The Sit-Ins and the State Action Doctrine

By Schmidt, Christopher W. | The William and Mary Bill of Rights Journal, March 2010 | Go to article overview

The Sit-Ins and the State Action Doctrine


Schmidt, Christopher W., The William and Mary Bill of Rights Journal


ABSTRACT

By taking their seats at "whites only" lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and most of the American public, the question of whether the nondiscriminatory logic of Brown should apply to public accommodations involved a consideration of the role of public accommodations in social life, the dignitary costs of exclusion, and the values served by the protection of private choice and associational rights within the commercial sphere. From the perspective of lawyers, judges, and lawmakers, the relevant question centered on a doctrinal issue that had been under considerable pressure in the two decades preceding the sit-ins: the "state action" requirement of the Fourteenth Amendment. At the time of the sit-ins, many assumed that resolution of the issue demanded a reconsideration of the state action doctrine. Yet, when given the opportunity, neither the Supreme Court, in a series of cases arising from the sit-in protests, nor Congress, in framing the public accommodations provision of the Civil Rights Act of 1964, took this path. As a matter of official constitutional interpretation, the state action doctrine survived the civil rights movement, modified somewhat but retaining the same basic form it had when the Court first defined it in the late nineteenth century. In this Article, I explain why the sit-in movement, which proved remarkably successful at changing attitudes, practices, and statutes, ultimately failed to change constitutional law. My analysis of the resilience of the state action doctrine draws on recent scholarship on extrajudicial constitutionalism, even as it challenges some of the premises that underlie this scholarship.

INTRODUCTION .......................................................... 768

I. THE SIT-INS AS A CONSTITUTIONAL CHALLENGE ................... 776

A. Civil Disobethence as a Constitutional Claim .................. 777

B. State Action as a Normative Concept ......................... 779

C. The State of the State Action Doctrine, I960 ................... 781

D. Public Accommodations and the "Logic" of Brown .............. 786

II. THE SIT-IN CASES IN THE SUPREME COURT ........................ 791

A. From Burton to Bell ...................................... 792

B. Bell v. Maryland ......................................... 795

C. Civil Disobethence and the Supreme Court .................... 798

III. THE CIVIL RIGHTS ACT OF 1 964 AND CONGRESSIONAL INTERPRETATION OF THE FOURTEENTH AMENDMENT .................................... 802

A. The Supreme Court and Section 5 ............................ 803

B. The Kennedy Administration and the Fourteenth Amendment ...... 809

C. The Fourteenth Amendment in Congress ...................... 814

D. Title II in the Supreme Court ................................ 818

E. Legislative Constitutionalism in the Shadow of the Supreme Court . . 820

CONCLUSION .................................................. 823

INTRODUCTION

When African American students sat down at segregated lunch counters across the South in the spring of 1 960, they presented a profound challenge to the custom and law of white supremacy. It would be hard to imagine a form of protest that more powerfully demonstrated the flagrant and perverse injustice of the Jim Crow South. …

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