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Divided by Law: The Sit-ins and the Role of the Courts in the Civil Rights Movement

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A central goal of the lunch counter sit-ins of 1960, the protests that launched the direct-action phase of the Civil Rights Movement, was to give new meaning to the very idea of “civil rights.” To the students who took part in the protests, civil rights work entailed litigation and lobbying. It required relying on the older generation of civil rights activists and working through established civil rights organizations. It meant surrendering student control over the demonstrations. And, as the great unrealized promise of the then 6-year-old Supreme Court ruling in Brown v. Board of Education made painfully clear, it meant patience. For the thousands of students who joined the sit-in movement, reliance on their elders, litigation, and patience—the stuff of civil rights, traditionally understood—was precisely what they wanted to avoid.

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cschmidt@abfn.org
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1. Brown v. Board of Education, 347 U.S. 483 (1954).

2. See, for example, Pollitt Daniel H., “Dime Store Demonstrations: Events and Legal Problems of First Sixty Days,” Duke Law Journal (1960): 315–65; Ervin Richard W. and Jacob Bruce R., “‘Sit-In’ Demonstrations: Are They Punishable in Florida?University of Miami Law Review 15 (1960): 123–37; Carl Earl Lawrence, “Reflections on the ‘Sit-Ins,’Cornell Law Quarterly 46 (1961): 444–57; Schwelb Frank E., “The Sit-In Demonstration: Criminal Trespass or Constitutional Right?NYU Law Review 36 (1961): 779809; and Wright Marion A., “The Sit-In Movement: Progress Report and Prognosis,” Wayne Law Review 9 (1963): 445–57.

3. See, for example, Van Alstyne William W. and Karst Kenneth L., “Comment: Sit–Ins and State Action—Mr. Justice Douglas Concurring,” Stanford Law Review 14 (1962): 762–76; Lewis Thomas P., “The Sit-In Cases: Great Expectations,” Supreme Court Review (1963) 101–51; Paulsen Monrad G., “The Sit-In Cases of 1964: ‘But Answer Came There None,’Supreme Court Review (1964): 137–70; Marshall Burke, “The Protest Movement and the Law,” Virginia Law Review 51 (1965): 785803; Black Charles L., “The Problems of the Compatibility of Civil Disobedience with American Institutions of Government,” Texas Law Review 34 (1965): 492506; and Morgan Donald G., Congress and the Constitution: A Study of Responsibility (Cambridge, MA: Harvard University Press, 1966), 292330.

4. One slice of the legal history of the sit-ins that has received recent scholarly attention is the Supreme Court's internal deliberations in the appeals of criminal convictions resulting from sit-in protests. See Klarman Michael, “An Interpretive History of Modern Equal Protection,” Michigan Law Review 90 (1991): 213318, at 291–95; Webster McKenzie, “The Warren Court's Struggle with the Sit-In Cases and the Constitutionality of Segregation in Places of Public Accommodation,” Journal of Law and Policy 17 (2001): 373407; Ervin Brad, “Result or Reason: The Supreme Court and Sit-In Cases,” Virginia Law Review 93 (2007): 181233; and Schmidt Christopher W., “The Sit-Ins and the State Action Doctrine,” William and Mary Bill of Rights Journal 18 (2010): 767829, at 791–802.

5. See, for example, Chafe William H., Civilities and Civil Rights: Greensboro, North Carolina, and the Black Struggle for Freedom (New York: Oxford University Press, 1980), 79101; Morris Aldon D., The Origins of the Civil Rights Movement: Black Communities Organizing for Change (New York: Free Press, 1984), 188215; Carson Clayborne, In Struggle: SNCC and the Black Awakening of the 1960s, 2nd. ed. (Cambridge, MA: Harvard University Press, 1995), 918; Halberstam David, The Children (New York: Random House, 1998); and Polletta Francesca, “‘It Was Like a Fever …’: Narrative and Identity in Social Protest,” Social Problems 45 (1998): 137159. A welcome exception to this long neglect of the legal history of the sit-ins is Brown–Nagin's TomikoCourage to Dissent: Atlanta and the Long History of the Civil Rights Movement (New York: Oxford University Press, 2011), chap. 6–7.

6. Goluboff Risa, “Lawyers, Law, and the New Civil Rights History,” Harvard Law Review 126 (2013): 2312–35, at 2319, 2323.

7. Ibid., 2322.

8. The standard historical accounts of the Greensboro sit-ins are Wolff Miles, Lunch at the 5 & 10 (1970; rev. ed., Chicago: Ivan Dee, 1990); and Chafe, Civilities and Civil Rights. Valuable contemporaneous accounts include “Sitdown Leader Persists in Goal,” New York Times, March 26, 1960, 10; Walzer Michael, “A Cup of Coffee and a Seat,” Dissent 7 (1960): 111–20; and Pollitt, “Dime Store Demonstrations,” 317–37.

9. Cohen Lizabeth, A Consumers' Republic: The Politics of Mass Consumption in Postwar America (New York: Knopf, 2003), 9899; L.F. Palmer, Jr., “‘Movement’ Guided by Non-Violence,” Chicago Defender, March 24, 1960, 11; and Meier August and Rudwick Elliot, CORE: A Study of the Civil Rights Movement, 1942–1968 (New York: Oxford University Press, 1973), 314.

10. Meier and Rudwick, CORE, 91, 102.

11. Walters Ronald, “The Great Plains Sit-In Movement, 1958–1960,” Great Plains Quarterly 16 (1996): 8594; Morris, Origins of the Civil Rights Movement, 188–94; and “1958 Sit-Ins Were Successful,” New York Amsterdam News, February 27, 1960, 2.

12. “N.C. Lunch Counter Bias Protest Spreads,” Atlanta Daily World, February 10, 1960, 1; and “Negroes Extend Sitdown Protests,” New York Times, February 10, 1960, 21.

13. “NAACP Upholds Store Picketing,” New York Times, February 12, 1960, 15.

14. Claude Sitton, “Negroes' Protest Spreads in South,” New York Times, February 13, 1960, 1, 6.

15. “Rebuffed in Nashville,” New York Times, February 14, 1960, 30; “Demonstrations in Nashville,” New York Times, February 21, 1960, 57; Stephens Patricia, “Tallahassee: Through Jail to Freedom,” in Sit-Ins: The Students Report, ed. Peck Jim (New York: Congress of Racial Equality, 1960), 24; and Killian Lewis M., “Organization, Rationality and Spontaneity in the Civil Rights Movement,” American Sociological Review 49 (1984): 770–83, at 777.

16. “Nashville Seizes 75 in Race Clash,” New York Times, February 28, 1960, 51; “76 Students Choose Jail in Racial Row,” Chicago Tribune, March 2, 1960, 5; Stephens, “Tallahassee,” 4; and “Eight Negroes Chose Jail in Sitdown Case,” Chicago Tribune, March 19, 1960, 12.

17. “Sitdown Staged in Alabama Shop,” New York Times, February 26, 1960, 8.

18. Laue James H., Direct Action and Desegregation, 1960–1962: Toward a Theory of Rationalization of Protest (Brooklyn: Carlson, 1989), 76.

19. “The South: Youth Will be Served,” Time, March 21, 1960.

20. Laue, Direct Action and Desegregation, 77; see also ibid., 329–34. By the one-year anniversary of the first sit-in, there had been demonstrations in more than 100 cities across the South. Ibid., 88. For a recent analysis of the factors that contributed to the rapid spread of the sit-ins, see Andrews Kenneth T. and Biggs Michael, “The Dynamics of Protest Diffusion: Movement Organizations, Social Networks, and News Media in the 1960 Sit-Ins,” American Sociological Review 71 (2006): 752–77.

21. Thompson Charles H., “Desegregation Pushed Off Dead Center,” Journal of Negro Education 29 (1960): 107–11, at 107.

22. See Carson, In Struggle, chap. 2.

23. On generational divides within the African American activist community during the civil rights era, the essential work is Brown–Nagin, Courage to Dissent.

24. CORE-lator, April 1960, 1; see also Wright, “The Sit-In Movement,” 448 (“[I]n the majority of instances capitulation [to the students' demand for service] came peacefully, almost gracefully.”)

25. “Both Races Accept Move by 5 Stores,” New York Times, March 20, 1960, 1; and “Freeze & Thaw,” Time, March 28, 1960; see also “Galveston Takes Integration Step,” New York Times, April 6, 1960, 27.

26. “Negroes Win Dining Rights in Nashville,” Chicago Tribune, May 11, 1960, A1; “Nashville Integrates Six Lunch Counters,” New York Times, May 11, 1960, 1; and “Sit-Ins Win In Tennessee,” New York Amsterdam News, May 14, 1960. 1. See also “Settlement in Nashville,” Time, May 23, 1960.

27. Claude Sitton, “Stores in South Prosper with Integrated Counters,” New York Times, June 6, 1960, 1; Susanna McBee, “Most Eating Places Drop Racial Bar,” Washington Post, June 25, 1960, A11; and “The South: Let ‘Em Eat,” Time, June 6, 1960.

28. “Sit-Ins Victorious Where They Began,” New York Times, July 26, 1960, 1.

29. “Lunch Counter Pressure Cracks South,” Chicago Defender, August 20, 1960, 20.

30. Goluboff Risa L., The Lost Promise of Civil Rights (Cambridge, MA: Harvard University Press, 2007); and Lee Sophia Z., “Hotspots in a Cold War: The NAACP's Postwar Workplace Constitutionalism,” Law and History Review 26 (2008): 327–78.

31. John F. Kennedy, “Radio and Television Report to the American People on Civil Rights,” June 11, 1963, Public Papers of the Presidents of the United States, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=9271 (accessed 15 May 2013).

32. Lewis, “The Sit-In Cases,” 101.

33. Bell v. Maryland, 378 U.S. 226, 243 (1964) (Douglas, J., concurring).

34. See, e.g., Bell v. Maryland, 378 U.S. 226 (1964); Bouie v. City of Columbia, 378 U.S. 347 (1964); Barr v. City of Columbia, 378 U.S. 146 (1964) ; Robinson v. Florida, 378 U.S. 153 (1964); Gober v. City of Birmingham, 373 U.S. 374 (1963); Avent v. North Carolina, 373 U.S. 375 (1963); Shuttlesworth v. Birmingham, 373 U.S. 262 (1963); Lombard v. Louisiana, 373 U.S. 267 (1963); Peterson v. Greenville, 373 U.S. 244 (1963); Taylor v. Louisiana, 370 U.S. 154 (1962); and Garner v. Louisiana, 368 U.S. 157 (1961).

35. Bell v. Maryland, 378 U.S. 226, 284 (1964) (Douglas, J., concurring) (appendix listing state public accommodations laws); “Survey Shows Rights Laws Now Cover 65% of Nation,” Washington Post, December 26, 1963, A17; and William E. Blundell, “30 States, Some Cities Bar Discrimination in Public Accommodations,” Wall Street Journal, October 22, 1963, 1, 14.

36. The implementation of Title II exceeded expectations from the start. Alexander M. Bickel, “What Has Been Done is Prologue,” New Republic, January 9, 1965, 16–17; Peter Millones, “Negroes in South Test Rights Act; Resistance Light,” New York Times, July 4, 1964, 1; John Herbers, “Whites Say Compliance Has Been Achieved with Little Strife,” New York Times, January 24, 1965, 1; and Risen Clay, The Bill of the Century: The Epic Battle for the Civil Rights Act (New York: Bloomsbury Press, 2014), 244–49.

37. See, for example, Carter Robert L., “The Warren Court and Desegregation,” Michigan Law Review 67 (1968): 237–48, at 246–47; Wilkinson J. Harvie III, From Brown to Bakke: The Supreme Court and School Integration: 1954–1978 (New York: Oxford University Press, 1979), 3; Horwitz Morton J., The Warren Court and the Pursuit of Justice (New York: Hill and Wang, 1998), 15.

38. See Mack Kenneth W., “Bringing the Law Back into the History of the Civil Rights Movement,” Law and History Review 27 (2009): 657–69, at 657–58; and Goluboff, “New Civil Rights History,” 2319.

39. See, generally, Kalman Laura, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996).

40. Rosenberg Gerald N., The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991), 39169.

41. Klarman Michael J., From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 344442; Klarman Michael J., “Brown, Racial Change, and the Civil Rights Movement,” Virginia Law Review 80 (1994): 7150; Klarman Michael J., “Brown v. Board of Education: Facts and Political Correctness,” Virginia Law Review 80 (1994): 185–99; and Klarman Michael J., “How Brown Changed Race Relations: The Backlash Thesis,” Journal of American History 81 (1994): 81118.

42. Rosenberg, Hollow Hope, 140.

43. Solomon Fredric and Fishman Jacob R., “Youth and Social Action: II. Action and Identity Formation in the First Student Demonstration,” Journal of Social Issues 20 (1964): 37; and Fishman Jacob R. and Solomon Fredric, “Youth and Social Action: 1. Perspectives on the Sit-In Movement,” American Journal of Orthopsychiatry 33 (1963): 874–75.

44. Rosenberg, Hollow Hope, 141.

45. Klarman, From Jim Crow to Civil Rights, 374.

46. See, for example, Garrow David J., “‘Happy’ Birthday, Brown v. Board of Education? Brown's Fiftieth Anniversary and the New Critics of Supreme Court Muscularity,” Virginia Law Review 90 (2004): 693729, at 712–20; Garrow David J., “Hopelessly Hollow History: Devaluing of Brown v. Board of Education,” Virginia Law Review 80 (1994): 151–60; Tushnet Mark, “The Significance of Brown v. Board of Education,” Virginia Law Review 80 (1994): 173–84; and McCann Michael W., “Reform Litigation on Trial,” Law and Social Inquiry 17 (1992): 715–43, at 735–46.

47. See, for example, Schultz David A., ed., Leveraging the Law: Using the Courts to Achieve Social Change (New York: Peter Lang, 1998); and McCann, “Reform Litigation on Trial.”

48. McCann Michael W., Rights at Work: Pay Equity Reform and the Politics of Legal Mobilizations (Chicago: University of Chicago Press, 1994), 278. See also Scheingold Stuart A., The Politics of Rights: Lawyers, Public Policy, and Political Change (New Haven: Yale University Press, 1974), 5 (critiquing the “myth of rights” and its search for “a direct linking of litigation, rights, and remedies with social change”); and McCann, “Reform Litigation,” 733 (describing a “bottom-up, dispute-centered approach” to studying law that “emphasizes that judicially articulated legal norms take a life of their own as they are deployed in practical social action”). A recent generation of legal historians who have written about the Civil Rights Movement have employed analogous approaches to law and social change, decentering formal legal institutions and examining the ways in which diverse actors in diverse settings use the authority of law and rights claims. Outstanding examples include Brown–Nagin, Courage to Dissent; Goluboff, Lost Promise of Civil Rights; Lee, “Hotspots in a Cold War”; Mack Kenneth W., “Law and Mass Politics in the Making of the Civil Rights Lawyer, 1931–1941,” Journal of American History 93 (2006): 3762; and Mack Kenneth W., “Rethinking Civil Rights Lawyering and Politics in the Era Before Brown,” Yale Law Journal 115 (2005): 256354. See generally Goluboff, “New Civil Rights History.”

49. For a similar approach, see Coleman Christopher, Nee Laurence D., and Rubinowitz Leonard S., “Social Movements and Social Change Litigation: Synergy in the Montgomery Bus Protest,” Law & Social Inquiry 30 (2005): 663737 (arguing that the Montgomery Bus Boycotts' achievements are best understood as the product of the “synergy” of protest and court action).

50. For an examination of the prominent place of the debate over the Brown's impact in the legal consciousness of the extrajudicial actors involved in the sit-in movement, see Schmidt Christopher W., “Conceptions of Law in the Civil Rights Movement,” UC Irvine Law Review 1 (2011): 101–36. For a critical assessment of Brown's effects on discourses about racial inequality, see Payne Charles M., “‘The Whole World is Southern!’ Brown v. Board and the Mystification of Race,” Journal of American History 91 (2004): 8391.

51. “Two Wrongs Can't Make a Right,” Raleigh Times, February 11, 1960.

52. “South Is Warned of Time of Change,” New York Times, February 28, 1960, 46.

53. On developments in the state action doctrine during this period, see, generally, Schmidt, “Sit-Ins and the State Action Doctrine.”

54. Section One of the Fourteenth Amendment reads in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (emphasis added).

55. Civil Rights Cases, 109 U.S. 3 (1883) (striking down the public accommodations provisions of the Civil Rights Act of 1875). Earlier decisions referenced the essence of the state action doctrine, Virginia v. Rives, 100 U.S. 313, 318 (1879); and United States v. Cruikshank, 92 U.S. 542, 554–55 (1875), but the Civil Rights Cases was the Supreme Court's first extended analysis.

56. Civil Rights Cases, 109 U.S. at 17.

57. See, for example, Smith v. Allwright, 321 U.S. 649 (1944); Marsh v. Alabama, 326 U.S. 501 (1946); Shelley v. Kraemer, 334 U.S. 1 (1948); Terry v. Adams, 345 U.S. 461 (1953); and Barrows v. Jackson, 346 U.S. 249 (1953).

58. Plessy v. Ferguson, 163 U.S. 537 (1896).

59. New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54 (1958) (per curiam); Gayle v. Browder, 352 U.S. 903 (1956); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (per curiam); and Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877 (1955) (per curiam).

60. Even here there was the possibility of an extra layer of legal complication. Defenders of segregated public accommodations regularly asserted that private business owners should be constitutionally protected against being compelled to serve on a nondiscriminatory basis. These claims referenced a variety of textual bases––due process, takings, even the Thirteenth Amendment's protection against involuntary servitude. Such challenges to public accommodation legislation were never recognized in federal court, but they did feature prominently in public and legislative debate over public accommodations policy. See Schmidt Christopher W., “Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement,” in Signposts: New Directions in Southern Legal History, ed. Hadden Sally and Minter Patricia (Athens: University of Georgia Press, 2013), 417–46.

61. The most relevant precedent for this claim was Marsh v. Alabama, 326 U.S. 501 (1946), in which the Court held that for purposes of the First Amendment a private “company town” could be treated as a state actor. Justice Black's opinion included a sweeping assertion of the “constitutional rights” that constrain a private actor who “opens up his property for use by the public in general.” Ibid., 506.

62. The critical precedent here is Shelley v. Kraemer, 334 U.S. 1 (1948), in which the Court held that judicial enforcement of private agreements to refuse to sell property to African Americans violated the equal protection clause. Although reaffirming the basic state action requirement, Chief Justice Vinson's opinion for the unanimous court suggested a dramatically expanded conception of the scope of state action. Some civil rights lawyers and legal scholars saw Shelley as a harbinger of the demise of the state action doctrine, at least in its traditional form. See Huber Richard G., “Revolution in Private Law?South Carolina Law Quarterly 6 (1953): 831; Ming William R. Jr., “Racial Restrictions and the Fourteenth Amendment: The Restrictive Covenant Cases,” University of Chicago Law Review 16 (1949): 203–38; The Disintegration of a Concept—State Action Under the 14th and 15th Amendments,” University of Pennsylvania Law Review 96 (1948): 402–14; and Fraenkel Osmond K., “The Federal Civil Rights Laws,” Minnesota Law Review 31 (1947): 301–27.

63. See, for example, Hale Robert L., “Rights Under the Fourteenth and Fifteenth Amendments Against Injuries Inflicted by Private Individuals,” Law Guild Review 6 (1946): 627–39; Pekelis Alexander H., Law and Social Action (Ithaca: Cornell University Press, 1950), 91127; Hyman J.D., “Segregation and the Fourteenth Amendment,” Vanderbilt Law Review 4 (1951): 555–73; Hale Robert L., Freedom Through Law: Public Control of Private Governing Power (New York: Columbia University Press, 1952); Clark Elias, “Charitable Trusts, the Fourteenth Amendment, and the Will of Stephen Girard,” Yale Law Journal 66 (1957): 9791015; Horowitz Harold W., “The Misleading Search for ‘State Action’ Under the Fourteenth Amendment,” Southern California Law Review 30 (1957): 208–21; Abernathy Glenn, “Expansion of the State Action Concept Under the Fourteenth Amendment,” Cornell Law Quarterly 43 (1958): 375418; Greenberg Jack, Race Relations and American Law (New York: Columbia University Press, 1959), 6061; Peters Roger Paul, “Civil Rights and State Non-Action,” Notre Dame Law Review 34 (1959): 303–34; Lewis Thomas P., “The Meaning of State Action,” Columbia Law Review 60 (1960): 10831123.

64. Dwight D. Eisenhower, “The President's News Conference,” May 11, 1960, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=11778 (accessed 15 May 2013).

65. Pollitt, “Dime Store Demonstrations,” 320 (quoting Durham Morning Herald, February 11, 1960).

66. For example, delegates of the White House Conference on Children and Youth issued a petition of support for the students that began with an approving reference to Brown, then moved to a declaration of “full support for the Southern Negro students in their fight for freedom,” and concluded with a call for “full and immediate implementation” of school desegregation. Petition in support of Sit-down protests in South, March 31, 1960, NAACP Papers (microfilm), Part 21, Reel 21, Frame 691.

67. Pollitt, “Dime Store Demonstrations,” 319 (quoting News and Observer (Raleigh, NC), March 16, 1960, 8).

68. See, for example, “Lunch Counter Demonstrations: State Action and the Fourteenth Amendment,” Virginia Law Review 47 (1961): 105–121, at 121; Florida Governor LeRoy Collins's radio and television address, March 20, 1960, quoted in “NAACP Report on the Student Protest Movement After Two Months”, NAACP Papers, Part 21, Reel 21, Frame 576; and “Needed: A ‘Just and Honorable’ Answer,” Greensboro Daily News, February 8, 1960, 6.

69. Following the arrest of twenty-seven Fisk University students in Nashville in the early weeks of the movement, for example, the university's president issued a statement: “From all I have been able to learn, they have broken no law by the means they have employed thus far, and they have not only conducted themselves peacefully, but with poise and dignity.” Wright Stephen J., “The New Negro in the South,” in The New Negro, ed. Ahmann Mathew H. (Notre Dame, IN: Fides, 1961), 17. See also Louis Lautier, “Says King ‘Muffed’ Leadership Chance,” Baltimore Afro-American, May 7, 1960 (“[A]ny of the 62 lawyers who met with Thurgood Marshall, director counsel of the NAACP Legal Defense and Educational Fund, Inc., which is undertaking the legal defense of approximately 1,500 students who have been arrested, could have informed Dr. King that there is nothing illegal in a student's peaceably and orderly taking a seat at a lunch counter in a variety store and ordering a hamburger.”), quoted in Interview on Meet the Press, April 17, 1960, reprinted in Carson Clayborne, ed., The Papers of Martin Luther King, Jr., vol. 5 (Berkeley: University of California Press, 1992, 431 n. 9 (hereafter King Papers). King also made the claim that sit-in protesters broke no laws. See Draft, Statement to Judge James E. Webb after Arrest at Rich's Department Store, October 19, 1960, in King Papers 5:522.

70. American Civil Liberties Union (ACLU) News Release, February 11, 1960, American Civil Liberties Union Records and Publications, 1917–1975 (microfilm), Reel 15; “41 Arrested in Lunch Counter Bias Protests,” Atlanta Daily World, February 13, 1960, 1 (CORE leaders making this argument); William J. Kenealy, “The Legality of the Sit-Ins,” in The New Negro, 81; Thompson, “Desegregation Pushed Off Dead Center,” 109; and “‘We'll Pay Your Fines!’” New York Amsterdam News, March 5, 1960, 9 (Marion A. Wright of the Southern Regional Council arguing that “businesses which are operated by virtue of state charters should serve any and everyone. The Fourteenth Amendment binds them to do so.”).

71. See, for example, James Feron, “N.A.A.C.P. Plans Student Defense,” New York Times, March 18, 1960, 23 (Thurgood Marshall describing the students' actions as “legal and right” and expressing confidence that the Supreme Court would come to the same conclusion).

72. Richard L. Lyons, “Lunch ‘Sitdown’ a Legal Puzzler,” Washington Post, March 27, 1960, E5.

73. Brown–Nagin emphasizes student “dissatisfaction with court-based strategies pursued by NAACP lawyers” as a key factor in launching the sit-in protests in Atlanta and elsewhere. Courage to Dissent, 134.

74. Halberstam David, “A Good City Gone Ugly,” Reporter (Nashville), March 31, 1960, reprinted in Reporting Civil Rights: American Journalism, 1941–1963, vol. 1 (New York: Library of America, 2003), 443.

75. Ibid., 441.

76. Nat Hentoff, “A Peaceful Army,” Commonweal, June 10, 1960, 275.

77. Claude Sitton, “Negro Criticizes N.A.A.C.P. Tactics,” New York Times, April 17, 1960, 32.

78. Walzer, “A Cup of Coffee and a Seat” 116–17.

79. “Showdown,” New York Amsterdam News, May 7, 1960, 1.

80. “A&T Students Campaign To End Dime Store Bias,” Chicago Defender, February 13, 1960, 11.

81. L.F. Palmer, Jr., “Violence Fails to Halt ‘Sit-In’,” Chicago Defender, March 23, 1960, 9; “A Passive Insister: Ezell Blair Jr.,” New York Times, March 26, 1960, 10; and Chafe, Civilities and Civil Rights, 94.

82. L.F. Palmer, Jr., “Uprising for Freedom,” Chicago Defender, March 22, 1960, 9.

83. Walzer, “A Cup of Coffee and a Seat,” 119.

84. Lerone Bennett Jr., “What Sit-Downs Mean to America,” Ebony, June 1960, 35–40, at 40; see also “The Revolt of the Negro Youth,” Ebony, May 1960, 36–42.

85. Thoreau Henry David, “Resistance to Civil Government” (1849), reprinted in Thoreau: Political Writings, ed. Rosenblum Nancy L. (Cambridge: Cambridge University Press, 1996), 8. In his classic 1983 article “Nomos and Narrative,” Robert Cover captured this theme: “[A] legal interpretation cannot be valid if no one is prepared to live by it. . . . The transformation of interpretation into legal meaning begins when someone accepts the demands of interpretation and, through the personal act of commitment, affirms the position taken.” Cover Robert, “Foreword: Nomos and Narrative,” Harvard Law Review 97 (1983): 468, at 21 (footnote omitted).

86. Stephens Patricia, “Tallahassee: Through Jail to Freedom,” in Sit-Ins: The Students Report, ed. Peck Jim (New York: Congress of Racial Equality, 1960), 2.

87. For example, the 1961 Freedom Rides, although raising hard questions of strategy and personal safety, had the benefit of having clearly defined federal law on the side of the protesters. The Supreme Court had issued a long line of decisions on the issue at the heart of the Freedom Rides: the right to unsegregated service on interstate transportation. Mitchell v. United States, 313 U.S. 80 (1941); Morgan v. Virginia, 328 U.S. 373 (1946); Henderson v. United States, 339 U.S. 816 (1950); and Boynton v. Virginia, 364 U.S. 454 (1960). Unlike the sit-ins, the Freedom Rides were directly in response to a Supreme Court decision. A precursor to the Freedom Rides, the 1947 Journey of Reconciliation was designed specifically to test the Morgan decision, and the Freedom Rides were planned in response to Boynton. See Arsenault Raymond, Freedom Rides: 1961 and the Struggle for Racial Justice (New York: Oxford University Press, 2006), 9293.

88. Charles H. Thompson, editor of the Journal of Negro Education, observed: “[I]f the students had discussed their proposed action with the NAACP high command, they would have been advised against doing so at this time; certainly they would have been advised not to precipitate so many different cases in so many different places at the same time.” Thompson, “Desegregation Pushed Off Dead Center,” 110.

89. Major Johns, “Baton Rouge: Higher Education—Southern Style,” in Peck, Sit-Ins: The Students Report, 13.

90. See, for example,“Negroes in South in Store Sitdown,” New York Times, February 3, 1960, 22; “Explains Student Sitdown Strike,” Chicago Defender, February 4, 1960, 3; Proudfoot Merrill, Diary of a Sit-In (Chapel Hill: University of North Carolina Press, 1962), 14; Fort Vincent D., “The Atlanta Sit-In Movement, 1960–1961: An Oral Study,” in Atlanta, Georgia, 1960–1961: Sit-Ins and Student Activism, ed. Garrow David J. (Brooklyn: Carlson, 1989), 126–27.

91. King Martin Luther Jr., “The Burning Truth in the South,” Progressive 24 (1960), in King Papers 5:449.

92. See Halberstam, The Children, 25–50.

93. Diane Nash, “Inside the Sit-ins and Freedom Rides: Testimony of a Southern Student,” in The New Negro, 44. See also Carson, In Struggle, 23–24.

94. Martin Luther King, Jr., “A Creative Protest” (speech to student protesters in Durham, NC), February 16, 1960, in King Papers, 5:369.

95. Oral History Interview with John Lewis, November 20, 1973, Interview A-0073. Southern Oral History Program Collection (#4007), http://docsouth.unc.edu/sohp/A-0073/A-0073.html (accessed 15 May 2013).

96. Walzer, “A Cup of Coffee and a Seat,” 114, 120.

97. “A&T Students Drop Sitdown Protests: Plan Negotiations,” Greensboro Record, February 21, 1960.

98. It is important to acknowledge divisions within the NAACP. The NAACP was never monolithic. Considerable intraorganizational variation could be found on a number of levels: national office versus local branches; Southern versus Northern; rural versus urban; leaders versus rank-and-file members. See, for example, Verney Kevern and Sartain Lee, eds., Long is the Way and Hard: One Hundred Years of the NAACP (Fayetteville: University of Arkansas Press, 2009); and Sullivan Patricia, Lift Every Voice: The NAACP and the Making of the Civil Rights Movement (New York: New Press, 2009). Furthermore, there was the division between the NAACP and LDF. LDF was formed in 1940 as a formally independent, tax-exempt litigation arm of the NAACP. In 1957, in order to preserve its tax-exempt status, LDF became completely independent of the NAACP. Tushnet Mark V., Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1961 (New York: Oxford University Press, 1994), 310–11. For an account of the relations between the NAACP and LDF, which became increasingly tense in the 1960s, see Greenberg Jack, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (New York: Basic Books, 1994). With regard to the sit-ins in the spring of 1960, it is particularly important to distinguish between the NAACP on the national and on the local level. The following discussion focuses on the national office, and particularly on the lawyers in the national office (under the leadership of NAACP General Counsel Robert Carter) and LDF (under Thurgood Marshall), where initial skepticism toward the sit-ins was most pronounced. Local NAACP branch leaders, in contrast, were generally more supportive of the students. The Greensboro chapter quickly endorsed the protest and promised legal assistance if needed. When the national NAACP was slow to support the Greensboro students, George Simkins, the head of the Greensboro NAACP chapter, turned to CORE's national office for help. Chafe, Civilities and Civil Rights, 84.

99. John Morsell, Memorandum for Staff Discussion, May 2, 1960, NAACP Papers, Part III, Series A, Box 308, Folder: “Staff, Farmer, James, Memoranda, 1960–61,” Manuscripts Division, Library of Congress, Washington, D.C.

100. Ibid. See also Walzer Michael, “The Politics of the New Negro,” Dissent 7 (1960): 235–43, at 238 (“Equipped to win legal decisions, the Association seems unready––there are exceptions of course––to sponsor local action.”); and Greenberg, Crusaders in the Courts, 269.

101. Robert L. Carter to John Morsell, May 5, 1960, NAACP Papers, III-A-308, Folder: “Staff, Farmer, James, Memoranda, 1960–61.”

102. James Farmer to John Morsell, May 6, 1960, ibid.

103. Morsell, Memorandum for Staff Discussion.

104. As one NAACP report explained, the wave of sit-ins “marked the continuation of similar activity which started in Wichita and Oklahoma City in 1958. . . . In both cities, the victories were won by NAACP youth councils composed of high school and elementary youth.” The memorandum also noted a “sitdown” in St. Louis in February 1959, in which the NAACP represented the arrested students and was able to integrate a previously segregated restaurant. Special Report on Sitdowns, NAACP Branch Department, n.d., NAACP Papers (microfilm), Part 21, Reel 22, Frame 69. See also Weaver Robert C., “The NAACP Today,” Journal of Negro Education 29 (1960): 421–25, at 421 (“The sit-in is not a new tactic for the NAACP.”).

105. Herbert L. Wright, memorandum to Roy Wilkins, Re: Report on Sit-Down Protests, March 2, 1960, NAACP Papers, III-A-290, Folder: “Sit-Ins, North Carolina, 1960–61”; and “Role of the NAACP in the ‘Sit-ins,’” May 1960, ibid.

106. “Sit-In Protests Hailed” (letter to the editor), New York Times, April 26, 1960, 36. See also Annual Report of the General Counsel, January 1961, NAACP Papers (microfilm), Part 22, Reel 22, Frame 410 (“The Association's legal victories . . . made inevitable the aggressive expressions of discontent with the status quo which resulted in the sit-ins, boycotts and mass Negro protest against social injustice . . .”).

107. “NAACP Sits Down With the ‘Sit-Inners’,” New York Amsterdam News, March 26, 1960, 24; see also Motley Constance Baker, Equal Justice Under Law (New York: Farrar, Straus, & Giroux, 1998), 131 (“To say that the students' boldness sent shock waves throughout the organized civil rights community is an understatement. . . . Stunned by the daring and lack of preparation of the students, neither the NAACP nor LDF initially offered legal assistance. We, like everybody else, had been caught off guard.”).

108. See Greenberg, Crusaders in the Courts, 217–21; and Klarman, From Jim Crow to Civil Rights, 335–39.

109. Report of Robert L. Carter, General Counsel, Annual Meeting, NAACP, January 4, 1960, NAACP Papers (microfilm), Part 22, Reel 22, Frame 402.

110. Wayne Phillips, “School Integration Has Passed Its Crisis, Negro Leader Says,” New York Times, January 3, 1960, 1.

111. Ibid.

112. Greenberg, Crusaders in the Courts, 277.

113. Williams Juan, Thurgood Marshall: American Revolutionary (New York: Times Books, 1998), 241, 245–52; Tushnet, Making Civil Rights Law, 301–13; The Reminiscences of Thurgood Marshall,” in Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences, ed. Tushnet Mark V. (Chicago: Lawrence Hill, 2001), 471; and Motley, Equal Justice Under Law, 152.

114. On the anticommunist stance of Marshall and the NAACP national office, see, for example, Brown–Nagin, Courage to Dissent, 185–86.

115. Dudziak Mary L., “Working Toward Democracy: Thurgood Marshall and the Constitution of Kenya,” Duke Law Journal 56 (2006): 721–80.

116. Bell Derrick, “An Epistolary Exploration for a Thurgood Marshall Biography,” Harvard Blackletter Law Journal 6 (1989): 5167, at 55.

117. Motley, Equal Justice Under Law, 149.

118. Bell, “Epistolary Exploration,” 55. On Marshall's commitment to the protection of private property rights, see Dudziak, “Working Toward Democracy,” 724. LDF staff attorney Constance Baker Motley recalled that only she and James Nabrit, Jr., felt that the students might have a viable legal claim, although she also noted, “We did not have a clue in 1960 as to a successful legal theory to end discrimination in places of public accommodation.” Motley, Equal Justice Under Law, 132, 149.

119. Bell, “Epistolary Exploration,” 55–56; Tushnet, Making Civil Rights Law, 40, 310; and Greenberg, Crusaders in the Courts, 273.

120. James Feron, “N.A.A.C.P. Plans Student Defense,” New York Times, March 18, 1960, 23.

121. The NAACP came out in support of the sit-ins before the LDF lawyers. In early March, NAACP Executive Director Roy Wilkins held a press conference in which he announced: “We support 100% what these young people are doing, whether they are NAACP youths or not. We've sent lawyers to [t]hem, paid fines and will continue to support them in any way we can.” “‘We'll Pay Your Fines!’” New York Amsterdam News, March 5, 1960, 9.

122. Feron, “N.A.A.C.P. Plans Student Defense,” 23.

123. “NAACP Sits Down,” 1, 24; see also “Lawyers Agree on Plan for Defense of 1,000 Arrested in South,” New York Times, March 20, 1960, 1, 46 (“The lawyers are in agreement that use of public force either in the form of arrest by the police or conviction by the courts is in truth state enforcement of private discrimination and is in violation of the Fourteenth Amendment.”); “Lauds Negro Students,” New York Times, April 4, 1960, 33 (Thurgood Marshall telling group in Greensboro, North Carolina, that a business that caters to the public is not private property. “If the owners say they are private, Mr. Marshall said, the Negro should ‘make it private—close it up.’”).

124. “NAACP Sits Down,” 24.

125. Gayle v. Browder 352 U.S. 903 (1956). On the legal history of the bus boycott, see Kennedy Randall, “Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott,” Yale Law Journal 98 (1989): 9991067; Glennon Robert Jerome, “The Role of Law in the Civil Rights Movement: The Montgomery Bus Boycott, 1955–1957,” Law and History Review 9 (1991): 59112; and Coleman, et al., “Social Movements and Social Change Litigation.”

126. Untitled, undated memorandum, NAACP Papers (microfilm), Part 22, Reel 3, Frames 374–75.

127. Ibid. See also ibid., Frame 376 (“If the objective is to dramatize the illegalities and to disrupt the social order, then the people who participate should refuse legal help and engage in this activity only with the idea of staying in jail.”).

128. Hughes Langston, Fight for Freedom: The Story of the NAACP (New York: Norton, 1962), 183–84. This financial strain was soon lessened somewhat by the flow of contributions that came into the LDF offices in support of the protests. As a result of the sit-ins and then the Freedom Rides in 1961, the number of contributors to LDF shot up. Its annual income went from $361,000 in 1959, to $500,000 in 1960 and $586,000 in 1961. Greenberg, Crusaders in the Courts, 292. Despite growing contention and competition among civil rights organizations, during the early 1960s “the NAACP was more active and successful than ever before.” Meier August and Bracey John, “The NAACP as a Reform Movement, 1909–1965,” Journal of Southern History 59 (1993): 330, at 27.

129. “NAACP Position on Jail, No Bail,” NAACP Papers, III-A-289, Folder: “Sit-Ins, General, 1960.”

130. Ibid.

131. Chafe, Civilities and Civil Rights, 93.

132. Thompson, “Desegregation Pushed Off Dead Center,” 111.

133. Morris, Origins of the Civil Rights Movement, 317 n. 64.

134. “NAACP Report on the Student Protest Movement After Two Months,” n.d., NAACP Papers (microfilm), Part 21, Reel 21, Frame 571.

135. Ibid.

136. Ibid.

137. Ibid., Frame 572.

138. Ibid.

139. Ibid.

140. King, “A Creative Protest.” [speech to student protesters in Durham, NC], Feb. 16, 1960, in King Papers, 5:369. King's vision of using the courtrooms and jails as a rallying tool for the movement was informed by his experience in the Montgomery Bus Boycotts. See Kennedy, “Martin Luther King's Constitution,” 1029, 1064–65.

141. Records from Raleigh Conference, Summary of Conclusions of Workshop on “Legalism,” Student Nonviolent Coordinating Committee Papers, 1959–1972 (microfilm), Reel 1, Frame 7.

142. “NAACP Position on Jail, No Bail,” n.d., NAACP Papers, III-A-289, Folder: “Sit-Ins, General, 1960, June–Nov.”

143. Ibid.

144. Ibid.

145. Ibid. See also Thompson, “Desegregation Pushed Off Dead Center,” 110 (“While [the jail, no bail] tactic has some publicity value, the disadvantages so outweigh the advantages, in my opinion, that it probably should not be employed.”).

146. John Lewis with D'Orso Michael, Walking with the Wind: A Memoir of the Movement (New York: Simon and Schuster, 1998), 113–14.

147. Once past the initial trial stage, the litigation was largely out of the hands––and sometimes out of the minds––of the student protesters. Robert Mack Bell, the lead defendant in the most important of the sit-in cases, Bell v. Maryland, 378 U.S. 226 (1964), was not even following his case when it reached the United States Supreme Court. Irons Peter, The Courage of Their Convictions: Sixteen Americans who Fought Their Way to the Supreme Court (New York: Free Press, 1988), 141–52.

148. Morris, Origins of the Civil Rights Movement, 39; see also Roy Wilkins, memorandum to NAACP Branch Officers, April 1960, NAACP Papers, III-A-289, Folder: “Sit-Ins, General, 1961–64.” (“This job requires youth and enthusiasm. It also requires age and experience. It requires praying and preaching. It also requires legal activity in court. It requires both old and the new …. It demands proper caution as well as quiet courage. Close cooperation between all groups is a ‘must.’”). See generally Brown–Nagin, Courage to Dissent, chap. 7.

149. See, for example, Bell v. Maryland, 378 U.S. 226, 244–45 (1964) (Justice Douglas noting that the sit-ins involve “a question that is basic to our way of life and fundamental to our constitutional scheme” and that “[n]o question preoccupies the country more than this one”).

150. Meier and Rudwick, CORE, 31–33, 61–71.

151. Garrow David J., Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference (New York: Morrow, 1986), 83125; Branch Taylor, Parting the Waters: America in the King Years, 1954–1963 (New York: Simon & Schuster, 1988), 206–71.

152. On this count, the national office and the local branches displayed some difference of opinion. NAACP national leaders reprimanded the local branches that helped organize sit-in protests in Oklahoma City and Wichita in the late 1950s. By 1960, however, after the national office had thrown its support behind the sit-in movement, its leaders changed course and publicly celebrated the early Midwest protests as the true beginning of the sit-in movement. Meier and Rudwick, CORE, 31–33, 61–71; Morris, Origins of the Civil Rights Movement, 125; “Role of the NAACP”; and Wilkins Roy, Standing Fast: The Autobiography of Roy Wilkins (New York: Viking, 1982), 259–60.

153. See, for example, “Complicated Hospitality,” Time, February 22, 1960. Student protesters could be almost playful in insisting on the lack of central organization behind the protests. Following the initiation of the carefully orchestrated sit-ins in Atlanta, which simultaneously targeted ten establishments, protesters insisted to reporters that “they just happened to be in the area at the time and decided to stop in for a bite to eat.” “Jail 77 Youths Over Ga. Demonstrations,” Chicago Defender, March 16, 1960, A3. For an insightful analysis of student self-representation of the sit-in movement as spontaneous and uncoordinated, see Polletta, “‘It Was Like a Fever …’.” The sit-in movement in fact drew on existing organizational networks within the African American community, although the extent of this reliance has been a point of some scholarly debate. Compare Morris, Origins of the Civil Rights Movement, with Killian , “Organization, Rationality and Spontaneity.” American Sociological Review 49 (1984): 770–83.

154. Walzer, “A Cup of Coffee and a Seat,” 112.

155. “Negroes Extend Sitdown Protest,” New York Times, February 10, 1960, 21.

156. Hentoff, “A Peaceful Army,” 277.

157. Dunbar Leslie, “Reflection on the Latest Reform of the South,” Phylon 22 (1961): 249–57, at 249.

158. “Negro Protest Lead to Store Closing,” New York Times, February 7, 1960, 35; “Sitdown Leader Persists in Goal,” New York Times, March 26, 1960, 10.

159. In a study of the factors that differentiated students who took part in protests in the early 1960s from those who did not, sociologist Michael Biggs found that protesters were significantly more optimistic about the potential for racial progress. Biggs Michael, “Who Joined the Sit-ins and Why: Southern Black Students in the Early 1960s,” Mobilization: An International Journal 11 (2006): 321–36.

160. See Abel Elizabeth, Signs of the Times: The Visual Politics of Jim Crow (Berkeley: University of California Press, 2010), 251–91.

161. Louis E. Lomax, “The Negro Revolt Against ‘The Negro Leaders,’” Harpers, June 1960, 41–48, at 41.

162. Ibid., 42. See also Hentoff, “A Peaceful Army,” 275–78; Bennett, “What Sit-Downs Mean”; and Walzer, “The Politics of the New Negro,” 238.

163. Howard Zinn, “Finishing School for Pickets,” Nation, August 6, 1960, 72.

164. Tensions between the NAACP and the SCLC predated the sit-ins. In 1959, for example, NAACP official John Brooks attacked the SCLC in an internal report: “They hold emotional mass and prayer meetings, take up money and do nothing on the civil rights front.” Quoted in Berg Manfred, “The Ticket to Freedom”: The NAACP and the Struggle for Black Political Integration (Gainesville: University Press of Florida, 2005), 168. At the same time, both the NAACP and SCLC sought to avoid the public perception of conflict between the organizations. On the background of the tense alliance between the SCLC and the NAACP, see ibid., 168–72; Morris, Origins of the Civil Rights Movement, 120–28; and Wilkins, Standing Fast, 237–38.

165. See, for example, King, “A Creative Protest”; King , “Burning Truth in the South,” Progressive 24 (1960). On King's vision of the law and its relation to social change, see Schmidt, “Conceptions of Law,” 662–67.

166. Garrow, Bearing the Cross, 134, 137–38; and Branch, Parting the Waters, 297–99.

167. King to Jackie Robinson, June 19, 1960, in King Papers, 5:578.

168. Stanley D. Levison to Martin Luther King, Jr., March 1960, in King Papers, 5:382. See also Hentoff, “A Peaceful Army,” 278 (quoting an unnamed “lieutenant of King” who declared that the courts were “secondary to direct action by the masses” and attacked the NAACP for “urg[ing] the students to call off the demonstrations and rely entirely on the courts.”).

169. Once the SNCC was formed at the April meeting of student activists, this group too became a target of NAACP suspicion, a feeling that was reciprocated on the part of the students. See, for example, Roy Wilkins to Kivie Kaplan, April 24, 1961, NAACP Papers, III-A-289, Folder: “Sit-Ins, General, 1961–64” (accusing SNCC leaders of “doing their best to downgrade the NAACP, to lure its young people and to set up a new, rival organization”).

170. See, for example, Hodding Carter, “The Young Negro is a New Negro,” New York Times Magazine, May 1, 1960, 11, 117–119.

171. McGill Ralph, The South and the Southerner (Boston: Little, Brown, 1963), 1617.

172. Margaret Price, “Toward a Solution of the Sit-In Controversy” (Southern Regional Council report), May 31, 1960, 1, NAACP Papers, III-A-289, Folder: “Sit-Ins, General, 1959, 1960, Jan–May.”

173. Ibid.

174. Southern Regional Council, “Postscript to Special Report of February 25: The Student Protest Movement, Winter 1960,” March 14, 1960, NAACP Papers, III-A-289. Folder: “Sit-Ins, General”, 1959, 1960, Jan–May.

175. Ibid.

176. Price, “Toward a Solution.”

177. Dunbar, “Reflection on the Latest Reform of the South,” 255.

178. Ibid., 252. Dunbar challenged this characterization of the protests, however. “Instead of saying, as so many have, that the sit-ins represent a new strategy, would it not be more reasonable to regard them as opening up a new front? Instead of announcing that the sit-ins mean a downgrading of the courtroom struggle, would it not be more reasonable to recognize that litigation is not an effective means for desegregating lunch counters, and that sit-ins are not an effective means for desegregating schools?” Ibid., 252–53. However, he also suggested that the sit-in model, based as it was on “a beneficial tonic” of “direct confrontation of people and issue,” might serve as an alternative to a formal antidiscrimination policy. Ibid., 254–55.

179. Clayton Knowles, “Truman Believes Reds Lead Sit-Ins,” New York Times, April 19, 1960, 21.

180. See, for example, Harold C. Fleming, “The Price of a Cup of Coffee,” Reporter, May 12, 1960, pp. 25–26, at 25 (quoting comments by Senator Richard B. Russell and Georgia Governor Ernest Vandiver); Kruse Kevin, White Flight: Atlanta and the Making of Modern Conservatism (Princeton: Princeton University Press, 2005), 181–82; and Thornton J. Mills, Dividing Lines: Municipal Politics and the Struggle for Civil Rights in Montgomery, Birmingham, and Selma (Tuscaloosa: University of Alabama Press, 2002), 113–14.

181. “Negroes Extend Sitdown Protest,” New York Times, February 10, 1960, 21. On anticommunist commitments among sit-in leaders, see also Carson, In Struggle, 13.

182. “Will Negroes Win in South?” U.S. News & World Report, March 14, 1960, 41–45, at 45. See also Killian, “Organization, Rationality and Spontaneity,” 782.

183. “Suggested Protest Procedures” (NAACP National Office memorandum), n.d. (Spring 1960), NAACP Papers, III-A-289, Folder: “Sit-In Branches, 1960.”

184. See, for example, Helen Fuller, “‘We Are All So Happy’,” New Republic, April 25, 1960, 13–16.

185. Anthony Lewis, “Since the Supreme Court Spoke,” New York Times Magazine, May 10, 1964, 92.

186. See, for example, Thornton, Dividing Lines; Chappell David L., A Stone of Hope: Prophetic Religion and the Death of Jim Crow (Chapel Hill: University of North Carolina Press, 2004); Kruse, White Flight; Walker Anders, The Ghost of Jim Crow: How Southern Moderates Used Brown v. Board of Education to Stall Civil Rights (New York: Oxford University Press, 2009); and Ward Jason Morgan, Defending White Democracy: The Making of a Segregationist Movement & the Remaking of Racial Politics, 1936–1965 (Chapel Hill: University of North Carolina Press, 2011).

187. C.L. Harris to Governor Hodges, February 29, 1960, Governor's Papers: Luther Hartwell Hodges, North Carolina State Archives, Raleigh, North Carolina, General Correspondence, 1960, Box 523, Folder: “Segregation––‘Sit Down’ Situations, A-F.”

188. On the gradual, fitful elevation of economic imperatives over racial ones among white Southern businesspeople during the civil rights era, see Jacoway Elizabeth and Colburn David R., eds., Southern Businessmen and Desegregation (Baton Rouge: Louisiana State University Press, 1982).

189. Ben Gordon, “The Hostages,” Chain Store Age, April 1960 [excerpted and distributed on stationery of North Carolina Chain Store Council], Hodges Papers, General Correspondence, 1960, Box 523, Folder: “Segregation––‘Sit Down’ Situations.” See also Kruse, White Flight, 182–83 (describing response of Atlanta businesspeople to the sit-ins).

190. Wolff, Lunch at the Five and Ten, 16.

191. “Negroes in South in Store Sitdown,” New York Times, February 3, 1960, 22.

192. Harris to Hodges, February 29, 1960.

193. Ibid.

194. See, for example, “Memorandum on conversation between Governor [Luther H. Hodges] and Mr. Harvin, President of Rose's Stores, Henderson,” March 10, 1960, Hodges Papers, General Correspondence, 1960, Box 523, Folder: “Segregation––‘Sit Down’ Situations.”

195. Walzer, “A Cup of Coffee and a Seat,” 117; Claude Sitton, “Negro Sitdowns Stir Fear of Wider Unrest in South,” New York Times, February 15, 1960, 1.

196. “Lunch Counter Protest Spreads,” Chicago Defender, February 11, 1960, A2; “N.C. Stores Close Down Counters,” Greensboro Record, February 10, 1960; “Student ‘Sitdown’ Protest Spreads to Virginia, Tenn.,” Chicago Defender, February 16, 1960, 1; “Sit-Down Strike Here Closes Lunch Counters,” Raleigh Times, February 10, 1960; “Lunch Counters Here Close in Face of Negroes Seeking Service,” Raleigh Times, February 11, 1960; and “Sitdown Scene Peaceful; Lunch Counters Closed,” News and Observer (Raleigh, NC), February 12, 1960. In correspondence with Roy Wilkins in 1963, the vice president of Woolworth's proudly noted that “Woolworth's has not caused the arrest of a single ‘sit in’ demonstrator and our local managers have treated them with dignity and respect.” E.F. Harrigan to Roy Wilkins, May 28, 1963, NAACP Papers, III-A-289, Folder: “Sit-Ins, General, 1961–64.”

197. State v. Clyburn, 247 N.C. 455, 101 S.E.2d 295 (1958); State v. Avent, 253 N.C. 580, 118 S.E. 2d 47 (1961); Greenberg, Race Relations and American Law, 112 (“Relatively little of the inequality that exists [in access to public accommodations] is required by statute.”); and ibid., 374 (listing state-level “Recreation Segregation Statutes” on the books in 1959, some of which cover privately operated public accommodations).

198. Nesmith v. Alford, 318 F.2d 110, 119 (5th Cir. 1963).

199. For example, when reviewing a trespassing prosecution of Durham sit-in protesters, the North Carolina Supreme Court made no mention of the city's ordinance requiring segregation in eating establishments. State v. Avent, 253 N.C. 580, 586, 118 S.E.2d 47, 51 (1961); Peterson v. City of Greenville, 373 U.S. 244, 257–58 (1963) (drawing attention to Durham ordinance).

200. “Negroes Extend Sitdown Protest,” New York Times, February 10, 1960, 21.

201. “Sit-Down Strike Here Closes Lunch Counters,” Raleigh Times, February 10, 1960.

202. “Sitdown Staged in Alabama Shop,” New York Times, February 26, 1960, 8; and Thornton, Dividing Lines, 113–15.

203. “Bomb Scare Ends Sitdown in Store,” New York Times, February 27, 1960, 20.

204. “500 Arrested in 1-Day Segregation Protests,” Washington Post, March 16, 1960, C12; and Brown–Nagin, Courage to Dissent, 149–150.

205. “9 Students Arrested,” New York Times, March 30, 1960, 25.

206. Luther H. Hodges to C.L. Harris, March 2, 1960, Hodges Papers, General Correspondence, 1960, Box 523, Folder: “Segregation––‘Sit Down’ Situations, A–F.”

207. See, generally, Chafe, Civilities and Civil Rights; and Walker, Ghost of Jim Crow.

208. Hodges Statement on Sit-ins, Hodges Papers, General Correspondence, 1960, Box 523, Folder: “Segregation––‘Sit Down’ Situations.”

209. Luther H. Hodges to R.C. Kirkwood, March 24, 1960, Hodges Papers, General Correspondence, 1960, Box 523, Folder: “Segregation––‘Sit Down’ Situations, G–Z.”

210. Ibid.

211. Luther H. Hodges to C.M. Purdy, March 24, 1960, Hodges Papers, General Correspondence, 1960, Box 523, Folder: “Segregation––‘Sit Down’ Situations, G–Z.”

212. Hodges to Purdy, March 24, 1960, Ibid.

213. Hodges to Kirkwood, March 24, 1960. As Hodges's assistant euphemistically framed the situation, the chain stores “were not facing up to the matter as positively as they really should.” REG [Robert E. Giles] to Governor [Luther H. Hodges], Mar. 8, 1960, Hodges Papers, General Correspondence, 1960, Box 523, Folder: “Segregation––‘Sit Down’ Situations.”

214. Hodges to Harris, March 2, 1960.

215. Robert E. Giles to William C. Allred, Jr., March 18, 1960, Hodges Papers, General Correspondence, 1960, Box 523, Folder: “Segregation––‘Sit Down’ Situations, A–F.”

216. Untitled draft of statement on sit-ins by Woolworth's, n.d., [labeled “not used”], Hodges Papers, General Correspondence, 1960, Box 522, Folder: “Segregation––Lunch Counters (Negro) 1960.”

217. Ibid. An excerpt of this draft was included in Hodges to Kirkwood, March 24, 1960.

218. Resulting convictions were generally overturned in federal court. See, for example, Garner v. Louisiana, 368 U.S. 157 (1961).

219. On Collins' efforts to prevent implementation of Brown, see Walker, Ghost of Jim Crow, chap. 3.

220. Quoted in “NAACP Report of the Student Protest Movement.” NAACP Papers (microfilm), Part 21, Reel 21, Frame 576.

221. “Needed: A ‘Just and Honorable’ Answer,” Greensboro Daily News, February 8, 1960, 6.

222. “When Lunch Counters Reopen, They Should Serve All Customers,” Winston-Salem Sentinel, March 17, 1960, quoted in “NAACP Report of the Student Protest Movement.” NAACP Papers (microfilm), Part 21, Reel 21, Frame 576.

223. “Needed: ‘A Just and Honorable’ Answer.” Greensboro Daily News, February 8, 1960, 6.

224. “Making It Their Business,” News & Observer (Raleigh, NC), February 13, 1960.

225. Brown–Nagin, Courage to Dissent, 248; On racial moderation as a tool of civil rights obstructionism, see generally Walker, Ghost of Jim Crow.

226. King Martin Luther Jr., Why We Can't Wait (New York: Harper & Row, 1963; Signet, 2000), 6484.

227. See Kruse, White Flight, 178–179; Schmidt, “Defending the Right to Discriminate.”

228. See, for example, “Revolt of the Negro Youth,” 38.

229. “Justifiable Recalcitrance,” Shaw Journal, March–April 1960, 4.

For comments and suggestions that have immeasurably improved this article, I thank Felice Batlan, Martha Jones, Michael Klarman, Laura Beth Nielsen, William Novak, Dylan Penningroth, Robert Post, Reva Siegel, and Mark Tushnet; participants at the American Bar Foundation seminar, the University of Michigan Legal History Workshop, and the 2012 Junior Faculty Forum; and my anonymous reviewers. This article won the 2014 Association of American Law Schools Scholarly Paper Prize Competition.

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