In a Two Year Period the Congress Enacted a Series of Laws Which Had a Profound Effect on the Negro Revolution

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DOCUMENT RESUME ED 024 706 By- Gill, Robei-t L. Shaping the Negro Revolution Through Court Decisions, 1964-1966. Pub Date Jan 67 Note- 13p. Journal Cit- The Quarterly Review of Higher Education Among Negroes; v35 n1 p1 -13 Jan 1967 EDRS Price ME-$0.25 HC-$0.75 Descriptors- *Civil Rights Legislation, *Court Doctrine, *Federal Court Litigation, *Federal Laws, *Negroes Identifiers-Civil Rights Act of 1964, US Supreme Court, Voting Rights Act of 1965 In a two year period the Congress enacted a series of laws which had a profound effect on the Negro revolution. Discussed in this document are the cases which were brought to the Supreme Court to either challenge the constitutionalityof these laws or to appeal for reversal of lower court decisions on the basis of the laws. Cited are cases based on the Civil Rights Act of 1964, the Voting Rights Actof 1965, and various cons ti tu ti onal amendments. (NH)

...,..-....,-.,...... U.S. DEPARTMENT OF HEALTH, EDUCATION & WELFARE AMU Of IDEATION EDO24706 ThIS DOCUMENT HAS BEEN REPRODUCED EXACTLY AS RECEIVED FROITHE PERSON OR ORGANIZATION ORIGINATING IT. POINTS OF VIEW OR 0PINI0NS1-

STATED DO NOT NECESSARILY REPRESENT OFFICIAL OFFICE OF EDUCATION "SIMIOR 11JTHE QUARTERLYREVIEW OF HIGHER EDUCATION AMONGNEGROES

41Volume 35 January, 1967 No. 1

Shaping The Negro Revolution Through Court Decisions,1964-1966 CZ BT ROBERT L. GILL

So extensive and profound has therevo-urban development, all of which have civil lutionary character of the American Negro'srights dimensions, psychological implica- struggle for human dignity and equality oftions, and socio-economic purposes. opportunity become in the relatively short In 1908, Louis D. Brandeis,a corpora- period since the enactment of the Civiltion lawyer who was to becomea famous Rights Act of 1964, that itmay well be aAssociate Justice of the United States Su- decade or more before the dust of thiscon-preme Court, arguing in the case of Muller tinuing battle settles enough for sociologistsv. Oregon,' submitted a brief to the Su- and historians toassess accurately thepreme Court which, by its use of medical quality and dimensions of change in theand sociological data to support his areas lives and institutions of the people of theof the evils of unregulated working hours United States. Legislative acts and judicialfor women, revolutionized legal ')rief.,. The determinations continue to provide theJustices, by accepting and praising Pwandeis most significant signposts of progress infor the brief in their unanimous decision the Afro-American's long journey fromupholding the law of Oregon, in turn set chattel-slavery to full citizenship. the judicial precedent2 whichwas to find In the pre-World War II depressionera,a most meaningful application in the school the Congress of the United States, underdesegregation cases, Brownv. Board of the leadership of Franklin D. Roosevelt,Educations and Bollingv. Sharpe.4 In their enacted laws directed toward socio-eco-decisions in the latter twocases, the Jus- nomic goals, many of which were strucktices indirectly affirmed the Brandeispre- down by the Supreme Court subsequently.cedent, gave it a psychological dimension, The laws that remained set the precedentand widened the constructive application for state and federal legislation the soleof the due process clause of the Fifth purpose of which is to so influence the socio-economic factors relating to gimeas- 1Muller vs. Oregon, 208 U. S. 412 (1908). pect of American life, as to bring about a nustice Brewer's opinion as quoted in Noel T. Dowling and Gerald Gunther, Constitutiona/ Law: change in the whole. Thus, the period fromCases and Material, The University Casebook 1964-1966 has seen the Congress of the Series,Brooklyn, New York: The Foundation United States enact laws relating topover- Press, Inc., 1965, pp. 870-871. ty, elementary and secondary education, 8Brown vs. Board of Education, 347 U.S. 483 voting rights, and the creation of a new (May 17, 1954). 4Bollingvs. Sharpe, 847 U.S. 497 (May 17, cabinet level department of housing and 1954).

1 THE QUARTERLY REVIEW Of HIGIMER EDUCATION AMONG NEGROES

Amendment and the equal protection clause on the part of a substantial portion of of the Fourteenth Amendment. the Negro community....7 However, it was not to be supposed thatThus, the Supreme Court upheld thecon- passage of Title II, The Public Accommo-stitutional validity of Title II of the Civil dations Section of the Civil Rights Act ofRights Act of 1964 againstan attack by 1964, involving the regulatorypower ofhotels, motels, and like establishments. In the Commerce clause to bar racial discrimi-Katzenbach v. McClung8 the complaint for nation would go unchallenged. In Heartinjunctive relief against appellants attacked of Atlanta Motel v. U. S. and Kennedy,5the constitutionality of the Actas applied an appeal was made to the United Statesto a restaurant. Mr. Justice Clark delivered Supreme Court from a ruling in which athe Court's opinion that three judge Federal Court had held those We think...that Congress acted sections of the Act (88 201 (a), (b) (1) well within its power to protect and foster commerce in extending the and (c ) (1) ) being contested, to be con- coverage of Title II only to those res- stitutional and had issued a permanent in- taurants offering to serve interstate junction restraining appellant from con- travellers or serving food, a substantial tinuing to violate the Act. The Supreme portion of which has moved in inter- Court reaffirmed the action of the District state commerce...The Civil Rights Act of 1964, as here applied, we find Court° and, in the opinion written by Mr. to be plainly appropriate in the resolu- Justice Clark, noted that though Congress tion of what the Congress found to be was dealing with what it considered a a national commercial problem of the moral problem in framing Title II, [this] first magnitude. We find it in no violation of any express limitations of the ...does not detract from overwhelm- ing evidence of the disruptive effect Constitution, and we, therefore, de- that recial discrimination has had on clare it valid. The judgment is there, commercial intercourse. Reversed. It is important to note that inconcur- ...The determinative test of the exer- cise of power by Congress under the ring, Mr. Justice Douglas stated: Commerce Clause is simply whether It is rather my belief that the right the activity sought to be regulated is of people to be free of state action that "commerce which concerns more than discriminates against them because of one state" and has a real and substan- race, like the "right of persons to move tial relation to the national interest. freely from State to State° occupiesa ...[There is] a qualitative as well as more protected position in our consti- quantitative effect on interstate travel tutional system than does themove- by Negroes. The former was the obvi- ment of cattle, fruit, steel and coal ous impairment of the Negro traveler's across state lines."...The result pleasure and convenience that resulted reached by the Court is furme much when he continually was uncertain of finding lodging. As for the latter, there 70p. cit., Dowling and Gunther, pp. 320-323. was evidence thatthis uncertainty °Katzenbach vs. McClung, 379 U.S. 294, 85 S. stemming from racial discrimination Ct. 377, 13 L. Ed. 2d 290 (1964). had the effect of discouraging travel °Edwards vs. California, 314 U.S. 160, at 177 (1941). 5Heart of Atlanta Motel vs. United States and Kennedy, 379 U.S. 241, 85 S. Ct. 348, L. Ed. 2d 10Hamni vs. City of Rock Hill, 379 U.S. (1964), 258 (1964). and Lupper vs. State of Arkansas, ruled on the same ground as Hamm (December 14, 1964). See 89Race Relations Law Reporter (December 14,also 9 Race Relations Law Reporter, p. 1640; Blow 1964), 908, 1950. vs. State of North Carolina, 379 U.S. 684 (1965).

2 THE QUARTERLY REVIEW Of HIGHER EDUCATION AMONG NEGROES

more obvious as a protective measure of federal abatementacross jurisdictional under the Fourteenth Amendment than lines of authority." under the Commerce Clause. Also concurring, Mr. JusticeGoldberg Of the 1964 Sit-In decisions, only in the stated case of Bell v. Maryland" did six members of the Court reach the constitutional ..The primary purpose of the Civil Rights Act of 1964, however, andas I question of State action under the Thir- would underscore, is the vindication teenth and Fourteenth Amendments. These of human dignity and notmore eco- six Justices divided three and three, and nomics...Congress clearly had au- the case was decided on the grounds that thority both under Sestion 5 of the Fourteenth Amendment and the Com- since the petitioners' convictions were af- merce Clause to enact the Civil Rights firmed by the Maryland Court of Appeals Act of 1964. on January 9, 1962, laws had been enacted In the trespass cases brought before theabolishing the crime of which the petition- Supreme Court pursuant to theCivilers were convicted. The judgment was re- Rights Act of 1964" the constitutionalversed. question of the character of the States' in- Even as the Civil Rights Act of 1964 was volvement and responsibility for discrimi-being validated by decisions of the Supreme nation by a private businessmanwas notCourt, and the abatement cases wereex- resolved by either of the Court's decisionstending the Federal Principle across juris- although conviction followed arrest bydictional lines, other cases of a civil rights police officers called to eject from thenature were coming before the Court. Two premises of proprietors whose sole reason toof these came under the criminal law, eject was to keep the facilities segegated.breach of the peace statutes: City of Rock In its decisions the Court held that the busi-Hill v. Leroy Henry" and Charles F. Burr, " ness establishments were covered by theet al. v. City of Columbia, South Caro- Public Accommodations provisions of thelina." In the former case sixty-five Negroes Act; construed Sec. 203 (C) of the Actas were convicted in a South Carolina court immunizing from prcsecution under stateof breach of the peace. On appeal, the State criminal trespass or breach of thepeace statutes any peaceful attempts to gain ad- 12Be11 vs. Maryland, 378 U.S. 226 (1964). Rob- ert Mack Bell, an honor graduate of Dunbar High mittance or to remain in a covered es-School, Baltimore, was graduated from Morgan tablishment; and, held pending convictions State College with highest honor, June 6, 1966. At this commencement he received the President's for such conduct occurring peor to enact- Second Mile Award. He was President of the Stu- ment of the law to be abated by its pas-dent Government for the school year 1965-1966, a Department of State intern during the summer sage. With this applicati:of the Federalof 1965, a recipient of a $2,600 scholarship to Supremacy Clause which requires that instudy law at Harvard Law School. During the summer of 1966, Mr. Bell served as an assistant to the event a direct conflict betweenaDr. Kenneth B. Clark, who was employed by the federal and a state statute, the state law U. S. Department of State to re-evaluate the written examination given by the Department in re- must give way, the Court set a precedent.cruiting employees for the career service. For a This( Consolidated Lupper v.State ofdetailed account of the honors and achievements of Robert Mack Bell, see Who's Who in American Arkansas and Hamm v. City of Rock Hill) Colleges and Universities, 1966. "case is the first to mandate the extension c31ock Hill vs. Leroy Henry, 870 U.S. 776, 84 S. Ct. 1042 (April 6, 1964). 14Charlee F. Barr, et al. vs. City ofColumbia, 11 31 Brooklyn Law Review Notes, Brooklyn South Carolina, 378 U.S. 146, 84 S. Ct. 1734 Law School (1964-65). (June 22, 1964). 8 THE QUARTEPLY REVIEW of HIGHER EDUCATION AMONG NEGROES

Supreme Court affirmed the convictions,Court reversed the convictions finding no holding that the defendants were convictedevidence to sustain breach of the peace of a common law offense, and not underconvictions and that, therefore, the con- a segregation statute; that their singing,victions violated the due process clause of though a lawful act was done at a time andthe Fourteenth Amendement In separate place and in such a way as to be unlawful.opinions the criminal trespass convictions The United States Supreme Court remand-were reversed, also for reasons cited in ed the case for reconsideration in the lightBouie v. State of Maryland.' Three Jus- of Edwards v. South Carolina." Findingtices dissented from the reversal of the no error in its previous decision, and hold-criminal trespass convictions. Mr. justice ing that the acts of the defendants were aGoldberg and the Chief Justice, in part more serious violation of the public peacejoined by Mr. justice Douglas, wrote a and order than those in the Edwards case,special opinion of interest not only as to the South Carolina Supreme Court rein-extent but as a revelation of the kind- of stated the judgment Again the Unitedargument that may someday become the States Supreme Court granted a writ ofCoures opinion. The opinion held that the certiorari and reversed the judgment. TheFourteenth Amendment was intended to Supreme Court ruled that in this, as in theobligate a state, either by statutory law or Edwards case, by its common law, to guarantee to all they [the defendants] were convicted citizens access to places of public accom- upon evidence which showed no more modation, and that the failure of a state to than that the opinions which they were peaceably expressing were sufficiently protect this constitutional right of Negroes orposed to the views of the majority of is no justification for its judiciary's partici- ( the community to attract a crowd and pation in prosecutions of citizens for ex- ) necessitate police protection." ercising such rights. Edwards had established that the Four- An area of civil rights long in controversy teenth Amendment does not allow a statebecause of the southern custom of exclud- to make peaceful expression of unpopularing Negroes from jury service came before/ views criminal. Thus, the Supreme Courtthe Supreme Court in the case of Arnold v.') ruled that a conviction resting on any ofNorth Carolina." In this case, two Negroes \ the grounds cited by the State Supremewho had been convicted in a North Caro- ; Court could not stand." lina court of the murder of a white man, In the latter case, five sit-in studentsappealed their convictions on the grounds were convicted of breach of the peace andthat Negroes had been systematically ex- trespass in Municipal Court. The Southcluded from their grand jury. The State Carolina Supreme Court affirmed the con-Supreme Court affirmed theirconvic- victions, declining to review the evidencetions.2° The United States Supreme Court on procedural grounds. Rejecting procedur-reversed the judgment, holding that a al grounds, the United States Supreme"prima facie" case of the denial of equal imdwardsvs. South Carolina, 372 U.S. 229, at 237 (Januar', 1963). See also 8 Race Rektions 18Bowie vs. State of Maryland, 84 S. Ct. 1697 Reporter, 801 (1963). (1964). 'mho, cf. Terminiello vs. Chicago, 337 U.S. 1, laArnoldvs. North Carolina, 376 U.S. 713 5 (1949. ) (1964). 110p. cit., Edwards vs. South Carolina, 372 20Cf 8Race Relations Law Reporter, 285 U.S. 229 (Januar:, 1963). (1963).

4 THE QUARMILT REVIEW Of HIGHER EDUCATION AMONG NEGROES

protection guaranteed by the constitutionother limitations imposed upon its right to had been established by the uncontradicted"life, liberty, and the pursuit of happiness," testimony of the clerk of the trial courtpostulated in the Declaration of Independ- that in twenty-four years he couldremem-ence. Thus, Mr. Justice Stewart's concur- ber only one Negro serving ona grand jury,rence in which he was joined by Mr. Justice and the testimony of the county taxasses-Douglas is singularly expressive. sor that tax records of the county, from . . .The Court implies that a criminal which the names of jurors were taken, law of the kind here involved might be showed that Negroes made up one-third constitutionally valid if a state could to one-fourth of the names on the tax show "some overriding statutory purpose." This is an implication in which rolls. I cannot join, because I cannot con- An historically bitter area of race re- ceive of a valid legislative purpose un- lations controversy, miscegenation, der our Constitution for a state law came which makes the color of a person's before the United States Supreme Court in skin the test of whether his conduct is the case of McLaughlin v. State of Flori. a criminal offense....I think it is da.21 A Negro man and a white woman simply not possible for a state law to were convicted of having violated a Florida be valid under our Constitution which law making cohabitation by persons of dif- makes the criminality of an act depend upon the race of the actor. Discrimina- ferent races a criminal offense. The State tion of that kind is invidious per se." Supreme court affirmed the convictionHe notes further, "Since I think this crim- citing an earlier decision of the Unitedinal law is clearly invalid under the Equal States Supreme Court holding that theProtectionClauseoftheFourteenth equal protection guaranty is satisfied ifAmendment, I do not consider the impact the same penalties are prescribed for bothof the Due Process Clause of that Amend- offenders.22 ment nor of the Thirteenth and Fifteenth The convictions were reversed on appealAmendments." It may well be that Mr. to the Supreme Court. The Court held thatJustice Stewart's opinion points the way to the 1883 decision of the United States Su-future progress in the Supreme Court for preme Court was based on too limited athe Negro. view of the Eq.,, ii Protection Clause and As the area of historic break-through and was no longer authoritative as a precedent.continuing resistance in southern states, That the Court's opinion invalidated Chap-educational desegregation cases continue to ter 798.05 of the statute without ruling oncome before the Court. A landmark de- the constitutionality of the miscegenationcision was added to this growing number in law per se, and without expressing anythe case of Griffin, et al. v. County School views on the states' ban on interracial mar-Board of Prince Edward County, et al.". riage was a matter of great disappointment.The attempts of the county to avoid deseg- Perhaps no other restriction upon the dig-regation began in 1959 with the closing of nity and freedom of the Negro race has 230p. cit., McLaughlin, et al. vs. Florida, 379 been so burdensome or so relevant to allU. S. 184 (1964). `key 24Griffin, et al. vs. Prince Edward County, 377 21mcLauglain, et al.vs. Florida, 379 U.S. 184U.S. 218 (1964). In 1959, Prince Edward County (1964). discontinued its public schools. Both Virginia and Prince Edward County adopted tuitiongrant 228 Race Relations Law Reporter, 427 (1963);programs for children attending private schools cf. Pace va. Alabama, 108 U.S. 583 (1883). for white children. 5 Tim QUARTERLY REVIEW Of HIGHER EDUCATIONAMONG NEGROES public schools and the provision ofstateof the N.A.A.C.P.on behalf of integration and county igants to white childrentoand civil rights of Negroeswere either alle- attend private schools. The Court, inangations of lawful conduct or of conduct opinion by Justice Black, held that thiswhich, even if unlawful, under state law, systemviolatedtheEqualProtectiondid not justify complete suppression of the Clause, and, that, "Whatever nonracialAssociation's activitiesin Alabama. The grounds might support a State's allowingaallegations were found to suggestno legiti- county to abandon public schools, the ob-mate governmental objective and it was as- ject must be a constitutional one, andserted that thecase involved, not privi- grounds of race and opposition to desegre-lege of a corporation to do business but, gation do not qualify as constitutional."25"the freedom of individuals to associate for The case was remanded with the Courtthe collective advocacy of ideas."27 The urging "quick and effective" relief. Justicejudgment was reversed and thecase re- Black noted that the District Court, tomanded. prevent further racial discrimination, could There were, of course, many other civil require the Supervisiors to use their powercases brought before the Court in 1964. to levy taxes and raise funds to reopen, op-Many of these were as notable for the dis- erate, and maintain without racial discrimi-r. ,Aing opinions of the Justices28 as for any nation a public school system in Princeccntribution or failure to contribute to the Edward County like that operated in otherprogress of the Negro to full citizenship counties in Virginia. under the law. However, thecases cited During this era, legal attacks upon theare sufficient to reveal the wide front up- i N.A.A.C.P. ccntinued. On June 1, 1964, theon vihich progress was being made, and ( Supreme Court's decision was made in thethe broadened scope of the opinions writ- case of the National Association for the Ad-ten, extending the guarantees of the First, vancement of Colored People et al. v. StateFifth, Thirteenth, Fourteenth and Fifteenth of Alabama26 which had begun in 1956,Amendments to the Constitution, to protect when the Attorney General of Alabamathe rights of Negro citizens. brought suit in an Alabama State Court to The federal legislative activity which be- restrain the N.A.A.C.P. from doing businessgan with the Civil Rights Act of 1957 and in Alabama without cemplying with statecontinued with the Civil Rights Acts of 1960 laws requiring registration of foreign cor-and 1964 had as one of its majorpurposesI portions and, subsequently, the N.A.A.C.P.the improvements of remedies against racial) was ordered to produce certain books.discrimination in voting. The 1957 Actes- papers, and documents including a mem-tablished the Civil Rights Commission, bership list. The Association refused to pro-whose studies have been important to sub- duce the latter, was found in contempt,sequent legislation, as well as in litigation, and fined. Mr. Justice Harlan delivered theand Titles I and VIII of the 1964 Actcon- opinion of the Court that various actstained new vongti rights provisions. How- alleged in the complaint concerning efforts

25Ibid. 28For example: Wright, et al, vs. Rockefeller, et at., 84 S. Ct. 603, relating to Reapportionment 26National Association for the Advancement ofof the 17th Congressional District of Manhattan Colored People, et al vs. State of Alabama et rel.Island. Note especially the views of Justice Doug- Flowers, 377 U.S. 288 (June 1, 1864) las and Justice Goldberg.

6 THE QUARTERLY REVIEW of HIGIIEREDUCATION AMONG NEGROES

ever, the most historic act of 1964 was the citizen's right to vote is debased, he is ratification of the Twenty-fourth Amend- that much lessa citizen....The Equal ment to the Constitution eliminating the Protection Clause demandsno less poll tax in federal elections. This Anend- than substantially equal state legisla- ment, with the 1964 Reapportionment De- tive representation for all citizens, of all places as well as of allraces. ... cisions of the Supreme Court and decisions In summary, we can perceiveno con- rendered by the Court under the afore- stitutional difference, with respectto mentioned Civil Rights Acts,was to pro- the geographical distribution ofstate vide a formidable legislative representation, between the array of legal weapons to two houses of a bicameral state legis- protect the rights of Negro citizens. lature.31 On June 15, 1964, the Supreme Court,in The judgment (the District Court)was re- the case of Reynoldsv. Sims," held thataffirmed and remanded for furtherpro- the legislatures of six states Alabama,ceedings consistent with the views stated Colorado, Delaware, Maryland, New York,in the opinion. ( and Virginiahad been unconstitutionally In United States v. Mississippi,et al.82 apportioned. Chief Justice Warrenwrote allthe United States broughtaction in the of the opinions for the Court with theFederal District Court againstthe State of major Court opinion answeringsome of theMississippi, members of the State Board of questions left open in Bakerv. Carr." TheElections Commissioners, andsix County opinion states that the number of similarRegistrars, contending that the Mississippi cases filed and decided by lower courtsConstitution and statutes governingelec- since their decision in Bakerv. Carr demon-tions were unconstitutional prima facie and strated that the problem of state rnalap-in application. The State of Mississippi portionment was one seen to exist inamoved for dismissal and themotion was large number of states. It noted that previ-granted. On appeal to the UnitedStates ous decisions had established the basicSupreme Court the decisionwas reversed principle of equality among voters withinand remandedso that the Fedt,:al District a state; that members of the Federal HouseCourt could ruleon the factual allegations of Representativesare to be chosen "byin the light of the United States Supreme the people," while attackson state legisla-Court's opinion. This opinion held thatthe tive apportionment schemesare based pri-complaint stated a claimupon which re- marily on the Equal Protection Clauseoflief could be grantedan allegedsystem of the Fourteenth Amendment; and thatthesystematic disenfranchisement of Negroes. fundamentalprincirin of representativeIt was stated further that theAttorney government in this country isone of equalGeneral of the United Sates has thepower representation for equal numbers ofpeo-to bring suit againsta state and its of- ple, without regard torace, sex, economicficials to protect the voting rightsof Ne- states, or place of residence withina state.groes guaranteed by the Civil Rights Act ..A denial of constitutionallypro- of 1960 and the Fourteenth andFifteenth tected rights demands judicialprotec- Amendments. The Court did not reachthe tion; our oath and our office requireno Constitutional questions, holding that the less of us.. To the extent thata

29Reynoldsvs. Sims, 377 U.S. 533 (1964). 32united States vs. Mississippi, et al.,380 U.S. 30Baker vs. Carr, 369 U.S. 186 (1962). 128 (March 8, 1965). 7 THE QUARTERLY REVIEW Of HIGHER EDUCATION AMONG NEGROES factual allegations were sufficient to justifycame imperative. The Act created new relief if proved. In Louisianav. Unitedremedies for voting discrimination where it States," the United States brought suitpersists on a large scale and strengthened under the Civil Rights Act against the Stateexisting remedies for pockets of voting dis- of Louisiana, directors and members of thecrimination elsewhere in the country. The Board of Elections alleging that voter regis-Act suspended literacy tests and devices tration requirements and procedureswereused to deny citizens their right to vote unconstitutional prima facie. These involv-because of their race or color, provided for ed interpreting the State Constitution andthe appointment of FederalRIgistrars, the taking of a citizenship test. Upon directcontained a finding that the right to vote appeal to the Supreme Court, the decisionhas been denied or abridged by the poll and remedies of the three judge Districttax requirement as a condition to voting, Court were affirmed. Their action had heldand gave new enforcement powers to the the State consfitutional and statutory pro-courts in voting cases. visions relating to requirements for voter Following the passage of the Voting registrationunconstitutionalundertheRights Act, the State of South Carolina Fourteenth and Fifteenth Amendments, filed a motion in the United States Su- and enjoined enforcement of the provi- preme Court to bring an original suit chal- sions requiring interpretation of the State Constitution. In order to undo the resultslenging the constitutionality of the statute and seeking an injunction against itsen- of past disenfranchisement, the registrarsforcement. The motion was granted in of the twenty-one parishes named were en- November, 1965,85 and the hearing joined from administering the citizenship was ex- pedited. After twenty-five other states join- test which was held to be unconstitutionaled the case" as friends of the court and in its application since Negroes were the after extensive oral argumentwas heard, only ones unduly burdened by it. The regis-the Supreme Court upheld the contested trars were enjoined from its administration sections of the Act as appropriate means for until there was a general re-registration or Congress to use in carrying out iscon- a demonstration that the efforts of previous stitutional responsibility to enforce the Fif- discrimination had been vitiated. teenth Amendment. Injunctive reliefwas On August 6, 1965, the President of thedenica and the complaint dismissed, there- United States, Lyndon B. Johnson, signedby vaiidating the Voting Bights Act of into law, the Voting Rights Act of 1965,"1965 in the case of State of South Carolina the fourth bill to be enacted by the Unitedv. Nicholas deB. Katzenbach, etc. 37 States Congress since 1957 attempting to safeguard the right of every citizen to vote, In Ilarman v. Forsseniuses the validity of regardless of race or color. Previous billsthe Virginia statute pertaining to qualifica- had attempted to secure the right to votetions for voting in a federal election was through court cases. These cases did notchallenged. A three judge District Court adequately meet the problems of racial discrimination in voting, so the 1965 Act be- 3510Race Relations Law Reporter, 1448. Se Ibid. 83United States vs. Louisiana, 380 U.S. 145 "State of South Carolina vs. Nicholas deB. (March 8, 1965). Katzenbach, et al., 86 S. Ct. 803 ( March 7, 1966). 84Pub lic Law 89-110, 89th Congress, S. 1564 38A. M. liarmon, Ir., et al. vs. Lars Forssenies (August 6, 1965). et al., 380 U.S. 528 (1965). 8 THE QuAirroux REviEw ot HIGHER EDUCATION AMONG NEGROES held that the statute violates the Seven- In Swain v. Alabama," a Negro was in- teenth and Twenty-fourth Amendmentstodicted in Talladega, Alelrma, for rape of the Constitation and enjoined enforcement.a white girl, convicted and sentenced to On appeal, the Supreme Court affirmed.death. On appeal to the Supreme Court, However, it was not until Harperv. Vir-defense claimed jur/ discriminationon a ginia Board of Elections"was argued be-number of grounds, including two relating fore the Supreme Court in January, 1966,to preemptory challenge. Tho Court in a that the Virginia Poll Taxwas declared un-six to three decision rejected all of the the constitutional. With South Carolinav. Kat-claims. Justice Goldberg, joined by Chief zenbach" upholding the Voting Bights ActJustice Warren and Justice Douglas, dis- of 1965, with its more extensive provisions,sented. He stated that the Court's opinion poll tax provisions, literacy tests, andnewcreated additional barriers to the elimina- voting regulations were suspended untiltion of jury discrimination practices which approved by federal officials. Now only thehave operated in many communities to fear of physical violence and intimidationnullify the Equal Protection Clause and stands between the Negro and the fran-that "the preference granted by the Court" chise. to use the preemptory challenge was both The progress of the Negro in Criminal"unwarranted and unnecessary." Law has lagged behind that achieved in However, landmark decisionswere to overcoming the legal barriers between himbring new directions in theuse of federal and the franchise. Perhapsno other areainjunctions against State prosecution and of civil rights with the exception of mis-in the Court's establishment of a precedent cegenation and interracial marriage, hasfor a more liberal construction of there- been so colored by emotion, prejudice, andmovaljurisdictionofFederalDistrict distortion of fact. Statistics are used to pic-Courts in civil rights cases." In fames A. ture the Negro as a brutal, senseless, ir-Dombrowski, et al. v. Pfister," James A. responsible criminal. Northern and south-Dombrowski, Executive Director of plain- ern interest in the control and containmenttiff, S ou t h ern Conference Educational of the Negro outside the decision-makingFund, Inc., a civil rightsgroup, and the structure of economic and political powerSouthern Conference Educational Fund finds a common ground in the nurture ofbrought suit in the United States District fear of Negro criminality. Behind the fa-Court, Eastern District, Louisiana, New Or- cade of concern for "crimes in the streets,"leans Division, February 4, 1964, against the politically manipulative and economicalcertain officials of the State, the governor, exploitative join forces to make capital ofattorney general, chairman (Pfister) of the real problems whose solutions must be found in a delicate balance of individual 41Swa:n vs. Alabama, 380 U.S. 202 (1951). rights and the public good without regardThe Supreme Court held that a defendant ina criminal case "is not constitutionally entitledto to sex, creed, race, color, economic status, demand a proportionate number of hisrace on a jury," and t hat the use of preemptory challenges or educational advantage. to eliminate Negroes from the jury does not violate the Constitution. The ruling in this case disturbed 22Annie E. Harper, et al.vs.Virginia Statethe NAACP and civil rights lawyers greatly. Board of Elections, 383 U.S. 683, 85 S. Ct. 942 4228U. S. C. A., Section 1443. (March 24, 1988). 42James A. Dombrowski, et al, vs. Pfister, 380 40South Carolinavs. Katzenbach, 88 S. Ct. 803U.S. 479 (1985 ), cf. 10 Race Relations Law Re- (March 7, 1988). porter, 475.

_ TnE QUARTERLY REVIEW Of HIGHER EDUCATION AMONG NEGROES

Joint Legislative Committee on Un-Ameri- citizen against a// wrongful govern- can Activities of the Louisiana Legislature. mental invasion of fundamental rights Plaint:Ms sought a permanent injunction re- and freedoms....Assuming the truth of the complaint, as the Courthadto straining defendants from preventing plain- do in order to dismiss the suit, the case tiffs from exercising the rights, privileges is a classic example for raising the and immunities granted them by the Consti- shield of the Constitution in protection tution and laws of tlUnited States. Seek- of a citizen's constitutional rights.... ing to have declared unconstitutional Louis- This Court has jurisdiction. And as a three-judge Court is was instituted for iana's Subversive Activities and Communist just such a case...I consider this Control Law and the Community Propa- Court's refusal to pass on the constitu- ganda Control Law, plaintiffs requested a tional issues and to give the plantiffs a three judge Court to hear and determine the day in court an indefensible denial of proceedings. The majority ruled that the process." plaintiffs' engagement in civil rights activityOn appeal to the Supreme Court" the did not bar the state from prosecuting themdecision was reversed and remanded with for sedition, treason, and subversive orinstructions. A statute was attacked as void Communist activities aimed at the unlawfulon its face and also under 42 U. S. C., Sec- overthrow of the cc Ititutional form oftion 1983, as it was being applied. The state government. Holding that the mainCourt held that the assumption that de- issue in the case was that of the states'fense of a criminal prosecution will gen- basic right of self-preservation and enforce-erally assure ample vindication of con- ment of that right in a lawful manner, re-stitutionalrightsis unfounded in such fusing to hear evidence of an unconstitu-cases. The Court sanctioned an injunction, tional application of the statutes." Thethe effect of which was to end all prosecu- application for the injunction was deniedtions in the State court. Thus,Dombrowslci and the suit dismissed "for failure to stateestablished an exception to the abstention a claim upon which relief can be granted."doctrine and to the Rives-Powerso doctrine that federal constitutional rights be Judge Wisdom on dissenting contended first litigated in state courts. that the basic issue was whether the state was abusing its legislative power and crim- As the hue and cry for increased severity inal processes and under the pretext of self-in the handling of criminals coalesces with protection from subversion, harassing andwidely publicized incidents showing law humiliating the plantiffs, was about toenforcement officials abusing the autlaritg prosecute them solely because of their ac-vested in them to harass, intimidate *-2.,t1 tivities in promoting civil rights for Ne-murder Negroes, and with the explosive groes. He stated disorders epitomized by events in the Watts district of Los Angeles, California, cases "States' Rights" are mystical, emotion- requiring the Court to protect the con- laden words. ..but the crowning glory of American. Federalism is not States' stitutional rights of individuals without re- Rights. It is the protection the United States Constitution gives to the private 459 Race Relations Law Reporter, 114. 46()p. ,lames A. Lzbrowski, et al. vs. 44The opinion cited, Watson vs. Buck, 313 U.S.Pfister 380U.S..S. 479 (Ar. 13, 1965) 387, 400 (May 26, 1941), to note that Federal Courts traiitionally have refused, exupt in rare 47Virginia vs. Rives, 100 U.S. 31$ (March 1, instances, to enjoin criminal prosecutions under 1880), and Kentucky vs. Powers, 201 U.S. 1 state penal laws. (March 12, 1906)

10 THE QUARTERLY REVIEW Of HIGHER EDUCATIONAMONG NEGROES

gardtocolor,creed,race,economicdemonstrates the use of procedural safe- status and the nature of their knownguards effective to secure the privilege orallegedcrimescontinuetoarise.against self-incrimination." Prior to any The President estatlishes a National Crimequestioning, the person must be warned of Commission, and the Justice Departmenthis right to keep silent, thatany statement proposes new criminal procedures to thehe makes may be used as evidence against Congress in consideration of pending legis-him, and that he has the right to counsel, lation. In the areas of right to counsel, ar-either retained or appointed. The right to raignment, self-incrimination, and invasioncounsel may be waived if the waiver is of privacy, etc., in many cases coming be-made,"voluntarily, knowingly, and infor the Supreme Court for judicial review,telligently." During questioning theperson the Negro has no specific involvement.detained may stop for consultation with However, because of his peculiar and his-counsel. If alone and he indicates "in any toric vulnerability, these cases are of themanner" that he does not wish to be in- utmost significance to the progress of theterrogated, police may not question him. Negro to full realization of his constitution-Even though the person may have answer- al rights. A consolidation of such cases,ed some questions, he may refuse to be Miranda v. Arizona," a post-Escobedoquestioned further without prejudice to his case," the constructive application of theguilt or innocence. privilege against self-incrimination was ex- The difficulty of obtaining convictions in tended to in-custody interrogation and tosouthern courts of persons charged with the right of the individual to be informed the murder of Negroesor civil rights work- by the detaining officer and to have coun- ers continues to pose a legal problem. Lt sel during interrogation, either retained or .mel A. Penn, a Negro educator appointed. The Court's opinion madeex- plicit answers to issues left unresolved inand commissioned Officer in the U. S. Escobedo5° holding that "the prosecutionArmy, was shot and killed while driving to may not use statements, whether exculpa-his home, and three young civil rights tory or inculpatory, stemming from custodi-workersSchweener, Chaney and Goodman al interrogation of the defendant unless itwere murdered in Philadelphia, Mississip- pi, In United States v. He-bert Guest, et al.51 and in United States v. Cecil Price, 48Ernesto A. Miranda vs. State of Arizona,on writ of certiorari to the Supreme Court of theet 452 ( both cases consolidated when State of Arizona, 34 Law Week 4523 (June 13,heard by the Supreme Court) attempts had 1966). been made to convict the alleged murderers \Michael Vignera vs. State of New York, on writ of certiorari to the Court of Appeals of the Statein the State courts. All were acquitted of of New York, 34 Law Wee lc 4523 (June 13,murder and freed. The United States then 1966). moved to convict them in Federal Courts of (Carl Calvin Westover vs. United States, on writ of certiorari to the United States Court of Appealsa lesser chargeconspiracy to deprive others .for the Ninth Circuit, 34 Law Week 4523 (Juneof their civil rights. The Federal District 1 13, 1966). , State of California vs. Roy Allen Stewart, on writ of certiorari to the Supreme Court of the State of California, 34 Law Week 4523 (June 13, , 1966). 51United States vs. Herbert Guest, et al. 383 U.S. 745 (March 28, 1966). 49Esobedo vs. Illinois, 378 U.S. 478 (1964). 52 United States vs. Cecil Price, et al., 383 U.S. 50Ibid. 787 (March 28, 1966).

11 .10

THE QUARTERLY REVIEW of HIGHER EDUCATION AMONG NEGROES Court moved to dismiss the conspiracystandard citizenship, at erasing the ghetto charge, holding that the parts of the Civilfrom the American scene, at securing equal Bights Act which the United States usedjustice for all in the courts, and assuring were unconstitutional On appeal, the Su-full citizenship in the public sector. preme Court reversed the decision and re- In his proposed civil rights law, the manded the case to the District Court forPresident emphasized the need to guaran- further proceedings in the light of thetee fair housing by federal law and to ir 9 Court's opinion. this a fixed premise in the American In education, civil rights cases relatingthe need to rid the school and jury systems to de-facto segregation in Northern ghettos,of those corrosive racial conspiracies which de-segregation plans for pupils and facul-stillexist, and the need to enforce law ties elsewhere, and discrimination in thenow on the books, and to attackdirectly schools continue through lower Courts tosuch organized efforts to thwart them as the Supreme Court. It is probable that theposed by the Ku Klux Klan and its like. 1966-67 term of the Court may find more significant decisions being rendered in this This remains the uncompleted task facing arena of civil rights breakthrough. TheAmerica in the granting of full rights to passage of the Elementary and Secondaryall. This legislation voted, the human prin- Education Acts by the Congress and theciples so beautifully embraced in the found- so-called Poverty Program legislation willing documents finally will have real mean- produce their quota of cases with implica-ing to all. tions for civil rights even as their provisions Congress owes to this Presidential pe- for withholding federal funds in areas oftition its urgent attention, and Congress operation where racial segregation and dis-has indicated it will give to the President crimination are found to exist provide newthat attention. There as a political momen- formulae for solving these problems. tum existing in American life, furthermore, Thus, in the period from 1964-1966, wewhich makes this deliberation, and the find emerging from federal legislative, ex-passage of such legislation, a matter of ecutive orders, and judicial processes, anpersonal political fortune; and so, even the expanding body of Civil Rights and relatedreluctant in Congress must reexamine old Common Law, directly incorporating andpositions. indirectlyinfluenced by socio-economic If it is just that equality be held out and considerations and psychological concepts,enforced, in the schools and in the public purposely directed toward the realizationplace, where is the excuse for exempting of a single class of citizenship in the Unitedthe right to housing without prejudice? If States with equality of opportunity fa, all.It is just that equality be pledged and Never before in American History has sogiven, in employment, in public transporta- profound and revolutionary a change beention, where is the justice in denying fair, effected as quickly and as bloodlessly. equal hearing and fair, impartial judgment in the courts? SUMMARY It is a fact, as the President has said, President Lyndon B. Johnson has askedthat for all of the guarantees of the 1964 the nation to complete the job of votingCivil Rights Act, still there is discrimina- a civil rights law aimed atcreating single-Zion in certain sectors of the public life. He

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asks, and fairly, the question: "Where isGill, Robert L., "The Negro in the Supreme the security of any, when the rights of the Court, 1954-1964," The Negro His- few still are withheld?" tory Bulletin, December, 1964, Janu- This nation aspires to greatness. It can ary, 1965, and February, 1965. never achieve itdivided. Race Rektions Law Reporter, edited by Vanderbilt University Law School, ROBERT L. GILL Nashville, Tennessee, Vols. 8, 9, 10, Professor of Political Science 11. Morgan State College SouthernEducation PeportingService, Baltimore, Maryland 21212 Nashville, Tennessee, 1963-1966. The Supreme Court Reporter, Vols. 82, 84, BIBLIOGRAPHY 85, 86. Brewer, Bradly 11., "Dombrowskivs. Pfis-United States Law WeekSupreme Court terA New Trend in Federal-State Sections, Vol. 34, Issues 1-48, Wash- Judicial Relations," Fordham Law ington, D. C.: Bureau of National Review, Vol. 34 (1965), pp. 71-108. Affairs, Inc., July 4, 1965-June 14, Dowling, Noel T. and Gunther, Gerald, 1966. Constitutional Law: Cases and Ma-United States Reports, Vols. 347, 879, 380, terial,TheUniversityCasebook 383, Washington, D. C.: U. S. Gov- Series, Brooklyn, N. Y.: The Foun- ernment Printing Office. dation Press, Inc., 1965. U. S. Commission on Civil Rights, The Foundation of Federal Bar Association, Voting Rights Act of 1965, C. C. R. Equal Justice Under Law, Washing- Special Publication, No. 4, August, ton, D. C., 1965. 1965.