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Posted March 20, 2014Fred L. Banks, Jr. Phelps Dunbar LL
Chair, Advisory Commission to the Mississippi Department of Archives and History for the
Mississippi Civil Rights Museum
On October 24, 2013, hundreds of school children, state leaders, and civil rights veterans gathered to break ground for The 2 Mississippi Museums Project: the Museum of Mississippi History and the Mississippi Civil Rights Museum. Visitors heard speeches from civil rights hero Myrlie Evers, Governor Phil Bryant, former governors Haley Barbour and William Winter, and others. Currently, crews are working to construct the two museums, which are scheduled to open in December 2017 during the bicentennial celebration of Mississippi’s statehood.
The Museum of Mississippi History will cover the full sweep of our state’s history. The Civil Rights Museum will chronicle the progression of black Mississippians from slavery to second-class citizenship under Jim Crow to the struggle for civil and voting rights. It will focus upon the latter, during the period between 1945 and 1975. Its core values are as follows:
Truth
A factual account of the history of the civil rights struggle and an affirmation of the dignity retained by African Americans throughout the period of slavery, emancipation, and attainment of civil rights.Identity
The identity of the museum, and in particular its exhibits, will be forthright in providing human identity for the struggle by placing names and faces on the enslaved and emancipated people and others who were noteworthy in their persistence and quest to attain full civil rights.Place
The prominent role Mississippi played in the struggle for civil rights offers insights into the shaping of people by place and circumstance, and frames through example the opportunity for all to pursue ongoing change for the betterment of the common good.Memory
The telling of the collective stories of the struggle, both individual and group, to provide a sense of the influence of the past on the present.
Several legal milestones will be a featured thread in the exhibits. This article will recount some of the pertinent legal history and the setting in which it was made.
While some anti-discrimination laws had been on the books since Reconstruction, neither the states nor the federal government began to enforce them until the 1960s. In the first half of the 20th Century, separate but equal education was a sham, lynchings — with or without court “trials” — were rampant and the basic act of citizenship, voting, was suppressed by both “legal” and extra-legal means. Almost one hundred years after the Civil War, our state continued as one of many in which a black person had no rights “that a white person need respect.” 1
Changing the legal landscape was a central strategy for the National Association for the Advancement of Colored People (NAACP). Beginning in the 1930s, the NAACP took on education and voting through litigation. It brought suits to gain admission for black students in institutions of higher learning and to eliminate racially restricted primaries in elections. The well-chronicled initial strategy in education was litigation within the framework of “separate but equal” with a goal to demonstrate that providing truly equal resources would prove too expensive to maintain separate facilities. This effort moved gradually to elementary and secondary education, culminating in Brown v. Board of Education in 1954.
In the meantime, there were demographic changes in our nation, which affected the political landscape and an horrific world war that modified our world view. Complacency in the face of a stark example of genocide could not be universally tolerated. A direct result was the courage and activism of returning black World War II veterans, including Medgar Evers, Clyde Kennard, Aaron Henry, Amzie Moore, to name a few in Mississippi. Black women of courage like, Gladys Noel Bates, Myrlie Evers, Winson Hudson, Vera Pigee and Fannie Lou Hamer, in Mississippi, and Ella Baker and Rosa Parks, elsewhere in the south were also “sick and tired of being sick and tired.” And, thus, a national activist movement was sparked and came to fruition in the 1960s in our nation and, especially, but not exclusively, in Mississippi and the rest of the south.
That decade and that movement also brought about a change in the legal landscape and the face of our bar. We saw the passage of new landmark legislation—the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968, and the resurrection of old post-Civil War statutes which lay dormant such as, 42 U.S.C. §§ 1981 and 1982. A series of events, many of them in Mississippi, provided the impetus for the new legislation and fresh application of the old.
In 1959, a black law student named Bruce Boynton boarded a Trailways bus from Washington, D.C. to Alabama. During a stop in Richmond, Virginia, he was asked to leave the dining car’s white section but refused to do so. He was arrested, charged with a misdemeanor, and fined ten dollars. Boynton sued, arguing that as an interstate traveler, he had suffered racial discrimination, and his arrest violated due process and commerce clauses of the U.S. Constitution. The State of Virginia contended that the Trailways contractor that operated the dining area was not subject to federal regulations on interstate commerce established in 1887.2 With the help of the NAACP, Boynton filed suit against the State of Virginia. The case eventually went to the U.S. Supreme Court, which ruled in Boynton’s favor in 1960. It also banned segregation of terminal facilities serving interstate passengers.3
In 1961, an interracial group of activists from the Congress of Racial Equality (CORE) and the Student Nonviolent Coordinating Committee (SNCC) tested the Boynton v. Virginia ruling as they traveled throughout the Deep South on the “Freedom Rides.” 4 The Riders faced threats, violence and jail time all along the way. Most notably, in Alabama, a bus was firebombed and Riders were dragged off of another bus and beaten. Riders who continued in the face of mob violence arrived in Mississippi to be immediately arrested and held in county jails and Parchman Penitentiary. From August to September, the Riders were arraigned and tried in Jackson. They were uniformly found guilty of breach of peace. Many refused to pay fines and opted instead to fill up the jail to continue the protest. The rides ended in the fall, but they established momentum for enforcement of federal desegregation law in interstate transportation. In Bailey v. Patterson (1962), brought by Sam Bailey a Jackson civil rights activist, the Supreme Court ruled that no state could require segregation in interstate transportation services.5
The Freedom Rides also brought activists to the state who stayed and inspired, and drew inspiration from, young activists already here.6 Alongside more mature local civil rights leaders, mostly affiliated with the NAACP, they began a concerted effort to end racial oppression in Mississippi. Our state responded by continuing to distinguish itself as among the worst of the worst, through murders and other physical and economic punishments inflicted upon its citizens who would dare to challenge the status quo. In the present decade then, we annually, commemorate a 50th anniversary of some despicable act or acts aimed at preserving white supremacy.
In 1962, James Meredith became the first black student to enter the University of Mississippi. That event provoked a riot by white protestors from around the state who gathered at the University. The riot resulted in the loss of two lives and was stopped only when the United States Army was called in to occupy the campus.
A white history professor at the University, James Silver, was moved to write a book, Mississippi, A Closed Society, which accurately described the prevailing atmosphere at the time. He was forced to leave the state following this deviation from the white supremacist orthodoxy of the state. Other white citizens who dared to speak out in a manner which deviated from the prevailing view suffered retribution as well. For example, Rabbi Perry Nussbaum’s home was bombed. Hazel Brannon Smith’s newspaper office was bombed and another publisher, Oliver Emmerich, had his office attacked as well. Edwin King, the white chaplain at Tougaloo College and an activist in the Civil Rights Movement was almost murdered when his automobile was rigged.7
On June 11, 1963, two events drew international attention to the struggle for equal rights. In a televised address, President Kennedy declared that the nation faced a “moral crisis.” He called for Congress to pass legislation addressing voting rights and nondiscrimination. Later that evening, Medgar Evers was assassinated outside his home in Jackson, Mississippi. As Mississippi field secretary for the NAACP, Evers had led the fight for equal rights in Mississippi for that organization since late 1954. Kennedy’s speech and Evers’ assassination sparked a national debate on the need for civil rights legislation, but there was still more work to be done.
An historic project began in June 1964 to educate Mississippians about their inalienable rights as U.S. citizens, specifically their right to vote. Mississippi had brutally suppressed black voting rights since the end of Reconstruction. Federal protections were limited and the Hayes-Tilden compromise removed all federal troops from the old Confederacy, leaving the newly enfranchised black citizens vulnerable to violence and intimidation. Black political activity was violently suppressed, and, in 1890, a new state constitution was adopted with the express purpose of eliminating black voters. It was successful and, for the next 70 years, black political participation was nil. Of the more than half million black citizens eligible to vote, only less than 30,000 were registered in 1963. That was not by choice. The 1955 murder of Rev. George Washington Lee in Belzoni is but one post-World War II example of the lengths to which the white establishment would go to suppress the black vote. Another is the murder of Herbert Lee (no relation), a voter registration activist in Amite County in 1961.
In 1964, veteran activists like Robert Moses formed a coalition of civil rights veterans and organizations that led an integrated group of civil rights workers and student volunteers, mostly well-to-do white students from northern universities. (Moses’ activism dated from 1961, when he initiated a voter registration project in southwest Mississippi, of which Herbert Lee had been a part.) The 1964 coalition traveled the state with the message of economic, educational, and political freedom. The effort was called Freedom Summer. Organizers and volunteers, not unexpectedly, faced harassment and violence. The most notorious event was the murders of James Chaney, Andrew Goodman, and Michael Schwerner on June 21, 1964. The murders shocked the nation, but movement leaders and countless volunteers continued the fight in Mississippi.8
During the Freedom Summer campaign, the first major federal civil rights bill since Reconstruction was passed. On July 2, The Civil Rights Act of 1964, which was originally introduced by President Kennedy, was signed by President Lyndon B. Johnson, who ushered it to passage. It was,
[a]n act to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States, to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and, July 2, 1964.9
The act outlawed segregation and discrimination in places of public accommodation such as hotels, schools and restaurants, schools, and it barred employment discrimination.10 The act addressed not just racial discrimination, but also discrimination based upon gender, color, national origin, and condition of previous servitude. It also authorized the United States Department of Justice to bring enforcement actions and provided for attorney’s fees for private enforcement actions.
The Freedom Rides, Medgar Evers’s assassination, Freedom Summer, the murders of Goodman, Chaney and Schwerner, and others, throughout the south, and the passage of the Civil Rights Act all linked to form a chain of change by 1965. Movement leaders kept the pressure up by challenging the seating of Mississippi’s congressional delegation early that year, compiling hundreds of affidavits documenting voter discrimination. The push for legislation was gathering momentum. In March of 1965, Martin Luther King led thousands on nonviolent marches from Selma to the state capitol in Montgomery, Alabama, to campaign for voting rights. State troopers attacked the peaceful marchers on the Edmund Pettus Bridge in Selma. The Ku Klux Klan murdered civil rights worker Viola Liuzzo, who was shuttling marchers. Then, on March 15, President Johnson gave a televised address calling for equal voting rights, repeating the movement slogan “We shall overcome.” The Congress finally overcame southern lawmakers’ resistance, and passed,
[a]n act to enforce the fifteenth amendment to the Constitution of the United States and for other purposes, August 6, 1965.11
President Johnson signed the Voting Rights Act into law in August 1965. The law prohibited poll taxes and the use of widely abused literacy tests to deny voter registration applicants. Federal examiners were authorized to review voter qualifications and register voters, and federal observers authorized to monitored county polling places. Finally, it provided for United States Attorney review of all laws affecting voting in certain jurisdictions with a history of racial discrimination in voting. 12
Sadly, the carnage over voting rights did not end. Mississippi witnessed still another tragedy when a civil rights leader was slain. Hattiesburg native and businessman, Vernon Dahmer, was a prominent and outspoken figure in the local movement. Because of his voting rights activism, cowardly klansmen torched his grocery store and his home late one evening in January 1966. Dahmer’s family escaped as he fought with the murderers, but Dahmer died later that night from smoke inhalation.13
In the final piece of 1960s Civil Rights, legislation, Congress continued to reinforce equality for all with the Fair Housing Act of 1968 (also known as Title VIII of the Civil Rights Act). The act prohibits discrimination based upon race, sex, religion, color, or national origin in renting, selling, or financing of a home. This reiterated equal property rights in Section 1982 of the Civil Rights Act of 1866.14 Congress also resurrected Section 1981 of the act to provide equal rights under the law, specifically in contractual agreements.15
Prior to the 1960s, there was little on the civil rights litigation front in Mississippi. There was a dearth of black lawyers and those who were here faced both the threat of violence to their clients and themselves and the same economic and other pressures which would be visited upon white lawyers, who dared to challenge white supremacy or even stand-up for fundamental fairness. That too, began to change in the decade of the sixties. Only two pre-1960 attempts at affirmative litigation for equality and fairness are reported.
In the late 1940s, the NAACP brought its equalization strategy to Mississippi. It filed a lawsuit to equalize the salaries of black and white teachers. The plaintiff, a Jackson teacher, Gladys Noel Bates, was promptly fired and rendered unable to find employment in Mississippi. Mrs. Bates moved to Colorado. In order to keep the suit alive, R. Jess Brown, then a Lanier High School teacher, became a substitute plaintiff. Brown was fired as well. The lawsuit was eventually dismissed on a technicality,16 and teacher salaries were not to be equalized for several years. Jess Brown, however, went on to become a lawyer and was heavily involved in civil rights litigation in the sixties and beyond. Jess Brown, Jack Young, Sr., and Carsie Hall were the only local lawyers who dared to appear in civil rights cases in that era. All three were in their forties when they were admitted to practice. During the late 50s and early 60s, there was only one other black lawyer practicing in the entire state.
Admitted to the bar in 1953, Jess Brown was counsel in the only other affirmative civil rights action prior to the sixties. In 1958, he brought a suit on behalf of Jefferson Davis County black residents challenging Mississippi’s restrictive voter laws.17 That suit was also ultimately dismissed, requiring black citizens to wait a few years into the sixties to have the courts finally declare the challenged practices unconstitutional, and the passage of the Voting Rights Act, to insure access to the franchise.
Jess Brown and Jack Young also played a role in two other prominent events of the late fifties and beginning of the decade of the sixties. They both illustrate the point of danger to their clients. They represented Mack Charles Parker, a young black man accused of rape in Pearl River County in 1959. Soon after they appeared on his behalf, a mob was allowed to remove him from the jail and murder him.
The other involved Clyde Kennard. In the later 1950s, Kennard, another military veteran and NAACP youth leader in Hattiesburg, had the temerity to repeatedly apply for admission to what was then Mississippi Southern College, in his home town. Our state’s response, through its Sovereignty Commission, was to frame him for the theft of chicken feed, convict him and send him to prison. Jess Brown defended Kennard at his criminal trial, and when Medgar Evers protested the verdict, Brown along with Jack Young defended Evers against charges of contempt of court. They were successful in getting Evers’ contempt conviction overturned, but Kennard was to remain in Parchman for several years, his medical problems unattended to until he was released, his body riddled with cancer and having little time to live.18
White Mississippi lawyers were not available to challenge the status quo in the 50s and early 60s. There was one exception, William “Bill” Higgs, a 1955 Harvard Law graduate from Coahoma County. He counseled with lawyers defending the Freedom Riders, advised James Meredith in this quest to enter Ole Miss, and, in 1961 represented Rev. R. L.T. Smith in a suit to abolish the Sovereignty Commission. For his trouble, he too was run out of the state.19
These events and the growing activism of the 1960s pointed out the glaring need for lawyers who would stand up against injustices based on race, to both defend civil rights activists and enforce civil rights law and the constitution of the United States. The less than one handful of black lawyers in the state could not possibly meet the need. Jess Brown, Jack Young and Carsie Hall did their best but, eventually, that need required the assistance of volunteer lawyers from northern and western states, affiliated with organizations such as the NAACP, the ACLU, the National Lawyers Guild, and others. President Kennedy called on the American Bar Association to accept the challenged. The Lawyers Committee for Civil Rights Under Law was formed and began sending lawyers to Mississippi in 1963. It opened an office in Mississippi in 1965. The Lawyers Constitutional Defense Committee, affiliated with the ACLU, opened an office in 1964, as did the NAACP Legal Defense and Educational Fund. These were all a direct response to the violent resistance in the south and the lack of judicial responsiveness to the violence and flouting of the law. They were necessary to give some semblance of protection to those who were risking their lives to change a system of racial oppression.
It was not until 1967 that the first black student graduated from the University of Mississippi law school.20 The only other law school in the state was private and segregated well into the 1970s.21 Gradually, then, Mississippi-based lawyers, black and white, took on and continued the fight for racial equality and justice. And, finally, in 1965, economic rights legislation, the “War on Poverty” brought the advent of legal services programs, beginning with North Mississippi Rural Legal Services. Through these programs, more Mississippi lawyers, black and white, found a vehicle, for a while, from which they could serve the poor and the cause of racial and economic justice.22
There was still much to be done. Despite the 1964 Civil Rights Act, the Voting Rights Act of 1965 and all that followed, as late as 1969 and into the seventies one could still see “White” and “Colored” water fountains, in the county courthouses, cases were still being reversed for purposeful systematic jury discrimination, and some restaurants, even in the city of Jackson, refused to serve mixed groups of blacks and whites or any white male with long hair or facial hair suspected of being a civil rights activist or sympathizer. Redistricting litigation to remove remaining barriers to black citizens electing persons of their choice to participate in our government on an equal basis was yet to come.
Most of that is, thankfully, behind us now, almost 50 years later. But much remains. Hate has not been cured. It is not even in remission. Vigilance is required of those of good will. It is the goal of the Civil Rights Museum, which will be funded by both the state and private donations, to tell the story of the many who sacrificed and who risked life and limb, lest we forget, in order to illuminate generations to come and to aid the continuing process of reconciliation among our citizens.
