Civil rights demonstrators sing during a protest at the Jefferson County Jail in Bessemer in 1967. Standing on the first step are Fred Shuttlesworth (left) and Asbury Howard (right).
IN THE ALABAMA Attorney General’s Office, Richmond Flowers took the news of another loss in Frank Johnson’s courtroom in stride. “I tried a world of lawsuits before Frank Johnson,” Flowers later recalled, “because we had a lot of civil rights suits. I lost them all. . . . You couldn’t defend what I was obligated by my position to defend.” When Governor George Wallace criticized the attorney general for not fighting hard enough, Flowers responded, “The fight’s over. We’ve lost the fight. Now we’ve got to live with the beast.”
For Flowers, an appeal of the Washington v. Lee decision would be “the beast” for the new attorney general, MacDonald “Mac” Gallion. Flowers returned to private law practice in Montgomery in January 1967 with hopes of running for governor again in 1970. Instead he found himself indicted, tried, convicted, disbarred, and imprisoned for a complicated stock issuance and sale in an insurance company and a scheme to extort funds from several companies through threats of investigations and closure suits. After sixteen months in jail, Flowers received a parole in 1973 and a full pardon from President Jimmy Carter in 1978. This provided the former attorney general, as many Alabama political observers believed, personal vindication over “trumped up” charges by the “Wallace machine.”
Flowers’s successor, fifty-four-year-old Mac Gallion, was also his predecessor. Elected in 1958, Gallion’s first term was marked by his “resistance within the framework of the law” to federal authority in civil rights matters and by his hostility to any efforts by blacks to end segregation or gain voting rights. Gallion, like many other red-baiting whites of his generation, saw civil rights activists as nothing more than Communist conspirators who were endangering the peace and security of America. In 1961, he told a White Citizens’ Council rally in Montgomery that the Freedom Riders were a “foolish group of meddlers, bleeding hearts, publicity seekers, and assorted misfits” who were not promoting freedom, democracy, religion, and America, but just the opposite. “It is a cold, calculated, deliberate attack upon America itself,” Gallion proclaimed, “upon the vital organs of our form of government, upon American prestige in the world and upon the very existence of America as the last bulwark across the path of atheist communism in the world.” Alabama was in grave peril, he added, and the citizens of Alabama had front-row seats to watch the American Communist front in action. Gallion emphasized:
We particularly in the South, have had set-back after set-back in our fight in this cause. I am firmly convinced that the South stands today as the last great bulwark of strength—the last bastion of defense—across this dangerous march to the left . . . this is no time to stop fighting; this is no time to become discouraged; it is no time to bow our head in abject defeat. On the contrary, it is the time to fight within the bounds of the law with all the determination and with all the heart and wisdom that we can muster at our command.
Gallion fought the federal government at every opportunity. When the U.S. Civil Rights Commission condemned “abuses of police power” in Alabama and recommended an investigation of police brutality and the misconduct of some court officials, Gallion called the charges unproven “gossip, old wives tales, and rumor.”
George MacDonald Gallion was born in Montgomery in 1913 and raised in Birmingham. He earned a law degree from the University of Alabama in 1937 and practiced law in Birmingham until joining the Marines at the beginning of World War II. While fighting in the South Pacific, he was wounded in Saipan and received the Purple Heart. Following the war, he moved to Montgomery, where he maintained a private practice and at times worked as an assistant attorney general for the state.
Following the Phenix City assassination of Alabama attorney general-elect Albert Patterson in 1954, Governor Gordon Persons appointed Gallion as a special counsel, and he participated in the murder investigation and the cleanup of Alabama’s “sin city.” From 1955 to 1959, he went on to work as the chief assistant attorney general for Albert’s son, John Patterson, who was elected in his father’s place. In 1958, Alabama voters elected Gallion attorney general in the same election that sent John Patterson to the governor’s office. The duo would emerge as symbols of white Alabama’s massive resistance to civil rights.
In 1962, Gallion finished fourth in the governor’s race that saw George Wallace elected to his first term. Four years later, following the tenure of the more moderate Richmond Flowers, voters returned segregationist MacDonald Gallion to the Alabama Attorney General’s Office by a two-to-one margin. This was disappointing news to blacks and liberal-minded whites in the state. “He’s the worst racist we have,” one hyperbolic Alabamian wrote. Soon after the election, a newspaper reporter observed that blacks now faced dealing with Wallace without the support of Flowers, who often fought the governor and his hardcore supporters.
Soon after taking office, Gallion received a memo, presumably from Gordon Madison, that outlined reasons not to appeal the Washington v. Lee case to the U.S. Supreme Court. Losing the appeal could result in prohibitive injunctions and sharply curtail the “wide range of discretion” the three judges had left to prison and jail officials. The Supreme Court could find error in allowing Frank Lee to supervise the desegregation of jails and order the work done under “some federal official appointed by the court.” If the high court affirmed the decision, then Washington v. Lee mandates would be binding precedent on all states, not just Alabama, and those states would “not be so free to handle their own cases when and if they arise.” Most important, the author of the memo concluded, “legal study and consideration does not reveal any substantial grounds for reversal.”
Frank Lee and the board of corrections had other ideas. On February 3, 1967, Lee informed MacDonald Gallion that the board wanted the Washington v. Lee decision appealed to the U.S. Supreme Court. “I will appreciate your cooperation in seeing that this action is taken,” Lee wrote, “and followed through.” Gallion complied, and the state of Alabama would once again fight to hold on to the last bastion of legally sanctioned segregation.
Three days later, on February 6, Gordon Madison submitted a “Notice of Appeal to the Supreme Court of the United States” in the federal district court in Montgomery. Madison raised five questions for appeal: (1) Do state statutes that require racial separation of black and white prisoners in state penal institutions and county and city jails violate the provisions of the Fourteenth Amendment? (2) Does a prisoner serving a penitentiary sentence have the constitutional right to question the validity of state laws that require racial separation of prisoners? (3) Does the federal district court have the “jurisdiction and authority” to compel Frank Lee to supervise the integration of all state prisons, including cities under ten thousand residents? (4) Do the sections of Title 45 of the Alabama Code violate the Fourteenth Amendment by requiring racial segregation in Alabama prisons and jails? (5) Does the federal district court have the authority to order Frank Lee to make reports to the court on the progress made to end segregation in prisons and jails in Alabama?
In addition, on February 13, 1967, Madison submitted to Judge Frank Johnson a motion for a stay in implementing the desegregation order until the Supreme Court ruled on the appeal. Two days later, Johnson, with the consent of judges Rives and Lynne, denied the stay but granted them twenty days to present a motion for a stay pending appeal before the U.S. Supreme Court. To handle the legal work for the state of Alabama before the nation’s high court, Gallion hired Nicholas Hare as a special assistant attorney general.
Born in Monroeville, Alabama, in 1911, Nicholas Stallworth “Nick” Hare was a member of one of the most respected legal families in the state. His father, Judge Francis Hare, was a long-serving circuit judge for the Twenty-first Judicial Circuit, comprised of the southern Alabama counties of Conecuh, Escambia, and Monroe. In 1914, the elder Hare took in his orphaned nephew, also named Francis, who would later become one of the state’s most celebrated personal injury attorneys and trial practitioners. The Hares were close friends with another family of attorneys who included A. C. Lee and his daughter Alice Finch Lee (who was the same age as Nick). The youngest daughter, Nelle Harper Lee, who for a time pursued a law degree, would later turn to writing and use her father as the model for lawyer Atticus Finch and a case tried in Judge Hare’s courtroom as the basis for her novel To Kill a Mockingbird.
Nick Hare earned his law degree at the University of Alabama in 1935 and practiced in Birmingham until 1950, when he returned to Monroeville. During the early civil rights era, he became one of the state’s leading defenders of segregation. In 1955, he sponsored several segregationist bills in the statehouse, including the “freedom of choice” act (future Birmingham mayor Albert Boutwell was the author and sponsor in the senate), which allowed parents to choose whether or not to send their children to segregated or integrated schools—this and other legislation allowed Alabama to effectively avoid compliance with the Brown decision for the next fifteen years. At the 1956 Democratic National Convention, Hare drafted, and the Alabama delegation adopted, the “Southern Declaration of Principle,” which expressed the state’s defiant position on segregation in words and emotions reminiscent of similar statements issued by southern Democrats at the 1948 convention, and one entitled “The Southern Manifesto” signed by eighty-two southern representatives and nineteen senators. Opposing lawyer Chuck Morgan described Hare as a “bespectacled, reasonable gentleman with the amorphously nice manners which typify Black Belt upbringing.”
In February 1967, Nick Hare’s first priority was to submit an application for a stay pending appeal to Justice Hugo Black, the supervising judge of the Fifth Circuit. The application included an affidavit from Frank Lee, who pleaded for the stay. “We must have more time,” he said, to accomplish orderly desegregation “without unduly upsetting or impairing prison discipline or security” and preventing a “serious and dangerous situation.” Lee emphasized that the existing prisons in the state were built for racial segregation, and the state needed more time to build new facilities. In addition, inmates needed time to adjust to integration, so “violent and incorrigible” prisoners would not use the change in prison routine as an opportunity to riot, escape, or conduct a violent blood feud. Prison guards also needed time to be trained, prepared, and oriented to integrated facilities. “After all,” Lee added, “our prison personnel are poorly paid and largely uneducated.” Other states had psychiatrists, psychologists, and counselors to help with this period of adjustment, but Alabama had none. “I am fearful,” Lee added, “that immediate integration will disrupt the relative calm of the Alabama prison system.” Lee suggested the gradual approach: take a few steps toward integration, then wait, evaluate, and take a few more steps.
On March 1, 1967, Nicholas Hare traveled to Washington, D.C., and hand-delivered the application to Justice Hugo Black, who two days before celebrated his eighty-first birthday. Black was the anchor of the court’s liberal wing and a tireless advocate of individual rights. Over fifty years earlier, Black served as Jefferson County’s circuit solicitor and gained a reputation as a crusading prosecutor who fought to end rampant police brutality in Bessemer and restore the “fundamental rights and constitutional privileges of its citizens.” On March 4, 1967, Justice Black issued an order that stayed the ruling of the three-judge panel, but ultimately the application would have to be considered by the full court. Black made special note that counsel for the appellee filed “no opposition.”
In response, Chuck Morgan filed a hastily written opposition brief. Morgan argued that the state’s request was just another ruse to preserve racial segregation, which, in turn, would further injure Caliph Washington and the other appellees. “The threat of racial violence,” he wrote, “cannot justify the denial of constitutional rights.” Nonetheless, the full Supreme Court granted the stay while the justices heard the appeal.
On September 12, 1967, the state filed its appellant’s brief to the high court. It reiterated its central argument from the Fifth Circuit brief, that maintaining segregation in Alabama’s prisons and jails was a matter of “prison discipline and internal security.” This was the first case to come before the U.S. Supreme Court, Nicholas Hare argued, that dealt with the authority of federal courts to “direct particulars of prison management.” Hare believed that the justices’ decision in the appealed Lee v. Washington turned on whether the Fourteenth Amendment favored the opinions of federal judges over the opinions of prison administrators on how best to maintain prison discipline and security. The attorney emphasized that even if the justices affirmed the unconstitutionality of the Alabama statutes mandating prison segregation, they should not follow the mandate of the district court, which would “inflexibly force the racial integration of every state prison, county jail, city jail and small town calaboose in the State of Alabama . . . without regard to . . . other valid considerations.”
In short, Hare asked the Supreme Court justices to consider three points: (1) Bob Austin, warden of the Birmingham Jail, was not representative of all other wardens and jailers in the state, and this suit should not be considered a true class action suit; (2) state statutes requiring the separation of prisoners by race in state, county, city and town jails in the state of Alabama did not violate the Fourteenth Amendment; and (3) the single most important issue in the case was giving prison administrators the flexibility to maintain discipline and security without being hampered by “inflexible judicial orders” even if that flexible discretion included racial segregation. After reading the brief, Hugh Maddox, legal adviser to the governor, wrote Hare and proclaimed, “I believe that we ought to win this case hands down.”
A month after Hare submitted his brief to the high court, Chuck Morgan presented his on behalf of Caliph Washington and the other appellees, carefully and factually restating the arguments from his brief submitted to the district court months before. He asked the Supreme Court justices to affirm the decision and questioned the justification and merit of the state’s appeal. He argued that the three-judge panel accommodated the wishes of the state. The lower court did not require Frank Lee and jailers throughout the state to submit a desegregation plan, nor did it mandate immediate integration of all penal facilities in Alabama. “The district court allowed them literally every concession they requested,” Morgan added, and Frank Lee and Robert Austin were given such flexibility that they essentially wrote their own desegregation order. When Birmingham Jail warden Austin saw no problems with integration other than the drunk tank, the judges “specifically excepted” from its decree “in very exceptional instances” the drunk tanks or bullpens about which appellant expressed some concern. “The decree of the court is thus an effectuation of appellants’ own judgment,” Morgan concluded. “Plainly, the argument that the courts have usurped the discretion of prison officials is without merit.”
In response, Nick Hare wrote and submitted a reply brief to the Supreme Court. He saw the brief as a vehicle to highlight the dangerous situation that would be created if the court upset the “honored, judicially recognized, principle” of allowing prison administrators wide discretion in dealing with safety and security. Taking that flexibility away through an “inflexible fiat” in an effort to stop “one alleged invidious practice,” the attorney supposed, would make racial separation under any circumstance impossible. The three-judge panel moved “too far and too fast,” and the state needed more time. With a nod to the second Brown decision, Hare emphasized that even schools were integrated with “deliberate speed.” However, the legal theory behind the original Brown decision, that separate facilities were unequal, could not be applied to prisons, the attorney argued. Separate cells for prisoners were not inherently unequal, and racial separation was not always discriminatory. “Prison officials still need reasonable discretion,” he wrote, “not because the prisoners are white or black, but because they are dangerous.” These were not schoolchildren but men who were “vicious, violent, rebellious and deadly.” To emphasize this point, he submitted several newspaper accounts of race-based prison riots in the fall of 1967.
The nine justices of the U.S. Supreme Court heard the oral arguments in the appeal on Tuesday, November 7, 1967, in the daunting marble-laden court chamber with forty-one-foot-high ceilings. Sitting behind the raised mahogany bench were Chief Justice Earl Warren and the associate justices: Hugo Black, William O. Douglas, John M. Harlan, William Brennan, Potter Stewart, Byron White, Abe Fortas, and Thurgood Marshall (the high court’s first black member and newest justice). Nicholas Hare would argue the case on behalf of the state of Alabama, and Chuck Morgan would represent Caliph Washington and the other prisoners.
Hare addressed the court first. As he spoke, his voice revealed a refined and unhurried Alabama Black Belt drawl that seemed to glide, not echo, throughout the chamber. Following a brief review of the history of the case, he explained to the justices that even if they held the Alabama statutes as unconstitutional, the case required modification. “It is too rigid,” he said. “It destroys unnecessarily reasonable administrative discretion on the part of prison officials.” This decision in the Caliph Washington case was of overriding importance and would set the pattern for prison administration throughout the country.
Following a straight-shot introduction, Hare’s words poured forth like a politician’s filibuster as he wandered aimlessly through his key arguments like a lost hunter who keeps covering his same tracks again and again. Through the haze of his remarks, he emphasized a few key points. Robert Austin was not representative of all jail wardens because the Birmingham City Jail was modern and the size of a small prison. Alabama was a rural state, and most of the jails in its sixty-seven counties were nothing more than a “one-cell calaboose.” The order of the federal judges in Alabama could not be binding on those jailers. “They ought to have their day in court,” he added. “It is just elemental justice. It is a matter of due process.”
Hare refused to concede that the Alabama statutes requiring racial separation in the state’s prisons and jails were unconstitutional. “I make no point of it,” he said. On the other hand, the court’s efforts to force integration went too far. “They destroyed,” he argued in a raised voice, “reasonable, sensible, common sense discretion on the part of prison officials.” With the fervor of a rural Baptist minister, he added that these were dangerous criminals who were looking to make more trouble. “The weight of my argument to you gentlemen is this,” he said, “It’s not law; it is common sense.” Prison officials must have the flexibility to segregate prisoners by race for safety. “This court must revise the lower court’s opinion,” he said, “so that it is in line with the great body of law which allows reasonable, sensible discretion in prison officials.” This was not discrimination, he supposed, but pragmatism.
Justice Byron White interrupted and said he understood the thrust of Hare’s appeal but found it deeply troubling. White believed Hare was telling the justices that the state of Alabama, regardless of the ruling in the particular case, would not apply the will of the court—as it had in so many other cases. (Hare helped the state avoid compliance with the Brown decision.) The attorney rejected this interpretation: “No Sir. No Sir.” (With Hare’s accent, it sounded like No Suh. No Suh.) The state would “attempt to comply” with the decision of the court.
Again, Hare asked the justices for more time because the state was revamping the prison system. Alabama’s prisons were overcrowded and outdated, but the state was closing down and destroying Kilby Prison and building a new facility at Atmore. By July 1969, he predicted, the state would have a new prison system where there would be no distinction based upon race. These new prisons were equipped to handle integration and would be fully integrated.
Justice Marshall interrupted and asked, “So Alabama is going to abolish all segregation in these prisons?”
Hare told the justice, “yes sir,” but insisted that the lower court’s decision needed to be revised so that “reasonable discretion” to maintain discipline and security would be left to prison officials without the fear of violating a court order. “You can’t wait until trouble happens,” Hare said. The way the order stood, he added, if there was a race riot, the warden’s hands would be tied, and if he tried to separate prisoners based on race, he would be in trouble with the court. But the lower court, in the opinion of one of the justices, already provided for exceptions and given one example, the drunk tanks. The three judges did not limit prison officials from segregating; they just used an instance to show that racial separation might be necessary. Marshall asked, “How much more assurance do you want than that?” Hare said the courts needed to “spell this out more positively” so that prison officials could anticipate problems and stop them before they occurred.
By the time he stopped talking, Nicholas Hare stood before the justices for just over thirty-seven minutes. Chuck Morgan, by contrast, spoke with quick, precise, and powerful words that asked for speedy implementation of the court order. He reminded the nine justices that the prison segregation statute was just one in a long line of century-old discriminatory laws of the state of Alabama. The Lee v. Washington case must be understood in that context, he added, because it was another legal struggle to abolish the “dual system of justice” in Alabama, the South, and the nation. Morgan added: “This is the end of the system of justice for those who live, instead of die, in Alabama’s desegregated instrumentality of justice, which is its electric chair.”
Morgan skillfully rebutted each of the state’s key arguments. He pointed out that judges Johnson, Rives, and Lynne were flexible and accommodating, made “appropriate use of judicial power,” and granted the state every concession imaginable in crafting the order. When the state asked for no injunction, the court issued no injunction. When Robert Austin expressed concern about the drunk tank, the court made an exception. Frank Lee asked for a year to desegregate, and the judges gave him a year. “The court went down the line and established a pattern and timetable for desegregation,” Morgan added. He believed that if the state went back to the three-judge panel and explained the difficulties they were having in implementing the order, the judges would say, “We will work it out.” But Frank Lee and the state had not done so. “This case was tried in 1966,” Morgan said, “and some of the problems that didn’t exist then are on the record now and I don’t know where they came from.”
The state contended that the central problem was prison riots, but Morgan said that Alabama and the rest of the United States had more problems with disorder outside prisons than inside. One reason, he supposed, was because blacks did not feel that they could take their struggle out of the streets and into the courts. They felt this way because the “courthouse in the Deep South has always represented to them an instrumentality of oppression.” Jails and prisons were also oppressing and discriminating against blacks through segregating them by race. Morgan said he had no doubt that the conclusion in the Brown decision that separate facilities were “inherently unequal” applied in a “constantly greater degree” in prisons and jails. “It is high-nigh time,” he added, “that the state of Alabama provided a prison system that is no longer packed and overcrowded, and provided one that is fair.”
For Morgan, it seemed inconceivable that small-town jails in Alabama had the space to keep prisoners segregated by race. Laws mandating segregation in these facilities were exacerbating racial tensions, not quieting them. Walker County, a coal-mining county northwest of Birmingham, had no municipal jails with more than one room—it included the towns of Carbon Hill, Cordova, Dora, Nauvoo, Oakman, Parish, and Sipsey.
Justice Hugo Black looked down and asked Morgan how the policemen in charge of these “calabooses” enforced segregation when they arrested black and white lawbreakers at the same time.
Morgan quipped that he reckoned that the two races never got drunk on the same night. This answer brought forth an echoing laughter from those in the chamber. Years later, Morgan wrote that he and Justice Black both understood that poverty, ignorance, and segregation were the primary causes of racial tension and disorder. “We both knew,” he wrote, “that when we got the instruments of power straightened out and poor blacks and whites got an equal start, and a fair shake, they would get along all right, even in Walker County, even in a calaboose, even on Saturday night.”
In his conclusion, Chuck Morgan explained that he made no contention that prison officials should be denied discretion to protect prisoners. He used civil rights leader Martin Luther King, Jr., as an example. The week before the oral arguments in the Lee v. Washington case, on October 30, 1967, King was incarcerated in the Jefferson County Jail in Bessemer, in a cell just a few feet away from Caliph Washington. Ironically, King’s imprisonment was the result of the June 12, 1967, ruling by the Supreme Court in Walker v. Birmingham that upheld his conviction for violating a lower court order and proceeding with a march in Birmingham four years earlier on April 12, 1963. To thwart any unwarranted publicity and civil unrest, Jefferson County officials decided to force King to serve his jail time in Bessemer, not in Birmingham. Chuck Morgan explained to the justices that there was no question that the jail in Bessemer contained “certain kinds of prisoners that you wouldn’t want Dr. King to be confined with” and that the federal court order before them that day did nothing to prevent Bessemer officials from using “responsible discretion . . . in a non-discriminatory manner” to protect the civil rights leader. Morgan emphasized this point because, as he told the court, he believed Justice Black was more familiar with the explosive nature of Bessemer’s culture of violence than “any man, at least historically.” In the end, he simply asked the justices to strike down racial discrimination in American prisons by affirming the lower court ruling. The oral arguments lasted almost fifty-five minutes.
On November 8, 1967, James Free of the Birmingham News described the Lee v. Washington case as another in a long series of “last-ditch legal battles” between elected officials in Alabama and federal courts over integration. Free believed that George Wallace established this pattern of resisting federal authority and maintaining segregation through as many “legal maneuvers” as possible, although John Patterson and MacDonald Gallion embraced the same strategy before Wallace. Alabama officials fought legal battles to maintain segregation in elementary and secondary schools, colleges and universities, hospitals, public facilities, and welfare programs, and now jails and prisons. Free suggested that Gallion filed the appeal of this “rather weak case” only to garner support of segregationists in an apparent challenge to Alabama senator Lister Hill in the elections of 1968. (Ultimately Hill chose not to run for reelection, but Gallion did not run for the open seat.) “Once again,” Free wrote, “Alabama is pictured to the remainder of the country as the last bastion of segregation—as the state that will be the very last if possible in complying” with civil rights laws.
On November 15, 1967, Nicholas Hare filed a supplemental brief to “clarify certain matters” that arose during oral argument, primarily Chuck Morgan’s implication that Commissioner Frank Lee and the Alabama Board of Corrections served at the “pleasure of the governor” and were under such pressure that they could not use independent judgment; therefore a court order was needed to force compliance. Hare argued that Lee served as commissioner of “one of the most independent prison boards” in the country, with five members serving ten-year terms. The governor filled vacancies (with senate approval) from a list compiled by the chief justice of the Alabama Supreme Court, the presiding judge of the court of appeals, and the lieutenant governor.
Chuck Morgan disagreed. In a reply to the supplemental brief, he wrote that his conclusions about the board of corrections were based in a clear understanding of fact, not some misunderstanding of the law, as Hare contended. He pointed to the board of trustees at his alma mater, the University of Alabama, as a supposed independent body that was immune from political manipulation. Nonetheless, that did not dissuade Governor George Wallace from standing in the schoolhouse door in 1963. That stand, Morgan wrote, symbolized the “reluctance or inability” of an independent board to stand in opposition to the governor. George and Lurleen Wallace dominated Alabama politics, he added, and a “stand-in-the-jailhouse door” might never happen. “But that the striking down of statutory racial bars in Alabama would result in voluntary state action taxes credulity.” Alabama would never integrate prisons unless forced to by the courts. “Thus Alabama’s recent, if not total history, clearly demonstrates that . . . a court order is not merely a legal means to a constitutional end; almost as importantly it sometimes serves as a mantle necessarily worn by state officials conscientiously attempting to comply with the requirements of law in a racially changing society.”
On March 11, 1968, the nine justices issued a terse, unsigned three-sentence opinion affirming the ruling of the three-judge panel. The court rejected Alabama’s claim that Lee v. Washington was not a real class action suit and found nothing in the lower court ruling that prohibited segregation for prison security and discipline. They wrote, in the stilted language of the high court: “We do not so read the ‘Order, Judgment and Decree’ of the district court, which when read as a whole we find unexceptionable.” Justices Black, Harlan, and Stewart offered a concurring opinion to “make explicit something that is left to be gathered” through implication from the opinion of the court as a whole:
This is that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails. We are unwilling to assume that state or local prison authorities might mistakenly regard such an explicit pronouncement as evincing any dilution of this Court’s firm commitment to the Fourteenth Amendment’s prohibition of racial discrimination.
With a sense of resignation, Nicholas Hare informed Frank Lee of the Supreme Court’s decision. “We are closing our file on the matter,” he wrote. “In spite of the disappointing outcome . . . I know that we fought a good fight and no apologies are due anyone.”
The ACLU considered Washington v. Lee one of the top one-hundred legal victories (“greatest hits”) in the history of the organization, alongside such landmark cases as Brown v. Board (outlawing segregation), Engel v. Vitale (school prayer), Gideon v. Wainwright (right to an attorney), Reynolds v. Sims (one man, one vote), and Miranda v. Arizona (police must inform suspects of their rights). On a personal level, Chuck Morgan saw this victory as another validation of his own self-described greatness—a sense of self that would eclipse many of his legal causes. For Caliph Washington, there was the bitter irony of helping desegregate the jails and prisons of Alabama, just so he could continue to sit in one for years to come.