Segregation

By: Paul Finkelman

Source:

 The Oxford Companion to American Law

Segregation

Race discrimination became embedded in American law with the emergence of slavery in the colonial period. Before the Revolution, some statutes singled out African Americans, even if free, for special punishments or special legal disabilities. However, a system of statutory segregation did not emerge until after the American Revolution. In the 1790s, public schools in New York, Boston, and other northern cities closed their doors to blacks. By the mid-nineteenth century, various private enterprises in the North and the South—steamboats, trains, inns, restaurants, theaters—either refused service to blacks or made them sit in separate areas. Meanwhile, in much of the North, and all of the South, public educational facilities were segregated by statute or custom.

Blacks and white abolitionists challenged the decision of the Boston school committee to segregate blacks into their own school, but Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court upheld the policy in Roberts v. City of Boston (Mass., 1849). While losing the case, these early civil rights activists did not give up, and by 1855 the Massachusetts legislature had banned segregation in the state’s public schools. In the late nineteenth century, most northeastern states had passed civil rights laws to guarantee blacks access to most public accommodations as well as to public schools. However, private discrimination, racism, and weak enforcement created a regime of de facto segregation in much of the North. This segregation became intensified during and after World War I, as blacks began to move north. By the 1950s, most northern blacks lived in neighborhoods that were mostly segregated, and thus attended schools with a majority of minority students. This ghettoization led to some political clout for blacks, who soon had a smattering of seats in Congress and a number of seats in state legislatures and on city councils. In some places, such as New Jersey and Illinois, school boards deliberately, and in violation of state law, created segregated schools for blacks. However, most northern segregation was a function of private decision-making, racism, black poverty, and governmental actions, but not specific laws requiring segregation.

During the Civil War, the United States initially refused to allow blacks to serve in the military, but this changed in late 1862, when blacks were allowed to enlist into segregated units. The United State Army would remain segregated until the end of World War II, when war manpower replacement needs led to some minor instances of integration. During the war, Japanese-American soldiers were also forced to serve in segregated units. In 1948, President Truman began the integration of the military with Executive Order 8802, but as late as the 1970s blacks complained bitterly about mistreatment and segregation within the Army and Navy.

After the Civil War, federal bureaucracies and federal facilities were integrated, and remained so until 1913, when the administration of President Woodrow Wilson began to segregate facilities in public buildings in Washington. The administration began to purge blacks from federal jobs, and soon required photo IDs for job applicants as a way of screening out blacks. The president himself declared: “I do approve of the segregation that is being attempted in several of the departments.” Washington remained a wholly segregated city until the Roosevelt administration, and most private business in the city remained segregated until the 1960s. As a southern city, Washington reflected its region.

The main thrust of segregation was in the South, where free blacks faced numerous restrictions before the Civil War. In most of the South, they could not practice certain professions (such as pharmacist, gunsmith, printer), congregate in groups, attend churches without white supervision, or even attend school. Immediately after the War, the millions of former slaves faced segregation and repression through harsh black codes passed by legislatures dominated by former Confederates. Northern reaction against these laws led to the Civil Rights Act of 1866, the three Civil War amendments to the U.S. Constitution, and other acts to protect black freedom. During Reconstruction, most of the black codes were repealed, and in some places, such as Louisiana, civil rights laws mandated equality, and even integration.

With the end of Reconstruction and the return to white rule, the South began to institute increasingly rigid rules for the separation of the races. At first, institutions such as schools, hospitals, prisons, and various asylums were segregated. Starting in the 1890s, de jure segregation began to spread to all aspects of southern life, while de facto segregation (as well as some de jure segregation) appeared in many northern settings.

In the South, segregation was more than just a legal system; it was a way of life, supported by laws, private actions, and cultural norms. As Adam Fairclough has noted, southern states adopted a “plethora of segregation laws” that “marked the birth of a new social order” in which “segregation became a matter of faith among white Southerners.” Southern law makers, at the state, county, or municipal level, seemed to constantly look for, and find, ways to segregate, oppress, and humiliate blacks. Joining them were individual store owners, who imposed their own rules or regulations for black patrons. In a series of decisions, including The Slaughter-House Cases (1873), Hall v. DeCuir (1878), The Civil Rights Cases (1883), Louisville, New Orleans Texas Railway Co. v. Mississippi (1890), and Plessy v. Ferguson (1896), the U.S. Supreme Court gave its blessing to segregation. The virtual disfranchisement of blacks in the South between 1890 and 1910 set the stage for the creation of a harsh regime of segregation and inequality.

By 1920, virtually every facet of life in the South had been segregated. Southern blacks faced discrimination at every turn in their lives. Those born in hospitals entered the world in separate hospitals; they would be buried in segregated cemeteries. All schools, public and private, from nursery school to college were segregated throughout the period 1900 to 1954. When Berea College, a private institution in Kentucky, attempted to integrate, the state intervened, and the Supreme Court upheld Kentucky’s laws mandating that private colleges be segregated. Toward the end of this period, the Supreme Court forced a few graduate and professional schools to desegregate. But these cases were won only because the states did not have a similar program for blacks. In fact, many southern states completely ignored the education of its black citizens. Louisiana, for example, created some twenty “trade schools” between 1934 and 1949, all of them for whites.

If arrested, blacks went to segregated jails. In Florida, it was illegal for any sheriff or other law enforcement officer to handcuff or chain blacks and whites together; in Georgia, black and white prisoners were to be kept separate “as far as practicable.” In most southern states, African Americans with a hearing problem, or a mental illness, went to special institutions for blacks only. Ironically, even state schools for the blind were segregated in the South.

Everywhere, public accommodations were segregated by law, separate, but almost never actually equal. The South required there be separate drinking fountains, restrooms, motels, hotels, elevators, bars, restaurants, and lunch counters for blacks. 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. Waiting rooms at bus and train stations were also separate. At theaters, blacks sat in separate sections at the back or in the balcony.

Beyond public accommodations, blacks faced discrimination at every turn. South Carolina required separate entrances for blacks and whites working in the same factories, as well as separate stairways, restrooms, doorways, and pay windows. Georgia led the way in segregating its parks, and Louisiana required separate ticket windows and entrances at circuses and tent shows. Southern states banned interracial meetings of fraternal orders, and cities and states followed Birmingham’s segregation of “any room, hall, theater, picture house, auditorium, yard, court, ball park, or other indoor or outdoor place.” Mobile had a 10:00 p.m. curfew for blacks, Florida stored textbooks from black and white schools in different buildings, and New Orleans segregated its red light district. Most southern states banned interracial sporting events and boxing matches. 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. Oklahoma provided for segregated telephone booths, Tennessee required that houses of worship be segregated, and Texas banned interracial boxing matches. As Judge William H. Hastie, the first black to serve as a federal judge noted: “The 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. C. Vann Woodward noted that southern courts kept separate Bibles for black and white witnesses, even though no statute required this form of segregation. But, as Woodward noted, writing in 1956, with italics in the original:

"“[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.”"

The Supreme Court had allowed segregation under a theory of “separate but equal.” However, in the segregated South, nothing was ever equal. Public schools illustrate the inequality. Expenditures for blacks education were always much lower than for whites. In 1938, the U.S. Office of Education noted that, on average, the southern states spent forty-five dollars a year for the education of whites, but less than twenty dollars for blacks. Similarly, in 1949, Clarendon County, South Carolina spent $179 per pupil for white school children, but only $43 for its black children. The school buildings for the 2,375 white children were valued at $673,850, but the schools for the 6,531 black children were worth only $194,575. Similar statistics, with greater or lesser disparities, could be found for every school district in the South, and for many in the North. In some places in the South, school districts even refused to build high schools for blacks.

Starting in the 1930s, the NAACP and other civil rights organizations began to chip away at segregation, concentrating first where the separate systems were clearly most unequal. Thus, in a series of cases, the U.S. Supreme Court ordered the integration of law schools and graduate schools in states that either did not provide them at all for blacks, or provided institutions that were so obviously inferior that no plausible argument of “equal” facilities could be made. The key case in this line was Sweatt v. Painter (1950) in which the Court ordered the integration of the University of Texas School of Law. Finally, in Brown v. Board of Education (1954) the Supreme Court declared that “separate but equal” education was “inherently unequal,” and began the slow and painful process of dismantling the South’s dual education system. In Brown, the Court specifically declared that it was not striking down other forms of segregation, but by 1967 the Court and Congress had effectively destroyed the legal apparatus of segregation. The 1964 Civil Rights Act banned segregation in enterprises involved in interstate commerce; the 1965 voting rights act finally put teeth, and federal enforcement, behind the promise of political equality found in the Fifteenth Amendment; and the 1968 open housing act prohibited discrimination in most forms of rentals and home sales.

Despite new civil rights laws, court victories, and federal enforcement, America remained a largely segregated society. Blacks had lower incomes, higher infant mortality rates, less educational opportunity, and lower life expectancy than whites. School integration worked in smaller cities outside the South, but in large cities, residential housing patterns (the result of complex forces and history) made school integration difficult or impossible. Where schools were integrated, whites often moved to suburbs, in effect creating black majority cities. The Supreme Court refused to order cross-district busing in places where there had not been a history of de jure segregation. The result was that by the year 2000, blacks in most cities, North and South, attended mostly black schools. Meanwhile, in the small towns and cities of the South, mostly segregated public school systems emerged as whites sent their children to segregated private schools. Although the laws creating segregation were no longer in force, the social structures that these laws reflected and created remained in place in much of the nation. Integration was a success for many as it brought millions of blacks into the middle class, and opened doors in higher education and many professions. But a half century after the Supreme Court declared separate but equal to be unequal, much of America remained segregated.See also Race and Ethnicity

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