Some History About the History of the Sit-Ins
So why a book on the 1960 student lunch counter sit-ins? My answer to this question is pretty simple: because we need a book on the sit-ins.
A little backstory: I began to think about the sit-ins as an intriguing topic for a legal historian in my third year of law school. I had gone straight to law school after completing my Ph.D. in American Studies. I had a finished dissertation on “Postwar Liberalism and the Origins of Brown v. Board of Education,” which I assumed was going to be the basis for my first book. I took advantage of my time in law school to put that project to the side for a time while I explored some new topics. In my last year at Harvard, I found myself in a seminar on “Popular and Legislative Constitutionalism,” taught by Robert Post and Reva Siegel, who were visiting from Yale at the time.
When it came time to choose a writing topic for the seminar, I settled on the 1960 lunch counter sit-ins. I studied Supreme Court cases involving the appeals of criminal convictions of sit-in protesters in my constitutional law course, and I had been intrigued by the difficulties the justices had with these cases, which raised particularly challenging questions about the reach of the Fourteenth Amendment’s equal protection clause (i.e., the “state action” doctrine). I thought it might be a fruitful “popular constitutionalism” seminar paper project to explore the connections between this iconic episode of social movement activism and the Court’s struggles with the sit-ins cases.
The first step of my research, I assume, would be to track down the books on the sit-in movement. I would then draw on these secondary sources to say something (hopefully something interesting) about how my case study illuminated the intersection between social protests and constitutional change. But, as I quickly discovered, there were no books—there was not even a book—on the sit-ins.
Plenty of people had written about the sit-ins. But the sit-in episode was always framed as part of a larger story. Survey histories of the civil rights movement always include a section on the sit-in movement. Some of the best writing about the sit-ins came in the form of a chapter or two in books centered on a particular city during the civil rights era. In this genre, William Chafe’s chapter on lunch counter sit-ins in his 1980 classic study of Greensboro, North Carolina, Civilities and Civil Rights, was the exemplary. (Tomiko Brown-Nagin’s section on the student movement in Atlanta in her brilliant 2011 book Courage to Dissent, which was published several years after I began my work on the sit-ins, is every bit as as good as Chafe’s chapter as a local social history of the sit-ins, while also delving into legal issues.) The most commonly cited source on the sit-ins was the sociologist Aldon Morris’s The Origins of the Civil Rights Movement (1984), which includes excellent material on the dynamics of movement mobilization involved in the lunch counter protests.
But, still, I was struck by the fact that this famous episode in the history of the black freedom struggle had never merited a book of its own. I found a masters thesis and a Ph.D. dissertation written during the early 1960s that centered on the sit-ins, and a bunch of nice picture books for children, but no single work of historical scholarship on the 1960 lunch counter sit-in movement.
I wrote my law school seminar paper (relying more on primary source material than I had originally expected), which eventually turned into an article, and then a series of articles and essays. But from early on, I thought of my work on the sit-ins as moving toward a book—a book justified, at minimum, by the fact that someone needed to write a book on the sit-ins.
I wrote the book with this thought in mind, hoping that The Sit-Ins would not only make a contribution to our understanding of law, but also fill a surprising gap in the historical literature. This was a part of recent American history that people should know more about. So I wrote the book in a way that would be accessible for scholars beyond academic historians, as well as for students, lawyers, and, hopefully, the general readers. I hope in particular that The Sit-Ins will be used to introduce this episode of history to college-age students. They are, after all, the protagonists of the story.
How Law Helps Explain the Sit-In Movement
A central argument of my book is that we can’t fully understand the history of the sit-ins without placing law in the foreground. Behind the now-iconic scenes of African American college students sitting in quiet defiance at segregated lunch counters lies a series of underappreciated legal dilemmas—about the meaning of constitutional equality, the capacity of legal institutions to remedy different forms of injustice, and the relationship between legal reform and social change. We can’t explain why the sit-ins happened and what they achieved without paying attention to the law—a point historians have generally missed.
Here are three questions about the sit-ins that attention to the distinctive legal issues involved helps to answer.
1. Why direct-action protests?
In launching their protest campaign, the students sought to offer an alternative to litigation campaigns that had promised so much but delivered so little.
The Supreme Court’s 1954 school desegregation decision in Brown v. Board of Education had raised expectations for change, particularly among school-age African American children. These expectations had dissolved into frustration as court-centered implementation failed to move a defiant white South to desegregate its schools. When asked why they took part in the sit-ins, students often expressed frustration with the minimal progress southern states had made toward desegregating their schools.
For the students, the courts were something to be avoided—not because they might lose in court, but because even if they won, they were skeptical that real change would follow. This was the ironic lesson that the great legal victory in Brown, which six years later had yet to produce significant results in southern schools, had taught the sit-in generation.
2. Why lunch counters?
In retrospect, lunch counters seem such a self-evident target for the black freedom struggle. Yet before February 1960, lunch counters were hardly obvious targets. Established civil rights organizations had largely avoided direct challenges to this particular facet of Jim Crow. The reason why had a lot to do with their assessment of the law.
By 1960 most southern states had either removed segregation statutes from the books or no longer enforced these laws. As a matter of law, the key question was whether a private citizen who operated an eating facility, subject to no legal requirement to segregate, could make racially discriminatory choices of whom to serve. Before the sit-ins, civil rights lawyers generally assumed the answer was yes—and they steered attention and resources elsewhere.
The relative neglect of this issue by the major civil rights groups served the student movement well. Discrimination at lunch counters was an offensive practice and no one seemed to be doing anything about it. Among the students themselves and among outside sympathizers, the sit-ins resonated in large part because it was clear that this was the students’ protest, that it was not being orchestrated by far away civil rights strategists or radical ideologues. Lawyers’ legal assessments had left public accommodations an open field for a new wave of protest activity.
3. Why was the opposition so divided?
Law also played a role in weakening the opposition to the sit-in movement.
Those opposed to the goals and tactics of the sit-ins were far from unified. They differed on the strength of their commitment to segregation, on the lengths they were willing to go to protect segregation, and the role that the police and courts should play in this contest. These divisions among southern whites were particularly consequential in the sit-in movement because of the distinctive legal issues involved.
Southern officials and local police generally wanted students arrested and prosecuted for their protest actions. Lunch counter operators, by contrast, were not anxious to send potential paying customers to jail and often hesitated to take this step. Yet, in most cases, only the operators could decide whether to press charges against sit-in protesters. Thus, those who most wanted to use the law to crack down on the students were often unable to do so, while those who least wanted to use the law were the ones who needed to start the legal process. The end result: although many protesters were arrested, the vast majority of sit-in protesters were not. The white South never unleashed its full repressive authority against the student movement.
The fact that these facilities were privately operated—the very legal factor that had initially steered civil rights lawyers away from public accommodations challenges (and that would cause them considerable difficulties in subsequent constitutional litigation on behalf of the students)—undermined efforts to mobilize in opposition to the sit-ins.
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In sum, one of my goals in The Sit-Ins is to draw attention to legal issues that historians who have written about the sit-in movement often have overlooked.
On the Protagonist of the Book
Another reason I find the sit-ins such a ripe topic for legal historical inquiry: the remarkable debate over the scope of the constitutional meaning of equality the sit-in protests sparked—a debate that took place in the streets, in newspapers, in the offices of mayors, governors, and businessmen, in the courts, and in Congress. This may sound strange, but in The Sit-Ins I wrote a book whose protagonist is a constitutional claim. The student activists are the heroes of the book; their bold actions set the story in motion. But the principal character of that story is a claim about what the Constitution means.
That claim, in its simplest form, is that the Fourteenth Amendment’s equal protection clause prohibits racial discrimination in “public accommodations”—the legal term for privately owned and operated businesses that serve the general public. This is my protagonist. It strides on the scene in the opening pages. I offer some backstory, letting the reader know where this character has been and why its appearance is so disruptive and challenging. I then set my protagonist in motion.
Narrowing my focus along certain dimensions—a single legal claim, charted over a five-year period—allows me to expand my cast of characters and institutional settings. Each of the book’s chapters revolves around a distinctly situated group of people who confronted this claim: the student protesters, civil rights lawyers, movement sympathizers, civil rights opponents (a group that included white business owners, southern state officials, racist demagogues, and libertarian ideologues), the justices of the U.S. Supreme Court, and federal lawmakers who played a role in the passage of the Civil Rights Act of 1964.
The lunch counter sit-in protests in the spring of 1960 made this Fourteenth Amendment claim a salient, urgent national issue. Although the students initiated the sit-ins with little conscious intention of making a formal claim of constitutional reconstruction, their actions sparked a wide-ranging debate on the scope of the constitutional meaning of equality. The book follows this claim as it travels up and down the legal and political landscape of early-1960s America.
Soon after the protests begin, civil rights lawyers translated the students’ bold claims for dignity and equality into the language of judicial doctrine. Outside sympathizers translated these same claims into the language of “popular constitutionalism”—the rich blend of legal norms, moral sensibilities, and public policy with which the American people contest, and sometimes remake, the meaning of the Constitution. Opponents too played a role in the story, launching a constitutional counter-offensive in which they proclaimed that private business operators had a “right to discriminate.”
In the closing chapters, our protagonist moves into more conventional legal settings. At the Supreme Court, the justices struggled with the legal issues raised by the sit-ins. They were hesitant to give the civil rights movement another sweeping Brown-like constitutional victory—at least not on this particular constitutional claim. The justices overturned protester convictions in the sit-in cases, but they did so on narrow grounds, concluding that there was insufficient evidence to support a conviction or that there was direct state encouragement of or involvement in the lunch counter manager’s decision to discriminate. The ultimate victory of the claim set in motion by the sit-in movement came not from the Supreme Court but from Congress. Title II of the Civil Rights Act of 1964 effectively outlawed racial discrimination in public accommodations across the nation.
Choosing the right protagonist is surely one of the most important choices any writer makes. Legal historians may select a person or group of people as their protagonists, but often the more useful and appropriate protagonist is something else: an institution, such as a court or administrative agency; a city; a text; or a legal claim.
For my story, choosing a constitutional claim as my central character allows me to explore how this claim fared in different contexts and different institutional settings. I have character development. My claim evolved over time; the way in which one institution treated the claim affected how other institutions subsequently evaluated it.
On Ending the Book
Do I want my story to have a happy ending or a sad ending? As I was completing The Sit-Ins, I found myself, to my surprise, stuck on this question.
Not the typical question the historian asks, right? If the history ends happily, then go happy. If not, go sad. Of course academic historians are serious folk, we write serious history, and sad is more serious than happy, so we usually go sad. If things are looking bright, point out the shadows. If things are looking dark, show just how serious (systemic, structural, durable) the dark is.
I suppose we’re allowed a happy-ending pass if we focus on groups who are working against immeasurable odds and resisting oppressive circumstances. But here too, even as we praise remarkable accomplishments, we must then rein in that optimism by ensuring the reader’s attention never strays far from the oppressive forces that remain, of setbacks down the road, of other groups that remain left behind.
Here’s the problem: I’m a happy guy. My glass is half full. I tend to be more curious about why good things happen than why bad things happen. This surely helps explain why I first became fascinated with the 1960 lunch counter sit-in movement, a moment in history that even the most pessimistic of historians would recognize as a remarkable achievement.
But, still, as I finished writing The Sit-Ins, I was stuck. Did I want to close the book by emphasizing what was achieved by this protest movement and the ensuing national debate over racial discrimination in public life? Or did I want to emphasize what the sit-ins failed to achieve? Was this to be a story of victory or noble defeat?
I went with a victory. I wanted to write a book that could not just explain but also inspire. Plus, historians are trained to listen carefully to the words of those whose lives they describe, and the students who sat in protests at lunch counters in the spring of 1960 talked all the time (during and afterwards) about the movement’s victories.
It is important to note that I had a choice here. And the reason I had a choice is because there are so many viable options for measuring victory. This point holds whether we impose our own definition of victory or whether we locate a definition of victory held by the historical actors themselves.
The most obvious measure of victory for the sit-in movement was the desegregation of pubic accommodations, a process that culminated in the passage and successful implementation of Title II of the 1964 Civil Rights Act. But well before that unmistakable achievement, the students themselves identified countless other measures of success. Standing (and sitting) alongside thousands of other college students as part of this new, defiant movement was an achievement. Creating student-run organizations that would strategize and coordinate sit-in protests might be cited as a win for the movement. Students saw going to jail as a valuable experience, both for the individual protester and the larger movement. For the most dedicated of freedom fighters, even enduring a beating was a victory. “This was an experience we needed,” one participant explained about the violence against sit-in protesters. The Sit-Ins documents the many opportunities the protesters found to declare victory.
But there is another side to this story, one that emphasizes the conspicuous failures of the sit-in movement. Even as they strategized and touted these attainable movement victories, activists and their allies also defined their goals in a more idealistic, aspirational register. The sit-ins, as Ella Baker famously proclaimed, “are concerned with something much bigger than a hamburger or even a giant-sized Coke.” The true goal of the movement, she said, was “to rid America of the scourge of racial segregation and discrimination—not only at lunch counters, but in every aspect of life.”
“We are willing to go to jail, be ridiculed, spat upon and even suffer physical violence to obtain First Class Citizenship,” one student group declared. For James Baldwin, the sit-in movement was aimed at “nothing less than the liberation of the entire country from its most crippling attitudes and habits.”
Measured by these standards, the sit-in movement might be classified as, at best, a qualified success. Or perhaps, if we use Baldwin’s standard as the benchmark, a noble failure.
In the midst of the battle over discrimination in public accommodations, few questioned the importance of the issue they were fighting over. The mere fact that white southerners fought so hard to protect their “right” to discriminate confirmed the importance of the issue. Yet once the battle was won, and Title II of the 1964 Civil Rights Act was the law of the land, people on both sides began questioning the significance of the victory.
“Desegregation of public accommodations does not basically alter the pattern of social life anywhere,” observed a Mississippi restaurant operator. “That is why it has been accomplished as easily as it has.”
From a very different perspective, civil rights organizer Bayard Rustin arrived at much the same conclusion. “[W]e must recognize that in desegregating public accommodations, we affected institutions that are relatively peripheral both to the American socio-economic order and to the fundamental conditions of life of the Negro people,” he wrote in his famous 1965 essay, “From Protest to Politics.” The sit-ins had targeted “Jim Crow precisely where it was most anachronistic.” They had toppled an “imposing but hollow structure.”
Or, as the African American comedian Dick Gregory once explained: “I sat in six months once at a Southern lunch counter. When they finally served me, they didn’t have what I wanted.” It’s a funny line, with enough truth to cast a shadow over any victory celebration.
What I settled on in the end was to acknowledge these voices of caution and pessimism but to not let them be the final word. I sought to convey the limitations of the changes the sit-in movement made possible, but to leave the reader with something more hopeful. Not quite a happy ending, but something closer to happy than sad.
Here are the closing paragraphs of The Sit-Ins:
The resolution of the issue first given prominence by the students sitting at lunch counters in the winter of 1960 was one of the greatest achievements of the civil rights era. This book is, in part, an effort to celebrate the sit- in movement and the legal battles over discrimination in public accommodations that the movement sparked. It is an effort to draw attention to this triumphant moment in our ongoing struggle for racial justice, to better understand why this campaign for social and legal change worked, when so many others did not.
Other battlefronts in the African American freedom struggle proved far more difficult to uproot than racial exclusion in public accommodations. The powerful synergy between social protest and legal change that made the campaign against racial discrimination in public accommodations so powerful and consequential was hard to replicate in other areas. The struggle to implement Brown dragged out for decades, and we still face pervasive segregation in our schools. Disparities of wealth and income across racial lines persist, a particularly stubborn reminder of the continuing effects of slavery and Jim Crow. Racial disparities in our criminal justice system—from the stunning overrepresentation of racial minorities in our bloated prison populations to racially discriminatory police practices—remain one of the most significant challenges we face as a nation.
Our challenge is to find new ways combine social protest and legal claims to disrupt those practices and policies that perpetuate old inequalities and create new ones. The lunch counter sit- in movement shows that it can be done.
The Sit-Ins 