Civil Disobedience, State Action, and Lawmaking Outside the Courts: Robert Bell’s Encounter with American Law

Abstract

Civil Disobedience, State Action, and Lawmaking Outside the Courts: Robert Bell’s Encounter with American Law KENNETH W. MACK On June 17, 1960, a sixteen-year-old African-American high school student named Robert Mack Bell took a seat in Hooper’s restaurant in downtown Baltimore, and set off a controversy that would eventually draw in Supreme Court Justices, members of Con­ gress, and the Attorney General ofthe United States as they struggled to come to terms with the consequences of his action and those of others like him. Bell didn’t envision any of this when he arrived at Hooper’s Restaurant seeking service. In fact, he was nervous. He thought about getting his mother’s permission before setting out, but chose not to. Robert Bell had been drawn into the sit-in movement, which had broken out four months earlier when four black students at North Carolina A & T State University sat down at a segregated Woolworth’s lunch counter and refused to leave. Bell was student-body president at Baltimore’s all-black Dunbar High School, thus was naturally the person to ask when students at nearby Morgan State College were looking for volunteers to picket and perhaps sit in at downtown restaurants that did not serve African Americans. Bell dutifully complied, and soon found himself sitting quietly at Hooper’s along with eleven other students, reading their school books while the manger and the owner swore out a warrant for their arrest. At their criminal trial that fall, Bell and his fellow students were convicted of trespass.1 Bell’s lawyers, assisted by the NAACP, promptly appealed his conviction, claiming that his actions were protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment. That argument seemed to place Bell on a collision course with the state action doctrine, which is generally taken to mean that “the effort to define and apply constitutional rights need not 348 JOURNAL OF SUPREME COURT HISTORY even begin unless the complaining party first demonstrates that some government entity was responsible for the violation of her rights.”2 Private business owners were the ones choosing to discriminate, the argument went, and the only thing that Maryland authorities had done was to create and maintain trespass laws that allowed for private race discrimination. The doctrine, it was believed, could be traced back to the Supreme Court’s 1883 decision in the Civil Rights Cases, which is often regarded as a clear and unambiguous statement of the principle. When the sit-in cases began to reach the Supreme Court, the Justices worked hard to overturn the convictions while avoiding any major state action rulings. For instance, they often took note ofthe fact that the sit-ins took place primarily in states where law, public policy, or public officials were lending some support to segregated public accommoda­ tions. Thus, what seemed like mere private discrimination was in reality supported by discriminatory public law and within the scope of the Fourteenth Amendment. On that basis and others, the Justices began to invalidate the Southern sit-in protesters’ convictions.3 When Bell v. Maryland reached the Justices in 1963, however, it was immediately evident that this case was different from what had come before it. Bell’s case was different, because Maryland had repealed most of its segregation laws during the 1950s. In fact, while his case was on appeal, both the Baltimore City Council and the state legisla­ ture enacted civil rights laws prohibiting segregated public accommodations in most of the state. Even the owner of Hooper’s restaurant professed to be morally opposed to segregation.4 By that time, events such as the mass arrests of child demonstrators in Birmingham, Alabama and President Ken­ nedy’s civil rights bill, were making the legal status of segregated public accommo­ dations an issue about which many Ameri­ cans, and especially the Justices, could no longer equivocate. The Supreme Court, however, ducked the issue, and a divided Court chose to send Robert Bell’s case back to the Maryland courts to decide whether the state civil rights law retroactively voided the trespass prosecution. Bell’s trespass convic­ tion was eventually overturned in the Mary­ land...