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Vernellia R. Randall
Professor of Law
The University of Dayton





Randall Kennedy

 Randall Kennedy, Martin Luther King's Constitution: a Legal History of the Montgomery Bus Boycott, 98 Yale Law Journal 999-1067 (April, 1989)(397 Footnotes Omitted)

The Montgomery Bus Boycott has attained a secure and honored niche in the Nation's public memory. Indeed, it has become something of a legend. One problem with making legends is that the process engenders a distortive sentimentality. We must thus be careful to prevent admiration for the boycott from exaggerating its accomplishments. The concerted withdrawal of Negro patronage is not what finally desegregated the buses; successful litigation constituted the decisive action. The economic pressure of the boycott forced Company officials to break ranks with the city commissioners. Its moral pressure impelled a few white Montgomerians to commit the apostasy of actually siding with King. But the boycott on its own did not succeed in inducing the political authorities to make any substantial concessions.

Even within the small social space created by the boycott and its attendant litigation, the transition from segregation was slow and difficult. Browder largely stilled official resistance to desegregation aboard local buses. Moreover, many white Montgomerians quietly accepted the new dispensation. But others bitterly and vocally resisted, refusing to sit beside Negroes or in what was formerly the Negro section of buses. An elderly man who stood in the front of a bus despite the presence of vacant seats in the rear spoke for a substantial number of whites when he stated that he 'would rather die and go to hell than sit behind a nigger.' Some die-hards even went so far as to incorporate a private club--the Rebel Club--for the purpose of providing a transportation system available only to whites.

Blacks were often the victims of segregationists' retribution. The evening that the Supreme Court decided Browder, forty carloads of robed and hooded Ku Klux Klansmen rode through Negro neighborhoods honking horns and shining lights into residences. White 'traitors' were targeted as well. The Alabama Association of White Citizens Councils urged 'the real white people of Alabama never to forget the names Rives and Johnson.' The judges were deluged with threatening calls and letters. A cross was burned on Judge Johnson's lawn and the gravesite of Judge Rive's son was desecrated.

Segregationist resentment expressed itself in other potentially lethal forms. Two days after the inauguration of desegregated seating, someone fired a shotgun through the front door of King's home. A day later, on Christmas eve, white men attacked a black teenager as she exited a bus. Four days after that, two buses were fired upon by snipers. In one sniper incident, a pregnant woman was shot in both legs. Then, on January 10, 1956, bombs destroyed five black churches and the home of Reverend Robert S. Graetz, one of the few white Montgomerians who had publicly sided with the MIA.

The City Commission suspended bus service for several weeks on account of the violence. When the violence subsided and service was restored, many black Montgomerians enjoyed their newly recognized right only abstractly; they avoided the anxiety-producing friction that attended what the segregationists called 'race mixing.' The boycott had involved communal withdrawal from the presence of the color line. But for a black rider actually to cross the color line was a different matter that involved an exercise of individual will and personal vulnerability that for many proved immensely and understandably daunting. For others, the problem involved a loss of that heightened sense of duty which, during the protest, had generated such glorious departures from normalcy. In the aftermath of the boycott the gravitational pull of old habits exerted their force: 'When we first started getting back on the buses I sat up front,' one former boycotter recalled, ' b ut then I began sitting in the back--I wasn't afraid or nothing: it's just that I was accustomed to it.'

To the extent that the color line was crossed, the breach extended only to the buses. In practically every other setting, Montgomery remained overwhelmingly segregated, largely because of the popularity (among whites) of sentiments like those expressed by Mayor Gayle when he stated in response to the decision bearing his name:

The recent Supreme Court decisions . . . have seriously lowered the dignified relations which did exist between the races in our city and in our state. . . . The difficulties [which the invalidated laws were] meant to prevent and the dignities which they guard are not changed here in Alabama by decisions of the Supreme Court. . . . To insure public safety, to protect the peoples of both races, and to promote order in our city we shall continue to enforce segregation.'

Underscoring their commitment to the old order, the city commissioners adopted, on March 19, 1957, a city ordinance declaring it:

unlawful for white and colored persons to play together, or, in company with each other . . . in any game of cards, dice, dominoes, checkers, pool, billiards, softball, basketball, baseball, football, golf, track, and at swimming pools, beaches, lakes or ponds or any other game or games or athletic contests, either indoors or outdoors.

In the early 1960's, Montgomery began formally to rescind such laws, but even that sometimes failed to deprive them of their power. In March 1960, one week after Montgomery rescinded its ordinance requiring segregation in restaurants, ten white college students from Illinois, their professor and his wife, and four Negroes associated with the MIA were arrested in a black-owned retaurant merely for eating together and talking with one another. A little over a year later, in May 1961, President Kennedy was forced to dispatch federal marshalls to Montgomery to quell violence directed against an interracial group of 'Freedom Riders' who sought to test whether southern jurisdictions were complying with federal laws that prohibited racial discrimination in interstate transportation. Resentful of the MIA's success in formally desegregating intrastate transportation, hard-line segregationists became apoplectic in the face of interracial groups of 'outsiders' whose stated purpose was to exercise all of the legal rights they possessed as travellers in interstate commerce. The following description of the attack against the Freedom Riders helps to illustrate the extent to which King's hopes for reconciliation in a desegregated Montgomery were still virtually utopian more than five years after Gayle.

[A] mob of several hundred launched a vicious assault on the riders. A number of the youths were severely beaten, and one black seminary student . . . was knocked unconscious with baseball bats. John Lewis [a leading activist who is now a member of the United States House of Representatives] was hit by a wooden crate and while lying in the street was served with a state court injunction against the journey by an Alabama official. The mob assailed reporters and photographers, black passersby, and whites who appeared sympathetic to the protesters. One black who was not a Freedom Rider was doused with kerosene and set afire. John Seigenthaler [an aide to United States Attorney General Robert Kennedy] was clubbed from behind while attempting to help one rider get away and was left unconscious on the sidewalk for nearly half an hour. White ambulances refused to come to the scene.

Even with respect simply to intrastate transportation, segregation did not immediately end throughout the South in the wake of Gayle. Some places did desegregate rather quickly. At the beginning of 1957, the Southern Regional Conference (SRC) reported that 21 southern cities had ended compulsory segregation in local buses without court action. But other municipalities adopted many of the same stalling tactics that effectively stymied enforcement of Brown. In some jurisdictions the color line in seating remained intact as officials insisted that they would maintain segregation on city buses until courts specifically invalidated their local ordinances. It was not until 1957-1959 that litigation brought desegregation to the buses of such major southern cities as Miami, New Orleans, and Atlanta. In other jurisdictions, officials sought to avoid desegregation by abandoning openly segregatory laws while enlarging the discretionary powers of bus drivers who then proceeded to recreate Jim Crow patterns. The City Commission of Tallahasee, Florida, for instance, replaced a traditional segregation ordinance with one that made it a crime to occupy any seat or standing area other than one expressly assigned by the bus driver.' The drivers allowed the rear of the bus to be nonsegregated, but refused to assign blacks to seats in what had previously been formally designated as the white section.

In still other jurisdictions, the color line remained intact persuant to a strategy of privatization, which entailed rescinding official requirements for racial separation and allowing private parties to shoulder the burden. Boman v. Birmingham Transit Co., a case arising from Birmingham, Alabama, shows the move to privatization, displays the way in which some district judges were willing to allow that strategy to succeed, and anticipates the doctrinal issues that awaited courts when the Civil Rights Movement broadened its attack to include not only de jure segregation but racial discrimination that, in an important sense, really was 'private.' After being sued by blacks who were intent upon enforcing Gayle, officials in Birmingham replaced the city's traditional segregation ordinances with new provisions making no mention of race. These provisions authorized carriers to 'promulgate such rules and regulations for the seating of passengers . . . as are reasonably necessary to assure the speedy, orderly, convenient, safe and peaceful handling of passengers.' They also provided that a willful refusal to obey the request of a driver enforcing the company's seating policy constituted a breach of the peace. At the same time that city officials made these changes, the bus company painted signs in the front and rear of its buses which read: 'White Passengers seat from front, Colored Passengers from Rear.' Soon after the signs were painted, a group of blacks disregarded them by occupying seats near the front of a bus. When the blacks refused to obey the driver's request that they move to the back, they were arrested for breach of the peace and related infractions. They subsequently sued the bus company and the Birmingham Board of City Commissioners, charging, among other things, that the signs violated the Constitution by designating seating according to race.

Judge Harlan Grooms held that the racially designated seating did not violate the constitutional rights of the plaintiffs because it did not constitute state action. He emphasized that according to settled law the Fourteenth Amendment constrained only governmental and not private decisions involving race. According to Judge Grooms, the arrangement challenged in Boman was that of a private business and thus 'a matter between the Negroes and the Transit Company.' In his view, the city could not longer be charged with supporting segregation on the buses. The new ordinance mentioned no racial discrimination on its face. Moreover, the judge noted that ' t he evidence wholly fails to reveal that city officials had formed any policy, actually or tacitly, to apply the new ordinance in a racially discriminatory manner.' He recognized that the incident leading to the arrest of the plaintiffs arose only six days after the enactment of the new ordinance, but concluded that this one incident showed no pattern of discriminatory state action. The arrest, moreover, had been made without the knowledge or permission of the city commissioners. True, the company's signs did perpetuate racial separation. But the decisive point to Judge Grooms was that segregation remained intact on the buses not because of any official action but rather because it was desired by the company.

The district court's judgment was reversed by a panel of the Fifth Circuit that included the court of appeals' most progressive members on matters of race--Judges Elbert Tuttle and John Minor Wisdom--and its most reactionary member--Judge Ben F. Cameron. Over Cameron's dissent, Tuttle and Wisdom held that Birmingham was legally implicated in the bus company's racial policy. While their opinion purported to recognize the limits of the state action doctrine, it actually demonstrated that doctrine's accordion-like pliability:

Of course, the simple company rule that Negro passengers must sit in back and white passengers must sit in front, while an unnecessary affront to a large group of its patrons, would not effect a denial of constitutional rights if not enforced by force or by threat of arrest and criminal action. Where, as here, the City delegated to its franchise holder the power to make rules for seating of passengers and made the violation of such rules criminal . . . we conclude that the Bus Company to that extent became an agent of the State and its actions in promulgating and enforcing the rule constituted a denial of the plaintiffs' constitutional rights.

This language can be read narrowly to embrace only those situations in which municipalities expressly delegated to franchise holders the power to make seating rules and explicitly criminalized infractions of such rules. On the other hand, it could be read broadly to embrace any situation in which a private bus company sought to enforce racial separation by calling upon public police--the situation in which most bus companies and other private businesses would find themselves if confronted by anti-segregationist demonstrators. This, however, is not the place to explore state action theory and the problem raised by so-called 'private' racial discrimination. That issue posed the main theatre of struggle in the next phase of King's career, the phase memorably punctuated by the 'Letter from a Birmingham Jail,' the 'I Have a Dream' speech at the March on Washington, and the Civil Rights Act of 1964. For present purposes, the importance of Boman resides in the vivid way it illustrates the recalcitrance of the old order. Because of white resistance, the conquest of segregation was forced to proceed inch by inch and issue by issue with exhausting and embittering exactitude.

Montgomery and its aftermath teach lessons that reflect certain truths about the Civil Rights Movement as a whole. One is that the Movement wrought deep and lasting changes in the United States. Another is that law, litigation, and lawyers played a significant and frequently praiseworthy role in accomplishing the Movement's aims. Certain currents in the historiography of the Movement suggest that it may be useful to argue self-consciously in favor of these propositions even though some observers may well consider them obvious.

Some commentators resist the suggestion that the Civil Rights Movement was largely successful. Their resistance derives from two sources. One is a fear that emphasizing the success of the Movement will only facilitate complacency in a political culture prone to self-congratulation. The other is a bitter disappointment with patterns of income, housing, education, health-care, and vulnerability to crime that remain racially disparate. Those who emphasize continuities in the subordinate position of the Negro both before and after the Second Reconstruction, are often willing to concede that the Movement succeeded in removing formal impediments that prevented blacks from enjoying opportunities on the same basis as whites. But they insist that that success was shallow, a boon only to those blacks who possessed the wherewithal to walk through newly-opened doors. King himself articulated this view in his career, questioning the value of having the right to buy a hamburger at a restaurant if one lacked the money to purchase it. Others have even suggested that the eradication of formal barriers coupled with the perpetuation of substantive inequality has actually resulted in a net loss for blacks as a group. On the one hand, the demise of rigid, formalized racial barriers have allowed the most resourceful blacks to 'escape' confinement in all-black institutions, depriving these potential bases of power of valuable talent and leadership. On the other hand, formal reforms in laws and practices have induced large numbers of whites (and a substantial number of blacks as well) into believing that 'racism is dead' and that, therefore, any further difficulties experienced by blacks as a group is either 'their own fault' or indicative of incapacity.

As to the role of law, courts, and lawyering, the perspective against which I argue views the legal apparatus as having been either largely irrelevant--a mere recorder of results determined in other arenas--or largely confining. According to this perspective, the legal apparatus deradicalized the Movement by channeling powerful energies into readily controllable, legalistic forms. This strand in the historiography of the Civil Rights Movement is critical even of the lawyers who worked on behalf of the Movement. Too often, the argument runs, the lawyers' tendency was to subordinate the aspirations of their clients to the dictates of legalism.

While I find much of value in this perspective on the Movement, the thrust of my analysis is different in significant respects. First, I emphasize that formal rights matter. What are now sometimes referred to as 'mere' formalities were anything but 'mere' in the context that King confronted. Negroes were willing to struggle to be called 'Mr.' or 'Miss' or have the right to sit anywhere on a bus because formal racial distinctions exercise a symbolic power that is real, albeit subtle and nonquantifiable. Invidious racial distinctions stigmatize those upon whom they are branded with baleful consequences that ramify throughout the society, corrupting both those who are privileged and those who are victimized. It does make a difference--a huge difference--that largely because of reforms won by the Movement, blacks are legally protected in the most significant domains against invidious racial discrimination. It makes a difference even when those laws are evaded and even to those who, lacking resources, cannot take advantage of their rights. Frederick Douglass put it best in the course of responding to those who suggested that the loss incurred by the partial invalidation of the Civil Rights Act of 1875 was of little real significance because the bill could not be enforced anyway. 'There is some truth in all this,' Douglass observed, 'but it is not the whole truth. The Act like all advance legislation, was a banner on the outer wall of American liberty, a noble moral standard, uplifted for the education of the American people. There are tongues in trees, books, in the running of brooks,--sermons in stones. This law, though dead, did speak.' The law created by the pressure of the Civil Rights Movement also speaks, has widely been heard, and is still very much alive.

There are hard empirical facts that can be marshalled to support the proposition that in terms of employment, voting, and education, the Movement effected a remarkable transformation in the power and opportunities available to black Americans. That proposition is not defeated by pointing out that more affluent blacks have been the ones most able to benefit from the demise of formal racial restrictions. First, in at least some notable contexts, the poorer sectors of black communities were the ones most directly benefitted by desegregation; prior to the struggle in Montgomery, middle-class blacks had avoided Jim Crow seating by driving their own cars.

Second, those who deprecate the accomplishments of the Movement by reference to the consistently dismal state of the black underclass measure the Movement by indicia that fail to correspond to its primary aim. The central goal of the Civil Rights Movement was to eradicate racial barriers that impeded the aspirations of blacks. Over time, some Movement leaders, including King himself, became increasingly aware of the intimate relationship between racial and socio-economic impediments and tried to broaden and reorient the Movement's aims; indeed, some of the Movement's personnel joined the 'war against poverty.' But for the most part the Movement remained focused rather narrowly on racial as distinct from class discrimination and achieved in that concededly limited area rather remarkable results.

Another reason for emphasizing, as I do, change over continuity, is that the most impressive and consequential accomplishment wrought by the Movement is now so often overlooked: the transformation of the consciousness of millions of Americans, but particularly southern blacks. The arduous, painful, and dangerous process of creating new rights and exercising old ones forced blacks to confront not only their oppressors but also themselves. More specifically, they were forced to confront and overcome the inhibiting feelings of inferiority the oppression often breeds. That is why to Martin Luther King, the primary importance of the Montgomery Bus Boycott resided in its demonstration 'to the Negro . . . that many of the stereotypes he had held about himself are not valid.' In Montgomery, as in other locales, the act of attempting to change the world broke the spell of Negro acquiescence.

Law played a central part in this as in other aspects of the Movement's struggle. King and his associates met defeat of various sorts in the legal arena. But much of the current thinking about law and its relationship to the Movement unduly minimizes the benefits that blacks received through their participation in state and federal judicial forums. Litigation served as the Negro's most successful and aggressive form of political activity throughout the first half of this century. And even after that activity was supplemented by other forms of protest--boycotts, sit-ins, marches, riots--litigation continued to serve valuable functions apart from helping to shape the legal issues at stake. Courtrooms provided one of the few contexts in American history in which a cadre of Negroes--the Movement's black lawyers--bested whites in an intellectual-professional setting on a consistent and highly-public basis. When Alabama prosecuted King for violating the state's anti-boycotting statute, his attorneys transformed a hostile courtroom into an empowering forum in which the target of state power fared better politically than the state itself. Similarly invigorating was Gayle v. Browder. To be sure, the judicial victory alone would not have been nearly as significant without the mass boycott from which it arose, for the boycott facilitated active participation on a scale impossible for any lawsuit. At the same time, it is important to appreciate that without the suit and the eventual support of the Supreme Court, the boycott may well have ended without attaining any of its expressed goals, a result that may have been cruelly discouraging. In retrospect, it appears that King and the MIA reaped the best of both extra-legal protest and litigation, the grass-roots participation generated by the former and the official legitimation bestowed by the latter.

The successes of the legal struggle helped to create a state of mind the was absolutely essential to the Movement, a consciousness that King articulated with more power and grace than anyone: a sentiment of righteous outrage. As Barrington Moore aptly observed:

People are evidently inclined to grant legitimacy to anything that is or seems inevitable no matter how painful it may be. Otherwise the pain might be intolerable. The conquest of this sense of inevitability is essential to the development of politically effective moral outrage. For this to happen, people must perceive and define their situation as the consequence of human injustice: a situation that they need not, cannot, and ought not to endure.

By winning in court and forcing segregationists to go outside the law to maintain their power, the Movement's litigators helped to erode the facade of inevitability that surrounded the segregation regime and to create the perception of a gap between right and reality, authority and force. Here it is useful to recall the speech with which King launched the boycott in Montgomery. 'We are not wrong,' he told his listeners. For 'if we are wrong, then the Supreme Court of this Nation is wrong.'

The boycott made black Montgomerians aware of themselves as a community with obligations and capacities to which they and others had previously been blind. On the eve of the boycott, few would have imagined the latent abilities that resided within that community. The protest elicited and clarified those abilities. On the eve of the boycott, few black Montgomerians would have considered themselves as persons with important political duties. The protest inculcated and enlarged their sense of responsibility. Moreover, by publicizing their willingness and ability to mobilize united opposition to Jim Crow practices, the protesters in Montgomery contributed a therapeutic dose of inspiration to dissidents everywhere. Later developments would attest to the influence of the boycott as a role model that encouraged other acts of rebellion. Participants in subsequent protests remember Montgomery as a distinct, encouraging presence.

With the whole world watching, black Montgomerians grew in stature to fill the roles that fate and their own efforts had created for them. Indicative of the community's growth was the steadfast support that enabled Martin Luther King to emerge as the leader of the boycott movement. Factionalism had previously crippled potential black leaders. During the boycott, however, that problem was largely overcome. Promoting King's leadership constituted an achievement along another dimension as well. For the support he received displayed not only an impressive unity but also good judgment. King vindicated the tremendous investment staked upon his ability to lead and represent the black dissident community of Montgomery. He did so by recognizing not only the power but also the limits of law. 'The enforcement of the law,' he later observed, 'is itself a form of peaceful persuasion. But the law needs help.' He continually provided that help by presenting to the nation in a most attractive form the case for protest and against segregation. No one in his generation would prove to be as talented as he in the art of public persuasion. And no period in his illustrious career would prove to be more impressive or consequential than the year of the boycott, what King once described as 'our twelve months of glorious dignity.'


The Legal Status of the Southern Negro in 1955
Rebellion in Montgomery
The Boycott in Court
The Limitations and Achievements of the Montgomery Bus Boycott
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