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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.