Thursday, April 26, 2018

Civil Rights Era

The Emergence of a Segregated World and the Road to Sweatt

Paul Finkelman

excerpted from: Paul Finkelman, Breaking the Back of Segregation: Why Sweatt Matters, 36 Thurgood Marshall Law Review 7 (Fall, 2010) (193 footnotes omitted)


[Plessy v. Ferguson] set the stage for the total segregation of the South. Starting with Sweatt, in 1950, the Supreme Court would begin to dismantle this world. To understand the revolutionary nature of Sweatt, we must first recall the South's oppressive system of segregation at mid-century. Only then does the drama of Heman Sweatt's quest for a legal education become clear.

In his classic book, The Strange Career of Jim Crow, the great southern historian C. Vann Woodward surveyed the early development of segregation in the South. He quoted a South Carolina newspaper, which in 1898 attacked the growing segregation with an argument of reductio ad absurdum:

If there must be Jim Crow cars on the railroads, there should be Jim Crow cars on the street railways. Also on all passenger boats. . . . If there are to be Jim Crow cars, moreover, there should be Jim Crow waiting saloons at all stations, and Jim Crow eating houses. . . . There should be Jim Crow sections of the jury box, and a separate Jim Crow dock and witness stand in every court-and a Jim Crow Bible for the colored witnesses to kiss. It would be advisable also to have a Jim Crow section in county auditors' and treasurers' offices for the accommodation of colored taxpayers. The two races are dreadfully mixed in these offices for weeks.

But, as Woodward noted, within a few years, except for the Jim Crow witness stand, all the improbable applications of the principle suggested by the editor in derision had been put into practice-down to and including the Jim Crow Bible. This segregation continued to expand for the next four decades.

By 1940, the American South was profoundly segregated. Most Blacks, virtually 70 percent, lived in the South, where segregation was deeply entrenched in the law and culture of the society. In the North, Blacks faced discrimination, sometimes supported by statutes, but usually created by custom and local prejudice. Job opportunities were limited and de facto segregation, often a result of housing patterns and economics, was common, but by this time Blacks were gaining significant access to unionized industrial jobs. Everywhere in the North, Blacks attended public schools and public universities, as well as some of the best private universities. Throughout the North they voted, held public office, participated in politics, and practiced law, medicine, and other professions. Most northern states had civil rights laws on the books, and some had passed fair employment practices acts and other specific bans on race discrimination. Since the Nineteenth Century, Blacks had attended private and public universities and law schools with Whites. While not always treated equally, and almost always facing private prejudice and social slights, Blacks obtained graduate and professional degrees from some of the most elite public and private institutions in the North.

In the South, on the other hand, segregation was virulent and oppressive, and of course that is where seven out of ten Blacks lived. It has been more than half century since the courts and Congress began the process of desegregating America. It is easy to forget how thoroughly segregated America was before Sweatt and Brown, and especially before the passage of the 1964 Civil Rights Act. To understand the revolutionary implications of Sweatt, some descriptions of southern segregation are useful.

When Heman Sweatt sought to enter the University of Texas School of Law, segregation in the South was even more pervasive than it had been in 1900. Virtually every facet of life in the South was segregated. Southern Blacks faced discrimination at every turn in their lives. If born in a hospital, southern Blacks entered the world in a separate hospital; at death they would go to a segregated funeral parlor and then be buried in a segregated cemetery. In 1947, the President's Committee on Civil Rights noted, in the South it is generally illegal for Negroes to attend the same schools as whites; attend theaters patronized by whites; visit parks where whites relax; eat, sleep or meet in hotels, restaurants, or public halls frequented by whites. The report of the Committee noted that this was only a partial enumeration-legally imposed separation of races has become highly refined. This legally required pattern of discrimination led to what the Committee noted was the familiar system of racial segregation in both public and private institutions which cuts across the daily lives of southern citizens from the cradle to the grave. This system of discrimination, the President's Committee noted, brands the Negro with the mark of inferiority and asserts that he is not fit to associate with white people.

Virtually all public and private educational institutions in the South, from nursery school to college, were segregated. The only exceptions were a few small private historically black colleges that occasionally had a white student or two and a few professional schools in the upper South, like the University of Maryland Law School. At the beginning of the century, Kentucky's Berea College had been integrated. In 1904, to stop this breach of southern racial etiquette, Kentucky passed legislation banning private integration, and Berea sued, attempting to remain integrated in the face of laws mandating segregation. The United States Supreme Court upheld Kentucky's law requiring that private colleges be segregated, giving a green light to legally mandated segregation everywhere in the South, even where parties wanted to be integrated.

At the primary and secondary levels the disparity in public expenditures guaranteed that Blacks would have inferior educational facilities. Before the 1940s, almost without exception, white principals, supervisors, and teachers were paid more than Blacks. Classes for Blacks had more children than classes for Whites, schools for Blacks were open fewer days, and the facilities were vastly inferior. The situation in Clarendon County, South Carolina, illustrates the reality of segregated education. The litigation in this county would become part of the consolidated case in Brown. When this case began, the County spent $179 per pupil annually for white children and $43 per pupil for black children. The county had sixty-one school buildings for its 6,531 black students, which were worth $194,575. The 2,375 white students went to twelve different schools, worth $673,850. In this very rural county the schools for Blacks were dilapidated buildings without modern heating or indoor plumbing. Some were plain falling-down shanties.

At the time of Sweatt's suit, some two-score southern cities had at least a few black police officers. But, most southern Blacks still lived in rural areas and small towns, where policing was entirely in the hands of Whites and was often oppressive. Police brutality towards Blacks was the norm, and only the most egregious cases ever reached the federal courts where some relief might be found.

If arrested, Blacks went to segregated jails and, when convicted, to segregated prisons. In Georgia, black and white prisoners were to be kept separate as far as practicable, while in Florida it was illegal for any law enforcement officer to handcuff or chain Blacks and Whites together. Other southern states had similar laws and rules. Segregated facilities meant that black prisoners would face worse conditions than their white counterparts. No matter how bad jail and prison conditions were for Whites, they would always be worse for Blacks. Furthermore, convict leasing and prison labor, including chain gangs, gave county and state officials an incentive to vigorously prosecute all black lawbreakers, because convicts were laborers who could be rented out to various southern businesses or simply provide virtually free labor for the County or State.

In court, Blacks were invariably represented by white attorneys, if they had representation at all. Indeed, the integration of southern law schools, as well as the creation of law schools at existing Historially Black Colleges and Universities (HBCU), were both important for the development of a black bar that would represent black defendants in what was (and in some places remains) a discriminatory criminal justice system. While some white attorneys in this period represented their client with zeal and passion worthy of the fictional Atticus Finch, others were dilatory or worse. In the age before Gideon v. Wainwright, poor defendants were not guaranteed a lawyer in non-capital cases; and thus, many Blacks faced the court system without any formal legal advice or help. They faced white judges and all-white juries. In the deep South, prison often meant laboring on a chain gang or in a rural work camp, where life was truly Hobbesian: brutal and short.

Other public facilities in the South were equally segregated, unless of course the jurisdictions simply did not provide separate facilities. This was true for law schools, other professional schools, and graduate programs in most of the South. Sweatt after all, had to sue to obtain a legal education in Texas, because the state did not provide a law school for Blacks. But higher education was not the only arena where southern states refused to even go through the motions of having separate but equal institutions. For example, Louisiana had industrial schools for young white male offenders, young white females, and young black males. Black female youth offenders were not offered the option of learning a skill or trade in preparation for their rehabilitation. Similarly, between 1934 and 1949, Louisiana created some twenty trade schools for Whites, but did not provide any trade schools for Blacks.

Southern states segregated homes for the aged, orphanages, and homes or institutions for juvenile delinquents. In most southern states, African-Americans with a hearing problem, a mental illness, or tuberculosis went to special institutions for Blacks only. Ironically, state schools for the blind were segregated everywhere in the South, even though, presumably, most of the students could not actually see each other. Louisiana not only required separate buildings to house and educate black and white blind children, but also required that they be on separate grounds. While all these institutions were in theory separate but equal, in practice they were never equal. No matter how bad conditions might be for Whites, they were invariably worse for Blacks.

As the South became industrialized, segregation helped keep Blacks economically marginalized. South Carolina provided $100 fines and up to thirty days imprisonment at hard labor for textile manufactures if their officials failed to follow elaborate rules for racial separations. The law set out in great detail that no company engaged in textile or cotton manufacturing-the most important industry in the State-could allow members

[O]f different races to labor and work together within the same room, or to use the same doors of entrance and exit at the same time, or to use and occupy the same pay ticket windows or doors for paying off its operatives and laborers at the same time, or to use the same stairway and windows at the same time, or to use at any time the same lavatories, toilets, drinking water buckets, pails, cups, dippers or glasses.

Other states had similar rules. Oklahoma, Tennessee, and Texas allowed miners to work side-by-side underneath the ground, but the states required that mines have separate shower facilities and clothing lockers for workers when they emerged from the ground. These laws did more than just humiliate Blacks and remind them of their inferior legal status. The laws also prevented them from advancing in their jobs, or even getting jobs. Separate facilities for Blacks meant that businesses would have to invest more money in their mills, mines, and factories. Where possible, it made greater economic sense simply to hire only Whites, leaving Blacks outside the growing industrial job market.

In 1940, virtually all southern public accommodations were segregated by law. Starting in 1941 the Supreme Court began to reread the commerce clause as prohibiting segregation in interstate commerce. In Mitchell v. United States the Supreme Court ruled that the Interstate Commerce Act prohibited segregation in interstate commerce. The plaintiff in this case, Arthur W. Mitchell, was a U.S. Representative from Illinois-the only Black in Congress-who had purchased a first class ticket to travel from Chicago to Memphis, Tennessee. When the train entered Arkansas he was forced to sit in a segregated, non-first class car. The conductor acted under an Arkansas state law. The Court held that the Arkansas law was an impermissible burden on interstate commerce. The Court reaffirmed this analysis, this time applying it to interstate bus transportation, in Morgan v. Virginia (1946). However, both decisions were rarely implemented and in the deep South, they were simply ignored. Meanwhile, throughout the South all local transportation was segregated. The legacy of Louisville, New Orleans & Texas Railway Co. v. Mississippi meant that trains had separate cars for Blacks, and buses reserved the last few rows for Blacks, always keeping them, symbolically, at the back of the bus. As such they were separate, but never actually equal. Taxis served Whites or Blacks, not both. Waiting rooms at bus stations, train stations, and airports were separate as well, despite the implications of Mitchell and Morgan. The South required that there be separate drinking fountains, restrooms, and elevators, while motels, hotels, bars, restaurants, and lunch counters could serve Whites or Blacks, but never both. At theaters, Blacks sat in separate sections at the back or in the balcony, if they were allowed in them at all. Practice on these issues always varied. While many states mandated separate waiting rooms at train and bus stations, Florida found yet one more way to segregate, separate, and humiliate Blacks, by requiring that railroads also provide separate ticket windows for black travelers.

Beyond public accommodations, schools, and the workplace, everything else was segregated. Southern states banned interracial meetings of fraternal orders, while cities and states followed Birmingham, Alabama's segregation of any room, hall, theatre, picture house, auditorium, yard, court, ballpark, public park, or other indoor or outdoor place. Churches were segregated by custom, or law, or both. Sunday morning was the most segregated moment of the week. Mobile, Alabama had a 10:00 p.m. curfew for Blacks. During the summer, Florida stored textbooks from black public schools in different buildings than those from white public schools. New Orleans, Louisiana segregated its red light district. Texas specifically prohibited interracial boxing, while most cities and towns segregated seating at baseball fields. Local ordinances or customs made it illegal or unlikely that Blacks and Whites would compete against each other in sporting events, but some states made certain this would not happen. Georgia specifically segregated billiard rooms and poolrooms. South Carolina and Oklahoma segregated public parks and playgrounds. In Louisiana, it was illegal for Blacks and Whites to reside in the same dwelling, and the existence of separate entrances or partitions would not be a defense to a charge under this law. Louisiana required separate ticket windows and entrances at circuses and tent shows. The law required that these ticket offices be at least twenty-five feet apart. Oklahoma provided for segregation of the white and colored races as to the exercises of rights of fishing, boating, and bathing as well as to the exercise of recreational rights at parks, playgrounds, and pools. The State authorized the public service commission to require telephone companies . . . to maintain separate booths for white and colored patrons. Even the sacred was not protected from the need of southern Whites to separate themselves from Blacks: Tennessee required that houses of worship be segregated. Texas and North Carolina segregated their public libraries by statute, while other states did not, presumably because they did not imagine Blacks using public libraries. Nevertheless, when Blacks tried to use them, they were either refused access or forced into segregated facilities. Georgia never seemed to tire of finding things to segregate. As such, in its 1937-38 session, the state legislature provided that the names of White and Black taxpayers be made out separately on the tax digest. As Judge William H. Hastie of the Third Circuit concluded, [t]he catalog of whimsies was long. These whimsies, codified by law, reminded Blacks, over and over again, that in the American South, and much of the North, they could not expect equal treatment anywhere in society, even in houses of worship!

Beyond the statutes, the whimsies manifested themselves as customs and extralegal forms of segregation. Woodward was unable to find a statute requiring separate Bibles in courtrooms, but that was the practice everywhere. As Woodward noted, writing in 1956:

[I]t is well to admit, and even to emphasize, that laws are not an adequate index of the extent and prevalence of segregation and discriminatory practices in the South. The practices often anticipated and sometimes exceeded the law. It may be confidentially assumed-and it could be verified by present observation-that there is more Jim Crowism practiced in the South than there are Jim Crow laws on the books.

What the historian Woodward and other scholars of segregation have described, the economist, Gunnar Myrdal observed in the 1940s. His classic study of American race relations, An American Dilemma, detailed the existence of an elaborate system of segregation throughout the American South, as well as less pervasive and systematic, but equally pernicious, forms of discrimination in the North. Myrdal noted that:

Every Southern state and most Border states have structures of state laws and municipal regulations which prohibit Negroes from using the same schools, libraries, parks, playgrounds, railroad cars, railroad stations, sections of streetcars and buses, hotels, restaurants and other facilities as do the whites. In the South there are, in addition, a number of sanctions other than the law for enforcing institutional segregation as well as etiquette. Officials frequently take it upon themselves to force Negroes into certain action when they have no authority to do so.

Significantly, Myrdal followed this description of the South by noting that the Supreme Court prevented, at that time, any federal intervention to stop this discrimination. Myrdal wrote, [a]s long as the Supreme Court upholds the principle established in its decision in 1883 [The Civil Rights Cases] to declare the federal civil rights legislation void, the Jim Crow laws are to be considered constitutional.

In the South, private discrimination was not only legal everywhere, but usually required by law. These laws were supplemented by custom and private business decisions. For example, southern Blacks could usually shop at the same department stores as Whites, but they had to take separate elevators, usually the freight elevators, to the different floors. They might buy the same clothing as Whites, but were usually not allowed to try on the clothing before purchasing it. Financial service institutions in the South, such as banks, often simply refused to let Blacks open accounts or use their services. Banks often refused to extend credit to Blacks, even to military veterans seeking housing loans under the GI Bill of Rights. The denial of such rights underscores, again, the importance of Sweatt in creating greater opportunity of Blacks to attend law school to provide counsel to fight this kind of discrimination. Only with a sufficient number of black lawyers, would it be possible to break down this discrimination, especially where the discriminatory acts violated federal laws.

Segregation was painful and pervasive. The situation for Blacks in the United States was ugly and grim. Rev. Martin Luther King, Jr., in his famous Letter from a Birmingham Jail, described the nature of segregation, as he tried to explain why Blacks could no longer wait for equality:

[W]hen you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children. . . . when you have to concoct an answer for a five-year-old son who is asking, Daddy, why do white people treat colored people so mean?; when you take a cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading white and colored; when your first name becomes nigger, your middle name becomes boy (however old you are) and your last name becomes John, and your wife and mother are never given the respected title Mrs.; when you are harried by day and haunted by night by the fact that you are Negro, living constantly on tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of nobodiness-then you will understand why we find it difficult to wait.

Building Toward Major Policy Change: Congressional Action on Civil Rights, 1941-1950

Jeffery A. Jenkins and Justin Peck

Jeffery A. Jenkins and Justin Peck, Building Toward Major Policy Change: Congressional Action on Civil Rights, 1941-1950, 31 Law and History Review 139 (February, 2013)(280 Footnotes)


The mid-1960s witnessed a landmark change in the area of civil rights policy in the United States. After a series of tortuous internal battles, with Southern legislators using all available procedural tools to maintain their states' discriminatory Jim Crow legal systems, the United States Congress adopted two statutes--the Civil Rights Act of 1964 and the Voting Rights Act of 1965--which insured civil and political equality for all Americans. The Acts of 1964 and 1965 were the culmination of a decade-long struggle by black Americans to secure the citizenship rights that had been denied to them for more than a half century. Beginning with the Brown v. Board of Education (1954) Supreme Court decision, the civil rights movement built momentum, as formal organizations like the National Association for the Advancement of Colored People (NAACP) grew in strength and informal (grass roots) organizations spread throughout the South and the Nation. As national public opinion shifted increasingly toward providing new civil rights guarantees for blacks, Congress responded with new legislation: the Civil Rights Act of 1957 (the first civil rights law since 1875), the Civil Rights Act of 1960, and a legislative proposal to prohibit the poll tax in 1962 (which would be ratified by three-quarters of the states in 1964 and become the 24th Amendment to the United States Constitution).

It has been a common strategy for scholars working on the civil rights movement to start with the Brown decision and follow the course of political events through the Acts of 1964 and 1965 (and beyond). And this strategy has been reasonable, as obvious changes in the national political environment were occurring in the mid-1950s and building toward the end of the decade. However, like legal historians Risa Golubuff, Kenneth Mack, and others, we argue that establishing a baseline (or starting point) near 1954 obscures prior pertinent events that affected the types and trajectories of subsequent political actions. Whereas legal historians highlight the important work of civil rights advocates in the years preceding Brown, we concentrate on the important legislative battles that took place during the 1940s, which-presaged the legal victories of the late 1940s and early 1950s.

It is true that the events of the early 1950s reinvigorated the civil rights agenda and helped set the stage for the “classical” era of the 1960s, but concerns about race and black Americans' rights had not vanished entirely from the national agenda with the end of Reconstruction. The president and Congress were confronted with civil-rights-related issues at various points between 1891 and 1940, and a series of consequential decisions were made that affected not only the course of civil rights in the nation but also the way the parties lined up on the issue and how black voters responded to the parties' positions. Moreover, the following decade--the 1940s--was an especially crucial “bridge period” between the nascent civil rights era of the earlier half-century and the full-fledged civil rights movement of the 1950s and 1960s. Specifically, the 1940s represented a trial run for those who would continue to advocate for civil rights in subsequent decades.

In this article, we focus on two particularly important dynamics. First, we examine the process of partisan “sorting out” on civil rights issues that first began in the late 1930s. Here we contribute to an ongoing debate over the timing of the Democratic Party's embrace of what would become known as the “civil rights agenda.” Like those legal historians who have noted the importance of legal decisions preceding Brown, we suggest that the partisan racial realignment took place long before the passage of landmark civil rights legislation in the 1960s. Second, we argue that the record of legislative defeats during the 1940s helps to explain why, civil rights advocates came to see the courts and executive branch agencies as the venues most likely to ensure continued progress in the cause of racial equality. In this way, therefore, we set the scene for the “turn” to the courts by demonstrating that the legal strategy emerged as a consequence of multiple failed efforts to pursue legislative remedies.

To investigate how the civil rights issue evolved during the 1940s, we choose Congress as our level (or focus) of analysis. We do so for reasons of both tractability and substance. Clearly the president and the courts played an important role in the civil rights debate during this decade. For example, Franklin Delano Roosevelt unilaterally instituted fair employment practices in the national defense industry (Executive Order 8802) in 1941, the Supreme Court declared the white primary unconstitutional in 1944 (Smith v. Allwright), and Harry Truman desegregated the federal work force (Executive Order 9980) and the armed services (Executive Order 9981) in 1948. However, it is fair to say that the most lasting victories of the civil rights movement were statutory: the Acts of 1964 and 1965 (and their subsequent enforcements and extensions) swept Jim Crow style discrimination away once and for all. As such, charting the course to these victories is crucial for a full understanding of how the civil rights issue developed over time. Other actors, such as the president, enter the drama at various points--for example, on “fair employment,” which will be covered in detail--and we will describe their contributions when appropriate. But to study statutory evolution on civil rights requires a concentrated focus on Congress.

This work builds on our earlier research, which examined the 1891--1940 era in detail. As we documented, the last decade of the nineteenth century and the first two decades of the twentieth century saw little attention paid to civil rights, as black citizens were not in a position to be electorally pivotal and therefore were largely ignored by national politicians. In the 1920s and 1930s, following the first great migration, the growing black population in the North, led by emerging civil rights groups such as the NAACP, forced civil rights gradually back onto the national agenda. The focus during these decades was antilynching legislation. In the 1920s, the Republicans promoted the issue, but by the 1930s, the Democrats had become the chief sponsors. In each case, antilynching legislation was passed in the House (in 1922 under the Republicans; in 1937 and 1940 under the Democrats), only to run into a filibuster in the Senate led by Southern Democrats. Other interesting variation included: (1) a bare majority of Northern Democrats in the House supporting antilynching legislation as early as 1922, and (2) a significant majority of Republican senators twice opposing a cloture motion that would have forced the Senate to consider the House-passed antilynching legislation in 1938.

Therefore, as the decade of the 1940s dawned, some political uncertainty existed in Congress. A partisan realignment on civil rights was well underway by the late 1930s, as Northern Democrats had become the champion of black interests, even as the Parry's Southern wing actively opposed such reform efforts. Republicans continued to mostly support civil rights initiatives through the 1930s, but solid support from the “Party of Lincoln” could no longer be taken for granted, as the cloture votes in 1938 indicated. This was important, as Republicans would often find themselves as the pivotal coalition in congressional voting on civil rights during the 1940s. With Northern and Southern Democrats lined up on opposite ends of the issue, Republicans were in a position to behave strategically--supporting or opposing civil rights legislation depending upon the electoral benefits/costs involved.

For a time, civil rights advocates hoped for the best from the Republican Party, and devised a legislative strategy around winning support from Republicans and Northern Democrats. With the continued emergence of a ““conservative coalition” of Republicans and Southern Democrats, however, it became clear to civil rights advocates that a more diversified approach was needed. As a result, they increasingly pursued their goals through the courts and the administrative state.

Our analysis focuses on the five Congresses that convened during the 1940s: the 77th (1941-1942), 78th (1943-1944), 79th (1945-1946), 80th (1947-1948), and 81st Whereas antilynching was the only meaningful civil rights issue on the congressional agenda in the 1920s and 1930s, a broader set of issues emerged in the 1940s. We look at the four sets of civil rights initiatives that were both debated on the floor and generated roll-call votes: (1) efforts to eliminate the poll tax in Southern elections; (2) attempts to federalize soldier voting during World War II, thereby threatening state-level electoral institutions; (3) attempts to institute fair employment practices (prohibit discrimination) among private sector employers, labor unions, and agencies of the federal government; and (4) efforts to eliminate discrimination in public education, through conditional federal assistance for state-level school lunch programs. These civil rights initiatives fell into two distinct categories: political equality (anti-poll tax and soldier voting) and economic equality (fair employment and school lunches). In this way, the legislative battles of the 1940s mirrored the legal battles that would emerge as the decade wound to a close.

In the following sections, we provide in-depth case studies of each of these four civil rights issues and discuss the congressional proceedings, individual roll-call votes, and eventual legislative outcomes. We focus first on the anti-poll tax, which was perhaps the major civil rights issue of the 1940s; it was regularly on the congressional agenda throughout the decade and it would continue to highlight (as did the antilynching bills of the prior two decades) the stark differences between the majoritarian House, which consistently supported such legislation, and the super-majoritarian Senate, led by Southerners, which consistently opposed such legislation. We then turn to soldier voting, which was a more focused (and contextual) attempt to limit black voting rights, but also dealt with the larger issue of federal power versus states' rights; the battle over soldier voting also involved the poll tax as applied to servicemen, which makes it a natural follow-up to the anti-poll tax case. In the third and fourth case studies, we focus on civil rights legislation that extended beyond voting rights. We begin with the legislative effort to end employment discrimination, via the creation of a Fair Employment Practices Commission, which was designed to promote both racial and economic equality for black workers. We then take up the school lunch program, which represented a more targeted attempt to end discriminatory practices aimed at school-age children.

To summarize our results, we find that voting on anti-poll tax and school lunch legislation contrasts with voting on a federal soldier ballot and fair employment legislation. In the former cases, Republicans consistently lined up with Northern Democrats against Southern Democrats. In the latter cases, Republicans sometimes joined with Southern Democrats in a conservative coalition against Northern Democrats. Thus, civil rights outcomes did not follow strictly from the political/economic basis of the legislation; rather, they were conditioned on the perceived case-by-case electoral advantage of the pivotal Republican bloc in Congress.



. Jeffery A. Jenkins is an Associate Professor and Director of Graduate Studies in the Department of Politics and a Faculty Associate in the Miller Center of Public Affairs at the University of Virginia <jajenkins>. \

Justin Peck is a Ph.D. student in the Department of Politics at the University of Virginia <This email address is being protected from spambots. You need JavaScript enabled to view it.;

Race, Law, and Inequality, 50 Years after the Civil Rights Era

Frank W. Munger and Carroll Seron, Race, Law, and Inequality, 50 Years after the Civil Rights Era, 13 Annual Review of Law and Social Science 331 (2017).(Citations Omitted)

Deep racial inequality persists in the United States more than 50 years after the end of de jure segregation and passage of sweeping national civil rights legislation. Although these changes have bettered lives and opportunities for a fragile black middle class, on average African Americans continue to experience FrankWMungerthe deep historical legacies of racial division and structural inequality. Scholars have devoted considerable effort to explaining the enduring entanglement between law, inequality, and race, choosing different points of entry often related to discipline, but contributing complementary perspectives on the impact of civil rights laws, mechanisms that carry forward the legacy of racial division predating civil rights, and new sources of racial inequality. A field of research shows that racial inequality persists, perpetuated by more than flawed civil rights laws, institutional resistance or backlash against civil rights, and inequality growing from adaptation to concentrated disadvantage. Racial inequality continues to arise in the shadow of law from contemporary policy making as well as acts of private discrimination and resistance to greater equality. This review describes recent law and social science scholarship about mechanisms that maintain racial inequality. We observe that different social science disciplines typically focus on particular mechanisms. Although our descriptions of them are based on relatively distinct bodies of empirical inquiry, our conclusion emphasizes the value of an integrated field of theory building and research that brings these fields of study together.

At least two achievements of what we term the civil rights era--the culmination of movements in the 1950s and 1960s leading to civil rights legislation--have improved the landscape of racial equality: the expansion of the African American middle class through greater access to education, jobs, and housing and increasing access to the ballot gained, in no small part, through the Voting Rights Act of 1965 (VRA). But both gains remain insecure. Although the African American middle class has grown since the 1960s, its position is far more fragile than that of whites. And although effective enforcement of the VRA, in part, led to the changed demographic profile of elected officials at the local, state, and federal level, the Supreme Court recently held a key part of the VRA unconstitutional, allowing conservative state majorities to tailor voter access and redistricting laws to weaken the power of African American voters.

Across most dimensions of American society, the landscape remains bleak. Initial gains have been slowed by failure to enforce civil rights laws and resistance to integration. With the ending of the postwar economy and election in 1980 of a conservative administration, gains for the working class, and African Americans in particular, came to an abrupt halt. Harsh changes in criminal justice have increased racial inequality. Mass incarceration has become the most important determinant of racial hierarchy, and since the 1960s, the chance that a black man will be incarcerated is one in four, significantly greater than his chance of completing college . Not only have stark differences in income and wealth between whites and blacks remained almost unchanged since the 1970s, but large numbers of African Americans continue to live in conditions of concentrated disadvantage. In the current generation, only a few percent of all white children grew up in neighborhoods with 30% or more poor, a condition experienced by more than one-third of all African Americans, the same proportion as the generation born in the 1970s. Unlike white families, African American families have been unable to translate economic resources into movement to better neighborhoods; consequently, "the same families have experienced the consequences of life in the most disadvantaged environments over multiple generations".

CarrollSeronRacial inequality has new sources and has taken new forms in part because of economic globalization and massive immigration. Among industrialized democracies, the United States alone has responded to globalization by dismantling its economic safety net, allowing the minimum wage to stagnate, failing to address economic dislocation caused by deindustrialization or the increasing need for technical skills, and downsizing government employment. The absence of government intervention has undermined the lives of both white and black working poor and unemployed, fueling racial resentment, backlash against civil rights, and new perceptions of racial difference and perpetuating a "legacy of race, which continues to divide poor, working class, and middle class Americans from one another and deliver their political support to politicians who serve the powerful, wealthy, and affluent". Further, perceptions of racial inequality have been altered by massive immigration, which has added millions to a deeply divided low-wage labor force. This complex stream of immigrants, some arriving with economic and educational advantages over African Americans, has placed racial inequality in a new light for both white and black Americans.

Our review is in five parts. The next four parts review recent research describing mechanisms maintaining racial inequality. The first examines policy making, a mechanism fundamental to all the others, describing three points of entry to examination of the impact of policy making on racial inequality: interest group influence, racial formations, and exogenous social and economic change. Sociologist Douglas Massey concludes that "two structural configurations are central to perpetuation of black disadvantage in the post-civil rights era: the housing market and the criminal justice system." The next section reviews recent scholarship on the second of these, the impact of the criminal justice system and mass incarceration on racial stratification. The following section takes up a classic law and society issue, transformation of law on the books into law in action, using recent research on enforcement of civil rights in employment as a case study. The last reviews research on the other institutional configuration identified by Massey, the persistence of segregation and concentrated neighborhood disadvantage. Our conclusion returns to two themes that deserve special emphasis: the need for theory drawing these fields of study together and our need, above all at this moment in our history, for public scholarship changing the discourse, politics, and law perpetuating racial inequality.

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