RACIAL SEGREGATION, PLESSY

1. THE CIVIL RIGHTS ACT OF 1875

The Act also forbade the exclusion of a person from a jury on the basis of race or color or previous condition of servitude.

The Civil Rights Act of 1875 was challenged in the courts, and in 1883 the Supreme Court heard 5 challenges together as an omnibus case. At dispute were conflicting views of the 14th Amendment. The Amendment said that "No STATE shall deprive any person of life, liberty or property without due process of law; nor deny to any person the equal protection of the law." Liberals said this applied not only to states, but to corporations, businesses and private individuals as well. Liberals said the authors of the Amendment had intended that No One should discriminate or deny any person the equal protection of the law. Conservatives disagreed, and said it imposed a limitation on the actions of STATES only.

II. THE CIVIL RIGHTS CASES OF 1883

In the Civil Rights Cases of 1883, by a vote of 8-1, the Supreme Court said the 14th Amendment applied to states or their subdivisions only, (such as counties and municipalities) not to private individuals. It did not cover discriminatory actions by individuals. And private individuals who owned businesses, inns, hotels, restaurants, theaters, trolleys, streetcars, railroads, etc. were not covered by the language of the 14th Amendment. The provisions of the Civil Right Act of 1875 that dealt with public accommodations were unconstitutional.

Furthermore, Justice Joseph Bradley wrote the majority opinion. He said that the Civil Rights Act of 1875 went beyond "civil" rights or citizenship rights to "social" rights. And the Constitution did not say anything about social rights. Who may sit in the theater or be served in a restaurant or sit where on the streetcar is a social right, not a civil right.

Bradley went further. He said that it was the role of state government to deal with private interference with such rights as voting, jury service or appearing as a witness in court. These matters were not within the jurisdiction of the Congress and the federal government. Instead, only the states could enforce the protection of these rights.

The effect of the ruling in the Civil Rights Cases of 1883 was to say that Congress had no power to ban segregation in public accommodations under the Fourteenth Amendment, and there was nothing in the Constitution to prohibit private individuals and businesses from practicing segregation. This gave a green light for segregation, and it became the Southern way of life from the 1880s until 1964.

Official segregation, required by law, began as early as 1881 in Tennessee (Tindall and Shi, pp. 745-747). Tennessee required the railroads to maintain separate first class cars for blacks and whites. In 1887 Florida adopted legislation for separate railroad cars by race. In 1888 Mississippi required separate railroad cars for blacks and whites, and separate waiting areas in the railway station. In 1890 Louisiana required separate railway cars by race. in 1891 Alabama, Arkansas, Kentucky and Georgia adopted the practice. In 1891 Georgia also required separation of the races on streetcars. African Americans filed lawsuits against the new laws, charging that they violated the 14th Amendment requirement that no STATE may deny the equal protection of the law.
 
 

PLESSY V. FERGUSON

In 1890 Louisiana adopted a law requiring the railroads to maintain separate cars by race. The Louisiana law explicitly exempted "nurses attending children of the other race." (Bedford, p. 42). In practice that meant that a black nurse could accompany and attend white children on the white car of the train. Technically, the Louisiana law would not have permitted a white man or an adult to bring his servant with him. The law also made no explicit provision for an elderly white person who might need his or her black attendant. In practice this might mean that the situation would be left to the discretion of the conductor. The Louisiana law provided for a fine of $25 or 20 days in jail for any person who insisted upon going into a coach or compartment to which by race he does not belong (Bedford, p. 41). Furthermore, the Louisiana law said explicitly "that all railway companies carrying passengers...in this state shall provide equal but separate accommodations for the white and colored races...(Bedford, p. 41). The expression "separate but equal" derived from the language of the Louisiana law itself. Furthermore, the expression "colored races," in the plural, makes it clear that it means all who are people of color, all who are not white or non-white. In other words, blacks, browns, mixed race people, Indians, Mexicans, Puerto Ricans, Cubans and Asians (Chinese, Japanese, etc.). The fundamental distinction is between white and non-white, or white and color. The law also provided for a penalty of $25 or 20 days in prison for any officer of the railroad company who insisted on assigning passengers to a coach or compartment other than the one set aside for the race to which the passenger belongs. And it provided for a fine of $25 or 20 days in prison for the refusal or neglect of railroad officers, directors, conductors and employees of railway companies that refused to comply with the act. (Bedford, p. 42). In other words, the railroad officers and employees themselves could be fined and imprisoned for not enforcing the law, not just passengers who refused to remain in their assigned places. This would penalize the railroads, not just the passengers.

HOMER PLESSY SUES

Homer Plessy, an octoroon (one great grandparent was black), decided to defy the law (on an intra-state train). He refused to leave the white railway car, and was arrested. He appealed through the courts, up to the U.S. Supreme Court. Plessy's lawyer was Albion Tourgee, a white man and former radical Republican. Tourgee said that "Justice is pictured as blind, and her daughter, the law, ought at least to be color-blind (see Bedford, p. 29). In 1896 the Court rendered its decision. It was a 7-1 decision. Henry Billings Brown wrote the majority opinion. Justice David Brewer had missed the oral arguments, and so did not vote on the case (Bedford, p. 31). In this infamous decision the Court said several things.

1. It said that "Legislation is powerless to eradicate racial instinct" (p. 51 of Bedford Series). The majority of the Court assumed that blacks and whites have an innate, inborn, natural repulsion toward one another.

2. It said that laws permitting and even requiring the separation of the races have been generally recognized [in the past] as within the competency of the state legislatures in the exercise of their police power (Bedford, p. 44). The Court noted that Massachusetts as late as the 1850s had segregated public schools; that Congress itself had established segregated public schools in the District of Columbia; and more than 16 states banned interracial marriage. The police power, incidentally, is the duty of the police to maintain public order.

3. In his challenge, Plessy had said that the states had different definitions of what is black, and there was no standard definition. Some states, such as Louisiana, said any traceable amount of Negro blood or ancestry. North Carolina said any visible admixture. Ohio and many others said the preponderance of white blood. Michigan and Virginia, up to this time, said one-fourth Negro blood (one grandparent who is black). Florida said one-eighth. The Supreme Court acknowledged the inconsistency between the states, but said that the definition of race was up to laws of the individual states (Bedford, p. 51).

4. Plessy also argued that if the states could separate people on the basis of color, what was to stop them from requiring different cars on the trains for people whose hair color was different, or from requiring white people to walk on one side of the street and blacks on the other? The Supreme Court responded that "every exercise of the police power must be reasonable... and be enacted for the promotion of the public good (Bedford, bottom p. 48-top of 49). The Court implied that the state legislatures would rely upon the established usages, customs and traditions of the people to determine what was reasonable (Bedford, p. 50). By implication, the states would be left to determine for themselves what was "reasonable."

5. The Supreme Court accepted the reasoning of the state of Louisiana that so long as equal accommodations were provided to both races, white and colored (or non-white), this was equal. Separate is still equal so long as accommodations are provided to both races. The Court did not say that the facilities for each race had to be equal in quality, only that there should be one for each race. And the Court said directly "If the civil and political rights of both races are equal [then] one cannot be inferior to the other civilly or politically." The implication was that even though the social rights of the two races were not identical, that their civil and political rights were still equal and so both races were equal. And the Louisiana segregation law did not violate the Fourteenth Amendment. And by extension, if the Louisiana law did not violate the Fourteenth Amendment then other similar state and local laws did not violate the Fourteenth Amendment either.

The majority opinion said that the underlying fallacy of Plessy's argument was "the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction [or interpretation] upon it." (Bedford, p. 33). In other words, it is imaginary and just in our minds.

HARLAN'S DISSENT

The lone dissenter was John Marshall Harlan, a former slaveholder (I believe from Kentucky). Harlan said that racial separation required by law was a burden and disability similar to a badge of servitude or a badge of slavery (Bedford, p. 53). He understood that segregation placed a stigma on black people and marked them as inferior. Harlan said that forced racial separation was "unreasonable" (Bedford, p. 56). He compared the Plessy decision to the infamous Dred Scott decision (Bedford, p. 57). John Marshall Harlan, speaking as a prophet, warned that the nation needed a government that "would not permit the seeds of race hate to be planted under the sanction of law." (Bedford, p. 58). But his most famous statement was "in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor respects nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law... Therefore it is regretted that this high tribunal...has reached the conclusion it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race." For Marshall, personal liberty was a civil right that included the right of locomotion and mobility. But Marshall is best remembered for the phrase "Our Constitution is color-blind." Of course, what he really meant was that in theory and in principle our Constitution is supposed to be colorblind.

Harlan also deplored a quality in the majority opinion that can be called disingenuous or insincere. Billings suggested that there was nothing in the law itself that said the color races are inferior. But Harlan commented, "Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons"....He added, "no one would be so wanting [or lacking] in candor [or truthfulness] as to assert to the contrary." (Bedford, p. 55). Harlan also said, it is one thing for a railroad company to furnish equal accommodations for everyone. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of the railroad companies for permitting persons of the two races to occupy the same passenger coach (Bedford, p. 55).

THE LOGIC OF THE CASE

The logic of the Plessy case was that separate accommodations and facilities for whites and people of color were legal and equal as long as facilities were provided equally for both races. However the states should determine what was "reasonable" to maintain public order. Three years later black parents in Richmond County, VA sued. Their complaint was that Richmond had opened a public high school for white students. But it had not opened a corresponding high school for black children. This, they complained, was unequal. The case, decided in 1899, is Cummings v. School Board of Richmond. The Supreme Court ruled in favor of the school board. It said that officials in states and localities, such as a school board, had the jurisdiction to apply the rules on a "reasonable" basis and could make such "reasonable" decisions. In essence, the states and localities could determine what was a reasonable application of the principle of separate and equal. ("Reconstruction and the Constitution," Chapter 10 of The Blessings of Liberty, Michael Les Benedict, p. 219).

Following the Plessy and Cummings decisions, with the blessing of the Supreme Court, legal, compulsory, state-sponsored segregation became the Southern way of life. Segregation was called "Jim Crow," or the Jim Crow system or Jim Crow laws. The public schools were segregated by law. Trains, streetcars, buses, waiting rooms, and restrooms were segregated, by law. Theatres and churches were segregated, with blacks in the balcony or the back pews. Some hotels and restaurants simply refused to serve blacks at all. Woolworths and department store chains as late as 1960 refused to serve blacks at lunch counters in the South. Blacks, as late as 1961, traveling on buses and trains from the North to the South, had to get on black cars or sit in the back of the bus if they proceeded further South than Washington, D.C.. Oklahoma went so far in 1915 as to require separate phone booths in public buildings. Atlanta segregated elevators. New Orleans segregated its prostitutes. Louisville, Kentucky divided the city into black blocks and white blocks. Libraries, recreation centers, swimming pools, parks, amusement parks excluded blacks all together, with no comparable accommodation for blacks at all. There were separate hospitals for blacks and whites.
 
 

In practice, segregation was separate and unequal. The white water fountain had a marble pedestal around it. The black water fountain was a pipe sticking out of the wall. As an example of inequality, the textbook mentions on p. 268 that in Florida in 1898 the spending per pupil for white children was $5.92 and for black children it was $2.27. In 1900, in Adams County, Mississippi, the spending was $22 per pupil for white children and $2 per pupil for the black children. The state universities in the South, publicly supported, did not admit blacks. Many Southern states had no medical or law schools at all for blacks. Even Maryland excluded black students from the University of Maryland as late as the 1940s. Under segregation, counties eventually paved roads in white neighborhoods. Blacks, living on the other side of the tracks, had dirt and gravel roads. In white neighborhoods, eventually, electrical power lines, street lights and sidewalks would be constructed. Blacks living in the same town, in a different section of the town, had no street lights or sidewalks. Even when indoor plumbing became possible, waterlines and sewer lines were built in the white areas first, and in the black neighborhoods last. Even standing in line at the department store, as late as the 1960s, whites were waited on first, before blacks, no matter how long the black person had been standing in line waiting. To be white was to be superior. It was to be regarded as better. It was to be treated better.

Much of this kind of segregation was forced. It was required by law. If you did not obey you were arrested and fined or thrown into jail. Some of it was unwritten and informal custom. In 1955 Rosa Parks was arrested in Montgomery, Alabama for refusing to give up her seat on a bus to a white man, sparking the modern civil rights movement. But legalized segregation occurred with the blessing of the Supreme Court of the United States, and the Plessy verdict endured from 1896 until 1954. Federal statute ending public segregation was not passed by Congress until 1964. As late as the 1950s, there was segregation by theatres, restaurants and hotels in the North too. You, here, who were born after 1964, are practically the first generation of Americans in all of US history not to live under formal segregation.

In addition, this segregation was based on the doctrine of white superiority and black inferiority. It was based on the conviction that contact between the races is bad. Black people are not good enough to be with white people. The theory was that contact with blacks degrades white people. Black people are inferior and contact with them drags white people down. Contact with blacks pollutes or contaminates whites. And if there is interracial sex, and race mixing, the inferior blood dilutes the strength of the superior genes and leads to a primitive regression, like retardation. Race mixture is bad for both races because it takes what is pure and makes it impure. In Europe these theories of the inequality of the races were promulgated by Joseph Gobineau, in France, in 1855. In the 1890s they became popular in America. Gobineau is the father of the Aryan race theory. The ultimate expression of Gobineau's ideas would be embraced in the 1920s and 1930s by a man named Adolph Hitler.