A Mixed Reaction to Brown:  Mountain South Legislatures 

• In its initial Brown decision (1954), the U.S. Supreme Court confined itself to announcing that school segregation was unconstitutional, without prescribing a remedy.  The court tried to defuse potential opposition by conceding that school integration would be difficult and announcing that it would study its options further. 

• In 1955, the court announced that no remedy short of full integration would suffice.  That generated a firestorm in many parts of the South.  Many legislatures, particularly in the deep South, passed “interposition” resolutions condemning Brown and hinting (but only hinting) at future defiance.  Action spoke louder than words in many parts of the South:  some states essentially shut down their public schools or passed laws throwing up obstacles to integration, and as a result the school integration process did not begin in some Southern states until the mid-1960s. 

• The anti-Brown resolutions of the 1950s were reminiscent of earlier Southern resolutions, particularly the Kentucky and Virginia Resolutions of 1798-99 opposing the federal Alien and Sedition Acts (§§ ___).  But there were important differences:  1950s legislatures took pains to acknowledge the Supreme Court’s primacy in matters pertaining to the federal Constitution and pointed out that under Plessy, segregated schools had been perfectly legal.  Even the most fiery anti-Brown resolutions stopped short of advocating direct resistance to federal authority; all talked about working within the framework of the established legal system.

• Mountain South states were more restrained in their reaction to Brown than other parts of the South.  The West Virginia, Kentucky and Missouri legislatures were quiet and integration in those states proceeded relatively smoothly.  Tennessee’s assembly passed an interposition resolution, but the state senate refused to go along and after some grumbling and delay, school integration proceeded.  Only Arkansas followed the deep South pattern:  its legislature approved a strong interposition resolution, state and local officials actively resisted integration, and as a result Little Rock became the focus of national attention in 1958 when federal troops were brought in to enforce a violence-marred integration process.   

“[T]he power to operate public schools in the State on a racially separate but substantially equal basis was granted by the people of Arkansas to the government of the State of Arkansas; … by ratification of the 14^th Amendment, neither the State of Arkansas nor its people delegated to the federal government … the power to regulate or control the operation of the domestic institutions of Arkansas.”  - Arkansas Legislature, 1956

“[Brown] threatens to result in a deterioration of the good relations that have been cultivated and developed between citizens of the white and negro races in Tennessee … [We resolve] to take all appropriate measures, honorably and legally available, to resist any and all illegal encroachments upon the powers reserved to the State of Tennessee in order to control its own domestic institutions according to its own exclusive judgment.” – Tennessee Assembly, 1956 (not concurred in by Senate)

A Mixed Reaction to Brown:  Mountain South Courts

Roy v. Brittain – Tennessee, 1956 (297 S.W.2d 72); Smith v. Faubus – Arkansas, 1959 (327 S.W.2d 562); Marshall v. Kansas City – Missouri, 1962 (355 S.W.2d 877)

• 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, but in the few instances when mountain South courts had to grapple with integration they approached it with acceptance, even in Arkansas.

• In Roy, Tennessee’s supreme court rejected a request that it intervene on the side of segregation:  the justices stated bluntly that they were bound by the Brown decision.   Integration opponents argued that the state could fund integrated public schools because the Tennessee constitution prohibited integration, but with equal bluntness the judges refused to go down that path:  the state’s constitutional commitment to educate its children too priority over its commitment to segregation. 

• After Brown, segregationists in some states launched an attack on the NAACP by trying to subpoena its membership records.  In Faubus, Arkansas’s supreme  legislature held that the State Sovereignty Commission (created in 1957 to oppose segregation) could not subpoena such records because in this case, civil rights organizations had a basic right to privacy and to be free from harassment. 

• When Kansas City enacted an accommodations ordinance – the first Southern community to do so since Reconstruction – Missouri’s supreme court narrowly upheld the ordinance.  None of the justices criticized the law’s policy:  the issue was whether Kansas City could act independently of the state legislature, which controlled municipalities and had recently refused to enact a state accommodations law.  Three judges argued the city must wait for the state to act but the majority, in a strikingly expansive reading of the police power, held that integration of public facilities promoted the public welfare, health and safety.  

The Demise of Racial Real Estate Covenants

Kraemer v. Shelley – Missouri, 1947 (198 S.W.2d 679), reversed, 334 U.S. 1 (1948); Weiss v. Leaon – Missouri, 1949 (225 S.W.2d 127), subsequently overruled, 346 U.S. 249 (1953); Stratton v. Conway – Tennessee, 1957 (301 S.W.2d 332)

• An important but often overlooked part of the 20^th century civil rights revolution involved racial real estate covenants.  Prior to the 1940s it was common for real estate developers throughout the United States to foster segregated housing by inserting covenants in deeds of sale prohibiting homeowners from selling to persons of another race.  Unlike municipal segregation ordinances, which fell in the 1910s because they involved governmental promotion of discrimination, most courts treated racial covenants as strictly private matters and, thus, not subject to the 14^th Amendment. 

• Missouri was the catalyst for change:  after its supreme court applied the well-established rule in Shelley, the U.S. Supreme Court expanded the concept of “governmental promotion” by holding that court enforcement of a racial covenant would “promote” discrimination and would violate the 14^th Amendment.   Thus, white owners could now sell to black buyers without fear of being stopped by a court injunction.

• That left open the question:  even if neighbors could not stop the sale, could they sue the seller for damages?  Many white property owners believed sales to blacks would lower their property values.  In Weiss, the Missouri court was not willing to say that courts were barred from hearing damages lawsuit, but it recognized that the final decision would be up to the U.S. Supreme Court – which ultimately decided that damages lawsuits were also unconstitutional.  By 1957, the new rules were sufficiently established that in Stratton, Tennessee’s supreme court made clear that racial covenants were a thing of the past.     

Sit-In Cases in the Mountain South:  Cat-and-Mouse With the U.S. Supreme Court

Briggs v. State – Arkansas, 1963 (367 S.W.2d 750), vacated, 379 U.S. 306 (1964); McKinnie v. State – Tennessee, 1964 (379 S.W.2d 214), reversed, 380 U.S. 449 (1965)

• Change through non-violent action, a concept promoted heavily by Dr. King, was a core guiding principle for most civil rights activists.  They practiced non-violent agitation for change 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 few people 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.  They were usually prosecuted under trespassing or breach-of-the-peace laws that did not mention race.  When arrested, they usually did not resist.  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 when no violence had taken place.  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 directives than they had been in jury cases.

• Briggs and McKinnie were the leading state “sit-in” cases in the mountain South.  In Briggs, which involved a 1961 ____ sit-in in __, Arkansas’s supreme court upheld constitutional challenges to the breach-of-the-peace ordinances under which the protesters had been charged, reasoning that they were racially neutral on their face, but it overturned the protestors’ convictions:  the court concluded that because they had scrupulously observed their code of non-violence, they could not be blamed for the disturbance they caused by attracting opponents to the scene.  Justice __, who dissented, warned that the majority was effectively shackling police ability to preserve order and was giving protesters a tool which, used repeatedly, would force segregated stores out of business.  In McKinnie, which involved a [yr] [place] sit-in in ____, Tennessee’s supreme court reached an opposite result because the protesters had physically forced their way in to the store.  Both cases reached the U.S. Supreme Court after the 1964 Civil Rights Act was passed, and the Court overturned all convictions because all such segregation was now outlawed.      

“The mere fact that the exercise of a lawful right may result in a disturbance or breach of the peace does not make the exercise of that right a violation of the law so long as the right is exercised in a peaceful manner and without force or violence or threats of same.  … [But] to hold [that black patrons have a right to be served] would be to employ judicial fiat to coerce unwilling lunch counter operators to afford service to patrons they do not want and did not seek.” – Justice ___, in Briggs 

 “Under the decision handed down by the majority, a large number of people can go into any place of business, create a disturbance by their presence, disrupt business and annoy the proprietor to no end, and there is nothing he can do except request them to leave, which they can do and immediately return to the restaurant or other place of business and go through the same procedure until the owner breaks down and does business with them or goes out of business.” – Justice __ Robinson (dissenting), in Briggs

“Even if we assume that the owner of the cafeteria had no right to exclude these defendants, this does not excuse their conduct in blocking this narrow passageway   As citizens, we are not permitted to take the law in our own hands and correct what we consider to be wrongs… We are presented with the timely question of how far a person can go to secure his constitutional rights.  Now it seems clear that a person cannot commit an assault on another to gain these rights.  It seems equally clear that one cannot damage the prop of another with impunity because the other has committed an act of racial discrimination against him.” – Justice __, in McKinnie