4.5.1 Mountain South (1920-1965): The Slow Death of Jim Crow (Pre-Brown)


  • 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.  Beginning with the 1938 Gaines case (below), which originated in Missouri, the U.S. Supreme Court showed increasing sympathy for the NAACP’s position and began prodding state courts to do the same.
  • 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 mountain South followed a similar (if less extreme) trajectory as in other parts of the South, and mountain 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.         

The Heart of Jim Crow:  Jury service and coerced confessions

State v. Logan – Missouri, 1937 (111 S.W.2d 110); Gilchrist v. Commonwealth – Kentucky, 1949 (223 S.W.2d 880); Maxwell v. State – Arkansas, 1950 (232 S.W.2d 982); Payne v. State – Arkansas, 1956 (295 S.W.2d 312), reversed, 356 U.S. 560 (____)

  • In the 1870s and 1880s the U.S. Supreme Court struck down Southern laws that excluded blacks from juries, holding that although states could limit eligibility for jury service they could not do so based on race.  Many Southern states then limited jury service in the same manner as voting rights, for example, by imposing literacy requirements or providing that only voters could serve on juries (§ __). 
  • Jury challenges were typically brought by white lawyers, appointed to represent penniless black criminal defendants.  The lawyers acted more out of professional duty than any desire to advance black civil rights, but act they did.  Southern courts refused to find discrimination unless direct proof of exclusion was presented – a nearly impossible task, because local officials generally testified that they considered all “qualified” jury candidates and pointed to the small number of legally eligible blacks. 
  • In Norris v. Alabama (1935), the U.S. Supreme Court held that indirect proof, such as the absence of blacks on local juries for many years past, was sufficient to show discrimination unless local authorities could point to another reason for their absence. 
  • Mountain South courts complied with little resistance.  In Logan, Gilchrist and Maxwell, mountain South supreme courts upheld jury challenges based on evidence that no blacks in the counties where the trials took place had served on juries in the past 25 years or more (the Logan court’s decision was also based in part on a rare admission of direct jury discrimination by the county sheriff).
  • The problem of confessions coerced by giving accused criminals the “third degree” was not as acute in the mountain South as the deep South, but it was not entirely absent.  In Payne, the accused confessed only after the local police chief held him incommunicado for 3 days and intimated that if he did not confess, he might be lynched.  The Arkansas supreme court put an innocent gloss on the sheriff’s remarks and refused to throw out the confession; the U.S. Supreme Court took a more severe view, and reversed the conviction.
  • The jury and coerced-confession cases are important not only for their role in the evolution of civil rights in the South, but for the glimpses they give of racial attitudes in the mid-20th century mountain South.   

The “Equal means Equal” Campaign in the  Mountain South

State ex rel. Gaines v. Canada – Missouri, 1937 (113 S.W.2d 783, 131 S.W.2d 217), reversed, 305 U.S. 337 (1938); State ex rel. Michael v. Witham – Tennessee, 1942 (165 S.W.2d 378); Sweeney v. City of Louisville – Kentucky, 1949 (218 S.W.2d 30); State ex rel. Brewton v. Board of Education of St. Louis – Missouri, 1950 (233 S.W.2d 697)

  • The NAACP’s first major victory of the “equal means equal” campaign came in Missouri.  In ____, __ Gaines applied for admission to the University of Missouri law school, pointing out that Lincoln University, the state’s “separate but equal” black university, did not have a law school, but his application was rejected nonetheless.  The Missouri supreme court dismissed his appeal, reasoning that Lincoln could create a law school for him or Missouri could pay for his tuition at an out-of-state school that accepted blacks. 
  • The U.S. Supreme Court disagreed:  it replied that forcing Gaines to go out of state would be constitutional, mainly because Gaines would be deprived of professional contacts that attendance at an in-state school would provide.  The Missouri legislature then appropriated funds for a law school at Lincoln, and the stage was set for the next battle:  would it be truly equal?  [Find out how came out]  
  • In Witham, Tennessee’s supreme court and legislature followed a similar course, although it took many years for the state to create a black law school, and Witham lost through delay what he gained through the courts. 
  • After Gaines, Missouri’s supreme court took an increasingly hard look at whether its black constituents were receiving truly educational opportunities.  In Brewton, it held that a black student interested in aeronautics must be admitted to the only St. Louis high school that offered such a court – a white school.
  • The most prominent “equal means equal” challenge in Kentucky involved not schools but golf.  A black golfer challenged a Louisville municipal course’s rule reserving the course for blacks one day a week and excluding them the other six days.  Kentucky’s supreme court upheld the rule, and its opinion revealed that Kentucky judges’ belief in the virtues of segregation had changed little during the past 50 years.

“To grant the relief which the plaintiff seeks would compel white persons to associate with colored persons, whether it were their pleasure or not.  This would be an infringement on the rights of white persons who would object to being compelled to commingle with colored persons.  This in no way is a reflection on the members of the colored race … but the realistic fact remains, ‘like attracts like,’ and it is just plain human nature for persons of the same tastes and desires, whether they be black or white, to associate together for the purpose of enjoying themselves to the best advantage.”  - Justice __, in Sweeney

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 20th 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 14th 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 14th 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.     

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File:"Colored" drinking fountain from mid-20th century with african-american drinking.jpg
Segregated drinking fountain (1939) - courtesy Wikimedia Commons

“I selected men that I thought were suitable for jury service … men whose reputations were good.  I aimed to get that kind … I have not been in the habit of going out and getting negro juries, and I don’t know who would make good negro jurors.” 
- ____ quoted by Missouri supreme court in Logan

 “[The police chief] merely informed __ that there were several people outside the jail …. ___had already indicated he wanted to make a confession and the sheriff thought it would be better to have the confession made in private, having in mind the safety of appellant.”  - Justice __, in Payne

”[The police chief said] there would be 30 or 40 people there in a few minutes that wanted to get him.” – Justice __ (U.S. Supreme Court), reversing Justice __’s decision 

A black and white photograph of a young African American man with short hair in tight closeup.

Lloyd L. Gaines - courtesy Wikipedia

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File:Shelley house lg.jpg

Shelley house, St. Louis, Missouri - courtesy Nancy Francis and Wikimedia Commons