Wednesday, April 25, 2018

Legal Apartheid (Jim Crow)

Post-civil War Restrictions on Interstate Migration

David E. Bernstein

excerpted from: David E. Bernstein, The Law and Economics of Post-civil War Restrictions on Interstate Migration by African-Americans, 76 Texas Law Review 781-847, 781 (March, 1998) (406 Footnotes)

"A man has a right to go anywhere in this country he may choose." --R.A. "Peg Leg" Williams, Southern emigrant agent

In Williams v. Fears, the Supreme Court upheld a racist statute that imposed a prohibitive license fee on interstate labor recruiters known as "emigrant agents." The result in Williams negatively affected the lives of millions of African-Americans, yet, for reasons explained in detail in this Article, the case has been doomed to almost total obscurity.

From the end of the Civil War until Williams, emigrant agents played a key role in encouraging and financing African-American migration within the United States. Because many rural African-Americans "were too poor to go very far without aid and because they lacked ready access to information about opportunities in distant places," they had little choice but to rely on labor recruiters.

Emigrant agents lowered the information costs of migration by using their resources to advertise distant opportunities. Agents also often subsidized the economic costs of migration by either paying for or advancing the money for the migrants' train tickets. The agents sometimes even retired debts their recruits owed to plantation owners.

Emigrant agent laws greatly restricted such activity. By using taxation to essentially prohibit agents from engaging in their profession, these laws raised both the economic and information costs of migration. As intended, the added costs made it more difficult for rural African-Americans to migrate, particularly in large groups.

Group migrations were significant for several reasons. First, such migrations were sometimes a form of political protest, one of the few forms of protest in which disenfranchised African-Americans could engage. African-Americans frequently deserted regions in response to lynchings and other forms of white lawlessness, or in response to unfavorable legislation. African-Americans would move to places where they were relatively well treated or had relatively good economic prospects. Second, in the era before the welfare state, emigrant agents helped groups of destitute African-Americans flee areas devastated by flood, drought, or boll weevils and other pests. Finally, and perhaps most important, mass migration, and even the threat of such migration, was crucial to improving the treatment of African-Americans by white Southerners. In response to large-scale migrations, many farmers raised wages, improved the living and working conditions of African-Americans, and, with the cooperation of local and state government, granted African-Americans greater educational opportunities and greater protection in their property and person.

The body of this Article discusses Williams v. Fears in the context of the law and economics of emigrant agent laws, and the "usable history" that one can glean from the history of such laws. Part I discusses the development of free labor markets in the South after the Civil War, and reviews attempts by Southern whites to stifle such markets in order to maintain a docile, inexpensive supply of African-American labor. As economic theory would predict, white planters were unable to form a successful voluntary cartel to stifle the free labor market, so they turned to government coercion.

Part II discusses the origins of one example of government coercion, emigrant agent laws. Emigrant agent laws were generally a reaction to large-scale migrations of African-American workers in search of better social, economic, and political conditions. Part II also discusses early legal challenges to emigrant agent laws, some of which were surprisingly successful. Two Southern state supreme courts held that emigrant agent laws were unconstitutional.

Part III discusses the background to Williams v. Fears, and the decision in that case. R.A. "Peg Leg" Williams, the named party, was probably the most successful emigrant agent of his day. He assisted tens of thousands of African-Americans in pursuing new economic opportunities. Williams's arrest and conviction in Georgia for acting as an emigrant agent and the United States Supreme Court's subsequent ruling upholding the conviction led to a crackdown on emigrant agents throughout the South. As a result, the poorest and most isolated African-American workers found it particularly difficult to migrate and escape their miserable conditions.

Given the devastating effects of emigrant agent laws, and the high degree of interest in racial issues among legal scholars, it is astounding that Williams has been almost completely neglected by legal scholars. Part IV of this Article suggests that a major reason Williams has been ignored is that legal historians are generally indifferent, if not hostile, to economic reasoning. As explained in greater detail below, because legal historians have disregarded economic reasoning, they have virtually ignored subtle discriminatory economic regulations, of which emigrant agent laws are an important example.

As discussed in detail in Part IV, the slighting of economic reasoning by legal historians has impeded them from providing the broader legal community with a usable history. The neglect of emigrant agent laws, for example, has deprived legal scholars of information highly relevant to several current controversies in legal academia. First, the history of emigrant agent laws provides support for Richard Epstein's controversial thesis that state action played a far larger role in the economic oppression of African-Americans before the modern civil rights era than is generally acknowledged. Second, the history of constitutional litigation over emigrant agent laws shows that Lochnerian "laissez-faire" jurisprudence could and at times did protect minorities from hostile economic legislation. This history calls into question the standard view that Lochnerian jurisprudence primarily benefitted the wealthy and powerful at the expense of the poor. And, third, the history of African-American migration discussed in this Article calls into question the view commonly expressed in debates over federalism that the historical decentralization of political power in the United States was an unmitigated disaster for African-Americans. As discussed in Part IV, at a time when the federal government was generally hostile to African-American interests, decentralized government allowed African-Americans to better their lot by migrating to jurisdictions where relative economic opportunity or tolerance awaited.

[a1]. Assistant Professor, George Mason University School of Law. E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..

Examples of Jim Crow Laws

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From the 1880s into the 1960s, a majority of American states enforced segregation through "Jim Crow" laws (so called after a black character in minstrel shows). From Delaware to California, and from North Dakota to Texas, many states (and cities, too) could impose legal punishments on people for consorting with members of another race. The most common types of laws forbade intermarriage and ordered business owners and public institutions to keep their black and white clientele separated.

Here is a sampling of laws from various states:

Nurses No person or corporation shall require any white female nurse to nurse in wards or rooms in hospitals, either public or private, in which negro men are placed.Alabama

Buses All passenger stations in this state operated by any motor transportation company shall have separate waiting rooms or space and separate ticket windows for the white and colored races.Alabama

Railroads The conductor of each passenger train is authorized and required to assign each passenger to the car or the division of the car, when it is divided by a partition, designated for the race to which such passenger belongs.Alabama

Restaurants It shall be unlawful to conduct a restaurant or other place for the serving of food in the city, at which white and colored people are served in the same room, unless such white and colored persons are effectually separated by a solid partition extending from the floor upward to a distance of seven feet or higher, and unless a separate entrance from the street is provided for each compartment.Alabama

Pool and Billiard Rooms It shall be unlawful for a negro and white person to play together or in company with each other at any game of pool or billiards.Alabama

Toilet Facilities, Male Every employer of white or negro males shall provide for such white or negro males reasonably accessible and separate toilet facilities.Alabama

Intermarriage The marriage of a person of Caucasian blood with a Negro, Mongolian, Malay, or Hindu shall be null and void.Arizona

Intermarriage All marriages between a white person and a negro, or between a white person and a person of negro descent to the fourth generation inclusive, are hereby forever prohibited.Florida

Cohabitation Any negro man and white woman, or any white man and negro woman, who are not married to each other, who shall habitually live in and occupy in the nighttime the same room shall each be punished by imprisonment not exceeding twelve (12) months, or by fine not exceeding five hundred ($500.00) dollars.Florida

Education The schools for white children and the schools for negro children shall be conducted separately.Florida

Juvenile Delinquents There shall be separate buildings, not nearer than one fourth mile to each other, one for white boys and one for negro boys. White boys and negro boys shall not, in any manner, be associated together or worked together.Florida

Mental Hospitals The Board of Control shall see that proper and distinct apartments are arranged for said patients, so that in no case shall Negroes and white persons be together.Georgia

Intermarriage It shall be unlawful for a white person to marry anyone except a white person. Any marriage in violation of this section shall be void.Georgia

Barbers No colored barber shall serve as a barber [to] white women or girls.Georgia

Burial The officer in charge shall not bury, or allow to be buried, any colored persons upon ground set apart or used for the burial of white persons.Georgia

Restaurants All persons licensed to conduct a restaurant, shall serve either white people exclusively or colored people exclusively and shall not sell to the two races within the same room or serve the two races anywhere under the same license.Georgia

Amateur Baseball It shall be unlawful for any amateur white baseball team to play baseball on any vacant lot or baseball diamond within two blocks of a playground devoted to the Negro race, and it shall be unlawful for any amateur colored baseball team to play baseball in any vacant lot or baseball diamond within two blocks of any playground devoted to the white race.Georgia

Parks It shall be unlawful for colored people to frequent any park owned or maintained by the city for the benefit, use and enjoyment of white persons...and unlawful for any white person to frequent any park owned or maintained by the city for the use and benefit of colored persons.Georgia

Wine and Beer All persons licensed to conduct the business of selling beer or wine...shall serve either white people exclusively or colored people exclusively and shall not sell to the two races within the same room at any time.Georgia

Reform Schools The children of white and colored races committed to the houses of reform shall be kept entirely separate from each other.Kentucky

Circus Tickets All circuses, shows, and tent exhibitions, to which the attendance of...more than one race is invited or expected to attend shall provide for the convenience of its patrons not less than two ticket offices with individual ticket sellers, and not less than two entrances to the said performance, with individual ticket takers and receivers, and in the case of outside or tent performances, the said ticket offices shall not be less than twenty-five (25) feet apart.Louisiana

Housing Any person...who shall rent any part of any such building to a negro person or a negro family when such building is already in whole or in part in occupancy by a white person or white family, or vice versa when the building is in occupancy by a negro person or negro family, shall be guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than twenty-five ($25.00) nor more than one hundred ($100.00) dollars or be imprisoned not less than 10, or more than 60 days, or both such fine and imprisonment in the discretion of the court.Louisiana

The Blind The board of trustees shall...maintain a separate building...on separate ground for the admission, care, instruction, and support of all blind persons of the colored or black race.Louisiana

Intermarriage All marriages between a white person and a negro, or between a white person and a person of negro descent, to the third generation, inclusive, or between a white person and a member of the Malay race; or between the negro a nd a member of the Malay race; or between a person of Negro descent, to the third generation, inclusive, and a member of the Malay race, are forever prohibited, and shall be void.Maryland

Railroads All railroad companies and corporations, and all persons running or operating cars or coaches by steam on any railroad line or track in the State of Maryland, for the transportation of passengers, are hereby required to provide separate cars or coaches for the travel and transportation of the white and colored passengers.Maryland

Education Separate schools shall be maintained for the children of the white and colored races.Mississippi

Promotion of Equality Any person...who shall be guilty of printing, publishing or circulating printed, typewritten or written matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and negroes, shall be guilty of a misdemeanor and subject to fine or not exceeding five hundred (500.00) dollars or imprisonment not exceeding six (6) months or both.Mississippi

Intermarriage The marriage of a white person with a negro or mulatto or person who shall have one-eighth or more of negro blood, shall be unlawful and void.Mississippi

Hospital Entrances There shall be maintained by the governing authorities of every hospital maintained by the state for treatment of white and colored patients separate entrances for white and colored patients and visitors, and such entrances shall be used by the race only for which they are prepared.Mississippi

Prisons The warden shall see that the white convicts shall have separate apartments for both eating and sleeping from the negro convicts.Mississippi

Education Separate free schools shall be established for the education of children of African descent; and it shall be unlawful for any colored child to attend any white school, or any white child to attend a colored school.Missouri

Intermarriage All marriages between...white persons and negroes or white persons and Mongolians...are prohibited and declared absolutely void...No person having one-eighth part or more of negro blood shall be permitted to marry any white person, nor shall any white person be permitted to marry any negro or person having one-eighth part or more of negro blood.Missouri

Education Separate rooms [shall] be provided for the teaching of pupils of African descent, and [when] said rooms are so provided, such pupils may not be admitted to the school rooms occupied and used by pupils of Caucasian or other descent.New Mexico

Textbooks Books shall not be interchangeable between the white and colored schools, but shall continue to be used by the race first using them.North Carolina

Libraries The state librarian is directed to fit up and maintain a separate place for the use of the colored people who may come to the library for the purpose of reading books or periodicals.North Carolina

Militia The white and colored militia shall be separately enrolled, and shall never be compelled to serve in the same organization.No organization of colored troops shall be permitted where white troops are available, and while white permitted to be organized, colored troops shall be under the command of white officers.North Carolina

Transportation The...Utilities empowered and directed to require the establishment of separate waiting rooms at all stations for the white and colored races.North Carolina

Teaching Any instructor who shall teach in any school, college or institution where members of the white and colored race are received and enrolled as pupils for instruction shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum not less than ten dollars ($10.00) nor more than fifty dollars ($50.00) for each offense.Oklahoma

Fishing, Boating, and Bathing The [Conservation] Commission shall have the right to make segregation of the white and colored races as to the exercise of rights of fishing, boating and bathing.Oklahoma

Mining The baths and lockers for the negroes shall be separate from the white race, but may be in the same building.Oklahoma

Telephone Booths The Corporation Commission is hereby vested with power and authority to require telephone maintain separate booths for white and colored patrons when there is a demand for such separate booths. That the Corporation Commission shall determine the necessity for said separate booths only upon complaint of the people in the town and vicinity to be served after due hearing as now provided by law in other complaints filed with the Corporation Commission.Oklahoma

Lunch Counters No persons, firms, or corporations, who or which furnish meals to passengers at station restaurants or station eating houses, in times limited by common carriers of said passengers, shall furnish said meals to white and colored passengers in the same room, or at the same table, or at the same counter.South Carolina

Child Custody It shall be unlawful for any parent, relative, or other white person in this State, having the control or custody of any white child, by right of guardianship, natural or acquired, or otherwise, to dispose of, give or surrender such white child permanently into the custody, control, maintenance, or support, of a negro.South Carolina

Libraries Any white person of such county may use the county free library under the rules and regulations prescribed by the commissioners court and may be entitled to all the privileges thereof. Said court shall make proper provision for the negroes of said county to be served through a separate branch or branches of the county free library, which shall be administered by [a] custodian of the negro race under the supervision of the county librarian.Texas

Education [The County Board of Education] shall provide schools of two kinds; those for white children and those for colored children.Texas

Theaters Every person...operating...any public hall, theatre, opera house, motion picture show or any place of public entertainment or public assemblage which is attended by both white and colored persons, shall separate the white race and the colored race and shall set apart and designate...certain seats therein to be occupied by white persons and a portion thereof , or certain seats therein, to be occupied by colored persons.Virginia

Railroads The conductors or managers on all such railroads shall have power, and are hereby required, to assign to each white or colored passenger his or her respective car, coach or compartment. If the passenger fails to disclose his race, the conductor and managers, acting in good faith, shall be the sole judges of his race.Virginia

Intermarriage All marriages of white persons with Negroes, Mulattos, Mongolians, or Malaya hereafter contracted in the State of Wyoming are and shall be illegal and void.Wyoming

Forgotten Negro Protest Movement and EO 9981

Excerpted from: John L. Newby, The Fight For The Right To Fight And The Forgotten Negro Protest Movement: The History Of Executive Order 9981 And Its Effect Upon Brown V. Board Of Education And Beyond, 10 Texas Journal on Civil Liberties & Civil Rights 83-110 (Winter, 2004) (171 Footnotes Omitted)


I. Introduction

"The colored man in uniform is expected by the War Department to develop a high morale in a community that offers him nothing but humiliation and mistreatment. . . . The War Department has failed to secure to the colored soldier protection against violence on the part of civilian police and to secure justice in the courts in communities near-by to Southern stations. . . . On the training fields the development of morale does not take into consideration Jim-Crow laws and customs. The "Four Freedoms" cannot be enjoyed under Jim-Crow influences."

-Brigadier General Benjamin O. Davis, Sr.


With these words, the first black general in the United States military, Brigadier General Benjamin O. Davis, Sr., accurately expressed the deep-felt resentment held by virtually every black military member during World War II. Although blacks were members of the military, they continued to be subject to the indignities of discrimination in the form of poor treatment by local communities, the military establishment *84 (including superiors, contemporaries, and subordinates), and Jim Crow military policies. General Davis, along with many other military and civilian proponents of military equality, fought discrimination on all fronts. From privates in the field reporting discriminatory treatment up the chain of command, to A. Philip Randolph's demand for an Executive Order, virtually all segments of black society recognized the irony of black soldiers fighting for the freedom of oppressed peoples abroad while simultaneously being subjected to oppression themselves. The result of the struggle for the Right to Fight and equality in the military, Executive Order 9981, not only began a new day for blacks in the military, but had implications in the fight for broader civil rights. The Executive Order was a presidential proclamation of the right to bear arms for one's country as a civil right. It also provided ammunition for advocates presenting subsequent challenges against discrimination in other contexts, namely education. The change from segregation to integration in the military represented more than a mere change of military policy; it represented a change in the understanding of the social fabric of our nation. As such, Executive Order 9981 was an important precursor to Brown v. Board of Education of Topeka and subsequent efforts to achieve equality of opportunity in America.

The purpose of this Note is to bring Executive Order 9981 and the struggle to desegregate the military into conversation with the literature on Brown and subsequent civil rights gains in the sphere of race and education. In its attempt to recognize the importance of the parallel demands for civil rights made to the executive and judicial branches during the period penned as the Forgotten Years of the Civil Rights movement, current literature tends to focus primarily on the importance of only one of A. Philip Randolph's petitions to the executive branch, the March on Washington Movement (MOWM). Many commentators view the MOWM as both the ultimate expression of African American rights consciousness during the war period and as a key step in the civil rights fight which led to the Brown decision. However, if, as it has been *85 suggested, the importance of the MOWM to the Brown-era civil rights movement has almost been forgotten, the even more effectual Committee Against Jim Crow in Military Training (CAJC) and the resulting Executive Order 9981 have been overlooked. The efforts to achieve equality in the military during the Forgotten Years, as well as the postwar petition for military integration by Randolph, were necessary precursors to advancements made during the Brown-era civil rights movement. While Executive Order 8802 was an initial step in the right direction and provided the necessary initial momentum, Executive Order 9981 made a more concrete step toward integration in American society and provided essential momentum for the Brown decision.

The two major issues of the period were independently significant, yet inextricably linked: employment discrimination and military service. During World War II, the federal government was a significant American employer, and the military was the most significant federal employer of minorities. The fight against discrimination in federal employment (engaged by the Fair Employment Practices Committee (FEPC), a body created by Executive Order 8802 in 1941) ran in logical parallel to the fight against discrimination in the military. While Executive Order 8802 and the FEPC provided a decent start, further action was needed to ensure equality in the military. Executive Order 9981 filled the significant hole left by Executive Order 8802's absence of language prohibiting discrimination in the military. Executive Order 8802 was, in effect, a deferral of action on the issue of discrimination by the federal government, setting up a committee to evaluate the problem of discrimination (the FEPC), in lieu of taking direct action. 1 *86Executive Order 9981, on the other hand, represented a direct assault on discrimination.

The frontal attack on segregation and discrimination in the military marked a historical shift in thinking on equality. The elimination of Jim Crow in federal employment and the military invigorated the fight against discrimination in other areas. With discrimination on the ropes in the venue of federal government, it was only a matter of time before broader fights against societal injustice could be successfully raised and won. The case of Brown v. Board of Education of Topeka and subsequent cases (e.g., the 2003 affirmative action cases Grutter v. Bollinger 1 and Gratz v. Bollinger ) were logical beneficiaries of the social changes initiated by Executive Order 9981. 1 The proclamation that blacks should be able to pursue their right to fight absent discrimination was an essential precursor to Brown; the presidential decree demonizing discrimination in federal employment was a powerful social statement which helped form the Court's contemporary thinking on social equality.

II. The Post-World War I World

Imagine a world-class athlete in the form of an All-American halfback, intercollegiate golf champion, and championship-caliber swimmer, being told he could not join his military base's baseball team, merely because he was black. Imagine a black uniformed Army officer, owed all the privileges and respect accorded such a position, being told to sit at the back of a bus, even though the bus was a military bus. Both of these injustices were inflicted upon one Lieutenant Jackie Robinson. Segregationist Army policies and a reluctant military establishment operated in concert to make the black soldier's pursuit of his right to fight for his country extremely difficult.

A. The Plight of the African-American Soldier

Army Policy

The official Army policy on Negro military service for the inter-war period was simply stated in a letter from Army Chief of Staff G.C. Marshall to an inquiring United States Senator: "It is the policy of the War Department not to intermingle colored and white enlisted personnel in the same regimental organization. The condition which has made this policy necessary is not the responsibility of the Department. . . ." This letter was drafted on the same day a conference was held at the White House to discuss discrimination against blacks in the military, attended by President Roosevelt; the Secretary of Navy and the Assistant Secretary of War; A. Philip Randolph, President of the Brotherhood of Sleeping Car Porters; Walter White, Secretary of the NAACP; and T. Arnold Hill of the National Youth Administration. While the aim of the conference was to end discrimination and segregation in the military, the resultant policy merely called for utilization of blacks "on a fair and equitable basis." In effect, the new policy established a "separate but equal" regime, allowing for segregation according to race, but striving for equality of opportunity within the segregated Negro units themselves. The policy statement expressly rejected integration, further entrenching segregative efforts: "The policy of the War Department is not to intermingle colored and white enlisted personnel in the same regimental organizations." The White House attempted to imply that the black leaders in attendance had ratified the wording of the War Department policy. In a telegram to the White House, the three black conferees expressly rejected the implication of their approval and vociferously protested the President's approval of the new policy.

The policy of segregation was also perpetuated by the Selective Service and Training Act of 1940. Black leaders had hoped that this Act, the vehicle by which Americans entered the military, would enforce notions of equality and fairness in military recruiting. In an effort to ensure equality, several spokesmen testifying before the House Committee on Military Affairs, the committee that played a significant role in the wording of the Act, urged the adoption of amendments *88 explicitly forbidding discrimination in the conscription and voluntary service process. When the Act was passed, it only banned discrimination insofar as it established a ten percent hiring quota for blacks; this small percentage would be afforded an opportunity to volunteer for induction into the military regardless of race. While these provisions appeared on their face to decrease discrimination in military hiring, a loophole in the Act undercut its ostensible ameliorative goals. The loophole provided that

no man shall be inducted for training and service under this act unless and until he is acceptable to the land or naval forces for such training.. .. [and] no men shall be inducted.. . until adequate provision shall have been made for [separate facilities] . . . as may be determined . . . to be essential to public and personal health. This loophole allowed discrimination in military hiring to continue under the auspices of legislation purporting to end such discrimination.

Segregation in the military was justified as a means of preventing racial trouble. Military leaders believed that, as long as segregation was the national norm, the Army was not to be a source of racial experimentation. The thought was that if units were integrated, the racial strife generated would not only affect morale but also readiness and efficiency. Segregation remained the express Army policy for the duration of the World War II period and even for a period shortly thereafter.

Rights Consciousness, Rights Denied

Rights consciousness among black servicemen arose in concert with social consciousness among the black citizenry as a whole. The crisis in Europe gave blacks more reasons and opportunity to protest racism at home. This social consciousness was carried into the military arena by forward-thinking, democracy-hungry black soldiers. Simply by looking at their white counterparts, black soldiers were aware of the *89 rights and privileges that they were denied. While civil equality (equality in employment in military service) was the focus of the servicemen's efforts, the related categories of political and social equality were also goals of servicemen and servicewomen entering World War II. Many black servicemen entered the military expressly because they believed that the military offered a better chance of equality than what they could obtain in the civilian world. At bottom, blacks wanted the Four Freedoms: freedom of speech and expression, freedom of worship, freedom from want, and freedom from fear. Blacks wanted nothing inconsistent with the Constitution or the Bill of Rights. 3 African Americans wanted complete economic, political, and social equality, including the right to die for their country. It was thought that equality could be achieved through military service, but black servicemen quickly realized this was not the case.

The military during World War II offered many types of career fields, the vast majority of which were off- limits to black servicemen. When allowed to enlist, blacks were primarily limited to serving in support roles. In 1940, the Navy restricted blacks to the messman's branch, while the Marine Corps and Air Corps contained no blacks at all. Little had changed upon the nation's entry into World War II in December 1941. The military continued to deny blacks entry into majority-white career fields. As a result, most blacks ended up in the Army Quartermaster and Engineer Corps. The cover of the July 1940 issue of The Crisis most accurately described the plight of blacks in regard to military service. It depicted military warplanes flying over an airfield, with the words "FOR WHITES ONLY" emblazoned across the picture and the following caption at the bottom: "Warplanes--Negro Americans may not build them, repair them, or fly them, but they must help pay for them." Blacks who not only met, but far exceeded, the requirements for a given career field were often bypassed. For example, one soldier who held a Bachelor of Science in physics, a minor in mathematics, and was a physics instructor and physicist at the National Bureau of Standards enlisted with the hopes of obtaining a position commensurate with his skill set. The Army assigned him the job of mail clerk.

The fortunate few blacks who found themselves able to serve, albeit unable to fight, were forced to realize that the federal government was the largest Jim Crow institution in the nation. The imposition of racially separate facilities was commonplace and included theaters, post exchanges, service clubs, and military buses. More often than not, the segregated facilities were substandard and makeshift at best.

The plight of the black enlisted man was intolerable, as he was both a de facto and de jure subordinate to the white military command establishment. The indignities suffered by black officers, however, presented a particularly poignant reminder of the status of blacks in the military. As a military officer, one was supposed to be afforded both responsibility and respect. And even if respect was not earned, it was given merely for the fact that one wore an officer's insignia on one's uniform. Thus, while every officer was a subordinate to a higher-ranking official, the officer was still, according to military protocol, considered superior to all enlisted personnel. Such respect was never afforded the black officer. In 1942, only 0.35% of blacks in the Army were officers. Even after the number of black officers increased, the career fields offered to them were limited to non- command positions (e.g., recreation officer, as was one of Lt. Jackie Robinson's career fields), and the locations at which they could serve were limited by the nonavailability of segregated living and recreational facilities for black officers. The lack of viable career fields for blacks was further exacerbated by the fact that the Army forbade blacks to outrank or command white officers. These restrictions prevented black officer from proving their ability to lead, and thus perpetuated the myth of black officers' incompetence. While black officers endured certain injustices unique to their status as commissioned officers, all black service personnel were routinely denied fundamental substantive entitlements normally afforded American soldiers. Blacks were often times given what amounted to other-than-honorable discharges, preventing them from obtaining many of the veterans' benefits enjoyed by most white veterans. There were instances where, even if a black serviceman obtained an honorable discharge, the Veterans Bureau routinely frustrated or, in many cases, outright denied the attempts of black veterans to receive veterans' benefits. The denial of two particular substantive military rights was especially difficult to accept: the denial of proper treatment as a military member as compared to the concomitant preferential treatment given to German and Italian prisoners of war, and the segregation of black children in government schools.

While the struggle for black servicemen to achieve equality in military service ensued, a parallel fight was being waged: the struggle for black women to achieve equality in military service. Black women were doubly marginalized; their daunting struggle was for acceptance not only as blacks, but as women. Compared to their white female counterparts, *92 black female soldiers were placed at the bottom of the list for consideration for equality. White women were afforded the opportunity to be nurses from the start of the war, could work in secretarial capacities, and were allowed to fly military aircraft as members of the Women Air Service Pilots. By comparison, black servicewomen were assigned as cleaners, laundry workers, and kitchen help, and only 500 of the 50,000 female army nurses were black. 5

While the attempts to equalize substantial rights for war-fighting servicemembers were stifled, at least there was obvious precedent to show what rights as servicemembers blacks were supposed to enjoy: any right or privilege accorded white servicemembers should have been accorded to blacks. The battle for social equality within the ranks was much more difficult to obtain. Commonly held prejudices and ignorance were transported from contemporary American culture into Army policy, and they were adopted in everyday interactions between black and white soldiers, as well as between black soldiers and white civilians. For example, even in the face of dire need, the Army, in concert with the American Red Cross, maintained segregated blood supplies during the war. In a letter from Major General James C. Magee, the Army Surgeon General, a weak rationale for this practice was offered:

For reasons not biologically convincing but which are commonly recognized as psychologically important in America, it is not deemed advisable to collect and mix Caucasian and negro blood indiscriminately for later administration to members of the military forces. In the same letter, General Magee addressed a suggestion that blood donor stations themselves be segregated. General Magee disagreed with such a system, opting to keep donor stations integrated and storage of plasma segregated, purely on grounds of efficiency: "[I]n my opinion, this additional expense would not be justified by the relatively small amount of negro blood to be obtained under such a plan." It is curious to note that while General Magee recognized both the inefficiency of the policy of separate storage and processing and the dubious *93 psychological underpinnings, the Army maintained this policy throughout the war.

Another social right demanded by blacks, and frequently interfered with by the white military establishment, was that of freedom of association in the form of interracial dating. While interracial marriage in America was taboo, if not illegal in many states, black soldiers had occasion to date white women overseas. Even in foreign lands, American views regarding this practice were fully enforced. The unofficial enforcement of the prohibition against interracial dating, even as between blacks and non-American whites, is reflected in a letter home by a white sergeant: "Every time we have seen a nigger with a white girl we have run him away. I would like to shoot the whole bunch of them." Discontent with the denial of economic equality (e.g., equality in military employment) and social equality manifested itself in instances of open protest. On the civilian side, in June 1943, competition between blacks and whites for jobs in Detroit erupted into the largest race riot of the 1940s. One of the most famous military confrontations occurred at Freeman Field, Indiana, in the spring of 1945. Freeman Field housed about 2500 personnel in support of a black bombardment group and service group. The base contained a contingent of nearly 400 black officers. After the base commander attempted to enforce segregation in the base officers' club, several black officers entered, demanding service; 101 black officers were subsequently arrested for refusing to sign the base's segregation regulation. The Army Air Forces supported the policy of segregation, primarily citing the fact that the clubs were for social interaction, which often included officers' families. The issue eventually reached the desk of Assistant Secretary of War John McCloy, who determined that the base commander exceeded his authority when he segregated facilities funded by the federal government.

One key belief was present in the consciousness of all African Americans, both military and civilian, in the struggle for economic and social equality: segregation was discrimination. This thinking was *94 captured in a piece circulated by A. Philip Randolph's Committee Against Jim Crow in Military Service and Training:

The military authorities, like the Supreme Court, deny that segregation is in itself discrimination. Actually, however, the record of the armed forces to date in this war is the strongest possible proof that discrimination is inextricably bound up with segregation. The Negro civilian in jimcrow states finds that, even if he is willing to accept segregation, he does not in actuality--whatever legal theories the Supreme Court may spin about it--get equal educational, housing and transportation facilities. And the Negro soldier or sailor also discovers, and even more dramatically, that even if he accepts segregation, he gets anything but equal treatment. It was this fundamental understanding of the situation in the military that guided the actions of the press, even those organizations that were opposed to any idea of mass, coordinated, direct action to obtain military equality.

B. United States ex rel. Lynn v. Downer

In the absence of a concerted litigation effort to end segregative policies in the military during World War II, black servicemen experienced violations of their rights at the hands of both white servicemen and white civilians. At Fort Benning, Georgia, in May of 1941, the body of an African American private was found hanging from a tree. In August of the same year, a white soldier and a black soldier were killed in a gun battle in Fayetteville, North Carolina after an alleged episode of brutality by white military police. Even after the war concluded, veterans continued to face threats. In February of 1946, army veteran Issac Woodard was ejected from a commercial bus and beaten by civilian police, resulting in permanent blindness; he was dressed in his military uniform at the time of the beating. While these and many more instances of egregious behavior spurred numerous NAACP complaints, the complaints caused few, if any, changes in segregative policies. Furthermore, there was a noticeable lack of activity in the *95 federal courts on behalf of the rights of servicemen. The Lynn case is the only instance of a direct attack on the military's policy of segregation in the federal courts during the Forgotten Years

In June of 1942, Winfred W. Lynn was notified that he had been placed on "1-a" status, making him eligible to be drafted. In response, he wrote the following letter to the draft board:

Gentlemen: I am in receipt of my draft-reclassification notice. Please be informed that I am ready to

serve in any unit of the armed forces of my country which is not segregated by race. Unless I am assured that I can serve in a mixed regiment and that I will not be compelled to serve in a unit undemocratically selected as a Negro group, I will refuse to report for induction. Shortly thereafter, on September 8, Lynn received notification to report for induction on September 18. After failing to obey the induction order because he had not received the assurances he wanted, he was indicted on charges of draft evasion. Lynn claimed that his induction into segregated units (under the auspices of a quota) violated Section 4(a) of the 1940 Act, which provided that "there shall be no discrimination against any person on account of race or color." Lynn filed a writ of habeas corpus, which the district court dismissed. Upon the advice of his attorneys (one of whom was his brother), Lynn entered the Army in order to enable him to raise the question of discrimination more fully. He then appealed the dismissal of his case before the United States Court of Appeals for the Second Circuit, which upheld the district court's ruling that the racial quota system used by the military was not discriminatory. The court cited the Army's history of segregating black and white soldiers, proclaiming "[t]o hold that the provision in section 4 forbidding discrimination invalidates such induction routine would frustrate. . . the development of an effective armed force, the prompt creation of which was the very purpose and object of the Act." The dissent aptly noted that legislative history showed that the majority ignored the intent of the proponents of the Act's anti-discrimination clause, which was to disallow army induction on the basis of race or *96 color. The case was appealed to the United States Supreme Court, which denied Lynn's writ for the reason that the case was moot; Lynn was no longer under the command of respondent Downer but was serving with another unit. 8 By denying certiorari, the Supreme Court gave a de facto rubber stamp of the military's discriminatory policies.

Lynn was not significant for changing Army policy; on the contrary, until the issuance of Executive Order 9981 in 1948, segregation and discrimination remained military policy. The significance of the case was that, for the first time, it brought before the Supreme Court the question of segregation practiced not by the South, but by the federal government itself. By avoiding the issue at this time, the Court postponed addressing the issue of segregation in the federal context until the Brown companion, Bolling v. Sharpe.

III. Committee Against Jim Crow in Military Service and Training

"I can think of no greater set-back for Negro Americans than a permanent jimcrow draft, even if simultaneously Congress should enact FEPC legislation, an anti-lynching bill and every other measure necessary to implement the recommendations of the President's Committee on Civil Rights."

-A. Philip Randolph

While many organizations (the NAACP, the black press, and others) contributed in major and minor part to the eventual issuance of Executive Order 9981, A. Philip Randolph, President of the Brotherhood of Sleeping Car Porters, has rightfully been given the most credit for forcing President Truman's hand. In no insignificant way, Randolph's efforts may be seen as a continuance of his March on Washington Movement, the demands of which were only partially met by *97Executive Order 8802. It must be understood at the outset that Randolph's tactics of agitation and confrontation differed from those of the mainstream civil rights activists of the period. The path chosen by the NAACP was one of orderly petitioning of the government for redress of racial grievances, using the court system as its primary tool and the legislature and executive branches as secondary (and often ineffective) alternatives. Randolph's Committee Against Jim Crow in Military Service and Training, with its threat of mass action and civil disobedience in the form of a refuse-the-draft campaign, was a harbinger of a new civil rights movement, the likes of which would be seen again in the 1 960s. An eval-uation of events immediately preceding the announcement of Executive Order 9981 is necessary before examining Randolph's contribution.

A. Attempts at Appeasement

1. The McCloyCommittee

As World War II progressed, many military leaders realized that their separate-but-equal policy was not working. Not only was it inefficient in terms of troop utilization, it was also disastrous for the morale and discipline of black troops. As a result of the failure of the Army's Negro policy, the War Department established the Advisory Committee on Negro Troop Policies (McCloy Committee) in August 1942. The McCloy Committee was charged with making the separate-but-equal policy work, a monumental task in light of the policy's inherent flaw: the fact that separate was inherently unequal.

The War Department's acknowledgement of black rights consciousness and discontent was reflected in a letter from Colonel J. S. Leonard to Secretary McCloy. Therein, Colonel Leonard recognized growing discontent, citing a New York Times article which contained several demands of the Army. The demands included, among others, "[f]ull integration of the Negro into the armed forces without segregation, . . . [a]bolition of quotas by race in the Medical Corps, Nurses Corps, technical and other branches of the service, . . . [a]bolition of segregation in recreational and other facilities at Army posts,. . . [and] *98 [a]bolition of segregation of blood plasma." Colonel Leonard advised that "information dealing with the special problem of Negro troops [be] made available," since many of the problems of blacks probably came as a result of the fact that many officers had no previous experience with blacks in civilian life.

The Committee's response to complaints like Colonel Leonard's was measured, and the policies enacted by the Committee did bear some fruit. The Committee was successful in convincing combat commanders to accept black infantry divisions and other combat units, and it made some headway in obtaining more black officers and improving the quality of white officers who commanded black organizations. Unsurprisingly, the Committee made bolder steps in late 1943 during Truman's heated presidential campaign. Throughout that time, better relations were established between the War Department and the Negro press. A movie publicizing blacks' contribution to the war was produced and informational pamphlets explaining the official War Department position on Negro soldiers were distributed. In July 1944, the McCloy Committee attempted to direct all facilities, including theaters, post exchanges, and transportation, to be utilized without restriction because of race; this directive had little effect because by the time the order was issued, most military posts had constructed completely separate facilities, and commanders continued segregation as usual. Perhaps the most important contribution made by the McCloy Committee was its encouragement of the use of black troops in the war. However, it was not until December 1944 that black platoons and companies were regularly used within frontline divisions.

In spite of the advancements made by the McCloy Committee, it fell woefully short of its goal of improving troop morale and increasing military efficiency through increased use of black troops on the front lines. The shortfalls of the committee led one of its members, General Benjamin O. Davis, to charge the committee with perpetuation of Jim Crow practices by failing to recognize that separate was inherently unequal. Much more had to be done before equality for black servicemen could be achieved. The McCloy Committee disbanded shortly after the conclusion of the war.

2. The Gillem Group and the Gillem Report

As it became more apparent that the War Department's separate-but-equal policy was faulty, Secretary Mc- Cloy recommended to the Secretary of War that a special board of officers be appointed to consider a reevaluation of Negro policy in order that black manpower be used more efficiently in the post-war military. The Gillem Board, named after its chairman, General Alvan C. Gillem, was established on October 1, 1945. After extensive interviews with top military officials and evaluation of documentary materials, the Board issued its report on November 17, 1945. 1 The Gillem Report (also known as War Department Circular 124) would state the military's policy regarding Negro troops from the date of its announcement until 1948. The board based its findings on two foundational principles: blacks had a constitutional right and obligation to fight, and the Army was obligated to make the most effective use of every soldier, including black soldiers. Recognizing that blacks were used inefficiently during World War II, the Gillem Report recommended several steps to improve the Army's utilization of black manpower. Recommendations included: integration of blacks into overhead units (i.e. administrative jobs); ensuring that blacks formed ten percent of the Army; that black units be integrated into composite white units; that the number of black officers be increased and afforded equal rights and opportunities for advancement; continued enforcement of War Department policy that post recreational facilities be used without regard to race; and the creation of a staff group to ensure the new Negro policy was implemented. 1

Despite its ambitious recommendations, the Gillem Board was unsuccessful in effecting change. 1 The main reason for its failure was that the Board did not challenge the premise of the Army's overall policy regarding blacks: segregation. The report did not clearly spell out a policy toward integration. It appeared as if the true goal of the Gillem Board was to allow segregation to continue, while slowly removing *100 discrimination; the Board did not see segregation as discrimination. The Gillem Report received varied reviews from the Negro press and leadership. Roy Wilkins of the NAACP and Lester Granger of the National Urban League criticized the report for "leaving unanswered certain questions of segregation," citing that the policy was "a little foggy and [fell] far short of its advance advertising that it would abolish segregation in the Army." The Gillem Report did receive at least one positive review from the Negro press. The conservative Pittsburgh Courier gave a favorable review of the Report, commending it for "officially" rejecting the idea that black troops were inferior and could only serve in noncombatant roles. 1 However, even the Courier eventually carried pieces critiquing the Report, to include one that proclaimed that "[t]his new Army directive indicates that the Army command has undergone no real change of heart. . . ." 1 Conflicting statements from military leadership did not help the confusion generated by the report. In 1946, Secretary of War Patterson informed the Negro press that the policy espoused in the report meant that segregation was no longer required; in 1948, Patterson's successor Kenneth Royall described the policy as providing "equality of opportunity on the basis of segregation."

There was an inherent inequity on the face of the new Negro policy; it claimed as a goal maximum use of all available American manpower, yet at the same time it imposed a ten percent quota on the number of blacks hired for military employment. This fallacy was pointed out by the Commander of the Army Air Forces, Carl Spaatz. In a memorandum to the Chief of Staff, General Spaatz provided the following blunt feedback:

[I]t is believed that the proposed approach to the utilization of this manpower is faulty. Never in history has an Army selected its manpower on the basis of a proportionate share of the population, be that selection on the basis of color or creed. The basis for selection which has been used by all armies in peacetime is that of professional ability. Selection on any other basis would be wasteful and inefficient . . . .

1 *101 The new Negro policy presented in the Gillem Report did nothing to change the military's separate-but-equal policy. Once again, further work needed to be done, and many blacks, to include soldiers, those wanting to be soldiers, and A. Philip Randolph, were running out of patience.

3. Universal Military Training

When an individual enters the service of the country, he necessarily surrenders some of the rights and privileges which inhere in American citizenship. The government in return undertakes to protect his integrity as an individual and the dignity of his profession. 1

On October 29, 1947, President Harry Truman's specially appointed Committee on Civil Rights issued a report filled with suggestions for strengthening and improving federal, state, and local governments to "safeguard the civil rights of the people." 1 The formation of this committee was spurred by the President's concern over the lynchings, property destruction, and assaults meted out against black servicemen and civilians in 1946. The committee made several specific recommendations regarding the military, all based upon the premises that segregation in the military not only denied black soldiers their right to fight but was also an "inefficient use of human resources," and that by allowing racism to exist in the military, the country was "not making use of one of the most effective techniques for educating the public to the practicability of American ideals as a way of life." 1 The committee made two specific recommendations to the President regarding the military: to encourage the enactment of legislation to end discrimination and segregation in the Armed Services, and legislation ensuring that no serviceman be subject to discrimination by any public authority or place of public accommodation. 1

With the President's Committee on Civil Rights report as a backdrop, proponents of black servicemen's rights were hopeful that positive legislation would ensue. Legislation did ensue, but not the kind of legislation that was desired. Legislation to enact a Universal Military *102 Training (UMT) system was introduced to Congress in late 1947, with hearings on the bill scheduled for 1948. The bill, which called for institution of a peacetime draft and provided policies for peacetime training, had a fundamental flaw: there was no explicit proscription against segregation. 1 Reaction to UMT was swift and sharp. A Crisis editorial captured the sentiment of many blacks: "This is as good a time as any to repeat that the vast body of Negro Americans is opposed to this training as long as it is to be on a segregated basis." Those most directly affected by the enactment of UMT, American youth, also expressed dissatisfaction with the proposed bill. Youth attending the second annual youth legislative conference of the NAACP in March 1948 passed resolutions voicing opposition to a segregated system of military training. 12

It was apparent that UMT would do nothing to change the segregative policies enacted by the Gillem Report. Introduction of the UMT bill was even more audacious in light of the findings by the President's Commission on Civil Rights. The introduction of UMT legislation caused A. Philip Randolph, in cooperation with New York state official Grant Reynolds, to form the Committee Against Jim Crow in Military Service and Training in November 1947.

B. Randolph Forced Into Action

The Committee Against Jim Crow in Military Service and Training (CAJC) was guided by the following statement made by its founder: "If Negroes must fight, let them fight as free men and not as Jim Crow slaves." The CAJC's plan of attack was twofold. First, it would submit a proposal to Congress and President Truman for the elimination of discrimination in the armed forces. Second, if necessary, the CAJC would back upits demand by marching on Washington, D.C. The specific demands of the CAJC included: an explicit anti-segregation clause in the UMT act; amendments barring segregation in the draft and in interstate travel by draftees; amendments making attacks against soldiers in uniform a federal crime; and an elimination of the poll tax for draftees in federal elections.

*103 The President's call for the enactment of UMT confused and disappointed many, including A. Philip Randolph. Randolph attempted to meet with the President numerous times to discuss the issue but was constantly put off by both the President and members of the President's staff; he finally met with the President on March 22, 1948. At that meeting, Randolph made clear the CAJC's desire to end segregation in the military and informed the President that blacks were hesitant to serve in the armed forces without explicit guarantees against segregation and discrimination. In a follow up letter to President Truman, Randolph reminded the President about the results and recommendations provided by the President's own Committee on Civil Rights. The letter concluded with a demand for an Executive Order ending all discrimination in the Armed Forces.

The CAJC did not limit its activity to the executive branch; Randolph launched a parallel attack in Congress. Just one week after meeting with President Truman, Randolph found himself testifying before the Senate Committee on Armed Services on the issue of Universal Military Training. In his testimony, he repeated his assertion made to President Truman that blacks would not fight for democracy *104 overseas while being denied democracy at home. 1 He also gave an unveiled threat of civil disobedience: "Today I should like to make clear to the Senate Armed Services Committee. . . to Congress and the American people that passage now of a Jim Crow draft may only result in a mass civil disobedience movement along the lines of the magnificent struggles of the people of India against British imperialism." Randolph concluded his statement by saying that "Negroes are just sick and tired of being pushed around and we just do not propose to take it, and we do not care what happens."

Randolph acknowledged the power and consequences of his pledge. After receiving a warning from a Republican senator that his actions "may well lead to indictments for treason and [have other] very serious repercussions," Randolph responded that he anticipated widespread terrorism against blacks refusing to serve. He accepted that possibility if it would be the only way blacks could attain democracy. Randolph also had to be aware that the black community, while in agreement with his cause, was not necessarily unified in support of his methods. The NAACP, which had positioned itself as a champion of rights in the courts, did not fully endorse Randolph's pledge of civil disobedience. NAACP Secretary Walter White said that he did not believe that Randolph's civil disobedience pledge was necessary but stipulated that the only solution to the impending political dilemma would be "the immediate and total abolition of segregation." While the organization would not advise individuals to boycott the draft, it did not dismiss Randolph's proposal completely, reminding "those who expect[ ] [draftees] to be enthusiastic soldiers should remember that their memories of mistreatment in the last war are bitter green," and further pledged to give legal aid to those who did boycott.

The Negro press also tended to espouse an opinion against mass disobedience. A Norfolk Journal and Guide editorial decried Randolph's threat for civil disobedience as "untimely," saying that the threat "tends to embarrass Mr. Truman's civil rights proposals." 1 The leadership of the Pittsburgh Courier maintained a similar opinion. In a personal letter to Randolph, the editor of the Courier counseled Randolph against *105 appearing to force the President's hand by demanding an Executive Order, citing the Courier's opinion that to do so would cause Truman to stonewall, thereby hampering efforts to desegregate the military. Despite words of discouragement, Randolph knew one thing: notwithstanding his chosen means of effecting change, the vast majority of black Americans, including the NAACP and black press, agreed that something had to be done. In an NAACP poll of 2200 black college students, seventy-one percent reported that they favored Randolph's proposal to resist the draft. When asked if they would be willing to serve in the event of a real war or emergency, eighty-two percent responded that they would, but only fifty-one percent responded that they would do so only if segregation was abolished. These results reflected the mood among young blacks that hopes for reform through slow, step-by-step efforts toward integration were quickly coming to an end. The only way to effect change would be through civil disobedience. As Randolph had said in his testimony before the Senate Armed Services Committee, blacks were tired of being pushed around and were ready to do what it took to change the status quo.

On June 26, 1948, after receiving no affirmative pledge of desegregation from either the President or Congress, Randolph created the League for Non-Violent Civil Disobedience Against Military Segregation. This group threatened that if an Executive Order ending military segregation was not issued before August 16, 1948, the date on which the UMT was to take effect, Randolph would actively encourage black youth to refuse to register. One month later, on July 26, 1948, President Truman issued Executive Order 9981. 14

IV. The Right to Fight: Executive Order 9981

The injustice of calling men to fight for freedom while subjecting them to humiliating discrimination within the fighting forces is at once apparent. Furthermore, by preventing entire groups from making their maximum contribution to the national defense, we weaken our defense *106 to that extent and impose heavier burdens on the remainder of the population. 1

This finding from the President's Committee on Civil Rights captures at once the two reasons why the military establishment eventually yielded to the call for equality in the armed services: the recognition of the unjustness of military policy and, more importantly, the negative effect of that policy upon military efficiency. True awareness of the necessity of desegregation was unfortunately not had until the President issued an edict commanding the end of military segregation. The most important directive of the Executive Order regarding the military was contained in the following excerpt:

Whereas it is essential that there be maintained in the armed services of the United States the highest standards of democracy, with equality of treatment and opportunity for all those who serve in our country's defense . . . It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. This policy shall be put into effect as rapidly as possible, having due regard to the time required to effectuate any necessary changes without impairing efficiency or morale. The order also created the President's Committee on Equality of Treatment and Opportunity in the Armed Services, charged with bringing the policies, practices and procedures of the armed forces in line with the new policy.

Not unlike the initial reaction to Randolph's plan for civil disobedience, the Negro press and black organizations were not unified in their opinion of Executive Order 9981. A favorable review was contained in a Chicago Defender editorial, praising Truman for moving "forward toward a fuller realization of the high ideals of our democratic system." Other black organizations and leaders, however, were not so easily swayed by the President's order. It was felt by many that the Executive Order was purposely vague because it failed to mentioneither segregation or integration directly. 1 The CAJC itself was initially *107 concerned that the Executive Order was not clear. 1 The President cleared up any confusion regarding his intent three days after issuance of Executive Order 9981. When asked whether his desire for equality of treatment and opportunity in the armed forces "envision[ed] eventually the end of segregation," Truman simply replied "Yes." 1 In light of this response, and after reviewing the Executive Order, Randolph discontinued the CAJC's call for mass disobedience. 1 In spite of Randolph's announced discontinuance of the civil disobedience campaign, not all felt Executive Order 9981 was sufficient. The League for Non-Violent Civil Disobedience Against Military Segregation, created by Randolph to force the President to issue an Executive Order, vowed to continue the campaign. 1

In spite of continued resistance by elements within the military, the services were eventually completely integrated, and segregation within the branches was eradicated. Mr. Randolph's successful struggle for executive branch recognition of the need for equality of treatment and opportunity in the military did not only benefit black soldiers. Executive Order 9981's effects, primarily the President's implication that segregation was inherently unequal, were positively felt throughout American society, particularly in the courts, where the struggle for civil rights continued.

V. Epilogue: Brown and Beyond

On May 17, 1954, the Supreme Court delivered its decision in the landmark case of Brown v. Board of Education of Topeka. 1 On June 23, 2003, the Court delivered equally important decisions in Grutter v. Bollinger 1 and Gratz v. Bollinger, 1 cases which presented a direct *108 attack upon the efficacy of affirmative action--a tool used by colleges and universities to counter a historical effect of segregation: low numbers of minorities in higher education. 1 Both Brown and the 2003 affirmative action cases of Grutter and Gratz benefited from Randolph's fight against segregation in the military, as well as President Truman's subsequent issuance of Executive Order 9981.

President Truman's Executive Order was based on the underlying assumption that segregation in the military bred inherent inequities. By attacking segregation in the military, the President's actions provided a concrete and official statement against the institution of segregation. Six years later in Brown, Thurgood Marshall made the same argument to the Supreme Court in the context of secondary education. 1 While no direct mention of Executive Order 9981 or the military's fight to end segregation in federal service was mentioned in the transcript of the oral argument, the Court nevertheless was reminded of the significance of the Executive Order through amicus briefs. In its amicus brief, the American Federation of Teachers urged the Court to consider the fact that "[t]he armed forces, once completely segregated has in three years, almost become totally desegregated." The American Veteran's Committee, Inc. urged that the Court recognize the impact of segregated schools upon national defense. 1 And in November of 1954, when the Court was deciding how to implement its decision, another amicus brief from the American Veterans Committee, Inc. reminded the Court of the *109 rapid and smooth desegregation of the military. Although not cited in its opinion, the efforts of those who fought against segregation and discrimination in the military context, as well as the resulting Executive Order, provided a backdrop for the Court's decision in Brown.

On June 23, 2003, just eleven months shy of Brown's fiftieth anniversary, the Court was again confronted with the issue of segregation in schools. In Grutter v. Bollinger and its companion case, Gratz v. Bollinger, the issue was not the elimination of segregation in education, but the protection of affirmative action, a remedial tool used by the University of Michigan's Law School and undergraduate institutions to rectify past segregation and discrimination. On this occasion, the amicus curiae specifically cited Executive Order 9981 in its argument supporting the University of Michigan's affirmative action program. 1 After describing the positive effect Executive Order 9981 and subsequent integration had on the military and national defense, the amici urged that "[t]he modern military judgment is that full integration and other policies combating discrimination [e.g., affirmative action] are essential to good order, combat readiness, and military effectiveness." A great portion of the oral arguments for Grutter and Gratz contained discussion on the need for educating minorities for the purpose of military defense and the concomitant need for programs to increase the number of minorities in institutions of higher learning. 1 Finally, in upholding the law school's program in Grutter, the majority made reference to the need to support diversity in higher education in light of national security and found that the law school had a narrowly tailored program which supported a "compelling interest in attaining a diverse student body." 1 The ideals set forth in Executive Order 9981 were appropriately used to support a tool in the combat against one of the historical effects of segregation, namely the low number of minorities in higher education.

VI. Conclusion

It is not my claim that rights consciousness on the part of black soldiers and civilians alone was the sole reason for Executive Order 9981. Presidential electoral politics, 1 a concurrent court victory for *110 civil rights, and military manpower necessity were significant forces behind issuance of the order. However, the ability of A. Philip Randolph to combine these factors into a cohesive effort and use their combined momentum proved to be essential in the eventual presidential order. The CAJC and threat of civil disobedience would never have arisen had Executive Order 8802 adequately met the demands of the MOWM. Randolph's CAJC and Executive Order 9981 merely represented a continuation of Randolph's efforts in 1941. Although focused on equality of treatment and opportunity for black servicemen, the pursuit of the Four Freedoms and the fight for an Executive Order had positive social and judicial repercussions. Executive Order 9981, by announcing that segregation was inherently unequal in the context of the military, removed a significant brick in the wall of segregation built by Plessy v. Ferguson 1 and established momentum toward one of the most important civil rights decisions to date, Brown v. Board of Education of Topeka.

Martin Luther King's Constitution


excerpted from:  Randall Kennedy, Martin Luther King's Constitution: a Legal History of the Montgomery Bus Boycott, 98 Yale Law Journal 999-1067 (April, 1989)(397 Footnotes Omitted)


I have had a little something to do with lawyers since the 1955 Montgomery bus boycott.
Martin Luther King, Jr. [1]



Martin Luther King, Jr., demonstrated a keen appreciation for both the power and the limits of law. The movement in which he played such a central role--the Civil Rights Movement of 1955-1968--produced, as Harry Kalven, Jr. once quipped, 'the first revolution in history conducted, so to speak, on advice of counsel.' King displayed attentiveness to legal symbolism in the first speech that he gave as a civil rights leader. Urging the blacks of Montgomery, Alabama, to boycott the city's buses to protest racially-motivated mistreatment, he invoked legal and religious icons to inspire their collective defiance. 'We are not wrong,' he told his audience at the Holt Street Baptist Church on the evening of December 5, 1955, because 'if we are wrong, the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.'

Beginning that evening, and over the next thirteen years, King's activities placed him at or near the center of controversies that dramatically altered the nation's legal landscape. From the Montgomery Bus Boycott arose Gayle v. Browder, the Supreme Court decision that invalidated de jure segregation in intrastate transportation and thereby effectively overruled Plessy v. Ferguson. Protest campaigns in Birmingham and Selma constituted crucial links in the chain of events that culminated in the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Supreme Court decisions upholding these legislative initiatives.

These and related campaigns also gave rise to cases that significantly affected legal doctrines regulating freedom of expression. King claimed repeatedly that 'the great glory of American democracy is the right to protest for rights.' The Civil Rights Movement tested his hypothesis by staging protest activities that forced courts to create or refine doctrine involving a wide array of First Amendment concerns, including symbolic speech, the public forum, freedom of association, libel, and rules governing mass demonstrations. The disciplined peacefulness of the civil rights activists and the underlying decency of their demands helped to create an atmosphere conducive to judicial liberality. The result was not only a beneficial transformation in the substantive law of race relations, but also a blossoming of libertarian themes in First Amendment jurisprudence. In the context of the First Amendment, as in many other areas, the struggle for racial justice produced ramifications that extended far beyond its point of origin. Once loosed, liberty, like equality, was an idea not easily cabined.

On the other hand, King and his allies suffered significant defeats in the legislative, executive, and judicial arenas. They were forced to compromise on key issues in order to obtain passage of federal civil rights legislation. Activists discovered that the willingness of Presidents Kennedy and Johnson to invest political capital on behalf of the Movement often lagged behind their promises. And Movement activists failed to persuade the Supreme Court that racial discrimination in places of public accommodation violated the federal constitution; the outlawing of 'private' discrimination in businesses open to the public occurred through the intervention of the Civil Rights Act of 1964, a less aggressive law in certain respects than the Reconstruction-era legislation it was meant to replace.

Despite the centrality of King's role, it would be erroneous to conflate, without qualification, his career and the history of the Movement. The Movement consisted of a mass of local initiatives that received inspiration and guidance from a striking array of figures who, at one time or another, diverged quite markedly from King. One thinks, for instance, of such vital leaders as Roy Wilkins, James Farmer, Robert Moses, John Lewis, Stokely Carmichael, Fred Shuttlesworth, and Fannie Lou Hamer. King, however, is the person most widely identified in the public imagination with the Civil Rights Movement. The Movement would probably have transformed America without his presence. But it is hard to believe that history's replacement could have offered the eloquence, vision, and moral gravity that King provided.

This Article focuses upon legal issues that shaped and were in turn shaped by Martin Luther King's first campaign as a civil rights leader: the boycott in 1955-1956 of segregated buses in Montgomery, Alabama. In Section I, I describe the legal status of the Negro in the South in 1955. This overview portrays the legal and extra-legal situation southern blacks faced on the eve of the boycott and provides a baseline against which to measure what King and the Movement accomplished.

In Section II, I describe the origins and early development of the Montgomery Bus Boycott and of the organization that guided it, the Montgomery Improvement Association (MIA), as well as King's entrance into national prominence as the MIA's president. I emphasize two points in particular. The first is the striking modesty of the protest's initial demands. Although the boycott began one and a half years after the Supreme Court invalidated de jure segregation in public schooling, King and the MIA did not initially demand the abolition of de jure segregation on Montgomery's buses; they primarily demanded courtesy and formal even-handedness, taking for granted the continued existence of racial separation. The second is the considerable extent to which the white power structure, exemplified by the bus company's attorney, a Harvard-trained lawyer named Jack Crenshaw, inadvertently radicalized King and the MIA. Crenshaw stubbornly maintained that the MIA's initial requests were impossible to satisfy within the confines of existing state and local law. His reading of the relevant statutes cut off avenues of compromise. In response, and to many people's surprise, the leaders of the MIA demanded more--and won more--than they had originally even contemplated.

In Section III, I discuss litigation ignited by the boycott. I focus on two cases in particular. State v. King involved King's conviction for violating an Alabama anti-boycotting statute. I examine his prosecution as a socio-political event and show how, ironically, it furthered the cause of the protest. I then examine the doctrinal issues raised by the prosecution--statutory vagueness, selective prosecution, the authority of states to regulate political boycotts--and relate them to constitutional law as it stood in 1956 and as it stands today. In the second case, Gayle v. Browder, the Supreme Court affirmed a three-judge district court's decision striking down state and local statutes in Alabama requiring racial segregation aboard intrastate vehicles. I examine the difficulties that faced the three southern, white judges who had to decide whether to extend Brown, and the strategy behind the Supreme Court's disposition of the case.

Finally, in Section IV, I explore the achievements of the boycott and its associated litigation. Although I note in some detail the limits of the boycott's short run accomplishments, I conclude by emphasizing the manifold ways in which, over the long run, the experiences gained, the attention won, and the inspiration generated by King and his associates strengthened a Movement that produced tremendous changes that continue to reverberate in our society. Viewed against a backdrop of slightly more than thirty years, the boycott in Montgomery can rightly be deemed not only the starting point of Martin Luther King's public career but also, perhaps, its most impressive moment.

Guiding my analysis of specific events, developments, and problems are two broad methodological aims. The first is to add a lawyer's vision to the historical study of the Civil Rights Movement between 1955 and 1968. During the 1960's, the Movement was the subject of considerable commentary by practicing attorneys and legal academics. Since then, it has received relatively little attention from the legal community. The most illuminating recent studies have mainly consisted of work by historians, journalists, political scientists, and sociologists. I draw upon that work liberally in the pages that follow and hope that my study will nourish such undertakings. The reason why reappraisal of the Movement from the perspective of a legal academic is potentially enlightening is that, all too often, scholars without legal training either shy away from questions that appear to require technical legal expertise or neglect topics that are likely to be of special concern to the legal imagination: the substance and application of legal doctrine, the relationship between case law at a given point in the past and prevailing contemporary trends, litigation strategies, and lawyerly performance.

My second aim is to write about the legal ramifications of the struggle against segregation without falling victim to either the illusion that what happened had to happen or the notion that the losing side--the side supporting de jure segregation--was wholly bereft of morality or reason. Both of these tendencies represent seductive strands of 'victor's history' which, if indulged, obscure important aspects of the past. I attempt to respect segregationists in the sense of taking their ideas seriously; after all, Martin Luther King did. Some segregationists thought long and hard about the peculiar form of racial hierarchy they sought to maintain. We can benefit from attention to their views, particularly their insistence that segregation represented 'a way of life.' That conception of segregation is far more attuned to the fluid, hydra-headed nature of the segregation regime than the static and formalistic conception that has so thoroughly and unfortunately dominated the legal imagination.

[p] Assistant Professor, Harvard Law School.
[1]. King, Foreword to W. KUNSTLER, DEEP IN MY HEART. at xxi (1966).

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