3.6.1 Old South (1920-1965): The Slow Death of Jim Crow

  • The South’s Jim Crow laws were hardy because they were important to white Southerners:  they placed an official seal of approval on whites’ centuries-old concept of racial hierarchy in an age when many parts of the country were repudiating legal segregation.  Between 1890 and 1910, the U.S. Supreme Court made clear that it did not view the federal 14th  Amendment as precluding segregation, and that it would not look too closely at voting laws designed to wipe out black suffrage as long as those laws were worded in a racially neutral manner.
  • But legal challenges to segregation never ceased.  The challenges came in several phases:
  • The heart of Jim Crow (1900-1930);  black jury service and coerced confessions.  Many Southern states gave accused criminals the right to have court-appointed attorneys if they could not afford their own.  Some court-appointed attorneys provided only a perfunctory defense, but many took their duties seriously.  A common defense tactic was to challenge all-white juries as products of unconstitutional discrimination.  Southern courts seldom overturned guilty verdicts on this basis (although reversals were not unknown), but beginning in the 1930s their scrutiny sharpened under increasingly insistent prodding from the U.S. Supreme Court. 
  • Many convictions were also challenged as being based on confessions obtained through coercion and physical abuse.  Southern courts seldom threw out confessions unless there was evidence of physical or mental abuse amounting to near-torture; but in the 1930s, the U.S. Supreme Court began to employ a broader notion of coercion and pressed state courts to do likewise.
  • The “equal means equal” era (1938-1954).  In the 1930s, the National Association for the Advancement of Colored People (NAACP) decided to attack segregation by insisting that the “separate but equal” rule of Plessy v. Ferguson (§ ___) be strictly enforced:  under the U.S. Constitution, black schools and public facilities could not be inferior or limited in any respect.  The NAACP focused on students seeking equal college and graduate school facilities, believing that aspiring students would be more attractive to white judges than other black litigants.  Starting in the late 1930s, the U.S. Supreme Court showed increasing sympathy for the NAACP’s position and began prodding state courts to do the same.
  • The post-Brown era (1954-1965). In Brown v. Board of Education (1954), the U.S. Supreme Court, after long hesitation, overturned the Plessy rule and held that segregation in schools and other public places was unconstitutional.  Southern lawmakers rightly regarded Brown as a revolutionary decision, and it caused a counter-revolution in many parts of the South. 
  • Southern reaction differed by region and differed among states in each region.  After Brown was decided, some legislatures dusted off the pre-Civil War doctrines of interposition and nullification (§ ___) and urged active resistance to integration.  Some states met post-Brown integration efforts with violence – a violence which, sadly, defined the post-Brown civil rights movement led by Dr. Martin Luther King fully as much as did Dr. King’s charisma and advocacy of non-violence.
  • In the early 1960s, a new legal battlefront opened when civil rights activists staged “sit-ins” across the South in order to integrate restaurants, movie theaters and other public places.   Many Southern courts felt that Brown did not apply to these businesses because unlike schools, they were private.  The courts regularly upheld criminal convictions of sit-in participants until increasing pressure from the U.S. Supreme Court and the federal Civil Rights Act of 1964 explicitly outlawed racial discrimination in all places of public accommodation.
  • The major legal battles over Jim Crow took place in the deep South, particularly Mississippi and Alabama, where segregation was most deeply entrenched.  But  the demise of Jim Crow in the Old South followed a similar (if less extreme) trajectory as in other parts of the South, and Old South courts played an important role in the dialog between state courts and the U.S. Supreme Court that shaped Jim Crow’s fate in the 20th century.          

Drinking fountain on the county courthouse lawn, Halifax, North Carolina
Colored drinking fountain, Courthouse Square, Halifax, North Carolina, 1938 (John Vachon) - courtesy Office of War Information and Library of Congress