A Huffington Post story gives some background to an argument made by the Trump administration in the hearing yesterday about the Muslim ban.
The dissents, even at the time, were furious. “May a State in order to avoid integration of the races abolish all of its public schools?” Justice William O. Douglas asked in his dissent.
“I had thought official policies forbidding or discouraging joint use of public facilities by Negroes and whites were at war with the Equal Protection Clause” of the Fourteenth Amendment, Justice Byron White wrote in another dissent. “Our cases make it unquestionably clear, as all of us agree, that a city or State may not enforce such a policy by maintaining officially separate facilities for the two races. It is also my view, but apparently not that of the majority, that a State may not have an official stance against desegregating public facilities and implement it by closing those facilities in response to a desegregation order.”
The ruling in Palmer v. Thompson didn’t explicitly uphold segregation. But it did call for courts to avoid investigating the constitutionality of officials’ motivations.
Alexander Graham Bell used to admonish his children: Never impute motives. And when it comes to Whiny Baby Donald, there is always a question whether he understands his own motives. So it’s a difficult situation. But we do not have to impute motives to Trump. He’s been explicit.
To believe the orders were not Muslim bans, the courts (and public opinon) would have to take judicial cognizance that the president’s statements are unreliable or meaningless.
A difficult siuation.
Palmer might never have had to be litigated if Jackson had done what Raleigh, N.C., did.
I moved to Raleigh in April 1963 when I was 16. I had come from Georgia, where the civil rights movement had not yet made itself felt in my restricted high school world.
North Carolina was different. It had 5 integrated high schools (vs. 0 in Georgia) and I enrolled in one. Almost immediately, I was invited to attend a march demanding integration of the State Theater (a private move house, not a government facility). I marched and it changed my life — thank you Mary Lyn and Tommy Field.
But not completely and not so fast.
I spent a lot of the hot summer of 1963 at a municipal swimming pool within walking distance of my house. A lot of my new high school friends did, too, although none of the black students.
They did not live within walking distance of the pool and besides — although this was not something I thought about — it was segregated by law.
Over the winter, the city desegregated the pool. I don’t know whether that was done by court order or a sense of right. (Note this was 8 years before the issue came up in Jackson.)
I didn’t go to that pool again. The next summer, I was working a job that didn’t leave much time for swimming, and none of my friends was at the pool anyway. I could see that as I walked past because everybody in the pool was black.
I remember thinking, I had a lot of fun at that pool, it’s nice the black kids get to do it, too. I didn’t occur to me that I should go integrate it. Desegregation is not the same as integration.
Whether the courts find that Trump’s order is legally sustainable or not, it’s morally wrong, for the same reason it was wrong to keep black kids out of the Raleigh pool.