Knowledge And Decisions

Three main strands of legal trends involving race will be considered here: (1) state actions affecting race, struck down by the Supreme Court as unconstitutional, (2) “affirmative action” policies and practices of the 1960s and 1970s, as developed by courts and administrative agencies, and (3) the racial integration of schools as conceived in the landmark case of Brown v. Board of Education in 1954 and legally and socially evolved over more than two decades since then.

STATE ACTION

Before the Fourteenth Amendment was passed in 1868, numerous laws in both the North and the South specified different treatment for black and white citizens. More such laws were passed in the South after the Civil War and — particularly in the case of sweeping “vagrancy” laws — virtually reenslaved the emancipated Negro. Other laws had existed even before the Civil War to control the half million “free persons of color” and to deny them such fundamental rights as the right to testify in court (except against other blacks), to move freely from place to place, or even to educate their own children at their own expense.⁴⁰ The sweeping and extreme nature of these denials of the most ordinary and basic rights must be understood as a background to the words of the Fourteenth Amendment. The “equal protection of the laws” had a very plain and simple meaning — and a very limited meaning, falling far short of a social revolution. So too did the ban on any state action to deprive anyone of “life, liberty, or property” without “due process.” The writers of these words explicitly, repeatedly, and even vehemently denied any interpretations going beyond prohibition of the gross abuses all too evident around them.⁴¹ Even voting rights were not included.⁴²

The nineteenth-century Supreme Court decisions under the Fourteenth Amendment followed the limited scope and intentions of its authors. The Court declared that it was only “state action of a particular character that is prohibited”; “Individual invasion of individual rights is not the subject matter of the amendment.”⁴³ Public accommodation laws were therefore held invalid.⁴⁴ Even lynchings of prisoners in state custody were ruled beyond the scope of the Amendment.⁴⁵

In the twentieth century, the Supreme Court began to expand the meaning of “state action” in a series of cases (beginning in the 1920s) revolving around white-only primaries in the South, where the Democratic primary was tantamount to election, and where “state delegation” of its power to set voter qualifications to the Democratic party was a transparent subterfuge to prevent blacks from voting.⁴⁶ In these cases, governmental bodies took the initiative and made the decisions which denied citizens equal treatment.

A very different series of “state action” cases began in the 1940s. In these new cases, both the initiative and the decisions to treat individuals unequally by race were private. The state became involved only subsequently in protecting the legal rights of those private individuals and organizations to make whatever decisions they chose as regards contracts (restrictive covenants) and the use of their own property (trespass laws). In short, the state in these cases simply decided who had the right to decide, as defined in contracts and trespass laws. State power was involved in enforcing contracts and laws, but state decision making was not.

The Supreme Court conceded that the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful.” But state “enforcement” of restrictive covenants was deemed paramount to “participation” by the state.⁴⁷ This was called state action “in the full and complete sense of the phrase.”⁴⁸ Similarly, state enforcement of trespass laws against sit-in demonstrators seeking the desegregation of privately owned businesses serving the public was invalidated as “state action” in violation of the Fourteenth Amendment.⁴⁹ Perhaps the furthest extreme of this concept of “state action” was a 5 to 4 Supreme Court decision in Reitman v. Mulkey (1967) that repeal of a California “fair housing” law was a violation of the Fourteenth Amendment because the state was thereby guilty of “encouraging” private discrimination.⁵⁰