by Risen, Clay
Similar scenes took place across the South. To an extent that surprised almost everyone, Southern merchants and politicians largely acceded to Title II’s mandate, accepting “testers” from civil rights groups who had been denied service just days before. George Bess, an Atlanta Urban League staffer who had helped organize the sit-ins against Leb’s and other establishments, went that day for a meal at the Henry Grady, a posh hotel (later demolished to make room for the tubular Westin Peachtree tower). “It was very nice,” he reported afterward. “You wouldn’t have known we were Negroes . . . We were looking for dirty silver, a special table off in a corner, lack of courtesy, a long waiting period . . . there was none of this.”13
In Kansas City, a thirteen-year-old black boy named Eugene Young went into the barbershop at the Muehlebach Hotel, paid two dollars, and got his hair cut. The day before, he had been refused service. In Birmingham, a seventy-year-old black chauffeur named J. L. Meadows walked into the Town and Country restaurant at the Dinkle-Tutweiler Hotel, ordered a meal, and was served. “I’ve been driving white folks down here for thirty-two years, and now I’m going to eat where I’ve been taking these white folks,” he told Time magazine.14
Not every establishment opened its doors. Some, like the Robert E. Lee Hotel in Jackson, simply closed rather than comply (the Lee later reopened as a private club, the sort that Russell Long had fought to protect with his late-stage amendment). Others filed legal challenges; within two hours of Johnson’s signature, Moreton Rolleston, the owner of the 216-room Heart of Atlanta motel, filed suit against the federal government, a case that eventually rose to the Supreme Court. A few establishments offered outright resistance. Two bowling alleys in Beaumont, Texas, refused testers, as did several restaurants in Selma, Alabama. Most famously, the Atlanta fast-food restaurateur Lester Maddox, who had been agitating against the bill for months, chased three would-be black diners from his Pickrick Restaurant. Maddox carried a bladeless ax handle, and over the next few months, hundreds of whites around Atlanta could be seen with “Pickrick drumsticks,” symbols of their opposition to the bill. Maddox’s obstinacy did not save his restaurant, which he closed in early 1965, but it did launch his political career; he would serve as governor and then lieutenant governor from 1967 to 1975.15
A few cities also refused to comply, though none barred blacks outright from public accommodations. Some followed the lead of Greenwood, Mississippi, which drained its city pools rather than desegregate them.16
Nor was violence unheard of over the following week. On the evening of July 3, blacks integrated six restaurants in Cambridge, Maryland, but at one, the Dizzyland restaurant, the owner assaulted one of the aspiring diners. On July 9, the actor Jack Palance, who had supported civil rights activism in the past, was seen entering the Druid Theater in Tuscaloosa, Alabama, with his family. Word spread that at least one black person had gone in with them. Several hundred people gathered outside, and a group of men entered and sat behind Palance and his family while they tried to watch Peter Sellers and Angela Lansbury in The World of Henry Orient. The men began harassing the actor about being a paid “outside agitator.” Palance spun around and yelled, “You are scaring my children!” and he and his family stormed out—only to be met with brickbats and catcalls from the mob outside. Eventually the police arrived, and they had to use tear gas to disperse the crowd. Palance and his family escaped unhurt.17
Still, such scenes were relatively rare. As a Department of Justice report concluded at the end of the month, “The general picture is one of large-scale compliance, but with considerable defiance in Alabama and Mississippi, and pockets of defiance in Georgia, Florida, and other states.”18
Why did the South acquiesce so readily? It helped enormously that the majority of the region’s leaders urged full, immediate compliance. Jackson, Mississippi, immediately desegregated its facilities, a move that its mayor said “demonstrated clearly the common sense and dedication to law and order of our citizens, white and black.”19
Southern senators likewise called for immediate adherence to the new law. Herman Talmadge told Georgians that “there is no alternative but compliance,” while his colleague Richard Russell said: “It is the understatement of the year to say that I do not like this statute. However, it is on the books and it becomes our duty as good citizens to learn to live with it as long as it is there.” William Fulbright of Arkansas said: “Differences of opinion—no matter how deeply felt—must be subordinated to law and resolved in accord with it.” Likewise, Louisiana’s Allen Ellender told his constituents that “I cannot agree with those who advocate flagrant and perhaps violent opposition to any statute enacted by the Congress, if declared constitutional . . . The fact remains that, until changed or repealed by the Congress, or else declared unconstitutional, the laws enacted by the Congress must be respected.”20
Not all politicians were so reasonable. Both George Wallace and Mississippi governor Paul Johnson called on businesses in their states to resist the act until it had been tested in court. Johnson also warned civil rights activists to “move with caution or we’re going to have some chaotic days.” But they were largely ignored, and aside from them, even the act’s staunchest critics—Thurmond, Robert Byrd, Ervin—wisely held their tongues.21
Also crucial was the measured, organized, and strategic approach to desegregation taken by civil rights organizations. For months before the law went into effect, SCLC, CORE, the NAACP, and myriad local groups were in contact with chambers of commerce, city officials, and individual business owners to negotiate the process of desegregation. In the weeks leading up to the bill’s passage, the NAACP leadership spoke out repeatedly against “adventurism” in testing the new law’s effectiveness. Above all they promised that desegregation would be orderly; it was in no one’s interest for a restaurant or theater to be swamped with black customers in a time of heightened tension. “We’re not interested in forcing our rights down somebody’s throat,” said Andrew Young of the SCLC, whose post-act integration initiative was called Operation Dialogue.22
Such efforts would have come to naught had many Southern business communities not been eager to put Jim Crow behind them. The national public opinion, at least for the moment, seemed to be tilting decisively toward civil rights. Moreover, by the mid-1960s, particularly in the larger cities, attracting non-Southern investment and workers had become a key part of civic economic strategies. And yet, as the Wall Street Journal reported as early as May 1963, Southern businessmen feared “the economic growth of their region may be stunted for years, perhaps decades, unless some way is found to halt the spread of strife between whites and Negroes.” After all, said a business leader in Birmingham, “would you take an industry into a place where Bull Connor was police commissioner?”23
As the bill went into effect, local chambers of commerce went into action. In Jackson, the chamber voted unanimously on July 3 to comply with all parts of the act. As the Department of Justice concluded, “In many localities the business community has shown a willingness to obey the law without conspicuous leadership from public officials—and even despite negative reaction from them.”24
The chambers did not act spontaneously: much of their willingness to accept the act was made possible by the nearly year-long campaign by the Department of Justice to prepare local communities for the coming change. And the government was not the only one: the volunteer networks of lawyers, motel owners, theater chains, and civic groups made sure that as many businesses as possible across the South were ready for the day when Title II became law. “Where there has been conscientious planning and efforts to prepare for the transition, compliance has been good and trouble minimal,” noted the department. And where there was resistance, the federal government stepped in swiftly. On July 29, the Department of Justice filed its first suits under Title II, against twenty-six establishments in Tuscaloosa.25
Underlying all of this was the willingness of the white South itself to accept the Civil Rights Act, and above all
Titles II, III, and IV, which brought an immediate upheaval to its racially ordered life. Like the rest of the country, by early 1964 even the white South was caught up in the moral righteousness of the movement. According to polls by the Institute of Public Opinion, in June 1963 only 12 percent of Southern whites supported a public accommodations law; by February 1964 the number had risen to 20 percent—hardly an overwhelming number, but indicative of a clear trend. It helped, too, that Lyndon Johnson, always popular in the South, had tied himself so closely to the bill; when an April 1964 Harris poll asked Southerners whether they approved of the way he had handled the legislation, 67 percent said yes.26
But above all, the majority of Southern whites were simply glad to have the fight, and Jim Crow, over with. Invested in segregation though they were, most Southern whites were not racial ideologues, rallying behind the Klan or the White Citizens Councils. They were tired of the racial strife, tired of the protests and violence, tired of having their region tarred as backward and evil. Even if they did not like the Civil Rights Act—and to be clear, the vast majority did not; millions voted for Barry Goldwater that fall—they could at least take solace in the fact that it bore within it the possibility of social peace.27
It goes without saying that the surprisingly rapid, peaceful fall of Jim Crow did not mean that whites welcomed blacks as equals, or that they welcomed them into their social, economic, and political worlds. One reason why Southern whites accepted the changes wrought by civil rights legislation was that the expansion of the white middle class meant they could create new forms of de facto segregation to replace the old, unwieldy de jure ones: moving to wealthy suburbs, sending their children to private schools, joining private clubs, entering white-collar industries—all the while professing an allegiance to a color-blind society that just happened not to have any black people in it. It also goes without saying that the white South’s acceptance of the letter of the Civil Rights Act did not mean the majority embraced its spirit. Russell’s fear that the act would lead to a tsunami of interracial marriages notwithstanding, many Southern whites found it possible, even morally comfortable, to pay lip service to blacks’ political equality while rejecting the idea that they could ever be social equals.
Still, Title II of the Civil Rights Act stands as a landmark: not only because it took down Jim Crow, but because it left the high-water mark of the New Deal tide of federal power. On December 14, 1964, the Supreme Court ruled unanimously against the Heart of Atlanta motel, which had argued that Congress had gone beyond the limits of the Commerce Clause in crafting Title II. In retrospect, the Heart of Atlanta was a poor candidate to test the law, since it was a 216-room motel located near an interstate, along which it frequently advertised, and some 75 percent of its guests were from out of state—if ever there was a public accommodation involved in interstate commerce, this was it. But the nature of this particular establishment proved less important to the court than the reality of modern travel. As Justice Hugo Black noted in his concurrence, the fact that many of the nation’s 20 million blacks could and often did travel across state lines meant that very few businesses were not at least potentially involved in interstate commerce. “Certainly it would seriously discourage such travel by them if, as evidence before the Congress indicated has been true in the past, they should in the future continue to be unable to find a decent place along their way in which to lodge or eat,” Black wrote. By that standard, the court actually went further than Congress did, to find that the federal government had the power to regulate practically any commercial activity at all, or even any activity that intersected with commercial operations.28
Titles II and III—the bans on discrimination in public accommodations and publicly owned facilities—were only the most immediately visible parts of the bill. Other titles were more or less effective. Title I, for example, which banned the unequal application of voter qualification tests, came with a very weak enforcement mechanism and provided no help for blacks who were intimidated or unfairly rejected by local registrars. On July 3, a group of blacks tried to register to vote in Jackson but were denied. It was only with the Voting Rights Act of 1965 that the federal government gained real powers to stamp out voting discrimination.29
The ongoing struggles of African Americans to access the ballot box was not lost on Johnson. He now fully embraced the need for action on moral grounds—and political grounds as well. In the late 1950s, earlier than almost everyone else, Johnson had seen that the white South, the traditional base for the Democratic Party, would soon enough shift to the Republicans, and that his party needed a new base to keep up. Having already spent decades tilting, outside the South at least, toward black voters, he knew that an act to protect and extend their franchise would lock them in as solid Democratic supporters for generations.
At the signing ceremony on July 2, Johnson was already planning to tackle voting. He took Katzenbach aside and said, “What are we going to do next year in civil rights?”30
Katzenbach glared back. “Jesus Christ, Mr. President, we just spent two years on this bill and practically nothing else happened,” he said.
“Let’s get a bill,” Johnson said. “Let’s get a voting rights bill.”
Another plank, Title IV, required schools to develop desegregation plans and gave them assistance to do so. It also empowered the attorney general to sue if they did not. Title IV was broadly effective, creating, at least temporarily, a biracial educational system in the South. But more important to school desegregation was Title VI, ostensibly not a schools provision at all. It did, however, ban federal funds from going to segregated state and local programs, including schools—a provision that gained enormous weight with the Primary and Secondary Education Act of 1965, which opened the taps for federal largesse to flow to the nation’s school districts. With billions of dollars as a tempting carrot, many Southern school districts fell over themselves to desegregate.
Aside from Title II, the most important part of the bill was Title VII, banning employment discrimination. And yet at the time, many observers wrote it off as fatally weakened by compromise. Richard Berg, who worked for the Equal Employment Opportunity Commission for the first few months of its existence, wrote: “Title VII was the principal victim of the legislative compromises necessary to achieve passage of the entire bill.” Michael I. Sovern, a law professor at Columbia (and later its president), called it a “poor, enfeebled thing.” Without a commission empowered to sue on behalf of plaintiffs, they said, the law had little in it to compel compliance. “Impotence will frequently be met with intransigence,” Sovern wrote.31
It did not help that President Johnson dragged his feet on naming the EEOC staff and members, or that its budget was so thin that at times it had to beg other agencies to lend staff and support. When it opened its doors in July 1965, it was inundated with cases, part of a strategy by the NAACP Legal Defense Fund to highlight the commission’s inadequacy. Eventually, so many cases had been on hold for so long that courts decided it was acceptable to ignore the sixty-day statute of limitations for complainants waiting for a review. And the early members of the commission looked askance at the addition of sex discrimination to the title, on the premise that it had been an ill-considered legislative accident.32
Over time, though, the EEOC, and Title VII enforcement generally, began to gain strength. Like the unexpected impact on school desegregation from Title VI, the provision within Title VII to cover plaintiffs’ legal costs proved serendipitous: it fueled the emergence of an enormous civil rights bar, with thousands of lawyers specializing in workplace discrimination suits. According to Sean Farhang, a professor of public policy at the University of California, Berkeley, workplace discrimination suits today constitute about 18 percent of all litigation in federal courts, second only to petitions by prisoners requesting to be set free. Moreover, through the 1960s and 1970s, Congress and the courts regularly expanded and deepened Title VII’s reach; in 1971 the Supreme Court decided, in Griggs v. Duke Power, tha
t under the Civil Rights Act, employers could not use tests or other tools that disparately affected a minority group—in effect going against the bill’s own authors, who insisted, after the Motorola case, that Title VII clearly allowed such tests. It was no longer necessary to prove that an employer had actively, purposely discriminated; it was enough to prove that minorities were adversely affected by company decisions, regardless of intention. And, in 1972, the EEOC won the power to sue, a power that had been stripped from it in the Senate negotiations with Dirksen.33
It is beyond the scope of this book to examine the entire post-enactment history of the Civil Rights Act. But one thing can be said with certainty: the act revolutionized American society by placing the federal government undeniably and forcefully on the side of African Americans. Though blacks had long benefited from federal policies, they had also been explicitly excluded from many of the New Deal public welfare programs, and they had sought in vain federal intervention against gross civil rights violations in the South. Congress had refused to pass legislation to enforce the 1954 Brown decision, and both the 1957 and 1960 civil rights acts were relatively toothless; it did not take a cynic to conclude that Congress had passed the acts more to win over black voters in the next election than out of any conviction on behalf of black America. No one could lay that charge against the 1964 act or the people who made it possible. Thanks to them, the relationship between blacks and the federal government—and between both of them and white America—changed forever.
On the copy of the signing speech that Johnson gave to Humphrey, the president had inscribed, “Without whom it couldn’t have happened.” On an identical copy that he gave to Dirksen, he wrote simply, “Thanks.”34
The president could afford to be personally magnanimous to those who labored so hard to pass the bill, because he knew a truism about American political memory: no matter how many people worked to get a bill through Congress, it was the man in the Oval Office who would get the credit. And, almost immediately, accolades for the president’s performance began pouring in. In a July 5 news analysis, the New York Times credited Johnson as “the man who pushed [the bill] through Congress.” In its endorsement of Johnson for president that October, the Baltimore Afro-American likewise praised Johnson for breaking the filibuster.35