Desegregation from Brown to Alexander: An Exploration of Supreme Court Strategies

CLOSELY associated with voting is protest. Before attention turned to the Vietnam war, the activities of the civil rights movement in the 1960s were focused on voting rights. Deprivation of rights in this area produced marches and demonstrations. However, the areas in which new modes of public protest first arose were transportation and public accommodations--characterized by sit-ins and, in transportation, by "freedom rides." Public accommodations attracted more attention than transportation because of the symbolic importance of a person's being able to eat a meal where he or she wanted, because of the resistance of private proprietors to having to serve persons of another color, and because of the fact that the subject was the core of the Civil Rights Act of 1964. The public accommodations cases provide a stark contrast with the school desegregation area and allow us to see the many strategies the justices can use when they do not wish to engage in a straightforward attack on a problem. In those cases, the Court, drawing on the law of public facilities, on the "state action" doctrine, and on rules of criminal law and procedure, did not reach the basic constitutional issue thrust upon it--of the right of a proprietor to refuse service because of a person's race--or deal directly with the right to protest, in spite of the fact that nonviolent protesters were protected from conviction.

Once the Court handed down its decisive ruling on public accommodations in which it upheld Congress's handiwork, the Court dealt more directly with protest, much of which in the post-1964 period came from voting rights activities. At first directed toward protesting particular alleged wrongs and discriminatory practices, in other instances the protest was of a very general nature--for example, protest of discrimination against Negroes by the officials, citizenry, customs and practices of some town or city. The methods of civil rights demonstrators became widespread and were popularized as Gandhian in origin and religious-- moralistic--in motivation. "Civil disobedience" became the cause, cry,

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