Fifty years ago, thousands of students from northern, mid-western and western colleges came to the South to participate in "Freedom Summer." Their goal was to increase voter registration among the African-American inhabitants of those states. The former Confederate states had set up almost impossible road blocks for potential black voters - literacy tests, poll taxes, the need to explain provisions of the state constitution, limited days and hours for registration. As it happened, Congress passed the 1964 Civil Rights Act at the beginning of the summer (July 2, 1964) so the testing and implementation of that law was also part of their mission.
But these students needed legal help to advance their goals and to protect them from the local authorities who used every possible method to frustrate and restrict their activities. In Mississippi, there were only four African American lawyers and fewer white lawyers who would regularly handle civil rights cases. Earlier in 1964, a group of pro bono civil rights organizations, including the ACLU, the National Lawyers Guild, the NAACP Legal Defense Fund, the American Jewish Committee and others formed a legal support group, called the Lawyers Constitutional Defense Committee. It sent over 300 lawyers to Mississippi, Louisiana, Alabama, Georgia and Florida to protect the local African American population and the visiting student from restrictive laws and practices in those states. In the best tradition of the bar, these lawyers went to the most dangerous areas of the South to insure that justice be afforded to those fighting for equal rights.
For the most part, these lawyer-tourists (including myself) had little experience in fighting the overwhelming misuse of the legal system by the Southern authorities. We all knew that the legal system is based upon considerable discretion by all parties in the process. Legislators pass laws, police arrest people, prosecutors bring criminal charges, jurors convict, judges pass sentences. Northern and western lawyers know that each of these actors have considerable leeway in how they perform their functions.
What we did not realize was that in the Southern states in the 1960's, virtually every actor in the legal system used his or her discretion in only one way: to restrict the rights of their African- American citizens and their supporters. One of the L.C.D.C. lawyers, Peter Teachout of Vermot, gave this practice a name "underlaw." He wrote: "underlaw can be defined as the systematic exploitation of areas of discretion in the legal process to perpetuate a system of white supremacy." Teachout and some other lawyers wrote about their experiences in a book entitled "Southern Justice," which I edited and contributed to. Their stories illustrated the continuous abuse of the legal system for the one purpose cited by Teachout: to perpetuate the system of white supremacy.
Paul Chevigny of N.Y.U. Law School wrote about the many laws passed by the Mississippi legislature in the spring of 1964 to counter the anticipated efforts of the invading students: The legislature passed laws allowing prisoners (including civil rights workers who were expected to be arrested and convicted) to be whipped or lashed. Laws were passed to restrict boycotts and picketing, and making it a crime not to "arise" (i.e.., lift yourself off the ground) when ordered to do so by a police officer. The law was passed to counter anticipated sit-ins or sit-downs by civil rights protesters. Juveniles were to be tried in the adult criminal system and subject to adult penalties.
James Wilson, a Washington State Assistant Attorney General who joined the L.C.D.C., described how the town of Ruleville, Mississippi passed a law requiring all civil rights workers in the town to be jailed overnight to "protect" them. Civil rights workers driving a car were routinely arrested for blocking traffic or not having a Mississippi driver's license. Prosecutors in Clinton, Louisiana indicted twelve African-American residents for intimidation because they had signed a letter to the mayor asking for the creation of a biracial committee to discuss racial relations in the town. Even though the Gideon case required that the government appoint counsel for indigent defendants in criminal cases, the usual practice was for "the [appointed] attorney arranging for his client to get a less-than-maximum sentence if he pleased guilty," as Jack Oppenheim explained. Jurors were selected on a segregated basis, and jury commissioners used every device possible to identify potential black jurors and to insure they did not serve, according to Charles Morgan. State court judges would impose the harshest sentences on civil rights workers who allegedly ran afoul of their state's restrictive laws. And state appeal courts, were "a dead end," as Michael Meltsner explained in his article.
The one limited bright spot were the federal judges of the Southern states. A few courageous district court judges issued injunctions against the worst of the abuses, and the majority of the Fifth Circuit generally supported them, as Shirley Fingerhood explained in our book. In St. Augustine, Florida, where I served, Judge Bryan Simpson issued a series of orders permitting civil rights workers to march and protest and requiring that many arrested protesters be released from jail. He ordered the local sheriff to dismiss one of his deputies because he had been a member of the local Ku Klux Klan group. In Birmingham, Alabama, Judge Frank Johnson dissolved Governor Wallace ban on Reverend Martin Luther King's march from Selma to Montgomery. He struck down the State's effort to redraw the city limits of Tuskegee, Alabama to dilute black voting strength. In Richmond, Virginia, Judge Robert Mehrige ordered the Richmond and surrounding schools to be immediately desegregated.
In response to these ruling, Judge Simpson was ostracized from the city's social scene. Local antagonists burned Judge Merhige's mother-in-law's house and killed his dog. He had to send his family abroad for two years because the local federal marshals could not guarantee their safety. Local Klansmen burned a cross in front of Judge Johnson's home and destroyed his mother's house.
But consistent rulings in favor of civil rights by the United States Supreme Court, the passage of the Voting Rights Act in 1965 and the continued efforts by civil rights lawyers to change the illegal practices of the Southern authorities had their impact. In 1989, twenty five years after Freedom Summer, the L.C.D.C. alumni met in Jackson Mississippi for a reunion. The main speaker at the conference was Reuben Anderson, the first black Justice on the Mississippi Supreme Court. Times do change.
Leon Friedman is a professor of Constitutional Law at the Maurice A. Deane School of Law at Hofstra University.