Reaction and Counterreaction: The Post-Brown Movement for Black Civil Rights

White southern political leaders displayed some ambivalence about how to react. Big Jim Folsom, the governor of Alabama, observed that "[w]hen the Supreme Court. speaks, that's the law." ³⁵ Many more white politicians denounced the decision and began a campaign of "massive resistance" that fused traditional states' rights arguments with blatant racism. Southerners spoke of interposition, that is, of blocking the enforcement of the federal Constitution through state action.

White opposition reached a crescendo in September 1957 amid efforts to integrate Central High School in Little Rock, Arkansas. Governor Orval Faubus, caught in a tight election campaign, made integration of the Little Rock schools a political football and, in his words, adopted the strategy of "outniggering" his opponents. ³⁶ Faubus claimed that the schools could not be integrated because of danger to the students. After considerable delay President Eisenhower, embarrassed by Faubus's practice of breaking promises, federalized the Arkansas National Guard, taking them away from the governor's control, and sent in regular Army troops to restore order. The television pictures of whites taunting black children provided the first image in the North of the depth of race bitterness in the South. Eight black children were enrolled for the full academic year.

Governor Faubus, however, in early 1958 ordered the schools closed for the next academic year and, along with the state legislature, proclaimed that Arkansas would not abide by the Brown decision. Faubus insisted that Brown was an unconstitutional usurpation of power by the Supreme Court. The justices in Cooper v. Aaron ( 1958) not only ordered that a more aggressive integration program be implemented forthwith but held as well, in an opinion signed by all nine of them, that they still fully supported Brown and that they alone could interpret the Constitution conclusively.

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White intransigence sparked renewed efforts by blacks to claim the full measure of their rights. Beginning in 1955, with the Montgomery, Alabama bus boycott and continuing into the mid-1960s, black civil rights leaders adopted more aggressive tactics. The Montgomery boycott lasted more than one year, and about 90 percent of the blacks refused to ride the city-owned buses until they were integrated. Events in Montgomery made Martin Luther King, Jr., into a national civil rights leader, and under his direction blacks adopted an increasingly militant strategy of nonviolent civil disobedience. In 1960 in Greensboro, North Carolina the sit-in protests began, and they quickly spread throughout the South. White southerners threw the criminal justice system against the protesters, just as the civil rights leaders hoped that they would. Pictures of white police officers turning dogs and fire hoses against blacks filled the nightly newspapers and the television.

The Federal Legislative Response

The federal response to the growing crisis of racial injustice and law and order in the South emerged gradually in the 1960s and followed three lines of development: police, legislative, and judicial. The first was through the use of federal troops and law enforcement officials. The administration of John F. Kennedy, while giving rhetorical support to the civil rights movement, dragged its feet when it came to using federal power, concerned in part about the political consequences of alienating white southerners from the Democratic party. Events overwhelmed the administration, and when Governors Ross Barnett of Mississippi in 1962 and George C. Wallace of Alabama in 1963 attempted physically to block the admission of blacks to the major universities of those states, Kennedy dispatched federal marshalls and troops.

The second phase in the federal response was legislative. Following the assassination of Kennedy in late 1963, Lyndon Johnson, a Texan, undertook a more vigorous stance on civil rights. Congress in the space of four years passed two Civil Rights Acts, the first major enactments since Reconstruction, as well as the Voting Rights Act of 1965. Taken together, these measures composed the modern legislative program against racial discrimination.

The Civil Rights Act of 1964 was the most far-reaching civil rights measure in U.S. history. It ranged, in eleven separate titles, over a wide variety of civil rights problems, including voting rights (Titles I and VIII), court actions to challenge segregated public facilities (Titles III and IV), the power of the attorney general to intervene in civil rights disputes (Title IX), the establishment of a Community Relations' Service to assist communities in resolving discrimination disputes (Title X), and a reinvigorated Civil Rights Commission (Title V), which had been established in the weakly worded Civil Rights Act of 1957.

The most important provisions of the Act were Titles II, VI, and VII. Title II prohibited discrimination in public accommodations based on "race, color, religion or national origin" in any establishment if it "affects commerce or if discrimination is supported by state action." ³⁷ Title VI prohibited discrimination in federally assisted programs, and Title VII prohibited employment discrimination. The act produced through federal enforcement a powerful set of changes in the public life of southern communities and more generally in the American work place.

The Voting Rights Act of the following year was equally significant. Previous measures, including the Civil Rights Act of 1964, had made some provision for dealing

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with the problem of effectively guaranteeing the right to vote. In 1964, for example, only 6.4 percent of the eligible black population had registered to vote; even in Louisiana, where the percentage was 31.8, white voter registration was above 80 percent. The Voting Rights Act of 1965 and its amendments in 1970, 1975, and 1982 fundamentally changed the face of political power in the South and in big cities with substantial populations of non-English-speaking immigrants. The most important provision of the act was a preclearance requirement that applied to states or political subdivisions with low voter registration or participation. In such jurisdictions, the act suspended literacy, educational, and character tests of voter qualifications that had historically been the primary devices by which to exclude black enfranchisement. The result was that the gap between white and black voting registration dropped significantly; the number of elected black officials tripled between 1970 and 1986, and white politicians like George C. Wallace dropped their segregationist diatribe in order to appeal to the heavy black voting populations of the states of the Deep South.

The Civil Rights Act of 1968 was the final element in the legislative program. Its most important feature was contained in Title VIII, which was the nation's first comprehensive open-housing law. It prohibited discrimination in the sale, rental, financing, and advertising of housing, and in membership in real estate brokerage organizations. The measure also included provisions dealing with the rights of native Americans. Yet the 1968 act was also a product of its times, because it included, in the wake of antiwar and civil rights protests, antiriot provisions. So controversial was the measure that it passed, in large measure, because southerners had delayed consideration of the bill until after the assassination of Martin Luther King, Jr. Even then it barely passed the House of Representatives.

The Federal Judicial Response

The courts composed the third element of the federal response, and because its members were unelected the federal judiciary came in for increasing criticism as it attempted to work out the implications of the Brown decision. In effect, the justices and the lower federal courts upon whom they placed the burden of implementing Brown recognized that in practice "all deliberate speed" had turned into indefinite delay. The Court attempted to correct this matter by taking on an increasing number of segregation cases, hoping that on a case-by-case basis it could prod the South into action. For example, the justices in Green v. County School Board ( 1968) declared that they would no longer use a good-faith standard to measure compliance by local districts, but would instead look at effective change in terms of the numbers of students placed in integrated schools. So-called freedom-of-choice plans that let pupils go wherever they wanted were declared discriminatory and unacceptable.

Perhaps the simplest fact about the role of the Court in the implementation of the Brown decision was that it lost control over the process. Federal district judges had that task thrust upon them, and many of them acted with courage in the face of substantial personal danger. The most controversial of the remedies developed involved the busing of children among different schools to achieve integration. Busing had long been employed to move public schoolchildren about, making possible the elimination of the one-room schoolhouse and, some believed, making the movement back and forth to school safer for students than walking. As late as 1970 about 40 percent of all students

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were bused. Furthermore, at the heart of the problem of integrating neighborhood schools was the practice of de facto residential segregation, coupled with school boundary policies that sent blacks to one school and whites to another. The school bus offered one means of overcoming that problem, and it was with precisely that objective in mind that a federal district judge in Charlotte, North Carolina ordered it. The Supreme Court, in Swann v. Charlotte-Mecklenburg Board of Education ( 1971) supported the measure and in two subsequent cases in 1973 and 1979 approved the extension of it to western and northern communities.

These decisions stirred profound controversy and were widely (and somewhat incorrectly) believed to have stimulated white flight from the urban areas to the suburbs. The Court, moreover, indicated that it would not accept (except in the most unusual circumstances) busing on a metropolitan scale that combined big-city and suburban school systems.

The justices extended the logic of the Brown decision to other areas of public activity, and they also gave strong endorsement to the civil and voting rights legislation. The commerce power had provided much of the authority for the Civil Rights Act of 1964, and the justices, who had historically given Congress great latitude in employing that power, held that it could be extended to "public" facilities such as hotels and restaurants. The justices refused, however, to stretch this logic to small associational groups such as fraternal groups, and the Civil Rights Act had left mom-and-pop facilities free of its provisions.

A fundamental legal revolution involving the rights of blacks took place in the forty years after World War II. Much of the success of that effort stemmed from the courage and skill of black civil rights organizers and lawyers, who made effective use of the legal system, both to work within it and, when appropriate, to hold it up to public ridicule. Constitutional law in 1987 was substantially different on matters of race relations than it had been in 1945 and radically different from what it had been in 1896. De jure segregation was at an end, but de facto segregation persisted.

Women and the Law in the Post-World War II Era

Date: 2015-01-29; view: 847