Pools and Palmer
Commentary by Black Kos editor Denise Oliver-Velez
While browsing my twitter stream I noticed a tweet that looked like it would be an important read, since it featured Jefferson Beauregard Sessions — Klansman-in-Charge of the Department of (no-longer) Justice.
The article linked was from ThinkProgress: The racist, discredited argument Trump’s DOJ just made in a federal court: Who knew something like this could happen with Jeff Sessions in charge?was an education for me — not because of the history of swimming pool segregation, which I experienced, but because I didn’t know the history of the Palmer v Thompson decision.
Here’s a pro tip for the lawyers at Jeff Sessions’ Justice Department: If you want to defend the president’s efforts to lock people out of the nation because of their religion, you might not want to rely on discredited Supreme Court decisions enabling a racist backlash.
Palmer v. Thompson is one of the great missteps in the Supreme Court’s often unfortunate history on matters of race. This case centered on the city of Jackson, Mississippi’s operation of five racially segregated public swimming pools. After a court ordered the pools integrated, the city closed the pools rather than operating pools where people of all races could swim. And the Supreme Court, in a 5–4 vote, let Jackson get away with this scheme.
As a federal judge acknowledged in 1989, “the Supreme Court has never expressly overturned Palmer, but it has all but done so.”
Nevertheless, the Trump administration cites Palmer favorably in a brief it filed in the United States Court of Appeals for the Fourth Circuit, which hears a challenge to Trump’s Muslim ban on Monday afternoon.
Linked in the ThinkProgress piece was an informative piece on Palmer:
The Problem with Palmer
First, it is stunning to see the Department of Justice approvingly cite a case that at best allowed pretextual measures for avoiding racial integration -- and, more realistically, facilitated segregation by turning a blind eye to what was clearly going on in the City of Jackson. Is it really the position of the United States in 2017 -- either legally or morally -- that cities need not integrate whites-only pools and can instead close down public facilities altogether? If so, then that is jaw-dropping and wrong. If not, then the Department should not be relying upon Palmer in the first place. All of this is somewhat evocative of a recent brief by the state of Kansas favorably citing Dred Scott-- a move that quickly went viral, was widely condemned, and prompted a formal withdrawal and apology by the Kansas Attorney General. DOJ should consider a similar correction in this case.
Second, it is hard to see how Palmer remains good law and it was thinly reasoned at the time, drawing several powerful opinions by the four dissenters. Justice White explained that “[c]losing pools to prevent interracial swimming is little different from laws or customs forbidding Negroes and whites from eating together or from cohabiting or intermarrying.” Moreover, he pointed out that “motivation analysis has assumed great importance” in section 1983 litigation and that the Court had previously rebuffed the sorts of vague and dubious justifications the City offered about “preserving the peace.” Justice Marshall flatly rebuffed the majority’s logic that the pool closures had a “facially equal effect upon all citizens” and made clear that since Brown, schools and pools “have received identical Fourteenth Amendment protection.” The majority opinion, he concluded, was “effectively removing publicly owned swimming pools from the protection of the Fourteenth Amendment . . . [and] turn[ing] the clock back 17 years.” Justice Douglas stressed that the closure of the pools actually aimed to teach “Negroes a lesson: In Jackson the price of protest is high.”
Third, the broader implications of endorsing Palmer are also disconcerting. While Palmer involved swimming pools (a location with a uniquely problematic history, pp. 16-18), its logic, if sustained, could presumably apply to other sorts of public facilities and actions. For instance, the Trump Administration could halt the next large protest like the Women’s March by simply closing all the national parks for the month, including the Mall -- and then claiming Palmer insulates it from having to explain its rationale or defend against a constitutional challenge. Alternatively, under the rationale of Palmer, a municipality could avoid complying with Obergefell’s ruling on same-sex marriages by eliminating the issuance or recognition of new marriage licenses altogether. That cannot be right, in no small part because it would be a recipe for constitutional circumvention. Indeed, Justice Douglas recognized just this sort of perilous trajectory in his dissent: “May a State in order to avoid integration of the races abolish all of its public schools? That would dedicate the State to backwardness, ignorance, and existence in a new Dark Age.”
Which led me to FindLaw
United States Supreme Court
PALMER v. THOMPSON, (1971)
No. 107
Argued: December 14,1970 Decided: June 14, 1971
Following the Court of Appeals' affirmance of a District Court judgment in validating enforced segregation on equal protection grounds, the city council of Jackson, Mississippi, desegregated its public recreational facilities,including its five public parks, except for their swimming pools. Stating that the pools could not be operated safely and economically on an integrated basis,the council closed four city-owned pools and surrendered its lease on a fifth,which the lessor, the YMCA, continued to operate for whites only. Petitioners,Negro citizens of Jackson, then brought this action, mainly on equal protection grounds, to force the city to reopen and operate the pools on a desegregated basis. The District Court held that there was no denial of equal protection.The Court of Appeals affirmed, rejecting the contention that since the pools had been closed to avoid desegregation there was a denial of equal protection. Held:
It was interesting to see which justices supported this travesty — and who dissented. No surprise.
BLACK, J., delivered the opinion of the Court, in which BURGER, C. J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. BURGER, C. J., post, p. 227, and BLACKMUN, J., post, p. 228, filed concurring opinions. DOUGLAS, J., filed a dissenting opinion, post, p. 231. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 240. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and WHITE, JJ., joined, post, p. 271.
I struggle with reading court decisions, and things legal. Not being an attorney, or legal scholar makes it difficult — though I work hard at making sure I know what SCOTUS decisions have had a negative impact on civil rights struggles and the ones that advanced them. I missed learning about Palmer.
It is important that we recognize that the current virulent racism directed at immigrants — who are not white, is linked to the long history of racism exhibited in this nation. In essence — “xenophobia” is simply another facet of white supremacy.
Jefferson Beauregard Sessions is now presiding over an agency that will provide no Justice for us on his watch.
Reading about Palmer — led me back to thinking about segregated swimming pools. This WaPo article had a good review of pool segregation history: America’s swimming pools have a long, sad, racist history
The earliest public pools were built in large northern cities during the late 19th and early 20th centuries. They served mostly poor and working-class boys (both black and white), and reveal the class prejudices of the time. In 1910, for example, the proposal to build a large municipal pool in New York’s Central Park generated intense opposition from the city’s middle and upper classes, because it would attract large numbers of immigrant and working-class kids into their oasis of genteel recreation. “I should consider it disastrous if the only swimming pool belonging to the city was put [in Central Park],” one critic told the New York Times. “It would attract all sorts of undesirable people.” The paper agreed and recommended that municipal pools be located underneath the Manhattan and Queensboro bridges. These locations would have effectively secluded working-class swimmers, protecting the city’s class-segregated social geography.
The design of pools and the social composition of swimmers changed during the 1920s and ’30s, when cities across the country built large, resort-like swimming pools and allowed males and females to use them together for the first time. In northern cities such as Chicago, New York and Pittsburgh, gender integration brought about racial segregation. Public officials and white swimmers now objected to the presence of black Americans because they did not want black men interacting with white women at such visually and physically intimate spaces. And so, throughout the North, public pools became racially segregated during the interwar years.In some cases, white swimmers imposed de facto segregation through violence and intimidation. At Pittsburgh’s Highland Park Pool, for example, white swimmers attacked black swimmers — sometimes with rocks and clubs — to prevent them from entering the pool. Police officers encouraged these attacks and typically arrested the black victims, charging them with “inciting to riot.” In attempting to explain why black swimmers were being attacked at Highland Park Pool but not at other city pools, the Pittsburgh Courier wrote: “The whole trouble seems to be due to the way Highland Park Pool is operated. It is the only city pool where men and women, girls and boys swim together. This brings the sex question into the pool and trouble is bound to arise between the races.” The same type of trouble had no chance to arise at public swimming pools in the South and Mason-Dixon line cities such as St. Louis and Baltimore, because public officials mandated racial segregation, explicitly barring blacks from entering “whites-only” pools.
Across the country, public swimming pools were racially desegregated after World War II, but that was met with widespread opposition from whites that again exposed their social prejudices. Southern cities typically shut down their public pools rather than allow mixed-race swimming. In the North, whites generally abandoned pools that became accessible to blacks and retreated to ones located in thoroughly white neighborhoods or established private club pools, where racial discrimination was still legal. Warren, Ohio, for example, was forced by a pending court order to desegregate its municipal pool in 1948. The local newspaper covered the first day of interracial swimming by printing a front-page photo showing a dozen children waiting to enter. The last two children in line were black; the caption read: “Last one in the water is a monkey.” The racial antipathy expressed in the newspaper was shared by many local whites, who stopped using the pool when they realized black residents intended to use it. Similarly, in 1962, several years after Pittsburgh’s municipal pools were desegregated, a sign posted outside a city pool still used exclusively by whites read “No dogs or niggers allowed.” Public pools were racially desegregated, but that did not mean blacks and whites started swimming together.
I swam in segregated pools — in the North. This is not simply a history from decades in the past — we’ve seen that with pool party news — like the incident in McKinney Texas in 2015. Though media reports assure me that the man who shot and killed all those black and brown folks swimming in San Diego was not a racist —frankly I don’t buy it.
The racist xenophobia we now see which targets brown and black people is simply a new episode in throwing folks out of the pool.
#Resist.
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News round up by dopper0189, Black Kos Managing Editor
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In February, President Trump invited leaders from historically black colleges and universities to the White House, a move they hoped signaled his support for the institutions and showed an effort to give them more clout in his administration. But critics had a more cynical description of the Oval Office meeting: a photo op.
Those naysayers got more ammunition Friday after the White House released a signing statement connected to the recently approved federal funding measure. Tucked away in the last paragraph, the White House announced that it would treat a program that helps HBCUs get low-cost construction loans “in a manner consistent with the (Constitutional) requirement to afford equal protection of the laws.”
People in higher education circles worried that the statement meant that the president was planning to get rid of a capital financing program that helps historically black colleges repair, renovate and build new facilities. Congress approved the program in 1992 after finding that “HBCUs often face significant challenges in accessing traditional funding resources at reasonable rates,” according to the Education Department.
“I would rather have Trump do nothing with HBCUs — not even know they exist,” Marybeth Gasman, a University of Pennsylvania professor who has researched HBCU history, told The Washington Post. “He will see them as a handout. He doesn’t understand that he was given a leg up by his rich father. He doesn’t see that other people need help from programs because of past discrimination and inequity.”
Trump’s signing statement was blasted by Rep. John Conyers Jr. (Mich.), the ranking Democrat on the Judiciary Committee, and Rep. Cedric L. Richmond (D-La.), the chair of the Congressional Black Caucus.
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Hundreds of bright blue T-shirts with the slogan “smile” pass down a row of tables where they are inspected, folded, bagged and tagged. From here they will embark on an arduous journey of more than 1,000km (600 miles). A lorry will haul them from Kampala, Uganda’s capital, across Kenya to the port of Mombasa. A week later they will be loaded onto a ship for Hamburg, Germany. There they will be sold for €10 ($11) each by Bonprix, part of a family-owned mail-order firm with sales of $13bn a year.
These shirts began as cotton bolls in fields on the equator in the far west of Uganda, where the red-earth plains turn upwards into the Rwenzori mountains. Their odyssey reveals much about Africa’s manufacturing potential. By following in the footsteps of China and Bangladesh, which began their industrial revolutions with textiles, Africa could in theory create millions of jobs. But as the T-shirts’ travels also illustrate, it will not be easy.
Several African countries have tried in the past to become tailors and cloth-makers to the world. Nigeria’s northern cities of Kaduna and Kano were once home to textile mills that employed 350,000 people. Yet these factories are now rusting, and employ perhaps a tenth of that number.
This mirrors a wider trend. In 1990 African countries accounted for about 9% of the developing world’s manufacturing output. By 2014 that share had slumped to 4%. As the world’s labour-intensive jobs left the rich world for countries with lower wages, Africa lost out to Asia because of bad governance, political instability and poor infrastructure. Another shift of similar proportions now seems in the offing as China grows richer. But there are some signs that, this time, Africa might catch the wave of industrialisation.
In the shade of a large tree just a few kilometres from Uganda’s border with the Democratic Republic of Congo, a group of farmers have gathered to discuss their bumper cotton crop and the obstacles they had to overcome to grow it. Elephants sometimes rampage out of a nearby game reserve and trample the neat rows of cotton, they complain. They plant barriers of chili peppers and keep beehives to keep the jumbos out.
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Eighty-two Chibok schoolgirls seized three years ago by Boko Haram have been freed in exchange for detained suspects with the extremist group, Nigeria’s government announced early on Sunday, in the largest release negotiated yet in the battle to save nearly 300 girls whose mass abduction exposed the mounting threat posed by the Islamic State-linked fighters.
The statement from the office of President Muhammadu Buhari was the first confirmation that his government had made a swap for the girls. After an initial release of 21 Chibok girls in October, the government denied making an exchange or paying ransom.
The April 2014 abduction by Boko Haram brought the extremist group’s rampage in northern Nigeria to world attention and, for families of the schoolgirls, began years marked with heartbreak.
Some relatives did not live long enough to see their daughters released. Many of the captive girls, most of them Christians, were forced to marry their captors and give birth to children in remote forest hideouts without ever knowing if they would see their parents again. It is feared that other girls were strapped with explosives and sent on missions as suicide bombers.
As word of the latest release emerged, long-suffering family members said they were eagerly awaiting a list of names and “our hopes and expectations are high.”
Before Saturday’s release, 195 of the girls had remained captive. Now 113 of the girls remain unaccounted for.
The freed girls were expected to meet with Buhari on Sunday in the capital, Abuja.
A Nigerian military official with direct knowledge of the rescue operation said the freed girls were found near the town of Banki in Borno state near Cameroon.
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A new book takes issue with the prevailing view that we can’t understand what causes segregation. Slate: Discrimination Is Not De Facto
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Do we know why racial segregation occurs? In 1973, the Supreme Court said no, and in doing so, dealt a crushing blow to the civil rights movement. In Milliken v. Bradley, the court ruled that the white suburbs of Detroit could not be included in Detroit’s school desegregation plan, because no real evidence existed to show that segregation in the region’s schools or neighborhoods was “in any significant measure caused by governmental activity.” The justices concluded black students were concentrated in Detroit because of “unknown and perhaps unknowable factors.”
De facto segregation, it came to be called, a name suggesting a natural racial geography, which policymakers discover rather than create. The question of segregation's origins, it was implied, extended far beyond the mundanities of government and into the collective psyche of Americans. Understanding those origins required parsing the individual choices and prejudices of millions of citizens. This was a question for philosophers and sociologists, not for government officials.
Thirty-four years later, Milliken’s logic still had adherents on the court. In 2007, when rejecting school desegregation plans in Louisville and Seattle, Chief Justice John Roberts concluded that discrimination “not traceable to [the government’s] own actions” requires no constitutional remedy.
The Color of Law resurrects an older view that had proven instrumental in the movements of the 1960s: that American government has betrayed a commitment it made with the adoption of the 13th, 14th, and 15th Amendments, to ensure that black Americans could take their place as equal members in American society. The book describes the systematic violation of black Americans’ constitutional rights, through the aggressive enactment and enforcement of racially discriminatory policies. Rothstein notes that these facts were “knowable” all along; the Supreme Court even ignored evidence of government discrimination presented in Milliken’s lower court trial.
Rothstein persuasively debunks many contemporary myths about racial discrimination. He goes after, for instance, the resilient misconception that racial separation was only government policy in the Jim Crow South, and that black entrants into neighborhoods cause white homeowners’ property values to fall. In one powerful section on zoning policies, Rothstein traces how hazardous waste sites were concentrated in segregated black neighborhoods. The episode mirrors the displacement of black families by urban renewal and interstate highway construction in mid-20th century. Even though it has long been recognized that these policies were immensely destructive and racially targeted, hardly any compensatory assistance has ever been provided.
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Voices and Soul
by
Justice Putnam
Black Kos Poetry Editor
Did you know there are some who fervently believe some bad hombres from the urban war zones are wandering the countryside looking for God knows what but God knows it ain’t good? Did you know the crease from a .45 bullet can determine the living and the dead, and you’d be dead wrong to show up at night if your skin is the color of midnight, or even a light mocha? Did you know within two weeks, the African American Poet Ross Gay, is mistaken for both the African American Poet Terrance Hayes, and the African American Poet Kyle Dargan, not one of whom looks anything like the others? Did you know a 14 year old in an open casket is not a statement on Good Hair, but a demarcation in History?
Of course you did.
“Within Two Weeks the African American Poet Ross Gay is Mistaken for Both the African American Poet Terrance Hayes and the African American Poet Kyle Dargan, Not One of Whom Looks Anything Like the Others”
If you think you know enough to say this poem
is about good hair, I'll correct you
and tell you it's about history
which is the blacksmith of our tongues.
Our eyes. Where you see misunderstanding
I see knuckles and teeth for sale
in a storefront window. I see the waterlogged
face of the fourteen-year-old boy.
The bullet's imperceptible sizzle
toward an unarmed man. And as you ask me to sign the book
that is not mine, your gaze shifting between
me and the author's photo, whispering,
but that's not you? I do not
feel sorry for you. No. I think only that when a man
is a concept he will tell you about the smell
of smoke. He will tell you the distance
between heartbreak and rage.
“Within Two Weeks the African American Poet Ross Gay is Mistaken for Both the African American Poet Terrance Hayes and the African American Poet Kyle Dargan, Not One of Whom Looks Anything Like the Others”
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