Little Rock Look Back: SCOTUS decision in BATES v LITTLE ROCK case

On February 23, 1960, the U. S. Supreme Court handed down a decision in the case of Daisy BATES et al., Petitioners, v. CITY OF LITTLE ROCK et al.  This case had been argued before the Court in November 1959.

Daisy Bates of Little Rock and Birdie Williams of North Little Rock were the petitioners.  Each had been convicted of violating an identical ordinance of an Arkansas municipality by refusing a demand to furnish city officials with a list of the names of the members of a local branch of the National Association for the Advancement of Colored People. The question for decision was whether these convictions can stand under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

The Little Rock ordinance (10,638) was passed on October 14, 1957. It charged that certain non-profits were actually functioning as businesses and using non-profit status to skirt the law. Therefore it required the non-profits to disclose their members and sources of dues.  North Little Rock passed an identical ordinance.

(Mayor Woodrow Mann was not present at the meeting of the LR Council when the ordinance was passed. But he signed all of the resolutions and ordinances approved that night.  Ordinance 10,638 was the only legislation that night which had also been signed by Acting Mayor Franklin Loy.  Mayor Mann crossed through Loy’s name and signed his own.)

Mrs. Bates and Mrs. Williams as keepers of the records for their respective chapters of the NAACP refused to comply with the law.  While they provided most of the information requested, they contended they did not have to provide the membership rosters and dues paid.

After refusing upon further demand to submit the names of the members of her organization, each was tried, convicted, and fined for a violation of the ordinance of her respective municipality. At the Bates trial evidence was offered to show that many former members of the local organization had declined to renew their membership because of the existence of the ordinance in question. Similar evidence was received in the Williams trial, as well as evidence that those who had been publicly identified in the community as members of the National Association for the Advancement of Colored People had been subjected to harassment and threats of bodily harm.

Each woman was convicted in the court of Pulaski Circuit Court, First Division, William J. KirbyJudge. They were fined $25 a person.  On appeal the cases were consolidated in the Supreme Court of Arkansas in 1958. The convictions were upheld by five justices with George Rose Smith and J. Seaborn Holt dissenting.

Mrs. Bates and Mrs. Williams then appealed to the U. S. Supreme Court.  The pair’s legal team included Robert L. Carter and George Howard, Jr. (who would later become a federal judge).  Little Rock City Attorney Joseph Kemp argued the case for the City.  The arguments before the U. S. Supreme Court were heard on November 18, 1959.

The SCOTUS decision was written by Associate Justice Potter Stewart.  He was joined by Chief Justice Earl Warren and Associate Justices Felix Frankfurter, Tom C. Clark, John M. Harlan II, William J. Brennan and Charles E. Whittaker.  Justices Hugo Black and William O. Douglas wrote a concurring opinion.

The U. S. Supreme Court reversed the lower courts.

In sum, there is a complete failure in this record to show (1) that the organizations were engaged in any occupation for which a license would be required, even if the occupation were conducted for a profit; (2) that the cities have ever asserted a claim against the organizations for payment of an occupation license tax; (3) that the organizations have ever asserted exemption from a tax imposed by the municipalities, either because of their alleged nonprofit character or for any other reason.

We conclude that the municipalities have failed to demonstrate a controlling justification for the deterrence of free association which compulsory disclosure of the membership lists would cause. The petitioners cannot be punished for refusing to produce information which the municipalities could not constitutionally require. The judgments cannot stand.

In their concurring opinion, Justices Black and Douglas wrote that they felt the facts not only violated freedom of speech and assembly from the First Amendment, but also aspects of the Fourteenth Amendment. They wrote that the freedom of assembly (including freedom of association) was a principle to be applied “to all people under our Constitution irrespective of their race, color, politics, or religion. That is, for us, the essence of the present opinion of the Court.”

Neither the Gazette or Democrat carried any reaction from City leaders. There was a City Board meeting the evening of the decision. If it was mentioned, the minutes from the meeting do not reflect it.

Arkansas Attorney General Bruce Bennett, on the other hand, was very vocal in his outrage. The city laws were known as Bennett Laws because they had been drafted by him as ways to intimidate African Americans and others he viewed as agitators.

In 1960 Bennett was challenging Governor Orval Faubus for the Democratic gubernatorial nomination.  In reaction to the to the Supreme Court he vowed that, if elected Governor, he would “de-integrate” (a term he proudly took credit for coining) the state.

For his part, and not to be outdone by the AG, Faubus fretted that the Court’s decision meant that Communists would be able to give money to the NAACP.

Clinton School Speaker at noon today – UA Little Rock Bowen Law Professor John DiPippa on recent Affordable Care Act Ruling

Image result for john dipippaWhile his SCOTUS previews are a highlight of Clinton School programming in the the early fall, legal scholar John DiPippa will be making a special return to the Clinton School Speaker Series in January.

In December, a federal judge in Texas said that the Affordable Care Act’s individual coverage mandate is unconstitutional and that the rest of the law therefore cannot stand. The ruling throws into doubt the future of health coverage for millions of Americans, and sets up another cliffhanger in which the fate of the law will likely once again lie with the Supreme Court.

John DiPippa is a constitutional law scholar who served as a William J. Clinton Distinguished Lecturer at the Clinton School and Dean Emeritus at the UA Little Rock William H. Bowen School of Law. He is an Inaugural Professor of Public Service at the University of Arkansas Clinton School of Public Service and teaches two core courses: The Foundations of Public Service and The Legal and Ethical Dimensions of Public Service.

All Clinton School Speaker Series events are free and open to the public. Reserve your seats by emailing publicprograms@clintonschool.uasys.edu or by calling (501) 683-5239.

Little Rock Look Back: September 12, 1958–a day of educational chaos in Little Rock

Thurgood Marshall, of the NAACP, sits on the steps of the Supreme Court Building after he filed an appeal in the integration case of Little Rock’s Central High School. (AP Photo, file)

The Court found that “the federal judiciary is supreme in the exposition of the law of the Constitution” and all state officials must adhere to the Court’s decisions and follow the rules laid down in those decisions in similar future cases.

Following the decision, the Little Rock School Board issued a statement that the schools would open as planned on Monday, September 15, 1958.  One of the School Board members, Henry V. Rath, resigned his position on the board that day. He was frustrated that the School Board was caught between federal law and state law.

Later that afternoon, Governor Faubus signed several bills into law which had been passed in a special session. These bills were designed to make it more difficult to integrate public schools.  One of them gave the Governor the authority to temporarily close schools to keep them segregated.  The Governor would then call a special election for the voters in that district to decide whether to remain closed or be opened and integrated. (One of the other laws, which would come in to play later during the school year, laid out the plans for a recall of school board members.)

Shortly after signing the law which gave him the authority to close the schools, Governor Faubus did just that.  He announced that Little Rock’s four public high schools would not open on Monday, September 15.  He set October 7 as the date for the special election about keeping the schools closed.

No one seemed to know what the next steps were.

That night, high school football took place, as previously scheduled.  Central came from behind to defeat West Monroe, Louisiana, by a score of 20 to 14.

Over the weekend, there were many meetings and phone conversations as people were trying to figure out what to do.

One meeting that took place on September 12 was at the home of Mrs. Adolphine Fletcher Terry.  She invited a few friends over to discuss what role the women of the city could play in solving this crisis.  The group decided to meet on the following Tuesday, September 16, at Terry’s house.  It would eventually grow to over 1,300 members and have the name of Women’s Emergency Committee to Open Our Public Schools.

Little Rock Look Back: Thurgood Marshall confirmed to SCOTUS

On August 30, 1967, Thurgood Marshall was confirmed as the first African American to serve on the Supreme Court of the United States.

Ten years earlier, Marshall had been spending much time in Little Rock as he fought for the Little Rock Nine to be allowed to integrate Little Rock Central High School.  While he was in town, he would stay at the home of L. C. and Daisy Bates.  One  can tour the home today and see the bedroom in which he, Dr. Martin Luther King Jr., Ossie Davis & Ruby Dee, and other Civil Rights leaders stayed while visiting Little Rock.

His involvement with the Little Rock Nine came about from his role with the NAACP. In had been in that capacity that he was lead attorney for the Brown v. Board of Education decision which paved the way for the Little Rock schools to be integrated.  He worked with local attorneys such as Wiley Branton Sr. and Chris Mercer on the Little Rock efforts.

In May 1961, President John F. Kennedy named Marshall to a seat on the US Court of Appeals. Unsurprisingly, a group of segregationist senators tried to hold up the appointment.  In 1965, he was named to the position of Solicitor General by President Lyndon B. Johnson.

Regrettably there is another Arkansas connection to Thurgood Marshall’s appointment to the Supreme Court.  As he had with the 1961 appointment to the Court of Appeals, Arkansas Senator John L. McClellan vigorously opposed the nomination of Marshall.  As a member of the Judiciary Committee he tried to hold it up.  In the end, McClellan did not vote on Marshall’s appointment when it came before the full Senate.

The final vote was 69 for and 11 against with 20 not voting. Of the 11 former states of the Confederacy, Arkansas’ J. William Fulbright, Tennessee’s Howard Baker & Al Gore Sr., Texas’ John Tower & Ralph Yarborough, and Virginia’s William Spong were the only six votes for yes.  There were six who did not vote, and 10 Nay votes.

The remaining Nay vote came from West Virginia’s Robert Byrd. Among those outside the South who did not vote were future Democratic presidential candidates Eugene McCarthy,  Edmund Muskie and George McGovern as well as Republican former actor George Murphy.  Montana was the only state with neither senator casting a vote one way or the other.

Marshall served on the US Supreme Court until October 1991, when he retired due to failing health. He died in January 1993, just four days after Bill Clinton became president.

Little Rock Look Back: Brown v. Board II Decision from the US Supreme Court

On May 31, 1955, the U.S. Supreme Court issued its ruling in Brown vs. Board of Education of Topeka II.  

One year after the landmark Brown v. Board decision which declared state laws establishing separate public schools for black and white students to be unconstitutional, the Supreme Court took up the case again.  This time the focus was on the implementation of desegregation

The original Brown v. Board grew out of a class action suit filed in Topeka, Kansas, by thirteen African American parents on behalf of their children.  The District Court had ruled in favor of the Board of Education, citing Plessy v. Ferguson.  When it was appealed to the Supreme Court, Brown v. Board was combined with four other cases from other jurisdictions.

After handing down the 1954 decision, the Supreme Court planned to hear arguments during the following court session regarding the implementation.  Because the Brown v. Board case was actually a compilation of several cases from different parts of the US, the Supreme Court was faced with crafting a ruling which would apply to a variety of situations.

In the arguments before the court in April 1955, the NAACP argued for immediate desegregation while the states argued for delays.

The unanimous decision, authored by Chief Justice Earl Warren, employed the now-famous (or infamous?) phrase that the states should desegregate “with all deliberate speed.”

In making the ruling, the US Supreme Court shifted the decision-making to local school districts and lower-level federal courts. The rationale was that those entities closest to the unique situation of each locality would be best equipped to handle the distinct needs of those schools and communities.

The Supreme Court did make it clear that all school systems must immediately starting moving toward racial desegregation.   But again failed to provide any guideposts as to what that meant.

In anticipation of the Supreme Court’s Brown II ruling, earlier in May the Little Rock School Board had adopted a draft of what became known as the “Blossom Plan” (named for the superintendent, Virgil Blossom).  The thought process seems to have been that if the LRSD had a plan in place prior to a Supreme Court decision, it might buy it more time had the court ruled that things had to happen immediately.

The Blossom Plan called for phased integration to start at the senior high level.  It anticipated the new Hall High School as having an attendance zone in addition to zones for Central and Mann high schools. But the way the zones were created, the only school which would be integrated at first would be Central High.  The junior highs and elementary schools would be integrated later.

With no immediate remedy from the US Supreme Court, the NAACP – both nationally and locally – had little recourse other than expressing their unhappiness continuing to verbally protest the lack of immediate desegregation. (This is an oversimplification of the NAACP efforts, but points out that there options were very limited.)