6.6.3 Deep South (1920-1965): The Reaction to Brown and the King Years

Deep South Legislatures' Defiance of Brown

  • In its initial Brown decision (1954), the U.S. Supreme Court confined itself to announcing that school segregation was unconstitutional; it did not prescribe a remedy.  The Court tried to defuse opposition to the new order by conceding that school integration would be difficult and announcing that it would study the problem further.
  • In 1955, the court announced that no remedy short of integration would suffice.  That set off a firestorm in many parts of the South.  Every Deep South legislature, including Florida’s, passed “interposition” resolutions denouncing the Court and the federal government.  Some parts of the Deep South shut down their public schools or passed laws encouraging active resistance to Brown, and as a result the school integration process did not begin in many parts of the Deep South until a decade or more after Brown. 
  • The interposition resolutions of the 1950s were reminiscent of earlier Southern interposition manifestos, such as the Kentucky and Virginia Resolutions of 1798-99 opposing the federal Alien and Sedition Acts (§§ _______) and the comments of Georgia officials when the U.S. Supreme Court tried to block their efforts to control and expel members of the Cherokee nation in the 1830s. 
  • But the differences between the manifestoes of the 1790s, the 1830s and the 1950s were equally interesting.  After Brown most legislatures, even in the Deep South, took pains to acknowledge the Supreme Court’s primacy in matters pertaining to the federal Constitution.  They noted (correctly) that under Plessy, segregated schools had been perfectly legal and that the Supreme Court was now overturning Plessy even though the Constitution had not changed.  But even the most fiery resolutions stopped short of alluding to secession or violent resistance; all talked about working within the framework of the established legal system.

“If the [Supreme] Court is permitted …  to hold the statute or const of a State unconstitutional because of the opinions of the Judges as to its suitability, the States will have been destroyed, and the indestructible Union of Indestructible States established by the Constitution … will have ceased to exist, and in its stead the Court will have created, without jurisdiction or authority from the people, one central government of total power. … Hereby there is declared the firm intention of this State to take all appropriate measures honorably and constitutionally available to the State, to avoid this illegal encroachment upon the rights of her people.” – Georgia Legislature (1956)


“It is clear that said Court has deliberately resolved to disobey the Constitution of the United States, and to flout and defy the Supreme Law of the Land.” – Florida Legislature (1957)


“The Legislature of Alabama declares the decision and order of the Supreme Court of the United States relating to separation of the races in the public schools are , as a matter of right, null, void, and of no effect … we declare, further, our firm intention to take all appropriate measures honorable and constitutionally available to us, to avoid this illegal encroachment upon our rights.” – Alabama Legislature, 1956

“In late years … the proponents of the acts of encroachment have grown so emboldened that not one of the sister states and its people have escaped the oppressive hand thereof.  … [This is] an oppressive course of action [that] seriously threaten[s] to completely destroy our constitutional processes and substitute in lieu thereof ideologies foreign to the soil of our beloved land.” Mississippi Legislature (1956)


“The question of usurped power asserted in this resolution is not within the province of the usurper to determine.” – Louisiana Legislature (1956)

Deep South Courts’ Mixed Reaction to Brown: 

Board of Public Instruction of Manatee County v. State – Florida, 1954 (75 So.2d 832)

  • Brown triggered a huge volume of integration litigation which lasted for decades.  Those battles were fought mainly in federal courts; southern state courts remained mainly on the sidelines.  The only Deep South state court that had occasion to address Brown was Florida’s supreme court, which treated it with studied skepticism. 
  • In Manatee County, integration opponents argued that integrated schools were not a public purpose and could not be funded because the state constitution prohibited state funding of non-public activities.  A majority of justices rejected this argument but openly questioned whether Brown would promote or hold back integration in the South.   
“The Negro race made more progress under segregation in a shorter time than any other race in history.  … Nothing could possibly produce a feeling of inferiority in the Negro child more than to require of him that he go to a school largely attended by white children where he would have practically no opportunity to associate with children of his own race.” – Justice John E. Mathews (dissenting), in Manatee County  
Sit-ins:  A legal cat-and-mouse game
State v. Goldfinch – Louisiana, 1961 (132 So.2d 860), reversed,  373 U.S. 267 (1963); City of Greenville v. Peterson – South Carolina, 1961 (122 S.E.2d 826) and City of Columbia v. Barr – South Carolina, 1961 (123 S.E.2d 520), both reversed, 373 U.S. 244 (1963); Shuttlesworth v. City of Birmingham – Alabama, 1961), reversed, 373 U.S. 262 (1963)
  • Change through non-violent action, a concept promoted heavily by Dr. King, was a core guiding principle for most civil rights activists.  They practiced this principle in a number of ways, beginning with Rosa Parks’s decision to sit at the front of a Montgomery, Alabama bus in 1955. 
  • In the late 1950s activists adopted the “sit-in,” which became a major tool of change.  Typically, a group of protesters would sit at a whites-only lunch counter at a restaurant or department store, would request service (and be denied), and would either:  (i) leave when asked, (ii) refuse to leave until they were served, or (iii) would be arrested without any request to leave.  Protesters were usually prosecuted under trespassing or breach-of-the-peace laws that did not mention race.  The sit-ins attracted national attention and raised the profile of the movement substantially.
  • Southern state courts did not know quite what to do with the protesters.  They disliked them and did not want to be seen as condoning their actions, but many judges were uneasy about the heavy fines and jail sentences lower courts often imposed even upon peaceful protesters.  As with the jury cases of the 1930s and 1940s, the U.S. Supreme Court kept a close watch on sit-in cases that were appealed, but Southern courts were less receptive to the high Court’s  sit-in directives than they had been in jury cases.
  • For example, in Goldfinch,  Peterson and Barr, the Louisiana and South Carolina supreme courts upheld trespassing convictions because the demonstrators had not left after the store manager asked them to.  The courts reasoned that the Constitution was violated because no segregation laws were involved:  trespass and breach-of-the-peace statutes did not refer to race.  The U.S. Supreme Court responded that local officials had put pressure on the store to segregate and enforced the laws at issue as part of that effort, and that was enough to violate the U.S. Constitution.  In Birmingham, Rev. Fred Shuttlesworth, a close associate of Dr. King, was arrested for abetting a crime after he organized a sit-in; Alabama’s supreme court upheld his conviction but the U.S.  Supreme Court again reversed, because there was no violence and thus no crime to abet. 

“The fact that the State provides a system of courts so that S.H. Kress and Company can enforce its legal rights against trespassers upon its private property in violation of [trespass statutes] … cannot fairly be said to be State action enforcing racial segregation … To rule as contended by defendants would mean that S.H. Kress and Company could enforce its rights against white trespassers alone, but not against Negro trespassers and white and Negro trespassers in company. … it would be a denial to the White race of the equal protection of the law.” – Justice Joseph R. Moss, in Barr


“When a state agency passes a law compelling persons to discriminate … and the State’s criminal processes are employed in a way which enforces the discrimination mandated by that law, such a palpable violation of the 14th Amdt cannot be saved by attempting to separate the mental urges of the discriminators.”  - U.S. Supreme Court Chief Justice Earl Warren, in Peterson

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Protest of admission of James Meredith as first black student at University of Mississippi (1962) - courtesy World-Telegram Archives and Library of Congress

“[The Supreme Court] has planted the seed for the destruction of constitutional government … The issues raised by this decision are of such grave import as to require this sovereign State to judge for itself of the infraction of the Constitution.”  - South Carolina Legislature (1956)





“The moral attitude of the white population in the affected states will have infinitely more to do with correcting the alleged vices of segregation than any court decision.  … [I]t is utter folly to contend that desegregation or any other new and untried philosophy will take root and grow before a sympathetic feeling for it is established.” – Justice William G. Terrell, in Manatee County



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 Rev. Fred Shuttlesworth being arrested in Birmingham, Alabama (1961) - courtesy New York World-Telegram Archives and Library of Congress

b&w film copy neg.

Sit-in protester being arrested, Atlanta, Georgia (1964) - courtesy New York World-Telegram Archives and Library of Congress