Clause, Fourth Amendment, Gun Policy, Right to Vote | Permalink | Comments (0)

Upcoming article draws attention to largely overlooked Supreme Court civil rights decision

In his upcoming article Snubbed Landmar: How United States v. Cruickshank Truncated the Reconsturction Amendments and Racialized Class Politics in America, Professor James Gray Pope argues that traditional narratives about the development of civil rights jurisprudence have failed to account for the precedential case that started it all: United States v. Cruikshank, 92 U.S. 546 (1876). According to Pope, the legal academy has created a "tale of progress" largely by ignoring Cruikshank's restriction on the Fourteenth Amendment's mandate to federal actions; its tailoring of the privileges and immunities clause; and, its limitation o the available protection of the Fourteenth and Fifteenth Amendments to racial minorities. "The results," argues Pope, "have been obfuscation and distortion." In fact, Cruikshank stymied "cross-racial movements" that might have led to a more promising futures. In the end, he urges: "It is long past time for this jurisprudentially inventive, politically pivotal, and socially schismatic case to take its proper place at the heart of the American constitutional narrative and pedagogical canon."

For those interested Supreme Court and civil rights history, this article provides valuable and intruiging insights that are well worth the time.

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October 25, 2013 in 14th Amendment, Civil Rights Act, Civil Rights History, Election Law, Equal Protection Clause, Right to Vote | Permalink | Comments (1)

Thursday, October 24, 2013

Today in Civil Rights History: Inaugural National Women's Rights Convention in Worcester, MA

On October 23-24, 1850, the inaugural National Women's Rights Convention was held in Worcester, Mass. The convention starred many speakers made famous by history, including Sojourner Truth, Frederick Douglas, and William Lloyd Garrison.

It commenced with a speech by the President of the Convention, Pauline Davis of Rhode Island. She called on the convention to proclaim civil and political rights for women, stating, "Our claim must rest on its justice, and conquer by its power of truth. We take the round, that whatever has been achieved for the race belongs to it, and must not be usurped by any class or caste. The rights and liberties of one human being cannot be made the property of another, though they were redeemed for him or her by the life of the other; for rights cannot be forfeited by way of salvage, and they are in their nature unpurchasable and inalienable." But the struggle for equal rights would not be easily won, she warned, for the success depended both on the rightousness of their cause and its acceptance by their oppressors:

Old ideas and habits of mind survive the facts which produce them, as the shadows of night stretch far into the morning, sheltered in nooks and valleys from the rising light; and it is the work of a whole creation-day to separate the light from the darkness...

We must be gentle with the ignorance and patient under the injustice which old evils induce. Long suffering is a quality of the highest wisdom, and charity beareth all things for it hopeth all things. It will be seen that I am assuming the point that redemption of the inferior, if it comes at all, must come from the superior. The elevation of a favored caste can have no other providential purpose than that, when it is elevated near enough to goodness and truth, it shall draw up it dependents with it...

There may be real though very foolish tenderness in the motive which refuses to open to woman the trades and professions that she could cultivate and practice with equal profit and credit to herself. The chivalry that worships womanhood is not mean, though it at the same time enslaves the objects of its overfond care.

With that, the convention set out to build the foundation of movement. The convention claimed as its purpose "to secure for her political, legal, and social equality with man,” and it unanimously passed a series of resolutions committing itself to that cause. It resolved “[t]hat political rights acknowledge no sex”;“ [t]hat women are clearly entitled to the right of suffrage, and to be considered eligible to office[,]” and that the continued denial of these rights will “no longer be endured[.]” It also asserted women’s equal right to property in marriage—“that the wife may have, during life, an equal control over the property gained by their mutual toil and sacrifices[.]”

Further, the convention closely allied itself with the growing movement for the abolition of slavery. The convention resolved "[t]hat every human being of full age, and resident for a proper length of time on the soil of the nation, who is required to obey law, is entitled to a voice in its enactments[.]"; and, it paid homage to those upon whom injustice heaped its most heavy burdens:

Resolved, That the cause we are met to advocate,--the claim for woman of all her natural and civil rights,--bids us remember the million and a half of slave women at the South, the most grossly wronged and foully outraged of allwomen; and in every effort for an improvement in our civilization, we will bear in our heart of hearts the memory of the trampled womanhood of the plantation, and omit no effort to raise it to a share in the rights we claim for ourselves.

The National Women's Right Convention of 1850 certainly was a radical step toward equal civil rights, and many thought it too much. The day after the convention closed, for example, The New York Herald used its front page to lament the "awful combination of socialism, abolitionism, and infidelity." According to The Herald, the apparent "designs of the piebaldassemblage called the Woman's Rights Convention" were these:

  • To abolish the Bible.
  • To abolish the constitution, and the laws of the land.
  • To recognize a society upon a social platform of a perfect equality, in all things of sexes and colors.
  • To establish the most free and miscellaneous amalgamation of sexes and colors.
  • To elect Abby Kelley President of the United States, and Lucrietta Mott Commander-in-Chief of the Army.
  • To cut throats ad libitum.
  • Toabolish the gallows.

Of course, the movement for political and social rights for women trudged slowly along, with a few small victories inspiring hope for larger ones in the future. Many of those attending that first convention never got to vote; sixty-nine years passed before the ratification of 19th Amendment granting women the right to vote. But, the women and men who attended the convention expected difficulties, and hopefully their sacrifices are remembered occasionally today.

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October 24, 2013 in Civil Rights History, Election Law, Freedom of Assembly, Right to Vote | Permalink | Comments (0)