Constitutional Law and the Civil Rights Movement
A Basic Study of the Moral Arguments, Judicial Decisions and
Direct Action Campaign That Influenced The
Nationalization of Fundamental Civil Rights
in the Post-Modern Era
Professor: Robert D. Bickel
727-562-7854 (Phone); 727-347-3738 (Fax)
e-mail: bickel@law.stetson.edu
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Introduction:
Professor Theodore Eisenberg writes that with the passage and sustaining of the 1964 Civil Rights Act, the 1965 Voting Rights Act, the 1968 Fair Housing Law, and the revival of the Civil Rights Act of 1866, the legal battle against racial discrimination at least formally was won. He suggests that certainly, this era represents the most significant period of federal civil rights activity in American History. The assigned readings, documentary films, accounts of legislative history, statutory language, and judicial opinions attempt to make the student of this subject more aware of the influence of history on these civil rights laws, and the way in which direct action campaigns and landmark decisions of the Fifth Circuit Court of Appeals and the United States Supreme Court combined to secure equality of opportunity in higher education, work and voting rights as a fundamental benchmark for the concept of civil rights in post-modern American society. Except for the assigned texts for the course, the assignments are excerpts or selections from larger writings, documentary and dramatic films or series, and court cases, selected by the professor as illustrative of the history of the nationalization of civil rights and the commitment to a nondiscrimination principle in the decade following the United States Supreme Court's seminal decision in Brown v. Board of Education.
Required Texts:
Bass, J., "Unlikely Heroes" (Univ. of Alabama Press, 1981)
ISBN 0-8173-0491-6 (Paperback)
Reflections:
"Although each of us comes into the world de novo, we are not really new creatures. We arrive into a social slot, born not only to a family but also a religion, community, and, of course a nation and a culture. Sociologists understand the power of social structure and culture to shape not only our path through the world but also our understanding of that path and that world. Yet we often have to expend much energy trying to get students to see the influence on their lives of the social structure and culture they inherit. Not understanding their past renders many Americans incapable of thinking effectively about our present and future."
James W. Loewen
Lies My Teacher Told Me
(Touchstone Books, 2007)
"The creation of the United States of America is the greatest of all human adventures. No other national history holds such tremendous lessons, for the American people themselves, and for the rest of mankind. It now spans four centuries and, as we enter the new millennium, we need to retell it, for if we can learn these lessons and build upon them, the whole of humanity will benefit in the new age which is now opening. American history raises three fundamental questions. First, can a nation rise above the injustices of its origins and, by its moral purpose and performance, atone for them? All nations are born in war, conquest, and crime, usually concealed by the obscurity of a distant past. The United States, from its earliest colonial times, won its title-deeds in the full blaze of recorded history, and the stains on them are there for all to see and censure: the dispossession of [an] indigenous people, and the securing of self-sufficiency through the sweat and pain of an enslaved race. In the judgment scales of history, such grievous wrongs must be balanced by the erection of a society dedicated to justice and fairness. Has the United States done this? Has it expiated its organic sins?
"The second question provides the key to the first. In the process of nation building, can ideals and altruism - the desire to build the perfect community - be mixed successfully with acquisitiveness and ambition, without which no dynamic society can be built at all? Have the Americans got the mixture right? Have they forged a nation where righteousness has the edge over the needful self-interest?
"Thirdly, the Americans originally aimed to build an other-worldly "City on a Hill," but found themselves designing a republic of the people, to be a model for the entire planet. Have they made good their audacious claims? Have they indeed proved exemplars for humanity? And will they continue to be so in the new millennium?"
Paul Johnson, "A History of the American People"
U.S. Edition by Harper-Collins Publishers (1997)
"We deem it a settled point that the destiny of the colored man is bound up with that of the white people of this country
We can be remodified, changed and assimilated, but never extinguished. . . The question for the philosophers and statesmen of the land ought to be, what principles should dictate the policy of action toward us?"
Frederick Douglass, As contained in V. Harding,
"There is a River" (1983), p. 154
"My brethren say that when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of their legal right to take that rank, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained.
Harlan, J., dissenting in the Civil Rights Cases, 109 U.S. 3, 62 (1883).
"There are, no doubt, rational and ethical factors in the democratic process. Contending social forces presumably use the forum rather than the battleground to arbitrate their differences in the democratic method, and thus differences are resolved by moral suasion and a rational adjustment of rights to rights. If political issues were really abstract questions of social policy upon which unbiased citizens were asked to commit themselves, the business of voting and the debate which precedes the election might actually be regarded as an educational programme in which a social group discovers its common mind. But the fact is that political opinions are inevitably rooted in economic interests of some kind or other, and only a comparatively few citizens can view a problem of social policy without regard to their interest * * * The limitations of the human mind and imagination, the inability of human beings to transcend their own interests sufficiently to envisage the interests of their fellow-men as clearly as they do their own makes force an inevitable part of the process of social cohesion....The individual or group which organizes any society, however social its intentions or pretensions, arrogates an inordinate portion of social privilege to itself * * * The fact that the hypocrisy of man's group behavior...expresses itself not only in terms of self-justification but in terms of moral justification of human behavior in general, symbolizes one of the tragedies of the human spirit; its inability to conform its collective life to its individual ideals."
Reinhold Niebuhr
"Moral Man & Immoral Society"
Scribner's Sons, 1932
In 1960, in his Introduction to the republication of his 1932 work, Reinhold Niebuhr observes: "Failure to recognize the stubborn resistance of group egoism to all moral and inclusive social objectives inevitably involves [religious and rational leaders] in unrealistic and confused political thought. They regard social conflict either as an impossible method of achieving morally approved ends or as a momentary expedient which a more perfect education or a purer religion will make unnecessary. They do not see that the limitations of the human imagination, the easy subservience of reason to prejudice and passion, and the consequent persistence of irrational egoism, particularly in group behavior, make social conflict an inevitability in human history, probably to its very end."
2001 Edition
With Forward by Professor Langdon Gilkey
Westminster John Knox Press
Prominent theologian and social liberal Reinhold Niebuhr wrote the first fundraising appeal for the Highlander Folk School, which was founded in 1932 by Myles Horton and Don West. Highlander's original mission was to educate "rural and industrial leaders for a new social order." In 1953, Highlander changed its focus from labor organization to the Civil Rights Movement. The impetus for the change was two-fold. First, the staff believed that "conquering meanness, prejudice and tradition" in the form of racism and segregation was [] key to conquering poverty and winning progressive change throughout the region. Second, the staff predicted that...Brown [v.] Board of Education...would set off a major upheaval in the South * * * Highlander's long tradition of working with African Americans in the labor movement put the school in a strong position to support the movement to end segregation * * * Highlander's work in the Civil Rights Movement from 1953-1961 focused mainly on school desegregation and voter education/voting rights. Because of its pioneering efforts to conduct cross-race educational sessions, Highlander also served a role as a key gathering place for civil rights activists. Dr. King, Rev. Ralph Abernathy, and Rosa Parks visited Highlander, along with other leaders of the Southern Christian Leadership Conference - and the Student Non-Violent Coordinating Committee used Highlander as a place to meet and organize their efforts. Highlander also helped spread freedom songs throughout the Civil Rights Movement. These freedom songs -- sung at marches, rallies, and in jails across the South -- became one of the hallmarks of the movement, providing inspiration, hope, and solidarity for all those fighting racism and segregation.
See http://www.highlandercenter.org/default.asp
"If you believe that people are of worth, you can't treat anybody inhumanely, and that means you not only have to love and respect people, but you have to think in terms of building a society that people can profit most from, and that kind of society has to work on the principle of equality."
Myles Horton
Co-Founder, Highlander Folk School
"The institutions and customs that exist in the present and that give rise to present social ills and dislocations did not arise overnight. They have a long history behind them. The attempt to deal with them simply on the basis of what is obvious in the present is bound to result in adoption of superficial measures which in the end will only render existing problems more acute and more difficult to solve. Policies framed simply upon the ground of knowledge of the present cut off from the past is the counterpart of heedless carelessness in individual conduct. The way out of scholastic systems that made the past an end in itself is to make acquaintance with the past a means of understanding the present. Until this problem is worked out, the present clash of educational ideas and practices will continue...."
John Dewey, "Experience and Education"
Kappa Delta Pi Lecture Series (1938)
"Something was wrong with a world that tells you that love is good and people are important, and then forces you to deny love and to humiliate people. I knew, though I would not for years confess it aloud, that in trying to shut the Negro race away from us, we have shut ourselves away from so many good, creative, honest, deeply human things in life."
Lillian Smith
Chapter 1, "When I Was a Child"
"Killers of the Dream" 1949
1994 edition, W.W. Norton & Co., p. 39
"A review of the struggle for and against racial equality in the nineteenth century provides a necessary context for understanding the persistence and the pervasiveness of the problem [in] the last quarter of the twentieth century."
John Hope Franklin
Racial Equality in America
The 1976 Jefferson Lecture
National Endowment for the Humanities
Republished by The University of Missouri Press (1993)
With the possible exception of Native Americans, no racial or ethnic group in America has experienced such sustained and appalling mistreatment, and therefore has a stronger claim than blacks to compensatory and corrective governmental measures. The calculated oppression of black Americans by governmental bodies is not the product of some distant past but continued in a most virulent form at least until the mid to late 1960s, when the legislative and executive branches of the federal government finally joined the Supreme Court in trying to aid blacks with various antidiscrimination and affirmative action measures. In the current political debate over affirmative action, it is at times alarming to see how little of the appalling history is still remembered, and how quickly the notion has gained currency that the moral debt to a people enslaved and then oppressed and degraded has been paid by thirty years of relatively evenhanded and in some cases preferential treatment.
Professor John Donohue
"Foundations of Employment Discrimination Law"
Chapter 1
Foundation Press (1997, 2003)
"Learn the system and with this knowledge use the system to change the system."
Martin Firestone, legal counsel for Civic Communications Corporation in
Office of Communication, United Church of Christ v. The Federal Communications Commission
This course is dedicated to the memory of Dr. Martin Luther King, Jr., Medgar Evers, Robert Kennedy, and other civil rights leaders who were taken from us before their work was completed, and to the memory of Denise McNair, Cynthia Wesley, Addie Mae Collins, Carol Robertson, James Earl Chaney, Michael Schwerner, Andrew Goodman, Harry T. Moore, Viola Gregg Liuzzo, Jimmie Lee Jackson, Rev. James Reeb and countless unnamed others who gave their lives during the struggle for equality and civil rights. They are the real heroes in the fight for equal educational and employment opportunity, and voting rights. Those of us who practice the law must never forget that they were killed in an attempt to prevent the enactment of fundamental civil rights laws that many of us now take for granted. Whatever we do with these laws, we do by walking ground that they prepared. We owe them our promise that, in advising our clients, pursuing cases, or working for our community, we will never take for granted or diminish the spirit of the laws for which we are now the gatekeepers.
The Professor acknowledges and appreciates the continued guidance of Professor James Fox of the College of Law, Professor Ray Arsenault of the University of South Florida, and Professor Jack Bass of the College of Charleston, and also expresses his appreciation to Stan Arthur, Dena Capobianco, Shannon Edgar, and Brian Vandervliet for their continuing and brilliant technical support for this course.
