Historic Precedent Hits Close To Home For One Local Lawyer

By Calhoun Bobbitt

In 1989, a certain law student in Professor Anderson’s 1L constitutional law course at St. Mary’s University School of Law was called on to stand up and give his brief on Plessy v. Ferguson, 163 U.S. 537 (1896). That student had “efficiently” (scantily) prepared that morning with only Cliff Notes. Professor Anderson readily determined that his student had not studied the case properly, asked him to sit down, and called on another student, who regaled the class with the vagaries of the seminal Supreme Court case to Professor Anderson’s complete satisfaction.

Years later, that “efficient” student had graduated from law school, passed the bar, and established a thriving career in trust and estate law. He had also finally studied Plessy v. Ferguson in depth. His newly found fascination with the case came not from a textbook, however, but from ancestry.com. The student would later become, and still is, my law partner, John H. Ferguson IV (“John”), and in 2009—as a result of a labor of love in building a family tree on the genealogical website—he learned he was the great-great-grandson and namesake of Judge John Howard Ferguson, the “Ferguson” in the infamous 1896 case.

On January 5, 2022, and at the invitation of Governor Jon Bel Edwards of Louisiana, John attended the Posthumous Pardoning Ceremony for Homer Adolph Plessy in New Orleans. The pardoning of Homer Plessy by Governor Edwards was the very first pardon of its kind granted in Louisiana under the Avery C. Alexander Act (La. R.S. 15:572.9)(“Alexander Act”).

Rev. Avery C. Alexander and a Path to Pardon

The Alexander Act bears the name of Avery Caesar Alexander, who was born in Terrebone Parish, Louisiana, in 1910. 1 In 1944, Alexander was ordained as a Baptist minister. As a member of the National Association for the Advancement of Colored People (“NAACP”), he participated in numerous civil rights protests and boycotts, including the boycott of New Orleans Public Service Inc., to force them to hire black bus drivers; the march from Selma to Montgomery; and sit-ins to integrate lunch counters in New Orleans. In 1975, he was elected to the Louisiana House of Representatives, and he represented Louisiana’s District 93 until his death in 1999.

Enacted in 2006, the Alexander Act creates a mechanism for pardoning individuals “convicted of violating a state law or municipal ordinance the purpose of which was to maintain or enforce racial separation or discrimination of individuals[.]” La. R.S. 15:572.9(B) (1). The bill was introduced by Louisiana State Senator Edwin R. Murray, who wanted to honor “civil rights heroes” and help them remove criminal convictions that excluded them from certain schools and professions. 2 As originally drafted, the bill would have mandated pardons for the certain convictions arising out of civil rights activism. However, after some civil rights activists told him that they were proud of their convictions and did not want them expunged, then-Senator Murray revised it to make pardons available but not mandatory.

Upon receiving such an application, the Board of Pardons is required to grant the pardon, although the district attorney of the parish where the violation occurred may object. Id. The Board of Pardons must submit the application to the governor within fourteen days of its submission, unless “it is objected to by the state on the grounds that the conviction did not result from a violation of a law the purpose of which was to maintain racial separation or racial discrimination of individuals.” Id. If the person so convicted is deceased, the application may be filed by relatives “or any interested individual.” La. R.S. 15:572.9(B)(1). Homer Plessy, as all law students learn, was one of the many individuals convicted of violating a law the purpose of which was to maintain racial separation in the Jim Crow South.

Louisiana Governor John Bel Edwards (fourth from the right) was joined by Plessy & Ferguson descendants outside the New Orleans Center for Creative Arts on January 5, 2022.

Homer Plessy’s Infamous Conviction

June 7, 1892—some 130 years ago—Mr. Plessy was arrested in New Orleans for violating the Louisiana Separate Car Act of 1890, an egregious law requiring passenger railways to have separate train car accommodations for black and white passengers, provided that each would be equal in the amenities such train car offered—in other words, separate but equal. Homer Plessy had purchased a ticket for the firstclass carriage on the East Louisiana Railroad Company train bound for Covington, Louisiana, and was arrested for refusing to leave the white car and sit in the “colored car,” as required by the Separate Car Act. He was presented the next day before Judge John Howard Ferguson, the criminal district court Section A Judge for the Parish of New Orleans, Louisiana.

Judge Ferguson faced a difficult moment. Personally, he disagreed with the public policy of segregation; and in a case involving Daniel F. Desdunes—the son of civil rights activist Rodolphe L. Desdunes— Judge Ferguson released Desdunes when the Louisiana Supreme Court had declared the Separate Car Act, as applied to interstate passenger railways, to be unconstitutional under the Fourteenth Amendment. In Plessy’s case, though, Judge Ferguson found that the state could choose to regulate railroad companies that operated solely within Louisiana and found Plessy guilty of not leaving a “white car.” Plessy appealed the case to the Louisiana State Supreme Court, which affirmed the decision. Plessy then petitioned the Supreme Court of the United States, where Judge John Howard Ferguson himself was named in the case because he had been named in the petition to the Louisiana Supreme Court.

The Supreme Court’s infamous decision in Plessy v. Ferguson upheld the constitutionality of racial segregation and green-lighted the enactment of several laws by southern states that created the Jim Crow regime that plagued the country for decades. United States Supreme Court overruled Plessy fifty-eight years later in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

Plessy and Ferguson Alter The Legacy Of The Notorious Decision

In 2009, descendants of Judge Ferguson and Homer Plessy formed the Plessy and Ferguson Foundation (www.plessyandferguson.org). Their mutual goal was to honor successes of the civil rights movement. One of the foundation’s first acts was to place a historical marker at the corner of Press Street and Royal Street, the site of Homer Plessy’s arrest in New Orleans on June 7, 1892. That intersection is now formally marked “Homer Plessy Way.” John presently serves on the Board of the Foundation, which creates new ways to teach history of civil rights through film, art, and public programs designed to preserve understanding of this historic case and its effect on the American conscience. Several historical markers have been placed throughout New Orleans as a result of the Plessy and Ferguson Foundation’s work.

Louisiana Governor John Bel Edwards greets Ferguson descendants at Plessy Pardoning Ceremony.

Louisiana Governor John Bel Edwards and John Ferguson shake hands near Homer Plessy Way, the intersection of Press Street and Royal Street in New Orleans.

The Plessy and Ferguson Foundation asserts that the 1892 arrest of Homer Plessy was part of an organized effort by citizens to challenge the Separate Car Act. While many consider the civil rights movement to have begun in the 1950s, communities were organizing for equal rights much earlier. The use of civil disobedience and the court system was developed by activists who preceded the Civil Rights Movement of the 20th century. Although the United States Supreme Court ruled against Plessy in 1896, the majority opinion catalyzed Justice John Marshall Harlan’s Great Dissent, in which he declared that “our Constitution is color-blind,” that “in this country there is no superior, dominant ruling class of citizens,” and that it is wrong to allow the states to “regulate the enjoyment of citizens’ rights solely on the basis of race.”

The full gubernatorial pardon of Homer Plessy in New Orleans came as a direct result of a letter of appeal made to the Louisiana Board of Pardons and Parole and signed by descendants of both Homer Adolph Plessy and Judge John Howard Ferguson, including San Antonio’s own John H. Ferguson IV.

Desdunes: Setting the Stage for Plessy

Homer Adolph Plessy has been, and properly should be, widely celebrated for his act of civil disobedience on June 7, 1892, in challenging the Louisiana Separate Car Act of 1890, a racist law requiring separation of the races on passenger trains. Less well known, however, is Daniel F. Desdunes, the son of Rodolphe Lucien Desdunes, a civil rights activist, journalist and politician, who—with Louis A. Martinet and others— founded the Comite des Citoyens (Citizens Committee) to challenge laws that negated the rights of Black New Orleans residents after Reconstruction, including most notably the Separate Car Act.

On January 24, 1892, three months before Plessy’s arrest, Daniel Desdunes had also boarded a “whites only” car in a first attempt to constitutionally challenge segregation of the races. Desdunes held a first-class ticket for passage from New Orleans to Mobile, Alabama, and he took a seat in an all-white passenger coach. He was ordered removed, and although he stated he was an interstate passenger, he was nevertheless removed from the train and arrested.

In court, Daniel Desdunes declared that his sole intention was to test the constitutionality of the Louisiana Separate Car Act, and he was released on a $500.00 bond to await his court date. During the pendency of his case, the Louisiana Supreme Court ruled that the Separate Car Act could not be applied to a passenger engaged in interstate travel. See State ex rel. Abbott v. Hicks, 44 La. Ann. 770 (1892). Thus, the case against Daniel Desdunes was dropped, and Judge John H. Ferguson ordered Desdunes released.

To test the Separate Car Act as applied to intrastate railway travel, the Citizen’s Committee instructed Plessy to purchase a first-class ticket on the East Louisiana Railway for a two-hour trip from New Orleans to Covington, Louisiana. On the afternoon of June 7, 1892, Plessy boarded the train at the Press Street station in New Orleans and was promptly arrested and taken into custody. He was presented to Judge Ferguson and found to have violated the Act. Although Plessy’s legal team argued that the Orleans Parish Criminal District Court lacked authority in the case against Plessy because the Separate Car Act of 1890 violated the United States Constitution, Judge Ferguson overruled the jurisdictional plea. As with Abbott v. Hicks, Plessy’s team took the case to the Louisiana Supreme Court, which affirmed, and then appealed to the United States Supreme Court, which also affirmed in the nowinfamous Plessy v. Ferguson, 163 U.S. 537 (1896).

Calhoun Bobbitt is Of Counsel to Drought, Drought & Bobbitt LLP. He is Board Certified in oil, gas, and mineral law, and he has represented parties in oil and gas transactions and litigation since 1976.

ENDNOTES

The biographical information about Rev. Alexander was obtained from Rev. Avery Caesar Alexander, Notable African Americans from Louisiana, http://www.nutrias.org/~nopl/ info/aarcinfo/notabl2.htm (last visited 8/8/22).

Murray Made Plessy Pardon Possible, LSU Health New Orleans, https://www.lsuhsc.edu/newsroom/Murray%20Made%20Plessy%20Pardon%20 Possible.html (last visited 8/8/22).