by Suzi Morales
The Thirteenth Amendment to the U.S. Constitution, ratified in December 1865, abolished slavery in the United States. While the amendment indicated progress, it was also during this time period that legal segregation was ushered in as new laws were used to oppress and assert control over the formerly enslaved. Those laws would last for more than 100 years.
A step forward and several steps back
In the 1800s, African Americans made very little progress in stopping segregation. The Civil Rights Act of 1875, signed into law in March of that year, made segregation in schools, churches, and public transportation illegal as “to citizens of every race and color, regardless of any previous condition of servitude.” However, in 1883, the U.S. Supreme Court overturned the law in a group of cases known as the Civil Rights Cases. The Court ruled that the Civil Rights Act of 1875 was unconstitutional because the federal government did not have the power to regulate private, non-governmental actors like hotel and theater owners.
In the 1896 case of Plessy v. Ferguson, the U.S. Supreme Court upheld a Louisiana law—the Separate Car Act—requiring separate railroad cars for Black and white passengers. The Louisiana law is where the phrase “separate but equal” comes from, although the actual wording in the law required railroads to provide “equal but separate accommodations for the white, and colored, races.”
Homer Plessy, who was seven-eighths white, but technically Black under Louisiana law, was recruited by a civil rights group that wanted to overturn the law. Plessy took a seat in the whites-only car on a Louisiana train. When he refused to vacate his seat, he was arrested. His attorneys argued that the Separate Car Act violated the U.S. Constitution’s Thirteenth and Fourteenth Amendments.
The Court’s majority opinion in Plessy stated, “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
In the Court’s lone dissent, Justice John Marshall Harlan wrote, “I am of the opinion that the statute of Louisiana is inconsistent with the personal liberties of citizens, white and black, in that State, and hostile to both the spirit and the letter of the Constitution of the United States.”
Origins of segregation
After the Civil War in the South, where slavery had been a way of life for more than two centuries, people had to decide on a replacement for slavery to organize society, according to James Goodman, an African Studies professor at Rutgers University.
Southern state legislatures passed what are known as Black Codes. According to the National Constitution Center, “Although often professing to respect the equality and civil rights of the newly emancipated, in reality most Black Codes were specifically designed to curtail the economic, political, and social freedom of African Americans, and through a combination of private and public efforts, restore much of the slave system that had existed prior to the war.”
Vagrancy laws, which essentially criminalized being out of work, were central to Black Codes. For example, Mississippi—the first state to enact a Black Code—had a vagrancy statute that said “…all freedmen, free negroes and mulattoes in this State, over the age of eighteen years…with no lawful employment or business…shall be deemed vagrants….”
The Thirteenth Amendment abolished slavery; however, there is a caveat in the amendment that makes an exception in the case of “punishment for a crime whereof the party shall have been duly convicted.” That loophole allowed convict leasing to flourish. Convict leasing was a practice where prisons or jails provided convicts to private parties, like plantations, or corporations, for “lease.” For example, a conviction for vagrancy via the Black Codes could send Black men to prison where they would be used as unpaid labor, essentially being “re-enslaved.”
Black Codes morphed into “Jim Crow” laws, which reinforced segregation. The laws were named after a negative stereotype of a Black man that originated from an 1830s minstrel routine called “Jump Jim Crow.” The Jim Crow character was portrayed as clumsy and dim-witted, and it became a common insult for Black people.
De Jure versus de facto segregation
There are two types of segregation—de jure and de facto. De jure segregation is so-called “legal segregation.” According to Professor Goodman, this means “the laws that make a distinction between what white people could do and what Black people could do.” Professor Goodman notes that state laws prohibiting Black and white people from marrying each other is an example of a de jure segregation law.
In addition, de jure segregation forced Black people to attend separate schools and churches, use public bathrooms marked “for colored only” and sit in the rear of a bus. Professor Goodman says de jure segregation laws restricted Black people’s access to everything from playgrounds and drinking fountains to courts and voting. He also notes that segregation was not only taking place in the South. Professor Goodman says that resistance to integration was just as strong in the North.
In 1954, the U.S. Supreme Court issued a ruling in Brown v. Board of Education of Topeka, Kansas. The Brown case combined five lawsuits against school districts in Kansas, South Carolina, Delaware, Virginia and the District of Columbia, alleging that separate school systems for Black students and white students were unequal and violated the 14th Amendment’s Equal Protection Clause. The Court ruled that the Equal Protection Clause does not allow government entities to make distinctions between individuals. In other words, everyone needs to be treated the same regardless of race.
In its unanimous ruling, the Court said, “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”
While the Court’s ruling made de jure segregation in schools illegal, change was slow to come. According to the Library of Congress, schools in the South would not be integrated until many years after the Court’s ruling.
After the Brown decision, other gains against segregation followed. The 1964 Civil Rights Act, passed by Congress and signed into law by President Lyndon Johnson, prohibited discrimination on the basis of race, color, religion, sex, or national origin. In the 1960 case of Boynton v. Virginia, the U.S. Supreme Court desegregated interstate transportation terminals like bus stations. All those gains, Professor Goodman points out, only targeted de jure segregation.
“All the discrimination doesn’t just disappear,” notes Professor Goodman who says that de facto segregation is a way to segregate without laws, meaning that people are segregated into separate areas by fact rather than by law or policy. Even today, Professor Goodman says there is de facto segregation in schools due to discrimination in housing.
“Everything follows from where people live,” says Professor Goodman. “That is, if people are living in racially divided neighborhoods, that will also affect where children go to school.”
Professor Goodman says the way to fight segregation is to realize that it isn’t just about individual prejudice but recognizing the systems that have been put in place to further racial discrimination.
Discussion Questions
- After the U.S. Supreme Court declared that segregation was unconstitutional, Professor Goodman points out, “discrimination doesn’t just disappear,” meaning it didn’t change the way white Southerners felt about African Americans. Is there something the Court could have done to help change the way these people thought? Explain your answer.
- Read the sidebar Fighting to End Segregation with Civil Disobedience. What do you think about the tactics used in the civil rights movement? How do those tactics hold up today? Explain your answer.
BONUS CONTENT: Fighting to End Segregation with Civil Disobedience
Civil Disobedience is the refusal to obey government demands or laws and accepting the consequences of those actions—such as arrest or punishment—with no resistance. It was the cornerstone of the civil rights movement beginning in the mid-1950s, and led by Dr. Martin Luther King Jr., who preached non-violence.
The goal of civil disobedience is to effect change through protest or disruption, and not wait passively for change to come. To that end, the civil rights movement used sit-ins, boycotts, and marches to bring attention to unjust segregation laws.
“All segregation statutes are unjust because segregation distorts the soul and damages the personality,” Dr. King wrote in a 1963 letter to Southern white religious leaders who had issued a public statement questioning his tactics in ending segregation. “It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.”
Montgomery bus boycott
In an act of civil disobedience on December 1, 1955, Rosa Parks refused to give up her seat on a Montgomery, Alabama bus to a white man. She was arrested. What came next was a boycott of the Montgomery bus system that would last 381 days. At the time, African Americans comprised 45% of Montgomery’s population and 75% of the customers that rode the buses. According to some estimates, the boycott cost the city of Montgomery $3,000 per day or more than $1 million.
The boycott paid off. In November 1956, with the case of Browder v. Gayle, the U.S. Supreme Court ruled that bus segregation violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Montgomery bus boycott ended in December 1956.
Greensboro sit-ins
In February 1960, four African American students from North Carolina Agricultural and Technical State University sat at a whites-only lunch counter at a Woolworth’s store in Greensboro, North Carolina on a Monday and politely asked for service. They were refused. The next day, 29 students from the college did the same thing, with the same result. The protest grew each day. By Saturday, 1,400 students—Black and white—were participating in the protest, which had spread to other lunch counters in Greensboro. Some students sat at counters waiting for service, while others picketed outside the stores.
According to the North Carolina History Project, “Crowds of white men began appearing at lunch counters to harass the protesters, often by spitting, uttering abusive language, and throwing eggs.”
The sit-ins were at least partially successful. By the end of February 1960, some lunch counters had integrated, while other stores elected to close their lunch counters to avoid protest, according to the North Carolina History Project.
Waiting for change
Dr. King wrote that letter to religious leaders from a jail cell in Birmingham, Alabama after he was arrested for participating in a nonviolent demonstration. In their criticisms of Dr. King’s methods, those leaders encouraged him and his followers “to wait,” which Dr. King addressed in his letter.
“We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed,” Dr. King wrote. “Frankly, I have never yet engaged in a direct-action movement that was ‘well timed’ according to the timetable of those who have not suffered unduly from the disease of segregation. For years now I have heard the word ‘wait.’ It rings in the ear of every Negro with a piercing familiarity. This ‘wait’ has almost always meant ‘never.’
Later in the letter, Dr. King wrote, “The nations of Asia and Africa are moving with jet-like speed toward the goal of political independence, and we still creep at horse-and-buggy pace toward the gaining of a cup of coffee at a lunch counter. I guess it is easy for those who have never felt the stinging darts of segregation to say ‘wait.’”—Jodi L. Miller
Glossary Words
caveat—a condition or limitation.
civil disobedience—refusal to comply with certain laws as a peaceful form of protest.
emancipated—liberated.
integrated —something that has been made available equally to all races.
integration—when diverse individuals or groups are brought together in society as equals.
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of his or her colleagues.
mulatto—a person of mixed race with one Black parent and one white parent.
overturn — in the law, to void a prior legal precedent.
statute — a particular law established by a legislative branch of government.
vagrancy—not having a permanent job or home.
This article originally appeared in Respect’s Special Issue: Challenging Racism from Past to Present.