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of 1960. The event that sparked the movement happened on 1 February 1960, in Greensboro, North Carolina, when four African American men, all first-year students at the local black college, sat down at the downtown Woolworth store lunch counter and, upon being denied service, refused to leave. These young men, soon known to history as the Greensboro Four, came back the next day, this time with more classmates, and the group sat once again in defiance of the store’s refusal to serve black patrons at the lunch counter. Day by day, the Greensboro sit-in protest grew. Students in other North Carolina cities started their own protests. Soon students in other states joined what had suddenly become a mass movement. By the end of February, sit-in protests had taken place in thirty cities in seven different states. A month later, the movement had spread to forty-eight cities in eleven states. In all, an estimated fifty thousand people eventually took part in the sit-in movement of 1960. Students sat-in, marched, picketed, and boycotted discriminating businesses. They faced verbal abuse; some were assaulted by gangs of white thugs. Thousands were arrested, charged with disorderly conduct, breach of the peace, or trespassing on private property. The sit-in movement was a watershed event. It energized and transformed the struggle for racial equality, moving the leading edge of the movement from the courtrooms and legislative halls to the streets and putting a new, younger generation of activists on the frontlines. It gave birth to the Student Nonviolent Coordinating Committee, one of the most important activist groups of the 1960s. The sit-ins elevated the issue of racial nondiscrimination in public accommodations to a central issue of the civil rights struggle, alongside the right to vote and educational equality. The protest campaign set in motion a chain of events that would culminate in the Civil Rights Act of 1964, which banned racial discrimination in public accommodations across the nation. Although the student protesters were key participants in what would become a revolution in American civil rights law, they had an ambivalent relationship with lawyers and courts. For many who took part in the sit-ins, direct action protest was as an alternative to litigation and lobbying—pathways to racial justice that these young men and women had seen promise much but deliver little. They saw the courts as something to be avoided—not because they might lose in court, but because even if they won, they were skeptical that real change would follow. This was the lesson of Brown v. Board of Education. The 1954 Supreme Court decision striking down state-mandated segregation raised hopes but produced little actual school desegregation in the South. Most of the African American students who took part in the sit-ins attended segregated schools, even after the Brown ruling came down. Brown made clear that racial change required more than proclamations from distant courts. The students admired Thurgood Marshall, the head of the litigation arm of the National Association for the Advancement of Colored People (NAACP), and
his team of civil rights lawyers, but they were also wary of lawyers, particularly their tendency to steer issues into the formal legal processes. Skepticism toward lawyers was in part a way for the students to maintain control over their protest movement. This skepticism was mutual. The civil rights lawyers admired the courage of the students, and they would eventually provide much-needed representation when the students faced criminal prosecution for their protest activities. Initially, however, many established civil rights lawyers were skeptical about the protests. Some were critical about the tactic the students had chosen, fearing the sit-ins would get headlines without securing real change, which required changing laws. And they believed the students lacked a strong legal basis for their actions. Prevailing judicial doctrine did not align with what the students, by virtue of their actions, demanded. The lawyers’ legal skepticism traced to an area of constitutional law known as the “state action” doctrine. In its most straightforward terms, this doctrine holds that the constraints of the Fourteenth Amendment only apply to government officials or “state actors.” The amendment’s equal protection clause thus clearly applies to, say, a public school, but it would not apply to a members-only social club. With regard to the lunch counter sit-in movement, the relevant constitutional question was where on the public-private spectrum to place a privately owned and operated business operation that served the general public and received a government license to do so. Even if one assumed that a privately operated public accommodation, such as a Woolworth lunch counter, did not itself meet the criteria of a state actor for Fourteenth Amendment purposes, the constitutional question was still not resolved. During the sit-ins, many store owners called on the police to arrest unwanted patrons on trespassing charges. At this point, the state clearly was involved in enforcing the store owners’ racial discrimination policy. These doctrinal complexities made many civil rights lawyers wary of the viability of the sit-ins as a vehicle for constitutional reform. When the sit-ins occurred, the NAACP lawyers were having enough difficulty getting the courts to enforce school desegregation, where after Brown the law was clearly on their side. They did not think it wise to launch a new round of constitutional challenges in a situation where private property rights and the Fourteenth Amendment’s state action limitation posed significant obstacles to success in the courts. The students were not necessarily aware of these doctrinal complexities. These were the legalisms that occupied lawyers versed in the nuances of constitutional law, not passionate young men and women, some of whom were still in high school. Yet it would be wrong to say that the students were not concerned with the Constitution. From the earliest lunch counter sit-ins of the 1960 movement, participants and observers described the fundamental issue at stake—the right to racially nondiscriminatory service in public accommodations—as a matter not only of right and wrong, not only of dollars and
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On Constitutional Disobedience
Citizenship and Civil Disobedience
Christopher Schmidt
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