Assigned Readings & Access to Online Materials:
Students may access the professors’ case digests and other readings by clicking on the >>Prompts as noted throughout the course page.
Class Participation and Grading: Students should prepare assignments with the intention of participating in a highly interactive class discussion, and one third of the student's grade will reflect the student's participation in class discussion. Students will complete an examination, or paper based upon the assigned readings. No independent research is expected and therefore this course does not satisfy the College's seminar or writing requirement.
When the course meets in the spring term, students will be permitted four absences. During the summer term, "condensed course" students are permitted one absence. A student may arrive late or leave early by arrangement with the professor.
A note on slavery and the Civil War: It would be quite appropriate to suggest that this course could properly include readings and discussion on the specific topic of slavery and the Civil War. While we note that limitations on classroom hours and our purposeful focus on the 20th Century civil rights movement, with special emphasis on Brown v. Board of Education and its legacy, preclude any detailed examination of Civil War historiography, it is important to recognize that the complete legal history of the Civil Rights Movement is rooted in the original issue of slavery and white supremacy.
In their acclaimed book The Palmetto State, Jack Bass and Scott Poole make the following observations, in the context of the recent dialogue about the continued identification of the flag of the Confederacy with southern history and culture: "The crux of the present controversy is not the flag itself but in conflicting interpretations of the meaning of the Civil War. Some South Carolinians deny that the Civil War was fought over slavery, maintaining that it was fought over the rights of the states to control their own destinies. Slavery they believe was incidental. * * * But when South Carolina delegates walked out of the 1860 Democratic National Convention in Charleston as a prelude to secession, their spokesman, William Preston minced no words in declaring that "Slavery is our King; slavery is our Truth; slavery is our Divine Right." And a few months later when the signers of the South Carolina Ordinance of Secession issued the Declaration of the Causes of Secession, they specifically referred to the 'domestic institution' of slavery.
“They objected that the free states have 'denounced as sinful the institution of slavery.' They charged that the free states had 'encouraged and assisted thousands of our slaves to leave their homes; and those who remain have been incited by emissaries, books and pictures to hostile insurrection.' * * * Moreover, in 1861, as President and Vice-President of the Confederate States of America, Jefferson Davis and Alexander H. Stephens each candidly acknowledged that their new nation was created for the specific purpose of perpetuating slavery. In an address to the Confederate Congress in April of 1861 Davis declared that a 'persistent and organized system of hostile measures against the rights of owners of slaves in the Southern States' had culminated in a political party dedicated to 'annihilating in effect property worth thousands of dollars.' Since 'the labor of African slaves was an is indispensible' to the South's production of cotton, rice, sugar and tobacco, Davis said, 'the people of the Southern States were driven by the conduct of the people of the North to the adoption of some course of action to avert the danger with which they were openly menaced.' * * * In a speech in Savannah, Stephens made it even clearer that the establishment of the Confederacy had 'put to rest forever all the agitating questions relating to our particular institutions - African slavery as it exists among us - the proper status of the Negro in our form of civilization. This was the immediate cause of the late rupture and present revolution.' He added that the Confederacy was 'founded upon' what he called 'the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and moral condition’ * * * Running successfully for Governor of South Carolina in the critical election of 1860, Francis W. Pickens left little doubt of his support for disunion and even war to perpetuate slavery. His sentiments were echoed by his old friend Edward Bryan, who declared in the campaign, 'Give us slavery or give us death!'”
See J. Bass and S. Poole, The Palmetto State (Univ. of South Carolina Press, 2009, pp. 48-49).
Assignment 1: Review the text of Article VI, and the First, Fifth, Thirteenth, Fourteenth, & Fifteenth Amendments to the United States Constitution, and the Civil Rights Acts of 1866, 1870, 1871 and 1875: Then read Plessy v. Ferguson, 163 U.S. 537 (1896), and the First Part of J. Balkin, “Plessy, Brown and Grutter: A Play in Three Acts,” 26 Cardozo Law Rev 101 (2008).
[At the time Plessy was decided, America’s most notable black educator, Booker T. Washington (founding principal of Tuskegee Normal and Industrial Institute – later known as Tuskegee Institute and then Tuskegee University), proposed a program for the economic advancement of black citizens, in a speech at the Atlanta Cotton States Exposition. His speech, which became known as the “Atlanta Compromise,” proposed that blacks should be seen as essential partners with whites in a program of mutual economic progress, without immediate demand for social equality. Although he was privately sympathetic to general legal efforts to abate social segregation, his public program focused on economic opportunity based in part on his advancement of black vocational education. His program, while appealing to whites in the North and South, was challenged in an essay by Dr. W.E.B. Du Bois, a prominent academic and social activist, who championed true higher education for blacks. Dr. Du Bois writes, in Chapter III of his essays published under the title “The Souls of Black Folk,” about the history of black self- assertion and self-determination, and the imperativeness of economic participation, higher education and the right to vote – as distinguishing qualities of manhood]:
Of Mr. Booker T. Washington and Others Dr. W.E.B. Du Bois (1903)
“Easily the most striking thing in the history of the American Negro since 1876 is the ascendancy of Mr. Booker T. Washington. * * * His programme of industrial education, conciliation of the South, and submission and silence as to civil and political rights, was not wholly original [but] it startled the nation to hear a Negro advocating such a programme after many decades of bitter complaint; it startled and won the applause of the South; it interested and won the admiration of the North; and after a confused murmur of protest, it silenced if it did not convert the Negroes themselves. [The] South interpreted it in different ways: the radicals received it as a complete surrender of the demand for civil and political equality; the conservatives, as a generously conceived working basis for mutual understanding. * * * Mr. Washington represents in Negro thought the old attitude of adjustment and submission; but adjustment at such a peculiar time as to make his programme unique. This is an age of unusual economic development, and Mr. Washington’s programme naturally takes an economic cast, becoming a gospel of work and money to such an extent as apparently almost completely to overshadow the higher aims of life. Moreover, this is an age when the more advanced races are coming in closer contact with the less developed races, and the race feeling is therefore intensified; and Mr. Washington’s programme practically accepts the alleged inferiority of the Negro races. * * * Mr. Washington distinctly asks that black people give up, at least for the present, three things – first, political power, second, insistence on civil rights, [and] third, higher education of Negro youth – and concentrate all their energies on industrial education, the accumulation of wealth, and the conciliation of the South.
The question then comes: Is it possible, and probable, that nine millions of men can make effective progress in economic lines if they are deprived of political rights, made a servile caste, and allowed only the most meager chance for developing their exceptional men? If history and reason give any distinct answer to these questions, it is an emphatic No.
From Chapter III “The Souls of Black Folk” (1903) W.E.B. Du Bois
[W.E.B. Du Bois was born in Great Barrington, Massachusetts, in 1868. He graduated from Fisk University in 1888, and received his Ph.D. degree from Harvard University in 1895. In 1900, he developed the theory that people of African descent had common interests in working together to overcome racial prejudice. Dr. Du Bois taught History and Economics at Atlanta University from 1897 to 1910, and while there, he attended the first Pan-African conference in London in 1900. In 1909, Dr. Du Bois became a co- founder of the N.A.A.C.P. and from 1910 – 1934 served as editor of “The Crisis,” the magazine still published by that Organization. Dr. Du Bois remained a civil rights advocate throughout his life, and until his death in Ghana, in 1963].
In his recent biography of Booker T. Washington, Up from History (Harvard University Press, 2009), Professor Robert Norrell explains that, throughout his professional life, Booker Washington was determined to emphasize that African Americans were capable, and would make important contributions to all facets of American life – and that this message had to be stated in a way that would encourage peaceful and harmonious relations between blacks and whites. Washington and DuBois had led different lives before they met and their perspectives were shaped by their backgrounds: “In 1861, seven years before DuBois was born, Booker Washington was a five-year old slave. His educational path, from the beginning, distinguished his perspective of the future of his race from the perspective of W.E.B. DuBois. Following his graduation from Hampton Institute, created by the director of the Freedmen’s Bureau, his professional efforts were influenced from the beginning by positive relationships with Southern and Northern whites, and his understanding of mixed racial heritage and Southern white behavior in matters of race. With these background factors, he was summoned to start a “normal school” at Tuskegee, Alabama, with the support of whites, who felt that education was the path to black progress. However, his experience in building Tuskegee Normal Institute (now Tuskegee University) would forever shape his view of race matters in education and social life in a way that would inevitably distinguish him from his critics, including Dr. DuBois. Tuskegee Institute was born in the immediate aftermath of Southern surrender and the birth of white supremacist vigilante organizations, which would soon become known as the Ku Klux Klan. White terrorism was immediate in the town of Tuskegee, and in 1881, Booker Washington was aware that teachers had been terrorized and even killed in Virginia, West Virginia and Alabama. Booker Washington also knew that this terrorism was the extreme of a more general white nationalism in the South following the Civil War, and he was thus motivated early-on to build Tuskegee in a way that responded to white-nationalist thinking with the message that Tuskegee was created and would grow with the consent and support of whites.
Norrell writes that, on a philosophical level, Mr. Washington deliberately saw the Tuskegee experiment as a part of his message of progress in race relations, and he was unapologetic that this approach would be preferable to confronting whites with their wrongdoings. He chose instead to emphasize the expansion of a black class of “self-made men.” * * * While he lacked the formal higher education of DuBois, he believed in true higher education and voting rights for blacks, but he remained committed to an initial mission that would provide both white benefactors and popular white support for the value of a large and upwardly mobile black labor force.
As Professor Norrell notes, this is a message that Booker Washington had delivered to his students earlier that year: Education had to have a real world application at the time, or it would be unrewarding for a people who needed primary schools and skills training to prepare them for agriculture and industry. He assured his students that any man or woman deserved all possible educational opportunity, but that the immediate need for blacks was for education that would advance the “material condition” – food, shelter, and economic security. And, he firmly believed that an economic relationship between whites and blacks would be the best immediate path to long-term progress for blacks, a sentiment embraced in part by Gunnar Myrdal in an essay in 1944 that would be quoted in Brown v. Board of Education. As the inevitability of a more national public debate about black social conditions became apparent, DuBois published “The Voice of the Negro” as a monthly magazine presenting an alternative to Booker Washington’s views, and shortly thereafter DuBois convened the first session of The Niagara Movement in the summer of 1905. His convening of the so-called “Talented Tenth” was the first major step in calling for a new black leadership independent of Mr. Washington.
At the same time, influential Southern white supremacist literature not only continued to predict the danger of Booker Washington’s program of educating blacks, but emphasized that educated blacks would take white jobs, and encourage a social assimilation that would threaten the safety of Southern women. At the forefront was Thomas Dixon’s film “Birth of a Nation” based on his novel and stage play “The Clansman,” which glorified the violent anti-black Ku Klux Klan. The film played popularly to white audiences in the South. This widely popular appeal to white supremacy and fear of blacks led to white riots (fueled by white allegations that blacks had raped white women) in Atlanta in September of 1906. While the riots were followed by efforts at racial reconciliation, they also intensified DuBois’ critical view of Washington, who had urged blacks not to retaliate and praised inter-racial efforts at reconciliation. In the end, DuBois’ efforts in the creation of the N.A.A.C.P., founded in 1909, began a new era in advocacy for black equality – beginning with the enforcement of the Fourteenth and Fifteenth Amendments.
See R. Norrell, “Up From History: The Life of Booker T. Washington” (Harvard University Press, 2009); Dr. Norrell is Bernadotte Schmitt Professor of History, University of Tennessee.
Professor Theodore Eisenberg explains that: "[Overt] racism in America peaked in the early Twentieth century, a fact reflected in the federal government's attitude toward blacks. Presidents Taft and Wilson oversaw the adoption of segregation in federal employment [and] neither Warren Harding nor Calvin Coolidge showed any inclination to rise above the worst racial attitudes of their times." Eisenberg notes the establishment of the Civil Rights Division within the U.S. Department of Justice, in 1939, as a major shift in federal enforcement activity, leading to important decisions in United States v. Classic, 313 U.S. 299 (1941) and Screws v. United States, 325 U.S. 91 (1945). However, he suggests that this period was generally not distinguished by federal promotion of civil rights, and that even President Franklin Roosevelt was reluctant to propose or endorse civil rights legislation. Although A. Philip Randolph - the distinguished leader of black union efforts - had proposed the need for such legislation, it was not until President Truman created a presidential civil rights committee in 1946 that the federal executive demonstrated proactive leadership on the issue. However, Eisenberg observes, Southern political power in Congress precluded significant civil rights legislation, and Truman's success was marked primarily by the Justice Department's role in the Supreme Court's decision in Shelly v. Kraemer, 334 U.S. 1 (1948) (prohibiting judicial enforcement of racially restrictive real estate covenants). Truman also issued a series of Executive Orders prohibiting racial discrimination by federal contractors (later expanded by Presidents Kennedy and Johnson), and establishing some level of equal opportunity in the military. This period of relative inactivity, and opposition to civil rights legislation, was characterized, following World War II, by renewed violence against blacks, and a renewed demand for action to protect and enforce basic civil rights. The United States Supreme Court's decisions in Smith v. Allwright, 321 U.S. 649 (1944) and Brown v. Board of Education, produced a confluence of social activism and judicial activism that led to the passage and sustaining of the modern civil rights legislation that is the focus of the balance of our discussions.
Assignment 2: Read and be prepared to discuss Smith v. Allwright, 321 U.S. 649 (1944), and Brown v. Board of Education, 347 U.S. 483 (1954).
Assignment 3: Read and be prepared to discuss J. Bass, Unlikely Heroes, Preface, Prelude and Chapters 1, 2 & 3, and Browder v. Gayle, 142 F. Supp. 707 (D.C. Ala. 1956), affirmed, 352 U.S. 903 (1956).
Many historiographers have written brilliant detailed histories of the Civil Rights Movement, but have approached the subject in burdensome detail, which obscures the essential inquiries of the cultural biographer/historian. Unlikely Heroes is a “big picture” interdisciplinary book. It is efficiently written, but is complex, and must be read carefully. It explores in a brilliant, understandable style, the essential relationship between the law and the direct action campaign for civil rights in the decade following the Court’s decisions in Brown v. Board.
In Class, we will view the Blackside/PBS American Experience Series documentary “Eyes on the Prize, Part I: Awakenings.”
“Eyes on the Prize," produced originally in 1986 by Henry Hampton, reveals the actual original live television reports of events that defined the Civil Rights Movement from 1954 – 1965 throughout the South, and re-edited in 1986 with on-screen narration by veterans of the movement. It was for its time, a brilliant technique for presenting a video history of the movement, seen through the lens of those who were there at the time, as they recall their original experiences.
Assignment 4: Read J. Bass, Unlikely Heroes Chapter 4 (on your own) and then Chapter 5, explaining the emergence of the “states’ rights debate within the Fifth Circuit.
Assignment 5: The emergence of racially motivated gerrymandering. Read and be prepared to discuss J. Bass, Unlikely Heroes, Chapter 6, and Gomillion v. Lightfoot, 270 F.2d 594 (5th Cir. 1959); reversed, 364 U.S. 339 (1960).
Assignment 6: Read and be prepared to discuss J. Bass, Unlikely Heroes, Chapter 7, and Bush, et al. v. Orleans Parish School Board, 138 F. Supp. 336 (E.D. La. 1956); Oleans Parish School Board v. Bush, 242 F.2d 156 (5th Cir. 1957), and Cooper v. Little Rock Ind. Sch. Dist., 257 F.2d 33; 358 U.S. 1 (1958).
[In class documentary]: "Eyes on the Prize: Fighting back" Part 1: The desegregation of Central High School, in Little Rock, Arkansas, in 1957.
Assignment 7: Read and be prepared to discuss J. Bass, Unlikely Heroes, Chapter 8, and then click on the >> prompt and read the additional commentary on Boynton v. Virginia, 364 U.S. 454 (1960), and the digest of Dixon v. Alabama State Bd. of Education 186 F. Supp. 945 (M. D. Ala. 1960), reversed, 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961).
[In class documentary film] "Eyes on the Prize, "Ain't Scared of Your Jails (1960-1961: The Lawson Workshops, The Nashville Sit-ins, and the 1961 Freedom Rides).
Read and be prepared to discuss J. Bass, Unlikely Heroes, Chapter 9, and Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962). [In class documentary] "Eyes on the Prize”: James Meredith's enrollment at the University of Mississippi.
[In class documentary] “Eyes on the Prize, Mississippi: Is This America? Freedom summer and the passage of the Civil Rights Act of 1964.
Read the digest of R. Loevy, "The Civil Rights Act of 1964: The Passage of the Law That Ended Racial Segregation."
[In class documentary]: "Eyes on the Prize: Bridge to Freedom (1965)."
Assignment 11: Read and be prepared to discuss J. Bass, Chapter 17, "No More Deliberate Speed" and the digest of Judge Wisdom's opinion in U.S. v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966).
Assignment 12: [In class documentary] "I AM A MAN: From Memphis A Lesson In Life." In preparation for the documentary, consider the following reading:
Assignment 13: Continued southern resistance to the integration of places of public accommodation and to the elimination of racial discrimination in voting rights: Read Miller v. Amusement Enterprises, 394 F.2d 342 (5th Cir. 1968); Palmer v. Thompson, 403 U.S. 217 (1971); and Allen v. State Board of Elections, 393 U.S. 544 (1969).
Closing thoughts: In 1973, Dr. C. Vann Woodward, Sterling Professor of History at Yale, recipient of the Pulitzer Prize and the Bancroft Prize, and one of America's leading Southern History scholars, wrote on the occasion of the publication of the third revised edition of his book The Strange Career of Jim Crow: "The previous revision of this book, published in its original edition nearly twenty years ago, brought the account [of the Civil Rights Movement] up to the events of August, 1965. That was a fateful month in the strange career of segregation and the movement against it. On August 6 , the President signed The Voting Rights Act, and on August 11 the terrible riot in Watts initiated four summers of violent racial explosions all over the country. Thus, within a week, a historic movement reached a peak of achievement and optimism, and immediately confronted the beginning of a period of challenge and reaction that called in question some of its greatest hopes and most important assumptions.
[To] explain the developments in the decade following the summer of 1965, it would help to recall a certain ambivalence that black people have felt all along toward integration in white America, an old ambivalence that had been buried and put aside during the long struggle against segregation and discrimination. While resenting and opposing compulsory segregation, they had clung at the same time to the desire for enough racial distinctiveness and separation to enable them to preserve a sense of cultural identity and racial pride and unity. Even the most complete victory over segregation would not satisfy that need, for few wished to deny racial identity or lose it in a white society. The ambivalence created a tension between those leaders who were concerned mainly with protest against racial prejudice, injustice and segregation, and those concerned with the preservation and fostering of racial identity, pride and autonomy."
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In 1967, Robert F. Kennedy reminded us that: "Every generation has its central concern, whether to end war, erase racial injustice, or improve the condition of the working man. Today's young people appear to have chosen for their concern the dignity of the individual human being. They demand a limitation upon excessive power. They demand a political system that preserves the sense of community among men. They demand a government that speaks directly and honestly to its citizens. We can win their commitment only by demonstrating that these goals are possible through personal effort * * * Our future may lie beyond our vision, but it is not completely beyond our control. It is the shaping impulse of America that neither fate nor nature, nor the irresistible tides of history, but the work of our own hands, matched to reason and principle that will determine destiny. There is pride in that, even arrogance, but there is also experience and truth. In any event, it is the only way we can live."
Robert F. Kennedy, "To Seek A Newer World" (Doubleday, 1967)
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CONSTITUTIONAL LAW AND CIVIL RIGHTS HISTORY
(An Experiential Study of the Legal, Political and Social Environment
Of The Civil Rights Movement)
This experience-based course, offered to students who have completed the elective course on the subject of Constitutional Law & Civil Rights History, takes students to five cities, where they visit museums, institutes, centers, universities, and historic places identified with The Civil Rights Movement and the legal history of the 1964 Civil Rights Act and the 1965 Voting Rights Act. The academic itinerary includes personal discussion sessions with more than 20 former Civil Rights Movement veterans, civil rights lawyers, political and media figures. Learning environments include The Seigenthaler Center at Vanderbilt University, the Birmingham Civil Rights Institute, the Southern Poverty Law Center and National Civil Rights Memorial, the United States District Court for the Northern District of Alabama, the Rosa Parks Museum, and the Martin Luther King Center in Atlanta. Students also visit the sites of the major events in the civil rights struggle in Nashville, Birmingham, Montgomery and Selma.
The travel course builds on the students’ study of Constitutional Law and the Civil Rights historiography covered in the pre-requisite course – and is offered to directly expose students to the oral history tradition and learning settings which allow students to experience personal, first-hand accounts of the expectations and experiences of actual veterans of the civil rights movement and the relationship between Constitutional Law and the direct action campaign for civil rights and social justice.
Look for the abbreviated course descriptions in your registration packet for spring and/or summer term.