Published by HUFFINGTON POST
WASHINGTON ― In a brief defending its ban on citizens from six Muslim-majority countries, President Donald Trump’s Justice Department approvingly cited a segregation-era Supreme Court decision that allowed Jackson, Mississippi, to close public pools rather than integrate them.
In the early 1960s, courts ordered Jackson to desegregate its public parks, which included five swimming pools. Instead, the city decided to close the pools. Black residents of Jackson sued. But in 1971, the Supreme Court, in a 5-4 decision, decided that closing the pools rather than integrating them was just fine.
The dissents, even at the time, were furious. “May a State in order to avoid integration of the races abolish all of its public schools?” Justice William O. Douglas asked in his dissent.
“I had thought official policies forbidding or discouraging joint use of public facilities by Negroes and whites were at war with the Equal Protection Clause” of the Fourteenth Amendment, Justice Byron White wrote in another dissent. “Our cases make it unquestionably clear, as all of us agree, that a city or State may not enforce such a policy by maintaining officially separate facilities for the two races. It is also my view, but apparently not that of the majority, that a State may not have an official stance against desegregating public facilities and implement it by closing those facilities in response to a desegregation order.”
The ruling in Palmer v. Thompson didn’t explicitly uphold segregation. But it did call for courts to avoid investigating the constitutionality of officials’ motivations.
“It is difficult or impossible for any court to determine the ‘sole’ or ‘dominant’ motivation behind the choices of a group of legislators,” the majority opinion said. “Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters.”
The Trump administration emphasizes this in its citation of the case, arguing that looking into “governmental purpose outside the operative terms of governmental action and official pronouncements” is “fraught with practical ‘pitfalls’ and ‘hazards’ that would make courts’ task ‘extremely difficult.’”
But in some cases, such as the closure of the Jackson pools, officials’ motivations are clear, said Paul Brest, the director of Stanford University’s Law and Policy Lab.
“When it is absolutely clear that an official acted for unconstitutional purposes … [the courts] should be willing to strike down that decision because, even though the decision might have been reached legitimately, a public official violates the constitution when he or she acts for unconstitutional reasons,” Brest said. “It’s as simple as that. … Race discrimination is the best example of where courts are quite willing to take people’s motivations into account — or religious discrimination.”
Palmer is one of the worst Supreme Court decisions ever handed down in regards to race, said Michele Goodwin, the chancellor’s professor of law at the University of California, Irvine.
“Citing Palmer is like citing Buck v. Bell for a premise of equal protection,” Goodwin says. (Buck v. Bell legalized eugenics.) She added that a case like Palmer also doesn’t hold up over time.
“[Palmer] doesn’t represent our view of how law, how people, how society [and] how equality has evolved in the United States,” she said. “To cite a case that, in and of itself, coheres ideas about inequality and explicit racism in spaces where racism could mean the end of someone’s life, then one would really have to question why a president would cite such a case — given how much it’s been refuted.”
John Paul Schnapper-Casteras, a special counsel at the NAACP Legal Defense Fund, wrote in a Sunday blog post that it’s “stunning” to see the Department of Justice approvingly cite a case that “at best allowed pretextual measures for avoiding racial integration ― and, more realistically, facilitated segregation by turning a blind eye to what was clearly going on in the City of Jackson.”
Justice Department lawyers know exactly what they’re doing ― citing different doctrines in an attempt to thwart any reason to examine what Trump on the campaign trail “said, very unambiguously, was to ban Muslims from coming into the country,” he told HuffPost.
“This is less about national security and more about them trying to find any way to insulate the motivation behind this order. Sometimes they invoke national security cases,” Schnapper-Casteras said. “In this case, they invoked a case about segregation.”
A Justice Department spokesman declined to comment.
But there’s a clear reason why the Trump administration doesn’t want the courts to consider potential motivations for Trump’s revised travel ban: The idea that the president’s intent was to discriminate against Muslims has come up in prior rulings against his executive order. As a candidate, Trump called for a “complete shutdown” of Muslims entering the U.S. and has spoken disparagingly of refugees. He and the White House say the travel executive orders are not the same as a Muslim ban, but opponents say his past statements show they likely had the same motivation.
The executive order blocks certain foreign nationals of six Muslim-majority nations ― Iran, Libya, Somalia, Sudan, Syria and Yemen ― from the U.S. for 90 days. (An earlier executive order had included Iraq.) It also bans all refugees for 120 days and cuts total refugee resettlement numbers for the year by more than half of the previous cap. The order was blocked in the courts before implementation.
Pools have a history as a racial flashpoint. In the 1960s, “so unacceptable through almost all of the South was the idea of blacks and whites swimming together that even the Gulf of Mexico was off-limits to blacks in some areas,” The New York Times reported in 2006.
White racial anxiety about swimming was common in the North, too. “Water fueled white racism,” Marta Gutman, a professor at the City College of New York, wrote in a 2008 paper.
“The practice of bathing had expanded to include swimming for exercise, but water retained the longstanding symbolic link with purity,” Gutman wrote. “Swimming pools became places where those seen as impure or polluted would be excluded (even though water had to be sanitized in order to be pure). When pressed to integrate, white operators protested pools would have to be emptied, scrubbed clean and reﬁlled with fresh water after black children swam in them.”
Airplanes were segregated, too.
Elise Foley and Ryan Reilly contributed reporting.