School desegregation is included in the 1875 Civil Rights Act

[WolfBear]

An interesting fact about the 1875 Civil Rights Act is that it originally included a clause which forbade segregated schools and which received a lot of support from Republicans in May and June 1874. Indeed, Michael McConnell wrote extensively about this in this 1995 law review article of his:

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=12624&context=journal_articles

After the Republicans' defeat in the 1874 elections, many Republicans chickened out and thus abandoned their previous support for this "schools clause."

Now, my question here is this--let's say that the Republicans will have more nerve after the 1874 elections and enough of them still support the "schools clause" to include it in the Civil Rights Act of 1875. In such a scenario, we would have the federal government forbid segregated schools almost eighty years earlier than in our TL.

In turn, the crucial question would be this--if the Civil Rights Act of 1875 passed with the "schools clause," would this "schools clause" (which forbids segregated schools) have been struck down by the U.S. Supreme Court in 1883 along with the rest of the 1875 Civil Rights Act?

Indeed, any thoughts on this? After all, I would think that the U.S. Supreme Court which decided Pace v. Alabama and the Civil Rights Cases (both in 1883) would have been opposed to the U.S. Congress using the 14th Amendment as a justification for banning segregated schools (after all, if anti-miscegenation laws were considered to be constitutional, wouldn't segregated schools likewise be constitutional? In turn, wouldn't Congress be perceived as acting beyond its authority in banning segregated schools?). However, I am curious as to what the rest of you think in regards to this.

Any thoughts on this?

[Rob]

Post by WolfBear
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=12624&context=journal_articles
After the Republicans' defeat in the 1874 elections, many Republicans chickened out and thus abandoned their previous support for this "schools clause."
Now, my question here is this--let's say that the Republicans will have more nerve after the 1874 elections and enough of them still support the "schools clause" to include it in the Civil Rights Act of 1875. In such a scenario, we would have the federal government forbid segregated schools almost eighty years earlier than in our TL.
In turn, the crucial question would be this--if the Civil Rights Act of 1875 passed with the "schools clause," would this "schools clause" (which forbids segregated schools) have been struck down by the U.S. Supreme Court in 1883 along with the rest of the 1875 Civil Rights Act?
Indeed, any thoughts on this? After all, I would think that the U.S. Supreme Court which decided Pace v. Alabama and the Civil Rights Cases (both in 1883) would have been opposed to the U.S. Congress using the 14th Amendment as a justification for banning segregated schools (after all, if anti-miscegenation laws were considered to be constitutional, wouldn't segregated schools likewise be constitutional? In turn, wouldn't Congress be perceived as acting beyond its authority in banning segregated schools?). However, I am curious as to what the rest of you think in regards to this.
Any thoughts on this?

It would almost definitely be overturned, given the results you describe in 1883.

Also, it is remarkable how quickly the the influence of Radical Republicans faded on the Supreme Court. 1883 was only six years after the end of the occupation and abandonment of the redeemer governments, were there a bunch of new SCOTUS appointment from 77 to 83? For how much of that time did Democrats control the House and/or Senate?

[WolfBear]

Post by Rob

Post by WolfBear
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=12624&context=journal_articles
After the Republicans' defeat in the 1874 elections, many Republicans chickened out and thus abandoned their previous support for this "schools clause."
Now, my question here is this--let's say that the Republicans will have more nerve after the 1874 elections and enough of them still support the "schools clause" to include it in the Civil Rights Act of 1875. In such a scenario, we would have the federal government forbid segregated schools almost eighty years earlier than in our TL.
In turn, the crucial question would be this--if the Civil Rights Act of 1875 passed with the "schools clause," would this "schools clause" (which forbids segregated schools) have been struck down by the U.S. Supreme Court in 1883 along with the rest of the 1875 Civil Rights Act?
Indeed, any thoughts on this? After all, I would think that the U.S. Supreme Court which decided Pace v. Alabama and the Civil Rights Cases (both in 1883) would have been opposed to the U.S. Congress using the 14th Amendment as a justification for banning segregated schools (after all, if anti-miscegenation laws were considered to be constitutional, wouldn't segregated schools likewise be constitutional? In turn, wouldn't Congress be perceived as acting beyond its authority in banning segregated schools?). However, I am curious as to what the rest of you think in regards to this.
Any thoughts on this?

It would almost definitely be overturned, given the results you describe in 1883.
Also, it is remarkable how quickly the the influence of Radical Republicans faded on the Supreme Court. 1883 was only six years after the end of the occupation and abandonment of the redeemer governments, were there a bunch of new SCOTUS appointment from 77 to 83? For how much of that time did Democrats control the House and/or Senate?

Weren't all U.S. Supreme Court Justices in 1883 Republican appointees?

Also, you are assuming that Radical Republicans ever had a hold on the U.S. Supreme Court. In reality, as the Slaughter-House Cases (1873; they gutted the Privileges or Immunities Clause of the 14th Amendment) and United States v. Cruikshank (1875) show, even during Reconstruction, Radical Republicans do not appear to have controlled the U.S. Supreme Court.

In addition to this, Yes, it would be hard to see how a U.S. Supreme Court that unanimously approved of racial segregation in regards to sex and presumably marriage as well would consider it to be unacceptable for U.S. states to have segregated schools.

[Rich Rostrom]

Post by Rob
Also, it is remarkable how quickly the the influence
of Radical Republicans faded on the Supreme Court.
1883 was only six years after the end of the
occupation and abandonment of the redeemer
governments, were there a bunch of new SCOTUS
appointment from 77 to 83?

Harlan, John Marshall 12/10/1877
Woods, William Burnham 01/05/1881
Matthews, Stanley 05/17/1881
Gray, Horace 01/09/1882
Blatchford, Samuel 04/03/1882

Post by Rob
For how much of that time did Democrats control the
House and/or Senate?

The House is irrelevant; the Senate confirms Justices.
45th Congress (1877-1879) R 40, D 35, I I
46th Congress (1879-1881) R 33, D 42, I 1
47th Congress (1881-1883) R 37, D 37, I 1, Readjuster 1
48th Congress (1883-1885) R 38, D 36, Readjuster 2

(Note: the Independent was David Davis of Illinois,
once Lincoln's campaign manager and appointed to
SCotUS by him. After the Civil War, he became known
as an independent, and was nominated to the commission
of 15 that was to resolve the disputed 1876 election -
the other members being 7 Republicans and 7 Democrats.
However, the Democrats of Illinois elected him Senator,
hoping to influence his vote, only to have him resign
from the Court to enter the Senate, and thus lose his
commission seat. His replacement on the commission was
a Republican Justice.)

(Note: the Readjusters were a populist party in Virginia,
which formed as a coalition of Republicans, including
blacks, and poor whites. The Readjuster Senators allied
with Republicans.)

[WolfBear]

Post by Rich Rostrom

Post by Rob
Also, it is remarkable how quickly the the influence
of Radical Republicans faded on the Supreme Court.
1883 was only six years after the end of the
occupation and abandonment of the redeemer
governments, were there a bunch of new SCOTUS
appointment from 77 to 83?

Harlan, John Marshall 12/10/1877
Woods, William Burnham 01/05/1881
Matthews, Stanley 05/17/1881
Gray, Horace 01/09/1882
Blatchford, Samuel 04/03/1882

Out of these Justices, Harlan appears to have been the most committed to Black rights. Of course, even his record wasn't perfect--after all, he joined the unanimous ruling in Pace v. Alabama (1883) which upheld the constitutionality of anti-miscegenation laws.

Also, as a side note, it is very interesting that, in spite of mostly voting against school segregation in 1874, Republicans in the U.S. Congress were completely silent on the issue of school segregation in 1866-1868. Indeed, James Wilson explicitly denied that the 1866 Civil Rights Act required school integration, and the 14th Amendment appears to have been viewed by Congressional Republicans in 1866-1868 as being identical to the 1866 Civil Rights Act.

Frankly, a cynic might conclude that, *if* Republicans already had a desire to outlaw school segregation in 1866-1868, they were silent about it back then for fear that the 14th Amendment wouldn't be ratified if they spoke openly about it. Of course, one can also conclude that Republicans had no desire to outlaw school segregation back in 1866-1868.

[David Tenner]

Post by WolfBear
An interesting fact about the 1875 Civil Rights Act is that it
originally included a clause which forbade segregated schools and which
received a lot of support from Republicans in May and June 1874. Indeed,
Michael McConnell wrote extensively about this in this 1995 law review
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://w
ww.google.com/&httpsredir=1&article=12624&context=journal_articles
After the Republicans' defeat in the 1874 elections, many Republicans
chickened out and thus abandoned their previous support for this
"schools clause."
Now, my question here is this--let's say that the Republicans will have
more nerve after the 1874 elections and enough of them still support the
"schools clause" to include it in the Civil Rights Act of 1875. In such
a scenario, we would have the federal government forbid segregated
schools almost eighty years earlier than in our TL.
In turn, the crucial question would be this--if the Civil Rights Act of
1875 passed with the "schools clause," would this "schools clause"
(which forbids segregated schools) have been struck down by the U.S.
Supreme Court in 1883 along with the rest of the 1875 Civil Rights Act?
Indeed, any thoughts on this? After all, I would think that the U.S.
Supreme Court which decided Pace v. Alabama and the Civil Rights Cases
(both in 1883) would have been opposed to the U.S. Congress using the
14th Amendment as a justification for banning segregated schools (after
all, if anti-miscegenation laws were considered to be constitutional,
wouldn't segregated schools likewise be constitutional? In turn,
wouldn't Congress be perceived as acting beyond its authority in banning
segregated schools?). However, I am curious as to what the rest of you
think in regards to this.
Any thoughts on this?

The provision against segregated schools (at least so far as it applied to
public schools) could not be struck down on the same *grounds* as the rest of
the Civil Rights Act. Those were struck down because they dealt with
*private* discrimination, which was held not to be forbidden by the
Fourteenth Amendment.

However, though it wouldn't be stricken down on the same grounds that the
rest of the Act was, it would be stricken down nevertheless--on the grounds
that to the Court, segregation itself, even if instituted by the state
government, was not per se a violation of the Fourteenth Amendment. The
Court may not have formally so held until 1896 with *Plessy* but there is
little doubt that a majority of the Court felt the same way in 1883.

[WolfBear]

Post by David Tenner

Post by WolfBear
An interesting fact about the 1875 Civil Rights Act is that it
originally included a clause which forbade segregated schools and which
received a lot of support from Republicans in May and June 1874. Indeed,
Michael McConnell wrote extensively about this in this 1995 law review
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://w
ww.google.com/&httpsredir=1&article=12624&context=journal_articles
After the Republicans' defeat in the 1874 elections, many Republicans
chickened out and thus abandoned their previous support for this
"schools clause."
Now, my question here is this--let's say that the Republicans will have
more nerve after the 1874 elections and enough of them still support the
"schools clause" to include it in the Civil Rights Act of 1875. In such
a scenario, we would have the federal government forbid segregated
schools almost eighty years earlier than in our TL.
In turn, the crucial question would be this--if the Civil Rights Act of
1875 passed with the "schools clause," would this "schools clause"
(which forbids segregated schools) have been struck down by the U.S.
Supreme Court in 1883 along with the rest of the 1875 Civil Rights Act?
Indeed, any thoughts on this? After all, I would think that the U.S.
Supreme Court which decided Pace v. Alabama and the Civil Rights Cases
(both in 1883) would have been opposed to the U.S. Congress using the
14th Amendment as a justification for banning segregated schools (after
all, if anti-miscegenation laws were considered to be constitutional,
wouldn't segregated schools likewise be constitutional? In turn,
wouldn't Congress be perceived as acting beyond its authority in banning
segregated schools?). However, I am curious as to what the rest of you
think in regards to this.
Any thoughts on this?

The provision against segregated schools (at least so far as it applied to
public schools) could not be struck down on the same *grounds* as the rest of
the Civil Rights Act. Those were struck down because they dealt with
*private* discrimination, which was held not to be forbidden by the
Fourteenth Amendment.

Yes, this is absolutely correct.

Post by David Tenner
However, though it wouldn't be stricken down on the same grounds that the
rest of the Act was, it would be stricken down nevertheless--on the grounds
that to the Court, segregation itself, even if instituted by the state
government, was not per se a violation of the Fourteenth Amendment. The
Court may not have formally so held until 1896 with *Plessy* but there is
little doubt that a majority of the Court felt the same way in 1883.

To be fair, though, the 1896 Plessy Court had some Democratic appointees. However, even among the Republican appointees in 1896, only John Marshall Harlan dissented in the Plessy case.

However, I agree with your overall point here. After all, in 1883, the U.S. Supreme Court unanimously upheld the constitutionality of an Alabama statute which prescribed harsher penalties for people who engage in interracial sex. In turn, it is hard for me to believe that a U.S. Supreme Court which thought that U.S. states had the power to pass anti-miscegenation laws would not think that U.S. states would likewise have the power to have segregated schools. Indeed, if U.S. states are Constitutionally allowed to do something, it would almost certainly be very difficult and unlikely for the U.S. Supreme Court to uphold the constitutionality of a Congressional ban on such a practice/activity.

Also, as a side note, would a U.S. Supreme Court ruling against Congressional integration of schools in 1883 have made U.S. Supreme Court Justices less likely to make a ruling such as Brown v. Board of Education decades later (and obviously butterflies would be extremely relevant here)? Indeed, any thoughts on this?

Post by David Tenner
--
David Tenner

[t***@gmail.com]

Post by WolfBear
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=12624&context=journal_articles
After the Republicans' defeat in the 1874 elections, many Republicans chickened out and thus abandoned their previous support for this "schools clause."
Now, my question here is this--let's say that the Republicans will have more nerve after the 1874 elections and enough of them still support the "schools clause" to include it in the Civil Rights Act of 1875. In such a scenario, we would have the federal government forbid segregated schools almost eighty years earlier than in our TL.
In turn, the crucial question would be this--if the Civil Rights Act of 1875 passed with the "schools clause," would this "schools clause" (which forbids segregated schools) have been struck down by the U.S. Supreme Court in 1883 along with the rest of the 1875 Civil Rights Act?
Indeed, any thoughts on this? After all, I would think that the U.S. Supreme Court which decided Pace v. Alabama and the Civil Rights Cases (both in 1883) would have been opposed to the U.S. Congress using the 14th Amendment as a justification for banning segregated schools (after all, if anti-miscegenation laws were considered to be constitutional, wouldn't segregated schools likewise be constitutional? In turn, wouldn't Congress be perceived as acting beyond its authority in banning segregated schools?). However, I am curious as to what the rest of you think in regards to this.
Any thoughts on this?

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