THE BRIEF LIFE AND ENDURING PROMISE OF CIVIL RIGHTS REMOVAL

The Reconstruction Congress provided for civil rights removal jurisdiction to enable a state-court defendant with defenses based on federal civil rights to remove the case against them to federal court. A series of late nineteenth-century Supreme Court decisions rendered the provision practically useless until Congress invited federal courts to reinterpret the statute in the Civil Rights Act of 1964. New archival research reveals how lawyers at the forefront of the Civil Rights Movement immediately embraced the tool, now codified at 28 U.S.C. § 1443, to shift from state to federal court thousands of cases brought against demonstrators and local residents seeking to exercise their federal civil rights. That brief moment came to an end when the Supreme Court reaffirmed its narrow view of the provision just two years later, and the statute has remained mostly dormant ever since.

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* J.D. Candidate 2024, Columbia Law School. The author thanks Professor Kellen R. Funk for his invaluable guidance and inspiring appreciation of legal history; Eileen Li, Professor Henry P. Monaghan, and Professor Thomas P. Schmidt for their helpful feedback; the staff of the National Archives at Atlanta for their research assistance; the staff of the Columbia Law Review for their editorial assistance; and his parents and Chad Nowlan for their endless support.

Introduction

Summer 1964 was a season of organizing, education, and bloodshed in Mississippi. 1 See Doug McAdam, Freedom Summer 4 (1988) (describing the efforts of more than a thousand young local activists and volunteers from the North to register Black voters and provide educational lessons in Freedom Schools—as well as the violence that plagued their activism). For additional background on Freedom Summer, see generally Seth Cagin & Philip Dray, We Are Not Afraid: The Story of Goodman, Schwerner, and Chaney and the Civil Rights Campaign for Mississippi (1988) (providing a detailed account of the abductions and murders of Freedom Summer volunteers Andrew Goodman, Michael Schwerner, and James Chaney at the hands of local government officials and the Ku Klux Klan as well as the federal prosecution that followed); Charles M. Payne, I’ve Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle (1995) (examining the community organizing tradition of Black activism in Mississippi throughout the 1960s, including during Freedom Summer). As students, attorneys, and activists descended on the state to aid Black Mississippians in their fight to exercise their federally guaranteed rights amid violent state opposition, civil rights lawyers embraced an obscure procedural tool—the civil rights removal statute—to successfully rescue thousands of litigants from the state’s prejudiced justice system. That phenomenon, often overlooked in the story of Freedom Summer, is central to understanding the roles of and relationship between the state and federal courts during the height of the Civil Rights Movement as well as that relationship’s impact on the recognition of federal civil rights claims.

Passed by the Reconstruction Congress amid its broad expansion of federal jurisdiction, civil rights removal enables a defendant in state court with defenses based on federal civil rights to remove the case against them—civil or criminal—to federal court. 2 See infra section I.A. The statute, currently codified at 28 U.S.C. § 1443, 3 The full text of the current civil rights removal statute reads:
Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.
28 U.S.C. § 1443 (2018). was drastically narrowed by the Supreme Court in a series of late nineteenth-century decisions that rendered the provision practically useless. 4 See infra section I.B. Congress took steps to revitalize it nearly a century later in the Civil Rights Act of 1964, 5 See infra section II.A. and lawyers at the forefront of the Civil Rights Movement immediately employed the tool to strategically shift from state to federal court thousands of cases brought mostly in southern states against local residents and demonstrators seeking to exercise federal civil rights. 6 See infra section II.B. But just two years later, the Supreme Court once again narrowed the provision, and it has remained mostly dormant ever since. 7 See infra section II.C.

The story of that brief moment of procedural innovation reveals civil rights removal’s underrealized utility as a forum choice device for situations in which other forms of relief and review are inadequate to address potential procedural and judicial biases against people raising civil rights defenses. In the 1960s, when defendants and their lawyers saw no hope for justice in southern state court systems or ex post federal review, they embraced the choice provided by civil rights removal to shift massive numbers of cases to federal district courts. 8 See infra section II.B. Were that choice available to defendants today, the decision to remove would not be so obvious because contemporary prejudices against those seeking to exercise individual rights are now more subtle and dispersed, including across the state and federal judiciary. 9 See infra Part III. But since hidden biases are harder to detect—and thus harder to remedy—in individual civil rights cases, it is all the more important in these circumstances to empower defendants—who are best positioned to determine which forum is most likely to grant them a fair hearing—with the choice to remove.

This Note argues that the utility of civil rights removal, as revealed in the overlooked story of its use during the Civil Rights Movement, should be restored through a modernized statute that clearly defines removal’s role in shifting the power over forum choice to defendants when there is a risk of bias against recognizing federal rights. 10 See infra section III.B. Part I surveys the origin and judicial limitation of civil rights removal during the Reconstruction era. Part II uncovers the practical role of civil rights removal during the brief period between its resurrection by Congress in 1964 and its second judicial restriction in 1966; it includes a close examination of how civil rights lawyers employed the tool in Mississippi, drawing from a review of the original case files for almost 5,000 criminal cases filed in federal district courts—including more than 1,200 cases removed from Mississippi state courts—during the 1960s. 11 The Appendix to this Note provides docket information for the criminal cases removed from Mississippi state courts from 1961 through 1969. See infra Appendix A. Finally, Part III characterizes civil rights removal’s proper role in the federal system and imagines how a revitalized statute might fulfill that function in modern times.