Civil Rights Law & Policy Blog

"Resistance Songs: Mobilizing the Law and Politics of Community"

The title of this post comes from this recent essay by Professor Anthony Alfieri, the abstract of which states:

In 1925, the City of Miami built a trash incinerator in the de jure segregated Afro-Caribbean-American community of Coconut Grove Village West (“the West Grove”) amid rows of shotgun style houses and Jim Crow schools. Commonly known as Old Smokey, the incinerator discharged airborne carcinogenic chemicals (e.g., arsenic, benzo(a)pyrene, cadmium, and lead) and produced residual toxic waste (e.g., ash, liquefied plastic, and melted glass) for 45 years until Florida courts finally ordered it closed in 1970. In 1978, notwithstanding community opposition, the City of Miami converted the 4.5 acre Old Smokey site and incinerator building into its Fire-Rescue Training Center which continues to operate today. In 2013 and 2014, West Grove residents working in collaboration with faculty and students from the University of Miami School of Law learned from a whistleblower-leaked municipal environmental report that long-term exposure to Old Smokey’s airborne carcinogens and toxic waste dump sites had caused extensive soil and possibly groundwater contamination of homeowner properties and public parks in Coconut Grove and across the City of Miami and Miami-Dade County.

 

This Essay investigates the historical absence of civil rights- and environmental justice-incited legal and political mobilization around Old Smokey in light of Professor Lea VanderVelde’s important new book Redemption Songs: Suing for Freedom before Dred Scott. In Redemption Songs, VanderVelde, a distinguished legal historian, builds on her much praised biography of Mrs. Dred Scott and the contemporary work of historians in the field of slavery to study the nineteenth century practices of antebellum freedom suits in St. Louis, Missouri and in the western territories. VanderVelde carves out several lines of inquiry in Redemption Songs useful for historians of race and advocates for the legal-political rights of impoverished racial communities. Closely interwoven, the inquiries seek to ascertain how enslaved men and women learned that their residence in free territories conferred the legal right to sue for freedom and, further, how they advanced that emancipatory right in the St. Louis courts. More specifically, VanderVelde asks, who actually “instructed” the enslaved? Who, in St. Louis, Missouri, and the western territories, “led the way?” Why did some enslaved parents, children, and families “delay” and “wait” to file suit? What were the end results of the lawsuits and what “factors” influenced their in-court and out-of-court outcomes? 

 

To resolve these questions, VanderVelde parses the extraordinary collection of freedom suit petitions filed by slaves in St. Louis between 1814 and 1860. These freedom suits, according to VanderVelde, tell stories of nineteenth century caste, class, and racial status. Equally important, the freedom suits tell stories of nineteenth century judges, lawyers, and legal rights consciousness in the contexts of racial advocacy and adjudication. In the same way, civil rights and environmental justice suits tell stories of twentieth and twenty-first century caste, class, and racial status, affecting stories of chronic illness and widespread contamination bound up in the work of judges and lawyers, and informed by an expanding legal consciousness of common law, statutory, and constitutional rights to a healthy and safe environment. By discrete historical turns, freedom suits, civil rights suits, and environmental justice suits tell stories of individual, group, and community rights under conditions of cultural, political, and socio-economic subordination. Viewed from the bottom, these same stories of freedom, civil rights, and environmental justice are also about individual and community power expressed through multifaceted forms of legal-political resistance.

 

The purpose of this Essay is to draw out the lessons of antebellum freedom suits, and, by comparison, modern civil rights and environmental justice suits, to learn how to tell better stories of community power and resistance in Miami and elsewhere. For historians and advocates alike, better stories are not only more accurate descriptively, but also more potent emotionally or expressively and more effective instrumentally or prescriptively. To draw out the historical comparison between freedom and civil rights or environmental justice suits and to hone better legal-political stories of resistance, the Essay revisits the principal set of questions animating VanderVelde’s nineteenth century investigation. However basic these questions may appear at first glance, they warrant continuing reassessment and reconsideration by lay and legal advocates, law school clinical faculty, law students, and university scholars. Consider, for example, the threshold question – how do subordinated communities of color learn of their legal rights? Further, how do they advance their emancipatory, civil or environmental justice rights without equal access to courts or effective representation? Who does and who should “instruct” such communities in their legal rights? Who, in St. Louis, Miami, or other inner-city communities across the nation, “leads the way?” Why do some individuals, families, or groups “delay” and “wait” to file suit? What are the end-results of civil rights and environmental justice lawsuits spearheaded by subordinated groups and communities, and what “factors” influence their in-court and out-of-court outcomes? Although beyond the cabined scope of this Essay, these fundamental questions of civil rights, environmental justice, and poverty law frame its broad contours and invigorate wider research on law and social movements. 

 

The Essay proceeds in three parts. Part I parses VanderVelde’s central notions of subordination, voice, and redemption and illustrates their resonant force in the recently compiled oral histories of Old Smokey survivors. Part II examines VanderVelde’s interpretation of St. Louis freedom suits and the Missouri legal rule of freedom-by-residence. Part III recasts VanderVelde’s interpretive stance on antebellum freedom suits against the backdrop of Old Smokey to consider legal-political rights campaigns and community resistance strategies in the context of civil rights and environmental justice claims.

"A Lawyer Looks at Civil Disobedience: How Lewis F. Powell, Jr. Reframed the Civil Rights Revolution"

The title of this post comes from this recent essay by Professor Anders Walker, the abstract of which states:

This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. Powell’s reasons for defending diversity are worth recovering today, not least because courts continue to misinterpret his landmark opinion in Regents v. Bakke, confusing the use of diversity in higher education with the compensatory goals of affirmative action, a project that Powell rejected.

Review of new civil rights era history finds valuable lessons for Ferguson officials

At WaPo, Kevin Boyle reviews Professor Renee Romano's new book Racial Reckoning: Prosecuting America's Civil Rights Murders. Harvard University Press is publishing the book, which it summarizes this way:

Few whites who violently resisted the civil rights struggle were charged with crimes in the 1950s and 1960s. But the tide of a long-deferred justice began to change in 1994, when a Mississippi jury convicted Byron De La Beckwith for the 1963 murder of Medgar Evers. Since then, more than one hundred murder cases have been reopened, resulting in more than a dozen trials. But how much did these public trials contribute to a public reckoning with America’s racist past? Racial Reckoning investigates that question, along with the political pressures and cultural forces that compelled the legal system to revisit these decades-old crimes. 

 

Renee C. Romano brings readers into the courthouse for the trials of the civil rights era’s most infamous killings, including the Birmingham church bombing and the triple murder of Andrew Goodman, James Chaney, and Mickey Schwerner. The activists who succeeded in reopening these cases hoped that bringing those responsible to justice would serve to highlight the state-sanctioned racism that had condoned the killings and the lingering effects of racial violence. Courtroom procedures, however, worked against a deeper exploration of the state’s complicity in murder or a full accounting of racial injustices, past or present. Yet the media and a new generation of white southerners—a different breed from the dying Klansmen on trial—saw the convictions as proof of the politically rehabilitated South and stamped “case closed” on America’s legacy of violent racism. Romano shows why addressing the nation’s troubled racial past will require more than legal justice.

Professor Boyle believes Romano's book offers useful lessons for today's tensions - for Ferguson's civic leaders. When grand juries finally began issuing indictments for civil rights era murders in the late 1980s, "prosecutors salved [old wounds] in a particular way" -- by marginalizing "the trials' racial meaning"  and by emphasizing the extremism of the individual defendants. As a result, the social context in which the defendants lived when they committed their crimes was largely ignored, which made it easy to push needed reforms to the back burner. 

Boyle believes officials in Ferguson must consider race and class dynamics if the grand jury chooses to indict Officer Darren Wilson for the killing of Michael Brown. Otherwise, they too risk missing an important opportunity to actually make a difference. Boyle writes:  

[Romano argues that the defendants] were also products of a social order that depended on the brutality that men like Beckwith and the Birmingham bombers embraced, even as the better sort looked away. By building their cases on individual culpability rather than communal responsibility, prosecutors obliterated that critical context. Not that they had much choice. Romano readily admits that the cold-case trials were shaped partly by the restrictions the courts imposed — judges simply weren’t going to let prosecutors introduce evidence that didn’t bear directly on the defendants’ actions — and partly by the state’s reasonable assumption that it was better to try a human cockroach than a racist social system. In the end justice could be served. But it was justice of a very particular sort.

 

The Ferguson trial [against Officer Darren Wilson for the killing of Michael Brownl, should there be one, won’t play out exactly as the cold cases did. Wilson isn’t a Klansman, after all. By all accounts he’s an ordinary suburban cop who, until Aug. 9, didn’t have a single mark on his record. But he worked in a town that’s been battered by white flight and economic decay. Ferguson’s poverty and unemployment rates are twice what they were 14 years ago. Its property values have spiraled downward. And its tax base has crumbled: Last year expenses outstripped revenue by $7.3 million, a gap the white men who control the local government have tried to fill by borrowing — this year Ferguson will pay $2.88 million just to service its debt — and by ratcheting up fines that fall disproportionately on the town’s African American population. Those dynamics didn’t make officer Wilson shoot Brown. Without taking them into account, though, that terrible moment is reduced to a tragic encounter between two young men on a suburban street, driven by whatever emotions and demons they carried with them. As Romano’s insightful book makes clear, that isn’t enough.

In 2004, Boyle won the National Book Award for Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age.

Colorado school district tries to eliminate civil disobedience from history curriculum

Civil disobedience ensues. 

"Constructing Constitutional Politics: Thaddeus Stevens, John Bingham, and the Forgotten Fourteenth Amendment"

The title of this post comes from this fascinating paper by Professor Mark Graber, the abstract of which states:

This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.

"Protesting and Policing Boundaries: the Role of Protest in Changing Ethnic Boundaries During the Civil Rights Movement"

The title of this post comes from this recent paper, the abstract of which states:

How are ethnic boundaries altered in the wake of challenges to ethnic hierarchy? While ethnic boundaries may evolve in the longterm, I argue that in moments of rupture boundaries can change quickly. Mass incarceration and police stop-and-frisk policies evidence the fact that the security apparatus of the state can institutionalize racial and ethnic boundaries through the threat of and use of violence. In this paper, I examine how the 1966 Campaign by the Chicago Freedom Movement by Martin Luther King, Jr. and the Southern Christian Leadership Conference altered the police behavior towards, and thus the racial boundary of, the black community in American cities. I use unique data, collected in 1966, on the details of nearly 20000 police-citizen interactions in Chicago, Boston, and DC. In the midst of this data collection, the SCLC began housing demonstrations in Chicago. I exploit this coincidence to test whether the protests led the policing of black communities and the application of state power at the racial boundary, to intensify or abate. By showing how the police responded to protest against the racial status quo, this paper furthers understanding of the intersection of race and criminal law. More generally, this paper employs a strong research design and unique data on ethnic practices at the micro-level to show that the content of ethnic boundaries change quickly during social upheaval.

John Jay College's exciting online legal history and literature course

The John Jay College of Criminal Justice is offering an online course examining the laws and guiding legal opinions that sustained the institution of slavery; and, how those laws affected writers and activists whose work eventually contributed to the institution's demise. The course is called "Literature & Law of American Slavery." The instructor is Professor John Matteson, winner of the Pulitzer Prize in 2008 for Eden's Outcasts: The Story Louisa May Alcott and Her Father. And the course free! Yes, free!

The course summary states:

The debate over slavery touched not only the lives and fortunes of the millions of African Americans held in bondage, but also those of every American citizen. It was decided only after a catastrophic war in which more than 600,000 Americans died. The effects of the slaveholding era are still being felt today.

 Slavery profoundly affected not only American history, but American literature as well. The writings of many of the authors whose work the American literary tradition depends – Thoreau, Douglass, Melville, Stowe, Whitman, Alcott and others – were both informed and haunted by the specter of slavery.


In this online course, the worlds of law, literature, and history come together to paint a portrait of an era of conflict and controversy. We will read the judicial opinions that shaped and tried to preserve the institution of slavery, as well as the books of authors who tried to tear it down. We shall travel to the places where history was made, including Concord, Massachusetts; Gettysburg, Pennsylvania; and the home of Frederick Douglass as we look for answers to the following questions: 

 

• What were the legal principles behind slavery, and what were the arguments both for and against its legality? 
• How did the leading American writers of the time respond to slavery, both in fiction and in nonfiction? 
• What was slavery like from the perspective of the slave, and how did African-American writers take up the war of words on the subject? 
• How did the Civil War inspire the authors who lived through it and saw it firsthand? 
• Why does the institution of slavery, which was abolished in the United States in the 1860s, still matter to us today?

The course lasts eight weeks. The reading list is intriguing and the time commitment is very manageable. Give it a thought.

"Where Do We Go From Here: Civil Rights, Equality, and Class"

ACSblog posted today this intriguing commentary by Professor Atiba R. Ellis reminding us that the focus of civil rights activists throughout the 1960s was not limited to legal equality, but also to the institutional poverty that resulted from years of its denial. According to Ellis, this realtiy has important implications today. The title of this post comes from Ellis's piece, in which he writes:  

The “two societies” problem persists today and imperils our progress on civil rights. The War on Drugs and the growth of mass incarceration continue to impact largely urban, poor minority communities directly and disrupt their opportunities to grow beyond the underclass. The debates continue over the appropriate role for government in providing more or less substantial support through welfare, job training, education, and other supports to overcome poverty.  While civil rights advocates argue for the growth of such programs, conservatives argue that these failings are attributable to dysfunctional lifestyles.

 

Our considerations of civil rights should be rooted in the recognition of the existence of a largely racialized political and economic underclass that suffers the brunt of the long history of racial subordination and poverty, and that cannot necessarily protect itself due to the narrow construction of the remedies surrounding race, and the near lack of remedies around class altogether. It follows that as we look forward to the twenty-first century phase of the long civil rights movement, we should not abandon race-conscious remedies, as the conservative Supreme Court majority and some commentators have suggested. Instead, race-conscious remedies should have an added focus on issues that address the specific intersections where the members of the racial and class underclass tend to be affected most.  Though not the grand next step King envisioned, it would be a step in the right direction.

 

To take a law of democracy example: the intersection of race and class lies at the heart of the debates concerning the propriety of voter identification laws and expanded voting.  As I have argued in earlier research, these laws affect those voters who may find it difficult to absorb the indirect economic costs of voting since these laws narrow opportunities and heighten the entry requirements for voting.  And as political scientists Matthew Mendez and Christian Grose have shown, racial bias underlies support for these laws.  Similarly, as scholars like Michelle Alexander have demonstrated, the crisis of mass incarceration has heightened the barriers of felon disenfranchisement and ultimately has excluded a large segment of African Americans and Hispanics from the franchise. These examples suggest that electoral vulnerabilities that affect minorities due to their poverty ought to be subjected to more significant judicial and legislative scrutiny. This is but one area where we can innovate concerning the problems that exist at the intersection of race and class.

 

Innovation of race conscious remedies in this era of civil rights enforcement will further the ultimate end of equality that was the point of the movement. By doing so through protecting the largely minority political and economic underclass, we will ultimately take one more step to promote the dignity and status of every citizen in America -- and come closer to fulfilling the vision of the long civil rights movement.

'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 in 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.

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.

CRL&P related posts:

• Title VII as Precedent: Past and Prologue for Future Legislation
• Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe
• AALS Scholarly Paper Award winner examines how sit-ins challenged role of courts

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.

 

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.

 

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!

CRL&P related posts:

• Today in Civil Rights History: Martin Luther King, Jr. wins Nobel Peace Prize
• Today in Civil Rights History: Decision in Civil Rights Cases announced
• Upcoming article draws attention to largely overlooked Supreme Court civil rights decision
• Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere

 

CRL&P Daily Reads: Nov. 12, 2013

Fifth Circuit prepares to hear arguments over another University of Texas admissions policy that considers race.

Supreme Court could hear challenge to New Mexico Supreme Court's decision requiring a photography company to offer its services to gay couples.

WaPo's Cilizza details the places from which most of the country's campaign cash comes.

Cleveland tears down a school that was the focus of civil rights protests, a place where one protester died.

Guardian asks whether schools named after Confederate soldiers should change their names.

Angolan officials arrest five women on suspicion of being lesbians.

 

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.

 

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

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.

 

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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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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