A. The Students

One of the defining characteristics of the students who were on the front lines of the first wave of lunch counter sit-ins in the winter and spring of 1960 was their skepticism, even antagonism, toward litigation as a pathway to racial justice. They distanced themselves from the NAACP's civil rights project, portraying civil rights lawyers as out of touch with their own concerns. They saw the courts as 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.Footnote ⁷³

The anger and frustration that moved the students in early 1960 was aimed at not only the white defenders of Jim Crow, but also those who insisted the freedom struggle was best fought through formal channels of legal reform. “The older Negro looked only to the courts for help,” complained Rodney Powell, a student leader.Footnote ⁷⁴ James Lawson, an organizer of the Nashville movement, directly attacked the civil rights establishment: “The legal redress, the civil-rights redress, are far too slow for the demands of our time. The sit-in is a break with the accepted tradition of change, of legislation and the courts.”Footnote ⁷⁵ “This movement is not only against segregation,” he explained. “It's against Uncle Tom Negroes, against the N.A.A.C.P's over-reliance on the courts; and against the futile middle class technique of sending letters to the centers of power.”Footnote ⁷⁶ Lawson derided the NAACP as “a fund-raising agency, a legal agency” that had “by and large neglected the major resource that we have—a disciplined, free people who would be able to work unanimously to implement the ideals of justice and freedom.”Footnote ⁷⁷ In an influential article on the first weeks of the sit-ins, Michael Walzer reported: “None of the leaders I spoke to were interested in test cases; nor was there any general agreement to stop the sitdowns or the picketing once the question of integration at the lunch counters was taken up by the courts. That the legal work of the NAACP was important, everyone agreed; but this, I was told over and over again, was more important. Everyone seemed to feel a deep need finally to act in the name of all the theories of equality.”Footnote ⁷⁸ The very identity of the first wave of sit-in protesters formed in opposition to court-focused approaches to civil rights.

The students' critique of the NAACP and its tactics was also a generational critique. Many participants saw the sit-ins as a way to send a message of impatience, even defiance, to their elders. “[W]here Negroes have stood or got in the way of the mushrooming movement,” reported the Amsterdam News, “the Negro students and their leaders have not hesitated to lash out at them as they lashed out at whites who have barred their way.”Footnote ⁷⁹ Much of the motivation for the protests emerged from frustration toward leaders within the African American community, with what the students saw as a too-easy acceptance of Jim Crow by their parents and grandparents, with too strong a faith in painfully slow courtroom battles by established civil rights figures. “[M]any of our adults have been complacent and fearful,” said Ezell Blair, Jr., one of the Greensboro Four, “and it is time for someone to wake up and change the situation and we decided to start here.”Footnote ⁸⁰ Some recognized that the older generation's hesitancy to embrace this kind of reform had much to do with their vulnerability to economic retaliation, although not all were so understanding.Footnote ⁸¹ “Our adults are too worried about security to do anything,” complained a female student at North Carolina College. “They are too afraid of their jobs.”Footnote ⁸² Others went so far as to describe Jim Crow as having “brainwashed” their parents into a state of “complacency” and fearfulness.Footnote ⁸³ “Mamma, I love you,” an arrested protester told her mother when she came to bail her daughter out of jail. “But I am not free. And I'm not free because your generation didn't act. But I want my children to be free. That's why I'll stay in jail.”Footnote ⁸⁴ The sit-in tactic was at once an expression of frustration with the older generation and their approach to civil rights and with the continued injustices of life in Jim Crow America.

Rather than focusing on changing particular laws, the students spoke of drawing attention to offensive practices that were designed to subjugate and humiliate African Americans. When asked to put into words what moved them to action, they talked about the importance of human dignity and first-class citizenship. Although courts can be a powerful forum for demanding recognition of dignitary claims, the students favored what they considered to be a more direct approach, one that would not require a translation of their grievances into a formal legal or constitutional claim. They did not want their claim to dignity and first-class citizenship rights to rely on the slow and uncertain process of judicial legitimation. This was why the physical act of resistance was so central to the sit-ins. The sit-in tactic would allow them not only to put forth a public plea for equal, dignified treatment, but, by sitting down at a “whites-only” lunch counter, to enact an alternative social practice in which the students had already assumed for themselves the place of dignity and respect to which they were entitled: what Thoreau called “the performance of right.”Footnote ⁸⁵ “The idea,” one participant explained (in a letter written from a Florida jail), “was to demonstrate the reality of eating together without coercion, contamination or cohabitation.”Footnote ⁸⁶ For the students, a courtroom battle, even if victorious, would never allow for this kind of statement.

The very decision to focus their protests on lunch counter discrimination derived from a concern with personal respect more than with the formal legal constraints of the Jim Crow South. In 1960, there were countless areas of racial oppression that the students might have targeted: Southern schools and public transportation were still largely segregated; African Americans still faced systematic disfranchisement throughout the South; the criminal justice system was notoriously biased against blacks. Practically any of these options would have given the students stronger, clearer legal justifications than an assault on privately owned lunch counters.Footnote ⁸⁷ These options would also have had the benefit of joining ongoing campaigns by established civil rights organizations. Put another way, if the students had asked lawyers and civil rights leaders for guidance prior to initiating their protests, they would not have been advised to challenge privately owned lunch counters.Footnote ⁸⁸

However, discriminatory treatment at lunch counters exacted a particularly abrasive psychic cost for many African Americans. “Sitting at a lunch counter may seem like a small thing to some,” explained one participant, “but the right to do so is so inextricably bound up with the American idea of equality for all.”Footnote ⁸⁹ Time and again, black students across the South spoke of the humiliation of being served at the sales counter of a department store while being prohibited from that very same store's lunch counter.Footnote ⁹⁰ Martin Luther King, Jr., captured the depth of injustice contained within such a seemingly prosaic issue when he wrote of the “tragic inconveniences” of lunch counter segregation.Footnote ⁹¹ It was the raw, personal experience of exclusion from department store lunch counters, not any assessment of the potential receptivity of the judiciary to their claim right of equal access, and certainly not any visions of a Brown-like victory in the Supreme Court, that pulled the student protesters toward this particular target. They were moved by their understanding of their rights under the Constitution. In demanding that these businesses stop their racially discriminatory policies, their claim was, in part, a claim about the meaning of the law. But it was a legal claim whose rightness would not turn on the approval of civil rights lawyer or judges.

Not only did the students tend to describe the harm of exclusion from lunch counters in terms that failed to align neatly with the doctrinal language of equal protection precedents, they also articulated the very goals of the protests in ways designed to differentiate their work from that of civil rights lawyers. Some emphasized the inherent value in taking part in this kind of protest. The organizers of the Nashville movement, led by James Lawson, who had traveled to India and studied Gandhi's protest techniques and theories, viewed the sit-in as an act of self-purification and self-actualization.Footnote ⁹² Diane Nash spoke of the need to create “a climate in which all men are respected as men, in which there is appreciation of the dignity of man and in which each individual is free to grow and produce to his fullest capacity.” They called this the “redemptive” or “beloved” community.Footnote ⁹³ King was both reflecting what the students were already doing and helping to shape their own understanding of their actions when he proclaimed, in his electrifying address to the protesters in Durham, North Carolina, in the early weeks of the movement, “To suffer in a righteous cause is to grow to our humanity's full stature.”Footnote ⁹⁴ From this perspective, any formal legal changes were secondary; the primary goal was the promotion of a sense of personal and group empowerment. The act of protest could be an end unto itself. Even if not schooled in the philosophy of nonviolence, participants often cited the emotional component of the entire experience. “It was a great feeling,” John Lewis recalled when describing the first time he sat down at a lunch counter and was refused service.Footnote ⁹⁵ Walzer wrote that he “asked every student I met what the first day of the sitdown had been like on his campus. The answer was always the same: ‘It was like a fever. Everyone wanted to go. We were so happy.’” “[T]hese new forms of political activity,” Walzer concluded, “were a kind of self-testing and proving.”Footnote ⁹⁶

The students' effort to keep lawyers and legal doctrine out of the picture was at once bold and conciliatory. It was only through subsequent discussions with civil rights leaders, business leaders, and local public officials that the Greensboro students came to better understand the legal landscape surrounding their protests. In a public statement issued several weeks after the first sit-in, the leaders of the Greensboro movement acknowledged these newly discovered complications. Their initial goal was clear and direct: “The demonstrations at the lunch counters were inspired by the desire to make known, in peaceable fashion, the fact that we are suffering a moral wrong.” This publicizing goal “has been accomplished with encouraging response.” They recognized, however, that there were legal obstacles: specifically state and local laws. As a result of the protest and subsequent negotiations with local officials, they learned “that the law of our community and of our state does not prohibit a continuation of these conditions” of segregation. At the same time, the law “does disapprove of the method used to publicize it.” Fearing that their violation of property laws risked drawing attention away from their primary goal of highlighting the fundamental moral wrong of racial discrimination, they reiterated their request for “consideration and cooperation.” Their statement concluded with a call to deal with the issue in the way that they felt most comfortable with: without the interference of official legal institutions. “Our case, then, is before the reasonable local bar of public opinion, and we solicit its judgment.”Footnote ⁹⁷

This approach reflected the distinctive agenda of the students. By resisting the reduction of their efforts into a formal legal claim and by putting their faith into protest and negotiation, they might lose the leverage of a judicially cognizable constitutional claim, but they gained something that was, to them, considerably more valuable: the ability to maintain control over the course of their challenge. They did not need to hand their protest over to the lawyers, as judicial appeals or other direct challenges to existing laws would necessitate. They were asserting their own understanding of their actions, which, although perhaps too moderate and lacking in clearly defined long-term goals for some, had the irreplaceable attribute of being all their own.

To now turn the sit-ins into a legal claim whose legitimacy depended upon recognition in the courts would seem to go against what the students and their supporters saw as the most innovative and valuable aspect of the protest. However, this was precisely what the lawyers in the NAACP's national office hoped to do.

B. The Lawyers

First Impressions. For the civil rights lawyers in the NAACP's national office and LDF, the student protests sparked a moment of re-evaluation.Footnote ⁹⁸ It was, in the words of an internal memorandum, “a period of soul-searching, of testing, of weighing in the balance.”Footnote ⁹⁹ The new wave of protests threatened their work, as it seemed to give strength to “[t]he many ill-informed hints from outside that we may have outlived our usefulness.”Footnote ¹⁰⁰ As they organized for their upcoming annual convention, NAACP leaders struggled to figure out the best approach to dealing with the new wave of protests. NAACP General Counsel Robert L. Carter worried, “Unless we have … control [over the sit-ins], we cannot gain too much concentrating on sit-ins except a ‘me too’ to [CORE] and [the Southern Christian Leadership Conference].”Footnote ¹⁰¹ In these internal discussions, NAACP Program Director James Farmer was particularly blunt in his assessment: “Doubtless the sit-ins will creep into every discussion, as they should, but we cannot appear to be overwhelmed by their impact…. I seriously doubt that we should publicly air our confusion and uncertainties on this subject…. In the meantime, I think we must maintain the posture of knowing precisely where we are going, while at the same time speeding up our efforts through ‘inner circle’ discussions to find out where we really want to go.”Footnote ¹⁰²

Recognizing the sit-ins as both a threat and an opportunity for the NAACP, the leaders in the organization's national office went on the offensive. They parried attacks about the NAACP's viability as a leading force in the Civil Rights Movement. “We need to amplify our public image,” a staff memorandum explained, “from the NAACP as purely a ‘legal’ agency to the NAACP as a multi-weapon action organization.” “The road to both these objectives is via special focus on the sit-downs, the upsurge of spirit among Negro young people, and the approaches to use of economic power, the ‘expanded racial defense policy.’”Footnote ¹⁰³ At every opportunity, the NAACP publicized that their branches had been behind sit-in efforts that predated Greensboro, and played up the association's role in the new wave of sit-ins.Footnote ¹⁰⁴ Publicity material highlighted the fact that several of the Greensboro Four had been members of NAACP youth chapters and that Herbert L. Wright, the NAACP youth secretary, “kept in close touch with the situation.”Footnote ¹⁰⁵ NAACP leaders also emphasized the connections between their achievements in the Supreme Court and the current burst of protests, arguing that without Brown, the sit-ins would never have happened. “If the Supreme Court had not signaled the end of separate schools in its 1954 decision, today's young people might not have had the confidence for their broad assault against segregation,” wrote the LDF President Allan Knight Chalmers in a letter to the editor of the New York Times.Footnote ¹⁰⁶

As a result of the sit-ins, the lawyers in the NAACP's LDF faced their own moment of soul-searching. “The students took everybody by surprise,” Thurgood Marshall confessed.Footnote ¹⁰⁷ When the protests began, the LDF lawyers were absorbed in the struggle to implement Brown. After the elation of the Supreme Court victory in 1954, the work of the civil rights lawyers had devolved into a frustrating form of trench warfare. Emboldened by the emergence of an organized resistance to Brown, Southern states blocked desegregation with legal delays interspersed with occasional token efforts at integration. In an effort to run the NAACP out of business, Southern state governments sought to publicize its membership lists and prosecute civil rights lawyers for supposed violations of legal ethics rules. Much of the time and effort of the LDF lawyers in the post-Brown period was focused on defending their legal work from these challenges.Footnote ¹⁰⁸

By early 1960, much of the optimism that had accompanied the Brown victory had been drained out of the NAACP lawyers. “In light of the present status of the law, no speedy or immediate resolution of the school segregation problem can be forecast,” Robert Carter informed the 1960 annual meeting, which took place several weeks before the first Greensboro sit-in.Footnote ¹⁰⁹ While the lawyers predicted that Little Rock-type instances of direct confrontation and school closings were in the past (a premature prediction, as it turned out), they had come to accept that the current agenda would be dominated by stalling maneuvers and nominal integration efforts; “a lot of fast play around second base,” as Marshall put it.Footnote ¹¹⁰ “I consider the [school desegregation] lawsuits as a holding action, a way of getting things open so that they can operate,” Marshall explained, in a statement that captured the dramatically chastened vision of the NAACP lawyers toward the ability of the federal courts to end Jim Crow. “[T]he final solution will only be when the Negro takes his position in the community, voting and otherwise,” he concluded.Footnote ¹¹¹ Therefore, in a sense, the sit-ins gave Marshall what he wanted. The students were certainly asserting their position in their community. The only problem was that, from Marshall's perspective, the students had latched onto the wrong issue.

Although the legal team sought to create out of the sit-ins a systematic challenge to discrimination in public accommodations, they realized that, unlike with school desegregation litigation, they had little control over the unfolding of this issue.Footnote ¹¹² Marshall was generally a skeptic of direct action protest and an outspoken opponent of civil disobedience.Footnote ¹¹³ As a dedicated anticommunist, he, like many white liberals of the day, often dismissed public protest actions as tactically ill-advised; even if the protests had no direct linkages to leftist organizations, they were vulnerable to accusations of these kinds of linkages.Footnote ¹¹⁴ The students, he believed, were simply heading in the wrong direction.

In addition to his skepticism of direct action protest as a tool of social reform, Marshall's reading of the relevant legal doctrine made him doubt that the students had a viable constitutional claim. Upon learning what was happening (when the sit-ins began he was in London, helping to draft a new constitution for Kenya), Marshall called a staff meeting.Footnote ¹¹⁵ As recalled by Derrick Bell, then a young LDF lawyer, he “stormed around the room proclaiming in a voice that could be heard across Columbus Circle that he did not care what anyone said, he was not going to represent a bunch of crazy colored students who violated the sacred property rights of white folks by going in their stores or lunch counters and refusing to leave when ordered to do so.”Footnote ¹¹⁶ (LDF attorney Constance Baker Motley worried Marshall might have a stroke.Footnote ¹¹⁷) Recognizing the limitations of equal protection law, as currently defined in the courts, he emphasized that this was a completely different situation than if the protests had taken place in publicly owned facilities. He told his staff: “I don't want any of you trying to defend so-called protestors who are really trespassing on private property—unless you can come up with some powerful arguments that I know you can't because they don't exist.”Footnote ¹¹⁸

Marshall quickly changed his tune, however. It is likely that he never truly believed that the students' legal claims were as weak as he made them out to be. His closest advisors had seen this kind of performance before: Prior to committing himself to a course of legal strategy, Marshall would give his best possible case against that course of action. He relied on his staff to argue with him, to challenge him. In embracing the opposition's argument, he and his colleagues would have a better understanding of what they were up against.Footnote ¹¹⁹ Regardless of where Marshall started, he and his fellow LDF lawyers soon became leading proponents of the argument that the students had a claim based not only on the immorality of segregation in public accommodations, but also on its unconstitutionality. The evolving, uncertain status of Fourteenth Amendment doctrine at this time allowed the lawyers to make this tactically savvy adjustment. Marshall had offered a fair assessment of the existing precedent when he dismissed the possibility that the students had a valid constitutional claim for equal service. And he was now offering a reasonable advocate's assessment of the legal landscape in defending this same constitutional claim.

In March, Marshall and his staff convened a conference of civil rights lawyers to look at the legal issues behind the sit-ins. As he told reporters, “Those boys and girls didn't check the law when they sat down on those stools. Now we're going to have to check the law.”Footnote ¹²⁰ Even before the lawyers met, Marshall began adopting a dramatically different perspective toward the sit-ins.Footnote ¹²¹ Abandoning his initial skepticism, he now characterized them as “legal and right,” and, when asked whether the NAACP intended to take the issue all the way to the Supreme Court, he responded, “We wouldn't bother with it unless we did.”Footnote ¹²² In the weeks leading up to the conference, he discussed the possibility of making a free expression argument on the students' behalf, and discussions with lawyers at the conference gave him a newfound faith in using the sit-ins as a vehicle for making an equal protection claim.Footnote ¹²³ The enthusiasm with which the oftentimes tactically cautious civil rights leader took to these ambitious constitutional claims reflected the powerful impact that the sit-ins had had on Marshall and others in the national office of the NAACP. “This situation has made all of us reassess ourselves,” he admitted.Footnote ¹²⁴

Points of Division: Test Cases and the “Jail, No Bail” Debate. The parameters of the lawyers' reassessment were limited, however. For Marshall and his colleagues, the sit-ins led to a broadening of the horizons of viable constitutional argumentation, but not to a reconsideration of the role of the NAACP—and of the courts—in the Civil Rights Movement. The NAACP lawyers came to the sit-ins with already formed ideas about the way in which civil rights reform should take place. They had had the experience of Brown, which showed that carefully planned litigation could overturn even the most seemingly entrenched of constitutional interpretations, and the status of the constitutional issue at the heart of the sit-ins was far from well entrenched after two decades of judicial qualifications and academic attacks. They understood their victory in Gayle v. Browder as having played a critical role in securing victory for the Montgomery Bus Boycott.Footnote ¹²⁵ With the students mobilizing themselves as an alternative to the NAACP's court-centered approach to racial progress, it was no surprise that when the NAACP lawyers arrived to offer their help and advice to the students, the lawyers and the students would have sharply different views on the situation.

Two points of tactical contention between the lawyers and the students emerged in the early stages of the sit-in movement. One was over the relationship between the protests and the test cases the NAACP hoped to create. The other was a debate over the “jail, no bail” policy advocated by many of the students.

Although Thurgood Marshall and other NAACP lawyers publicly supported the protesters and represented them in court, they disappointed the students (or perhaps confirmed their distrust of the NAACP) when they suggested that as the sit-ins had made their point—and given the lawyers plenty of test cases with which to work—that they should stop the protests. “[T]here has been confusion about the purposes of these activities,” explained a NAACP memorandum.

The money that was being used to bail out arrested protesters, the memorandum noted, could be put to better use.Footnote ¹²⁷ The cost of representing the hundreds, soon thousands, of arrested students was starting to add up.Footnote ¹²⁸ This memorandum captures a fundamental divide between the NAACP's national leadership and the protesters. The NAACP assumed that the aim of the protests was to change the law. But on this point the students would take issue. This might be one of the aims of the protest, or it might be a beneficial secondary effect of the protest, but it was not their only purpose. The students certainly did not see themselves as doing nothing more than providing test cases for lawyers.

In their effort to justify their own involvement in the sit-ins, NAACP lawyers sought to redefine the goals of the protests. NAACP strategy memos on the sit-ins repeatedly referenced the importance of “ultimate success” in the sit-in battle. Activists must never forget the “main objective” of the protests, and they must always keep in mind the “long run” aims, none of which would be achieved without “a carefully planned and continuous attack.”Footnote ¹²⁹ The assumption was that the end goal of the protest was the judicial recognition of the constitutional rights of the protesters. “The only way we will be able to successfully break down the practices of segregation and discrimination and undermine the legal support of these practices through the law is by the process of having such laws and ordinances declared unconstitutional.”Footnote ¹³⁰ When Thurgood Marshall spoke to the Greensboro students, he warned them not to settle for “token integration.”Footnote ¹³¹ Marshall's assumption was clear: a negotiated resolution would never be as strong or as lasting as a legally enforceable mandate from a court. As NAACP ally Charles Thompson explained, the students should recognize the benefits of accepting the “leadership” of established organizations. “The need now is for a long-range reappraisal of this ‘sit-down’ movement which would eventuate in a more comprehensive and articulate statement of objectives and strategy, and provide an opportunity for an exchange of views by our grass-roots leadership.”Footnote ¹³² “As far as [Marshall] was concerned,” complained one student activist after a conversation with the legendary civil rights lawyer, “it was all going to be settled in the courtroom.”Footnote ¹³³

This is not to say that NAACP officials failed to appreciate the unique value of the student protests. They just felt that at some point their protests must give way to formal, justiciable legal claims: protesters must eventually yield to lawyers. This perspective was captured in an NAACP report that surveyed the first two months of the student protests. The report divided the sit-ins into three “aspects.” The first, described as the “essential nature” of the protest, had nothing to do with law or state power; it was simply “an appeal of one segment of the citizenry to another.”Footnote ¹³⁴ This was the protest from the students' perspective, but this approach could last only as long as Southern whites refused to call on the police, because once this happened, the protest would be transformed (the second “aspect”). “[T]he issue now is no longer between citizens, but has become a struggle between Negro citizens and state power.”Footnote ¹³⁵ This then opened the door for the third and final “aspect” of the sit-ins, which occurred when the NAACP came in to offer “a systematic program of legal defense of the demonstrators.”Footnote ¹³⁶ The goal of this line of attack was to “seek a re-definition of the legal duties and rights of property owners in the conduct of their business.”Footnote ¹³⁷ Although the sit-ins “began as an issue of community relations,” they “may well end as a question of legal rights and privileges.”Footnote ¹³⁸ For the civil rights lawyers, this third stage, the point at which the NAACP's leadership became essential, was the logical culmination of the protest. It was “inevitable.”Footnote ¹³⁹

The divergent agendas of the students and the lawyers were even more starkly reflected in the debate over how the arrested students should deal with the legal system: whether they should pay bail and thereby avoid spending time in jail while their cases were being heard, and whether they should choose a jail sentence rather than pay a fine after conviction. The civil rights lawyers felt that the students charged with trespass or disorderly conduct should plead not guilty, pay bail, and appeal the conviction. They were being unjustly prosecuted, and there was a clear legal remedy for this. But the students had another option: to refuse bail and, as their cases worked their way through the system, to remain in jail as a way of drawing further attention to the injustice of the situation. Inspired by Martin Luther King's urging them to adopt this “jail, no bail” strategy, students envisioned filling up the jails and prisons with protesters and thereby elevating their moral challenge to the Southern system of racial oppression.Footnote ¹⁴⁰ At the meeting of student activists in Raleigh, North Carolina, in April 1960, one of the proposals considered was to refuse to post bail for any arrested protesters. This would help solidify black community, mobilize public opinion, and weaken opposition “by showing that a threat of arrest cannot deter us.”Footnote ¹⁴¹

Next to the commitment and bravery required for a black youth (or white integrationist) to choose to go to a Southern jail or prison, the NAACP's argument for why they should accept bail was uninspiring in its practicality. According to the lawyers, the “jail, no bail” tactic—and its correlative “jail, no fine” and “no appeal” tactics—was, at best, unnecessarily risky; at worst, it was counterproductive to the movement's goals. By accepting their convictions and serving out their sentences, not only did the students earn a criminal record, but, more significantly for the NAACP, they gave up their ability to appeal their convictions and thereby challenge the legal rules that made Jim Crow possible. Again, the divide over what the sit-ins were trying to accomplish was made stark. “If the objective is to dramatize the illegalities and to disrupt the social order,” a NAACP memorandum explained, then there was really no role for the lawyers: “the people who participate should refuse legal help and engage in this activity only with the idea of staying in jail.”Footnote ¹⁴² But this was not the best path, because it failed to appreciate the “long run” goals of the movement, which were best served by following “the Association's basic policy and philosophy.” The students must always “know exactly what their rights are”: a requirement that NAACP officials could facilitate. “The NAACP firmly believes that every citizen has the constitutional right to enjoy on the same basis as any other citizen the facilities of any public place, business, or any other profit enterprise which offers its services to the public. To obtain these rights we must carry on a carefully planned and continuous attack.”Footnote ¹⁴³

To achieve these ends, it was believed that the students must not get caught up in symbolic gestures that, in the eyes of the lawyers, did nothing to advance the cause of civil rights. “[I]t is the firm belief of the NAACP that you should plead not guilty to the charges and accept bail,” the national office explained to the students. “We realize that remaining in jail has moral and ethical implications not to be discounted, yet there is a grave danger that the individual, by his failure, neglect, or refusal to right a criminal charge levied against him and through accepting a jail sentence in lieu thereof, will defeat his main purpose and thus render ineffectual our overall legal attack on this spiteful, vicious system.”Footnote ¹⁴⁴ Upon arrest, student leaders should “immediately contact their NAACP lawyers and follow the advice of counsel. In this way we will be better able to direct our efforts toward our main objective, that of crushing an outmoded system, and thus also avoid stigmatizing our youth with criminal records, the efficacy of which is extremely doubtful.”Footnote ¹⁴⁵

Like their call for the students to stop protesting and allow the lawyers to take over, the NAACP's attack on the “jail, no bail” strategy disappointed many of the protesters and served to widen the gap between the students and the lawyers. John Lewis, one of the leaders of the Nashville group, recalled hearing Marshall counseling the students to stay out of jail and allow the NAACP to challenge the legality of their arrests. “It was clear to me that evening,” Lewis wrote, “that Thurgood Marshall, along with so many of his generation, just did not understand the essence of what we, the younger blacks of America, were doing.”Footnote ¹⁴⁶

Despite the divide between the students and the lawyers when it came to their visions of civil rights activism, as the sit-in movement unfolded throughout the spring of 1960, the two groups settled into a functional alliance. Unified by the recognition of their common enemy, Jim Crow, and bolstered by the contagious atmosphere of excitement and possibility surrounding the students in the early months of the movement, both students and lawyers generally sought to tamp down potential flashpoints of ideological division. The NAACP publicly supported the protesters and offered legal and financial assistance when the students were arrested. The national office issued instructions for local NAACP branches about recommended tactics to best prepare the legal challenge, and they traveled to the South to teach the students about their constitutional rights and how they could most effectively contribute to a legal attack on segregated public accommodations. LDF lawyers represented arrested students in court or they assisted local lawyers. Enough students allowed the lawyers to appeal their convictions, setting in motion the first step in a constitutional challenge to segregated public accommodations. The students continued to protest, the lawyers continued to represent the arrested students, and both advanced the cause of racial equality as best they knew how.Footnote ¹⁴⁷ It seemed, on some level at least, to be a mutually beneficial situation: “a turbulent but workable marriage,” in sociologist Aldon Morris's apt description.Footnote ¹⁴⁸

A. Winning without the Courts

Considering that the desegregation of public accommodations would become so central to the Civil Rights Movement in the early 1960s—between 1960 and 1964, when Congress effectively resolved the issue with Title II of the Civil Rights Act, it was arguably the central issue on the national civil rights agendaFootnote ¹⁴⁹—it is striking how little attention this aspect of Jim Crow received from formal civil rights organizations before the wave of student-led sit-ins in the spring of 1960. Although there was a long tradition of African American resistance to all forms of discrimination in the public sphere, including facilities that were privately operated but ostensibly open to the general public, prior to 1960 the major civil rights organizations did not see privately owned public accommodations, particularly those in the South, as a viable target for their limited resources. Much of this had to do with the particularities of civil rights activism in the 1950s. CORE, the organization best suited in terms of temperament and interest to organizing a frontal challenge to discrimination in public accommodations, had been largely marginalized as a civil rights force in the 1950s.Footnote ¹⁵⁰ The Southern Christian Leadership Conference (SCLC), which Martin Luther King Jr. and a group of black ministers had created in 1957 following the successful Montgomery Bus Boycott, was still searching for an agenda; by 1960 their attention was centered largely on voting rights.Footnote ¹⁵¹ The NAACP national office was concerned with implementing Brown and federal voting rights legislation and showed little interest in leading a charge against discrimination in privately owned public accommodations. The fact that LDF lawyers thought the students' constitutional claim to be a long shot in court only reinforced the organization's relative lack of interest on behalf of the NAACP's central office.Footnote ¹⁵² A combination of tactical differences and a reading of the legal landscape therefore steered the dominant civil rights organization of the day toward voting and school litigation, leaving public accommodations a largely unoccupied field for civil rights activity.

This relative absence of attention proved valuable to the development of the sit-in movement, because it allowed the students to pursue their goals largely outside the shadow of national civil rights groups. As detailed previously, the students were able to emphasize to themselves and to the world that their movement was organic, spontaneous, and independent.Footnote ¹⁵³ Simply by their choice of targets and tactics, they could portray themselves as standing up not only against second-class citizenship but also against the older generation of civil rights reformers who were preoccupied with other issues (discrimination in voting, education, employment) and other tactics (litigation and lobbying).

By resisting NAACP entreaties to transform their protest into a formal legal claim to be contested in the courts, the students set up opportunities for small-scale, tangible achievements. Often the students' explanations of their actions were disarmingly obvious and direct. When asked about what exactly they hoped to get out of their protests, a common answer was quite simple: they wanted the lunch counter operator, the person standing in front of them, to let them sit down and be served. “We don't want brotherhood,” one protester announced, “we just want a cup of coffee—sitting down.”Footnote ¹⁵⁴ Or, as a leader of the Charlotte sit-ins explained, “All I want is to come in and place my order and be served and leave a tip if I feel like it.”Footnote ¹⁵⁵ The “students have found something that is down to earth, has human appeal, and brings visible results,” James Robinson, executive secretary of CORE explained.Footnote ¹⁵⁶ Tangible, realizable goals—forcing a lunch counter to shut down, perhaps even pressuring a lunch counter manager to serve the protesters—had a tremendous advantage in that they held the possibility of immediate attainment. The movement offered students what one supporter described as “the sweet experience of success.”Footnote ¹⁵⁷ Defining their goals in this way empowered the students. Although restaurant operators generally resisted students' demands to desegregate, many temporarily shut down in the face of the protests, an act that showed the students the power of their concerted actions. When the Greensboro protests led to the first lunch counter closing of the movement, cheers erupted from the students and, in a premature burst of enthusiasm, they started shouting “It's all over.”Footnote ¹⁵⁸ The students soon achieved more substantial victories as some restaurant owners, under pressure from the protest movement, abandoned their segregation policy. The possibility of these moments of accomplishment was critical in giving momentum to the sit-in movement in those critical opening months in the spring of 1960.Footnote ¹⁵⁹

In sum, the absence of organized civil rights activism in the sphere of public accommodations allowed the students in the opening months of the protest movement to frame their actions in a way that bolstered the sense among participants that theirs was a distinctive and independent movement. Protesters took aim at targets that offered the possibility of short-term victories, a vital component for sustaining movement momentum. One of the most powerful aspects of the sit-in movement was that it created opportunities for engagement and tangible achievement on so many different levels.

B. Outside Support

For such a fundamental and assertive challenge to the racial order in much of the nation, the lunch counter sit-ins received impressive support from around the nation. There were many reasons why people might approve of the sit-ins. The dignified act of courage required from those on the front lines of the movement was surely a predominant factor. Alongside the powerful protest imagery of the sit-ins,Footnote ¹⁶⁰ the students' rejection of legalistic remedies also contributed to the support they received. The sit-ins responded to the desire many Americans felt for a new path forward on the race question, one centered on sacrifice and moral suasion rather than adversarial litigation and court orders.

The students were far from alone in their frustration with the NAACP and litigation-based reform strategies. By 1960, with the NAACP's school desegregation campaign largely stalled, many civil rights proponents were eager to embrace alternative approaches to bringing down Jim Crow. The NAACP had always had its critics on the left, and the slow progress of the implementation of Brown strengthened their voices. Those who viewed the NAACP as elitist and overly cautious embraced the sit-in movement as a way to attack the NAACP and its commitment to litigation and lobbying as the primary tools of racial change. In a widely discussed Harper's article, African American journalist Louis Lomax praised the students for displacing the “Negro leadership class”—most notably the NAACP—as “the prime mover of the Negro's social revolt.”Footnote ¹⁶¹ He lauded the students' accomplishments: “The demonstrators have shifted the desegregation battle from the courtroom to the market place, and have shifted the main issue to one of individual dignity, rather than civil rights. Not that civil rights are unimportant—but, as these students believe, once the dignity of the Negro individual is admitted, the debate over his right to vote, attend public schools, or hold a job for which he is qualified becomes academic.”Footnote ¹⁶² The sit-ins, Howard Zinn, then a young professor at Spelman College, approvingly noted, “cracked the wall of legalism in the structure of the desegregation strategy.”Footnote ¹⁶³

The sit-ins created a flashpoint in the already tense relationship between the NAACP and Martin Luther King Jr.'s SCLC.Footnote ¹⁶⁴ Just as the students took inspiration from King and the Montgomery Bus Boycott, King saw in the student movement confirmation of his own commitment to direct-action protest and tactics based on moral persuasion, as well as further evidence of his skepticism toward what he saw as the NAACP's excessive legalism.Footnote ¹⁶⁵ NAACP leaders suspected that much of the public criticism of the organization—such as Lawson's uncompromising attack on the NAACP at a meeting of student activists in April or Lomax's article—could be traced back to the SCLC; therefore, King found himself trying to mend bridges with the NAACP.Footnote ¹⁶⁶ In private, however, King and his inner circle were scathing in their criticism of the NAACP's tactics in dealing with the sit-ins. King accused the NAACP of trying to “sabotage our humble efforts.”Footnote ¹⁶⁷ Stanley Levison, one of King's closest advisors, wrote to King that the students “are demonstrating the bankruptcy of the policy of relying upon the courts and legislation to achieve real results.” Levison attacked Thurgood Marshall for “saying that the first stage of demonstrations should be ended and a new one in the courts now [is] to be developed.” The leaders of the NAACP “want to give a tranquilizer or pacifier to the whole movement and send the people back to their ordinary preoccupations. More and more they are revealing themselves as gradualists in reality while they pretend to be uncompromising and firm.” If the NAACP failed to adopt new policies, Levinson concluded, its “influence will sharply diminish and the true forces of struggle will move into effective leadership.”Footnote ¹⁶⁸ Although King and his allies would have embraced the student movement regardless, tensions with the NAACP heightened the fervor with which they celebrated not only the students' cause, but also their critique of litigation-centered reform.Footnote ¹⁶⁹

It was not only those who might be considered to the left of the NAACP who used the sit-ins to launch a critique of the NAACP and its approach to civil rights. Although some civil rights moderates and Southern liberals attacked the protests as unnecessarily disruptive or confrontational,Footnote ¹⁷⁰ others praised the students for turning attention from legal compulsion to moral persuasion and negotiation. Whereas King, Lawson, and Lomax felt that the sit-ins demonstrated that litigation-centered strategies were too slow, too cautious, and too reliant on elite leadership, moderates used the protests as an opportunity to criticize litigation as unnecessarily divisive. A lesson of the backlash against Brown, some suggested, was that litigation might not be effective in creating the conditions of lasting social progress. “The sit-ins were, without question, productive of the most change,” noted Ralph McGill, editor of the Atlanta Constitution. “No argument in a court of law could have dramatized the immorality and irrationality of such a custom as did the sit-ins…. Not even the Supreme Court decision on the schools in 1954 had done this…. The central moral problem was enlarged.”Footnote ¹⁷¹

Similarly, leaders of the Southern Regional Council (SRC), a prominent voice of Southern liberalism and a strong supporter of the sit-ins, were adamant that it would be best for all if the issue stayed out of the courtroom. By “appeal[ing] to conscience and self-interest instead of law,” a SRC report explained, the students brought a much-needed new approach to the problem of racial discrimination. “They have argued on the basis of moral right and supported that argument with economic pressure. By their action they have given the South an excellent opportunity to settle one facet of a broad problem by negotiation and good will instead of court order.”Footnote ¹⁷² The report recognized that the protests targeted not only the white South, but also the judicial route to reform, adding that it was in the interest of both the students and Southern whites to avoid “a new rash of time and money-consuming law suits.”Footnote ¹⁷³ If law enforcement remained neutral in the confrontation, everyone could stay out of the courts, and the controversy could be resolved “through mediation and opinion leadership.”Footnote ¹⁷⁴ Such a resolution, working through “economic pressures and civic sense of responsibility,” “would quite likely be a better settlement than one hammered out through litigation in already over-burdened courts.”Footnote ¹⁷⁵ On the other hand, “Southern white citizens will have only themselves to blame if they are faced with a new rash of time and money consuming law suits.”Footnote ¹⁷⁶

A central goal of the SRC was to keep the issue from being dominated by the NAACP. “Almost from the beginning the sit-ins have been referred to as a ‘movement,’” noted SRC leader Leslie Dunbar. “No one ever speaks of the ‘school desegregation movement.’”Footnote ¹⁷⁷ The sit-in movement, he noted, “has led a number of voices to proclaim that Negroes are shifting their main hopes from the courtroom to direct action, and that henceforth undaunted youths and not graying lawyers will lead.”Footnote ¹⁷⁸ By aligning itself with the students and against litigation as a tool of reform, the SRC, like other civil rights proponents who were also competing with the NAACP for attention and resources, sought to retain a place of relevance in the rapidly changing world of the Civil Rights Movement.

Furthermore, the relative inattention of the NAACP's national office to lunch counters and other public accommodations prior to the sit-ins served to largely immunize the students against accusations that opponents always trotted out in an effort to discredit civil rights protests in the South: that local activists were just puppets of “outside” operators, professional agitators regularly assumed to be linked to the Communist Party. This was a standard line of attack by the white South against the NAACP after Brown. And it was occasionally voiced in response to the sit-ins. For example, when ex-President Harry S. Truman denounced the sit-ins, he questioned whether they were being coordinated by Communists.Footnote ¹⁷⁹ Segregationist die-hards predictably made similar remarks, attempting to link the movement to national civil rights organizations (CORE being a popular target), to Communists, or to unidentified “left-wing” organizers.Footnote ¹⁸⁰ However, these attacks struck only glancing blows on the sit-in movement. The students regularly emphasized the decentralized nature of their movement. The sit-ins “are not part of a plan and were undertaken independently,” one student leader explained early in the early weeks of the movement. “We did not consult with groups or individuals at the other schools. There is no organization behind us.” (A New York Times story noted that this same student leader had recently testified before the House Committee on Un-American Activities about his work refuting Communist “anti-American propaganda.”)Footnote ¹⁸¹ NAACP Executive Director Roy Wilkins played up the independence of the students in an attempt to protect them from accusations that they might be under Communist influence. “Remember, these students want to run their own show; they don't want any advice from Moscow,” he explained.Footnote ¹⁸² The NAACP also worked to keep Communists away from the sit-ins. A memorandum from the national office to NAACP local branches warned: “Other elements, including Communists and related groups, undoubtedly will try to ‘muscle in.’… Every reasonable and firm effort should be used to prevent such an intrusion.”Footnote ¹⁸³ The mainstream press largely portrayed the sit-ins as a grassroots, locally produced, student-led event.Footnote ¹⁸⁴ Looking back on the protest movement, New York Times reporter Anthony Lewis explained, “These brave students ended … the possibility of anyone taking seriously the South's traditional claim that its Negroes were contented—outside agitators were causing all the trouble.”Footnote ¹⁸⁵

In this way, the students' skeptical attitude toward the courts and litigation created a public image of their movement that helped attract potential allies around the nation.

C. Dividing the Opposition

An important recent trend in Civil Rights Movement scholarship has been to replace portrayals of the Movement's opponents as a monolithic, united front with historical accounts that capture the considerable divergences and antagonisms among those who defended Jim Crow. Today, we have an understanding of the opponents of civil rights that is more nuanced and more attentive to the divisions within their ranks.Footnote ¹⁸⁶ The history of the sit-ins offers a particularly sharp example of the divided nature of Jim Crow's defenders. In this case, a key point of division was the same issue that brought the students and the NAACP into conflict: the role of the courts in dealing with the sit-in protests. Whether they defended segregation directly or indirectly as reflecting the choices of their constituents or customers, the protests threatened the interests of businesspeople and politicians alike. Their common goal was to defuse the situation. But here they, like the students and lawyers, arrived at quite different conclusions as to the best path. The owners generally sought to avoid or minimize reliance on the law, whereas Southern officials urged them to pursue legal remedies.

The Lunch Counter Operators. With local college students having transformed his beloved Greensboro Woolworth's into ground zero of the civil rights movement, the store manager, Clarence L. Harris, sat down to explain his situation in a seven-page handwritten letter to his state's governor. His first order of business was to make sure Governor Luther Hodges appreciated what kind of company he was a part of: “Never in all the years with this company have I heard a statement received or given an order of an act that was unethical.” He also pointed out the considerable role of the Woolworth's chain in North Carolina's economy and the valuable service the store provided by offering affordable, quality merchandise to the lower and middle class. With regard to the demands of the sit-ins, the dollars and cents simply did not add up, he insisted. Less than 5% of his sales were to African Americans. “To integrate our lunch dept. would mean the loss of white trade to gain very little colored trade.” At the same time, the current situation was unsustainable: the protests were bleeding away his profits. As to his position on the rightness or wrongness of segregation, Harris was coy with the segregationist governor. “From a moral point of view…we won't argue from that…. The only basis for our stand is that we will not breach the custom—when other restaurants serve we would …. Actually we are fighting a battle for the white people who still want to eat with white people and its costing us.”Footnote ¹⁸⁷

Harris' approach to the issue was broadly representative of how many lunch counter operators confronted the sit-ins. They were businesspeople first and foremost.Footnote ¹⁸⁸ They wanted to make a profit and viewed themselves as catering to their clients' preferences, not dictating them. They felt they were a target of opportunity in someone else's battle. As a contributor to a chain store industry newsletter described the situation, “Until a higher judgment is reached, variety chain stores may continue to be helpless hostages of a conflict they did not create and are powerless to avert.”Footnote ¹⁸⁹

The lunch counter operators' general resistance to calling upon the law to deal with the sit-ins reflected their effort to maintain this posture of perceived neutrality. After the students refused to leave his lunch counter, Harris went to the police to explore his options. The police told him that he could have them arrested for trespassing. This was not what he wanted; he just wanted them to leave.Footnote ¹⁹⁰ “They can just sit there,” he told reporters. “It's nothing to me.”Footnote ¹⁹¹ In his letter to the governor, Harris echoed the position that the governor and his attorney general had been energetically promoting regarding the state of the law. “As a legal issue,” he wrote, “a firm has the right to choose its customers and to choose what it sells to them, just the same manner the customer has the same privilege of choosing.” But, he added, he chose not to “embarrass” the students by having them arrested.Footnote ¹⁹² Harris was not necessarily opposed to any use of law enforcement to deal with the sit-ins. In his letter to the governor he indicated that he would welcome police action to deal with “mob” situations.Footnote ¹⁹³ But he was not willing to rely upon the formal processes of law if he had to take the initiative. He did not want to bear this kind of direct responsibility for propping up the fading edifice of Jim Crow. His attitude toward the role of the courts in dealing with the protest was not particularly ideological. Nor was it motivated by his assessment of the legal options available to him, because he believed that the law was on his side if he chose to call upon it. Rather, his position was pragmatic and economic, with, perhaps, a touch of humanity.

Harris was not alone in his hesitancy to call the law in to deal with the sit-in protests. Although many students were arrested, prosecuted, and often fined or sentenced to jail, the overwhelming majority of those who participated in the sit-ins were not. Students were refused service, lunch counters were shut down, but the role of the police, more often than not, was to observe and wait for something to happen that would require them to intervene. During the first wave of the Greensboro protest, for example, no students were arrested. Most proprietors, in Greensboro and elsewhere, simply wanted the protests to go away. They wanted to make money, and the sit-ins were preventing them from doing that. Sending potential paying customers off to jail was not good business, a point that the business owners regularly made when asked why they were unwilling to call the police and have the protesters charged with trespassing on private property.Footnote ¹⁹⁴ Many assumed (or hoped) that the sit-ins were nothing more than a college prank (“of the ‘panty-raid’ variety”) that would soon blow over.Footnote ¹⁹⁵ When faced with a group of protesters who refused to leave, the most common response by restaurant operators was to shut down their lunch counters. In some instances, the operators tried more creative tactics, such as converting lunch counters to sales counters and removing all the stools from the lunch counters.Footnote ¹⁹⁶

When student protesters were arrested, they were generally not charged with violating segregation laws. Although some states and localities had laws requiring segregation in restaurants, most had no such laws.Footnote ¹⁹⁷ The city council in Montgomery, Alabama, for example, responded to the outbreak of sit-ins by repealing its restaurant segregation ordinance and strengthening its disorderly conduct ordinance.Footnote ¹⁹⁸ Where segregation laws remained on the books, they were rarely used as the basis for prosecuting lunch counter protesters.Footnote ¹⁹⁹ After Brown and the per curiam rulings that followed, such laws were unquestionably unconstitutional, and any convictions based on them would be summarily overturned on appeal. The students' request for service, in itself, did not break any official policy that the state was willing to enforce. And as these states did not have antidiscrimination statutes, restaurant operators who refused to serve black patrons were also not breaking any state law. Therefore, at that critical moment when the students took their seats at the lunch counter and asked to be served, the students' actions were neither prohibited nor protected as a matter of official, positive law. Engagement of the state legal apparatus required private initiative. In most situations, as long as the situation remained orderly, the police would wait for the restaurant operator to request their help. Only then would they arrest any demonstrators, typically on charges of disorderly conduct, disturbing the peace, or trespass.

During the first week of protests, as the movement spread across several North Carolina cities, police kept a close eye on the demonstrations, but, as the Associated Press reported, “there was no violence or incidents that required their attention.”Footnote ²⁰⁰ “We will answer requests for service [from restaurant owners] as they come in,” explained a Raleigh, North Carolina, police chief. “But we have no part of this unless there is a violation of the law.”Footnote ²⁰¹ Private business owners were to bear the responsibility for calling upon power of the state to maintain Jim Crow. This was a burden that, by the spring of 1960, many, perhaps most, lunch counter operators, regardless of their personal beliefs on segregation, were not enthusiastic to shoulder.

Southern Officials. North Carolina Governor Luther Hodges sought to distinguish his position on civil rights from the more defiant defenses of Jim Crow embraced by many white Southern officials. Alabama Governor Eugene Patterson, for example, publicly demanded the expulsion of all protesters from Alabama State College, and then led a purge of the school's faculty.Footnote ²⁰² Birmingham Police Commissioner Bull Connor declared that he would treat any sit-in as a “breach of the peace” and that his department would “not permit organized, planned and deliberate efforts to foment violence and interfere with the rights of others.”Footnote ²⁰³ Georgia Governor Ernest Vandiver attacked the “mass violations of State law and private property rights” as “subversive in nature.” When Atlanta students tried to integrate the cafeteria in the state capitol building, he personally ordered them arrested.Footnote ²⁰⁴ Louisiana Governor Earl K. Long denounced the protests as the work of “some radical outfit” and suggested that if the demonstrators “want to do any real good they should return to their native Africa.”Footnote ²⁰⁵ The North Carolina governor avoided these kinds of aggressively prosegregationist statements.

This is not to say that Hodges was an integrationist. His private correspondences made his sympathies clear. The sit-ins were “‘gang’ demonstration[s]” that “would do no one any good and would in fact harm those involved and as well as the community itself.”Footnote ²⁰⁶ But in public Hodges sought to chart a more considered, moderate approach to defending his state's racial practices than the hardline approach of many other Southern governors.Footnote ²⁰⁷ When the sit-ins arrived, he was careful to avoid any public statements supporting segregation in privately operated facilities. His position was to remain officially agnostic on the matter of lunch counter segregation, but to give a full-throated defense of the need to protect against lawlessness and disorder. However orderly the sit-ins might appear, he explained in his first statement on the protests, they could, at any moment, “degenerate into a serious threat both to bi-racial good will and public order.” He also accused civil rights activists of hypocrisy: “It is both illogical and dangerous for those who insist on meticulous obedience to the law as the courts interpret it, where segregation is banned, to resort themselves to unlawful measures calculated to speed up acceptance of the philosophy of racial integration.” This was not a question of free speech because this right did not extend to “trespass on private property.”Footnote ²⁰⁸ As he explained in a correspondence with the Woolworth's president: “Irrespective of either the legal or moral pronouncements which might be presented in support of one view or another … [d]isorder in connection with lunch counter demonstrations should stop—now.”Footnote ²⁰⁹

Absent violent confrontation, however, which was something protesters sought to avoid, the state had limited power to do anything about the protests. Hodges, therefore, was in something of a bind. He needed private businesspeople to make the first move, but they were generally unwilling to do so. Hodges felt that their refusal to take a strong stand against the protests only heightened the explosive nature of the situation. To allow a “jostling crowd to congregate, and then to close the facility or the store just before the situation physically explodes, and then to reopen the facility again in a few days and go through the same routine,” he warned the Woolworth's president, was a recipe for chaos.Footnote ²¹⁰ The best way to head off potential disorder, Hodges insisted, was through private initiative on the part of the targeted businesses. “It is my belief that if your company and the other companies involved continue to follow the course you have up to now, the situation will worsen,” he wrote to the Woolworth's regional manager.Footnote ²¹¹ Call in the police, Hodges urged in letters and phone calls with the lunch counter operators. “[S]tand on your legal rights to operate as you choose.”Footnote ²¹² To resolve the situation, the owners must “confront this problem directly, frankly and courageously.”Footnote ²¹³ They must be clear in their policy and call upon the law to enforce that policy. “[W]e do have laws in North Carolina to enable the private owner to handle such situations,” he told C.L. Harris.Footnote ²¹⁴ As Hodges' administrative assistant explained to one constituent, “It is the Governor's view that if the Negro citizens have a legal right to integrated service at lunch counters, the issue should be resolved in the courts.”Footnote ²¹⁵

In his communications with various chain store managers, Hodges even went so far as to offer a draft statement that the lunch counter chains could release to clarify their positions. It read in part:

The draft statement included an assertion that, absent “an authoritative declaration of law [to the] contrary,” the owners “have the legal right, as a private business, to elect to operate lunch counter facilities on a racially integrated basis or a racially segregated basis.”Footnote ²¹⁷

Hodges' position was not fully representative of how Southern officials approached the protests, however. In South Carolina, Alabama, and elsewhere in the Deep South, the first wave of sit-ins brought a quicker and often more violent response by local whites, and this created the opening for a state-initiated crackdown on the protests. For some state officials, just the threat of disorder was enough to arrest protesters.Footnote ²¹⁸

Florida Governor Leroy Collins took an approach that distinguished him from both Hodges and the hardliners of the Deep South. Collins, hardly a consistent supporter of desegregation and a sharp critic of the students' tactics, made national news when he openly expressed his support for the cause driving the sit-ins.Footnote ²¹⁹ “[W]e've got the moral rights and we've got the principles of brotherhood that are involved in these issues,” he declared in a televised address on March 20, 1960. The practice of excluding blacks from lunch counters, while inviting them to all other sections of department stores, was “unfair and morally wrong.” Collins broke with Hodges in his attitude toward the advisability of judicial remedies to the issue. Although “a merchant has the legal right to select the patrons he serves,” he argued, “we are foolish if we just think about resolving this thing on a legal basis.”Footnote ²²⁰ Local officials in the upper South often echoed Collins' effort to chart a more conciliatory approach, searching for ways to diffuse the issue while minimizing legal action against the students. This was the path the Greensboro mayor chose to follow, for example. When his city appeared on the verge of major racial confrontation following a bomb scare that closed downtown lunch counters, he issued a statement calling on “the leadership of the Negro students and the business concerns involved to place the public interest above personal considerations, even to the extent of foregoing, for a while, individual rights and financial interest, if by doing so a peaceful solution can be evolved.”Footnote ²²¹

A similar desire for dealing with the issue without resort to direct involvement of the law could be found among some moderate Southern newspaper editors. Even though the editors of the Winston-Salem Sentinel believed that a proprietor “has the legal right to serve or refuse any customer,” they felt that “arrests for trespass are not the answer to the lunch counter protest.” The best solution, the paper concluded, was for the lunch counters to voluntarily desegregate.Footnote ²²² Or, as the Greensboro Daily News put it, “The spirit of the law is more important than the letter.”Footnote ²²³ The introduction of the law, in the form of police and criminal prosecutions, would undermine efforts of Southern localities to control the course of change. As the Raleigh News & Observer explained following the first arrest of the sit-in movement: “It was possible until the arrests of yesterday that the Negro protests might have petered out. It was still possible that some patchwork of compromise of limited painfulness might have been arranged. A few cups of coffee might have settled this matter in North Carolina. The price may be much greater in terms of Southern customs and Southern lawyers in the United States Supreme Court toward which this case is now clearly headed.”Footnote ²²⁴

For Southern moderates, the fall of Jim Crow, a social transformation they recognized as inevitable, would be less traumatic, less controversial, and would entail less federal involvement (and other forms of “outside interference”) if it were accomplished by private initiative, rather than legal mandates. It is important to note that the moderate's critique of litigation was not necessarily an acceptance of integration. Moderates intended their alternatives to defiant segregationism to be a way for whites in power to maintain more control over the process of reform, and thereby to limit the overall scope of change. As Tomiko Brown-Nagin has written in the context of Atlanta, “the rhetoric and reality of racial moderation” could be used “as a device to demobilize and moderate the civil rights movement.”Footnote ²²⁵ It was this kind of moderate concession that the NAACP national branch lawyers warned of when they insisted that a constitutional victory in the courts was only way to ensure real change. And it was this kind of moderate effort to defuse the rising tensions of the protest movement that King famously warned of in his “Letter from a Birmingham Jail.”Footnote ²²⁶

Governor Hodges disagreed. From his perspective, the use of law enforcement and the courts was the best way to achieve his desired ends: to maintain order in North Carolina's communities, while also propping up segregationist racial practices he believed that a majority of his constituents wanted. Segregationists were accustomed to relying on state courts to serve their interests, to protect property rights, and to protect social order. After Brown and subsequent decisions extending its reasoning to all government operated facilities, segregationists saw their last best hope in barricading themselves behind the public–private divide.Footnote ²²⁷ They started private all-white “segregation academies” and they shut down municipal swimming pools and golf courses. When the sit-ins arrived, they insisted that public accommodations were nothing like public schools, pools, and golf courses, because they were privately operated. If this defense of segregation in public accommodations were to fail, whether by “an authoritative declaration of law” declaring such practices unconstitutional, or by statute, or by the voluntary adoption of new business practices, there was, in Hodges' view, clearly a right and a wrong way of going about it. The sit-ins were the wrong way. As the students were not listening to his calls to stop their protests, he had to rely on the lunch counter operators to defend their private property rights by calling upon the law. But, to the North Carolina governor's frustration, the lunch counter operators refused to do what he wanted them to do.

When it came to views on the role of the courts, the sit-ins therefore led to some strange bedfellows. Ironically, racist Southern officials and LDF lawyers were in agreement that their interests were best served if they could steer the confrontation into a formal legal arena. What they hoped to get out of the courts was another matter, however. White Southern leaders saw legal prosecution and punishment as the best way to demonstrate the authority of the existing power structure and suppress the uprising in their midst. LDF lawyers saw courtroom fights over the meaning of the Constitution as a battleground where they had won before and where they could win again. In contrast, student protesters and many lunch counter operators agreed that their own deeply opposed interests were best served by keeping the issue away from the courts. The students were concerned with losing control of their protest movement and skeptical of the potential for translating courtroom victories into on-the-ground social change. The business operators were primarily concerned about the public relations costs of sending students off to jail. These convergences and divisions over the courts helped shape the course of the sit-in movement. The students and the civil rights lawyers had their tensions, but they were able to settle into their uneasy but functional alliance. The divisions among their opponents proved more consequential, however.

There was nothing approaching a unified Southern white position on the sit-ins. The white South was divided not only over how high a price they were willing to pay to preserve segregation, but also over whether legal prosecution of the protesters was worth the costs involved. The students were the ultimate beneficiaries of these divisions.Footnote ²²⁸ An editorial in a Shaw University student publication found some wry humor in the situation: “This new show of spirit on the Negroes' part is not being met with total resistance but with dissention among their enemies and with loyalty and aid from here-to-fore unknown supporters. If the white man needs proof that he is disunified he needs only to look at the list of people backing the student protesters. For this disunity we thank him.”Footnote ²²⁹