Looking Further Than the Skin:
A History of Wisconsin Civil Rights Law
Biography:
Lloyd Barbee
Biography:
John Doar
Even though Wisconsin has always had a much lower percentage of black citizens than the national average, race relations have played a critical role in shaping the state's self-image throughout its history.1 Wisconsin's image of itself as a racially progressive state has not always matched the reality. Wisconsin was one of the first states to establish black suffrage, but this was accomplished only through a supreme court decision after suffrage had been defeated repeatedly at the polls. Prior to World War II Wisconsin enacted several antidiscrimination statutes, but enforcement of these laws was weak and de facto segregation was common. The dramatic growth of Milwaukee's black population after World War II led to a debate over whether and how to integrate the city's neighborhoods and its school system. That debate has been played out largely in the Legislature and the courts, and it is far from over.
Civil rights law to 1960: Working toward de jure equality
The struggle for black suffrage. At the time of statehood, most Wisconsinites detested slavery, but they also felt that blacks were inferior to whites and they had no desire to integrate. These attitudes shaped the debate over black suffrage in the constitutional conventions of 1846 and 1847-48.
The suffrage committee of the 1846 convention proposed an article granting suffrage to "white citizens of the United States," foreign residents who intended to become citizens and certain Indians. A few idealists urged that the word "white" be deleted. Charles Burchard of Waukesha argued eloquently that "We live in an age of progressive democracy. ... This spirit is opening a grand law of humanity ... that looks further than the skin to say who shall have rights." But it soon became clear that a majority of delegates opposed enshrining black suffrage in the constitution. The convention ultimately agreed to submit to the voters a separate article allowing black suffrage. The 1846 constitution was voted down for various reasons unrelated to suffrage; but the suffrage article also was defeated decisively, with only 34 percent voting for black suffrage.2
The 1847-48 constitutional convention resolved the suffrage issue by agreeing that the Legislature could allow black suffrage at any time, provided that the law was "submitted to the vote of the people at a general election, and approved by a majority of all the votes cast at such election." The compromise appealed to the delegates because a vote for it could be defended back home as a vote for popular sovereignty rather than black equality or abolitionism.3
The first state Legislature promptly passed a black suffrage law and authorized a referendum, which took place in 1849. The law was approved by a vote of 5,265 to 4,075. However, less than half of all voters casting ballots at the election voted on the suffrage issue; therefore, it was universally understood that the law had failed. The Legislature passed new suffrage laws in 1857 and again in 1865. The voters rejected both laws, although the pro-suffrage vote increased to 41 percent in 1857 and 46 percent in 1865.4
At this point, fate intervened in the form of Ezekiel Gillespie. Gillespie, one of the leaders of Milwaukee's black community, tried to register to vote in the 1865 election. He did so partly in order to publicize the suffrage issue and partly at the suggestion of his attorney, Byron Paine, in order to test the effect of the 1849 referendum.
After Gillespie was rebuffed, Paine brought a suit on his behalf which quickly made its way to the supreme court. Paine pleaded that black suffrage was an essential component of the ideals of freedom and democracy for which the Civil War had been fought. More practically, he argued that the constitutional requirement that suffrage be approved by a majority of votes "cast at such election" meant only a majority of votes on the suffrage issue, not of all votes cast on any issue at the same election. To almost everyone's surprise, in Gillespie v. Palmer (1866) the supreme court accepted Paine's argument and ruled that because suffrage had received a majority in 1849, blacks had been entitled to vote in Wisconsin since that time.5
Early civil rights laws. The pattern of weak racial liberalism which Wisconsin established between 1846 and 1866 continued for the next century. Wisconsin never countenanced de jure discrimination, but de facto segregation and discrimination were common.
In 1889 the Bijou Theater in Milwaukee refused to admit one black patron and refused to seat another with whites. William T. Green, Milwaukee's first black lawyer, and some white supporters brought suit on their behalf and launched a movement in the Legislature and in the courts to prevent such incidents in the future. In 1890 Circuit Judge D.H. Johnson of Milwaukee held that the Bijou's owner was liable for damages and that blacks were entitled to be admitted to all public places of amusement. In 1895 the Legislature passed a civil rights act stating that all persons were entitled to equal enjoyment of hotels, restaurants, bars, places of amusement and public transportation. Price discrimination based on race also was prohibited. Violations of the law were punishable by a small fine and up to six months in jail. It is not clear whether the law was ever actively enforced.6
Civil rights progress in Wisconsin from 1895 to the early 1960s was slow and sporadic. In 1915 the NAACP established a chapter in Milwaukee, where most black Wisconsinites lived, and the Urban League followed suit in 1919. Both organizations fought de jure and de facto discrimination. The Urban League helped black workers file numerous complaints about discriminatory workplace conditions in the 1920s and had some success in improving conditions.7
Some progress was made through the Legislature. A series of antimiscegenation bills were introduced in the Legislature between 1901 and 1913, but all were defeated. In 1931 the Legislature expanded the 1895 civil rights law to prohibit discrimination in the sale of auto insurance. In 1945 it enacted a state fair employment law, which was modeled on the federal government's antidiscrimination regulations for industry during World War II. The law broadly prohibited racial discrimination in the hiring, promotion and firing of workers. It allowed the Industrial Commission to investigate discrimination complaints and issue remedial orders after a hearing. However, the Legislature did not give the commission power to enforce its orders.8 As a result, the fair employment law did not dramatically improve life for black workers. The problem was compounded when the supreme court ruled in Ross v. Ebert (1957) that discrimination victims did not have a private right of action under the law. However, the Legislature quickly responded by creating a private right of action.9
A much more serious problem, housing segregation, remained untouched. Racially restrictive covenants were commonplace throughout the state; they were pervasive in Milwaukee, and they played an important part in creating the city's black "Inner Core." An effort to pass a bill in the 1935 Legislature prohibiting racial covenants failed. The Legislature did not enact legislation prohibiting enforcement of racial covenants until 1951, three years after the U.S. Supreme Court had declared them unconstitutional, and the new law had no discernible effect on housing segregation. Even some members of the black community were ambivalent about housing integration: they worried that dispersing from the Inner Core into predominantly white areas would dissipate what political power they had and would make it difficult for them to preserve a sense of racial identity and pride.10
Civil rights law since 1960: Grappling with de facto equality
The "Great Migration" of southern blacks to the northern industrial states that began during World War I finally spread to Wisconsin in the 1940s. During the 1950s and 1960s, the rapid growth of Milwaukee's black community and the simultaneous rise of a national civil rights movement forced white Wisconsinites to address for the first time the need to achieve de facto as well as de jure racial equality.
School and housing desegregation, 1963-1976. The modern era of Wisconsin civil rights law began in 1963 when Lloyd Barbee, a Milwaukee lawyer, became the head of the Milwaukee NAACP. For many years, the
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Citizens protesting to stop school segregation
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The NAACP and its supporters soon concluded that they had a better chance of achieving integration through the courts than through boycotts. In July 1965 Barbee filed suit in federal court in Milwaukee, arguing that MPS policies violated the equal protection rights of black students. The next eight years were spent preparing for trial and monitoring the course the U.S. Supreme Court was carving out in school desegregation cases from around the United States.
In the meantime, the Milwaukee NAACP mounted challenges to segregation in other areas. In particular, it lobbied hard for open housing laws. This effort was hampered by an ongoing dispute between Milwaukee and state officials over who was responsible for open housing, and by deep-seated reluctance at both levels to interfere in any way with people's choice of living arrangements. Efforts to pass an open housing ordinance in Milwaukee began in 1962, but they consistently met with failure.12 In 1965 the Legislature passed an open housing law that gave the Industrial Commission the power to investigate housing discrimination complaints and issue corrective orders. However, the law exempted more housing than it covered: it did not apply to single-family homes or apartment buildings of four units or less. The exemptions were not eliminated until 1971, and discrimination victims were not given a private right of action under the law until 1979.13
Milwaukee avoided the riots that plagued many other northern cities in 1965 and 1966, but its luck ran out in 1967. Marches for open housing were greeted with violence and hostility outside the Inner Core, and a severe riot occurred in July. These events caused city officials to take open housing demands more seriously than in the past. However, the reluctance to do anything that might affect housing patterns continued and made a bad problem worse. In the fall of 1967 the city council adopted a resolution calling for no action on open housing for at least two years and decided to hold a referendum on the resolution.
The Milwaukee chapter of the ACLU challenged the measure, and in Otey v. Common Council of City of Milwaukee (1968) federal judge Robert Tehan enjoined the referendum. Tehan concluded that "race is a factor of almost transcendent significance" in determining Milwaukee housing patterns and that the resolution, if approved, would not only prevent change but also "would give statutory sanction to those who wish to discriminate without interference." In April 1968, shortly after Martin Luther King's assassination, the city council unexpectedly passed a fairly strong open housing ordinance. It does not appear that the ordinance helped desegregate Milwaukee to any significant extent, but if nothing else it signified at least a partial change of attitude on the part of city government toward integration.14
The school desegregation decision and its aftermath. The Milwaukee school desegregation lawsuit finally went to trial in late 1973 before Judge John Reynolds. MPS's central arguments were that it did not deliberately separate black and white students; that it believed black students would be helped more by compensatory education programs than by busing or other direct integration measures; and that if desegregation measures were adopted, the migration of middle- and upper-class students to the suburbs which had begun in the 1950s would accelerate, thereby harming MPS further. Barbee argued that the board's adherence to the neighborhood school policy and its refusal to adopt direct integration measures amounted to affirmative promotion of segregation, and required intervention by the court.
The standards under which Judge Reynolds was supposed to judge MPS's practices were not entirely clear. In a series of decisions in the late 1960s and early 1970s, the U.S. Supreme Court indicated that "open transfer" plans like the one MPS had adopted in 1963 would not be considered an acceptable means of remediating desegregation unless they actually worked. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the Court sanctioned mandatory busing of children as an acceptable means of achieving integration.15 But the Court also indicated in Keyes v. School District No. 1 (1973) that lower courts had no power to implement desegregation plans unless the school board had intentionally or systematically fostered segregation. School boards were to be held liable only for the segregation that their own policies had caused; schools were not to be used as a tool to combat housing segregation.16
In Amos v. Board of School Directors of City of Milwaukee (1976), Judge Reynolds made his decision. In a lengthy opinion, he reviewed the history of segregation in Milwaukee and painted a picture of a school system in crisis. Reynolds noted that Inner Core schools did not receive their fair share of new facilities and equipment and that black students lagged badly behind white students in virtually every measure of student achievement. Reynolds was particularly critical of the board's failure to modify the neighborhood school policy in the face of increasing de facto segregation, and he was bothered by the fact that "out of all the decisions made by school authorities under varying conditions over a twenty-year period, [there was] almost no decision that resulted in the furthering of integration."17
Reynolds was not entirely unsympathetic to MPS. He made a point of stating that MPS had never been motivated by a desire to hurt black students, but that it did what it believed was best calculated to give all students a good education. Nevertheless, he found that the board had acted "with the full knowledge that racial segregation existed in the system's schools and would continue to exist unless certain policies were changed, particularly that of neighborhood schools." Relying heavily on Swann and Keyes, Reynolds concluded these facts proved that MPS was unconstitutionally segregated and that remedial action was necessary. He then appointed a special master to work with the attorneys in the case to create a remedial plan for his consideration.18
MPS promptly consulted with the NAACP and developed a temporary desegregation plan. The plan called for busing in order to achieve integration; it also proposed a voluntary exchange program between suburban and MPS schools. To help make the exchange attractive to students and their parents, the Legislature was asked to provide money for specialty schools within MPS to attract suburban students and for special aids that the suburban schools could use to help MPS students adjust to the suburban environment. In April 1976 the Legislature approved this proposal and passed enabling legislation, which became known as the "Chapter 220" program.19
MPS also appealed Reynolds' decision. The decision was affirmed by the Seventh Circuit, but in 1977 the U.S. Supreme Court reversed. In a brief opinion, the Court directed Reynolds to reconsider his findings in light of two of its recent decisions, one of which required a finding of more specific discriminatory intent in desegregation cases than previously and one of which held that desegregation remedies need only address any increase in segregation caused by the board's activities.20
Reynolds conducted new hearings, and in Armstrong v. O'Connell (1978) he issued a new decision reaffirming his first opinion. Reynolds commented sharply: "One may wonder if the Supreme Court in fact is intending to terminate, sub silentio, this chapter of our nation's history involving the desegregation of northern schools by imposing an insurmountable burden of proof upon the plaintiffs in such cases." He held that because the MPS board knew that its actions were fostering segregation and it rejected proposals that would have reduced segregation, segregative intent was adequately established under the rules laid down by the Supreme Court. Reynolds directed the parties to continue working on a desegregation plan.21 Ultimately, MPS and the NAACP proposed that the 1976 integration plan be continued, and set a goal of having 75 percent of MPS students in racially balanced schools. Reynolds agreed, and provided in his order that court supervision of desegregation would terminate in 1984.22
The 1976 plan worked well at first: the level of integration in MPS increased measurably in the late 1970s and early 1980s. However, white families continued to migrate steadily to the Milwaukee suburbs during this period, and by 1984 more than half the students in MPS were black. MPS officials became convinced that integration could only be preserved if the suburbs actively encouraged blacks to reside and go to school there. In June 1984 MPS filed suit against the state and surrounding school districts in order to achieve this. MPS hoped that the case would provide cover for suburban school districts to pass politically unpopular desegregation plans.23 The case went to trial in April 1987 before federal judge Thomas Curran. Judge Curran strongly encouraged the parties to settle, and in August an agreement was reached under which suburban schools agreed to increase minority hiring in their schools and to give minority families advice on how to obtain suburban housing. The state agreed to establish a mortgage assistance program to help blacks who wished to move to the suburbs.24
The debate over parental choice: Back to the future? It was not enough. Studies in the late 1980s showed that the quality of education that most black students in MPS received and their levels of achievement continued to lag badly behind those of white students. There was a sharp rise in the number of racial conflicts in the schools, to the point where in 1990 several Milwaukee County juvenile court judges recommended that the courts work directly with MPS to ease racial tensions.25 Most serious, popular support for school integration dropped sharply. Many white and black Wisconsinites came to believe that the 1976 and 1987 settlements had failed and that new ways had to be found to educate black students even if it meant abandoning the ideal of integration.
In the mid-1980s several Inner Core political leaders, including State Rep. Annette "Polly" Williams, criticized the desegregation plans as "body shuffling" and argued that the best way to give black students a good education was to create a separate school district encompassing the Inner Core. In 1989 Williams proposed a parental choice program, which the Legislature passed after rancorous debate. The parental choice program allowed up to 1,000 MPS students to attend nonsectarian private schools of their choice. Money would be set aside from the MPS budget to pay their expenses up to $2,500 per year.26 The bill's opponents argued that it struck a blow against the ideal that had guided Wisconsin's support for public schools since statehood, namely, giving students from all different walks of life a chance to mix and to start with an equal opportunity to move ahead in life. Supporters replied that the schools simply were not achieving this ideal in late 20th-century Milwaukee.
 Joseph A. Ranney, Yale 1978, is a trial lawyer
with DeWitt Ross & Stevens S.C., Madison. He is the author of
several articles on legal and historical topics. |
The majority did not explicitly evaluate past efforts to integrate MPS, but it went out of its way to cite studies showing that smaller educational bureaucracies can allow better learning and it described the plan as "another illustration of Wisconsin's innovation and willingness to lead the nation in its attempts to further improve the quality of education and life."29 One member of the majority, Justice Louis Ceci, was less restrained. In his concurring opinion he repeatedly exhorted the public to "give choice a chance," bluntly stated that MPS was a failure and charged that the dissenters' defense of MPS was reflexive and unthinking.30
One of the dissenters, Justice William Bablitch, replied that it was "totally inappropriate and judicially indefensible for judges to base their decision on whether they agree with the policy or not."31 Chief Justice Nathan Heffernan, who also dissented, criticized the majority's "exhaustive attempt to portray the MPS as a complete failure." Heffernan and Bablitch both felt that the plan violated the constitutional prohibition against local legislation and the uniform school requirement.32 The third dissenter, Justice Shirley Abrahamson, went to what for many of the plan's opponents was the heart of the matter: whether the parental choice program threatened equality of educational opportunity. Abrahamson criticized the majority opinion because it "permit[ted] the Legislature to subvert the unifying, democratizing purpose of public education by using public funds to substitute private education without the concomitant controls exerted over public education."33
The 1976 and 1987 MPS settlements have continued to come under assault since the Davis case was decided. In December 1994 legislators began to consider for the first time the possibility of freezing Chapter 220 funding or abolishing the program altogether, and also the possibility of expanding the parental choice program.34 Nevertheless, the school integration movement is far from over. Justice Abrahamson noted in Davis that any future efforts to broaden the parental choice program may meet a different reception from the court than did the limited 1990 law, and some legislators have cautioned that if MPS and the state abandon efforts to integrate the Milwaukee schools, the federal courts may impose an integration plan upon them. The school choice debate and the legal history of civil rights in Wisconsin are by no means complete.
Photo: State Historical Society of Wisconsin
Endnotes
1 In 1850 there were 635 blacks in Wisconsin. The number rose to 2,444 in 1900; 5,201 in 1920; and 12,158 in 1940. After that time, the state's black population increased more rapidly: to 28,182 in 1950 (1 percent of the total population); 128,224 in 1970 (3 percent); and 244,539 in 1990 (5 percent). Fishel, Wisconsin and Negro Suffrage, 46 Wis. Mag. Hist. 180 (Spring 1963); State of Wisconsin, 1993-1994 Blue Book (Madison, 1993), 778.
2 Ranney, The Making of the Wisconsin Constitution, 65 Wis. Law. 14 (Sept. 1992); Madison Express, Oct. 27, 1846, Oct. 27, 1847, reprinted in M. Quaife, ed., The Convention of 1846 (Madison, 1918), 215, 243; Wis. Const. (1848), Art. III, § 4.
3 Ranney, The Making of the Wisconsin Constitution, 65 Wis. Law. 14 (Sept. 1992); Madison Express, Oct. 27, 1846 and Oct. 27, 1847, reprinted in M. Quaife, ed., The Convention of 1846 (Madison, 1918), 215, 243; Journal of the 1847-48 Convention, Jan. 3, 1848, reprinted in M. Quaife, ed., The Attainment of Statehood (Madison, 1928), 398-400; Wis. Const. (1848), Art. III, § 4. The 1849 vote was 7,664 for black suffrage and 14,615 against.
4 L. 1849, c. 137; L. 1857, c. 44; L. 1865, c. 414. The vote in 1857 was 28,235 for suffrage and 41,345 against. The vote in 1865 was 46,588 for suffrage and 55,591 against.
5 Fishel, Wisconsin and Negro Suffrage, 46 Wis. Mag. Hist. 185-96; Gillespie v. Palmer, 20 Wis. 572 (1866).
6 J.W. Trotter Jr., Black Milwaukee: The Making of an Industrial Proletariat, 1915-1945 (Urbana, Ill., 1985) (hereinafter Black Milwaukee), 25-26; L. 1895, c. 223.
7 Trotter, Black Milwaukee, 65-72.
8 Trotter, Black Milwaukee, 65-72, 116-24, 188-99; L. 1931, c. 21; L. 1945, c. 490.
9 Ross v. Ebert, 275 Wis. 523, 82 N.W.2d 315 (1957); L. 1957, c. 266.
10 Trotter, Black Milwaukee, 183-190, 198-200; L. 1951, c. 522; Shelley v. Kraemer, 334 U.S. 1 (1948).
11 Amos v. Bd. of School Directors of City of Milwaukee, 408 F. Supp. 765, 792-93 (E.D. Wis. 1976).
12 F.A. Aukofer, City with a Chance (Milwaukee, 1968), 105; Otey v. Common Council of City of Milwaukee, 281 F. Supp. at 264, 266, 270-71 (E.D. Wis. 1968).
13 L. 1965, c. 439; L. 1971, c. 230; L. 1979, c. 188.
14 Aukofer, City with a Chance, 113-44; Otey, 281 F. Supp. at 270-74.
15 Green v. County Bd. of New Kent County, 391 U.S. 430 (1968); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 29-30 (1971).
16 Keyes v. School Dist. No. 1, 413 U.S. 189, 198-99, 212-13 (1973).
20 Armstrong v. Brennan, 539 F.2d 625 (7th Cir. 1976), reversed 433 U.S. 672 (1977); on remand, 566 F.2d 1175 (7th Cir. 1977). The two cases to which the Supreme Court referred in its opinion were Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252 (1977) and Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977).
21 Armstrong v. O'Connell, 451 F. Supp. 817, 825, 866 (E.D. Wis. 1978).
22 Wisconsin Advisory Committee Report to U.S. Commission on Civil Rights, Impact of School Desegregation in Milwaukee Public Schools on Quality Education for Minorities ... 15 Years Later (Milwaukee, 1992) (hereinafter "Wisconsin Advisory Committee, Impact of School Desegregation"), 4. The 1979 plan defined a "racially balanced" school as one where 25-60 percent of the students were black.
23 Bd. of School Directors of the City of Milwaukee v. Thompson, Case No. 84-C-877 (E.D. Wis.); Milwaukee Journal, June 28, 1984.
24 Wisconsin Advisory Committee, Impact of School Desegregation, 5; Milwaukee Journal, Aug. 4, 1987.
25 Milwaukee Journal, May 22, 1990.
26 See Milwaukee Journal, Aug. 11, 1987; 1989 Act 336, § 228.
27 Davis v. Grover, 166 Wis. 2d 501, 480 N.W.2d 460 (1992).
28 Id. at 518-46, 480 N.W.2d at 462-77.
29 Id. at 513 n. 2, 480 N.W.2d at 462 n. 2.
30 Id. at 546-48, 480 N.W.2d at 477-78.
31 Id. at 566 n. 1, 480 N.W.2d 485 n. 1.
32 Id. at 549, 480 N.W.2d at 478.
33 Id. at 561-62, 480 N.W.2d at 483.
