On Jan. 9, 1861, Mississippi became the second state to secede from the Union. While some argue that Mississippi’s decision to secede was not connected to slavery, those who put forward this narrative need only read Mississippi’s Declaration of Secession. It unabashedly declared that the state’s “position is thoroughly identified with the institution of slavery” and that “subordination to the superior race is the [negro’s] natural … condition.” Mississippi was so devoted to the subjugation of African-Americans that it sought to form a new nation predicated on white supremacy.
Upon Mississippi’s readmission to the Union, the state attempted to preserve its antebellum culture by maintaining a racial caste system through violence. Organizations such as the Ku Klux Klan, Knights of the White Camellias and White League lynched, beat, burned and raped African-Americans in Vicksburg, Clinton, Meridian, Austin, Yazoo City and other towns across the state. The South sought to recover its pride in the next generation’s collective memory. Confederate veterans’ groups launched a revisionist history campaign promoting confederate holidays, monuments and museums around the nation. In the late 1800s, Mississippi’s political elites adopted a new state constitution that effectively excluded African-Americans from the franchise. It was against this backdrop of legalized discrimination, that Mississippi’s current state flag was adopted in 1894. The emblem has been used time and again in the Deep South to express opposition to racial equality.
Enter Carlos Moore, an African-American man from Mississippi. In April 2016, he filed a lawsuit in federal court claiming that (1) the state flag is a vestige of slavery that amounts to government hate speech damaging him and similarly situated blacks and (2) his black daughter should not be forced to pledge allegiance to the flag, which is, after all, an overt symbol of white supremacy.
Moore’s case was dismissed. This hardly unprecedented: The Constitution does not allow federal courts to hear every lawsuit under the sun. Rather, the judiciary can only resolve cases where a plaintiff demonstrates a concrete, particularized and actual injury. Moore’s first claim did not meet this standard because his complaint did not disclose an instance where he was personally subjected to discriminatory treatment because of the state flag. Likewise, Moore’s second claim was unsuccessful because Mississippi law only requires public school instructors to teach the pledge to pupils. Students are technically not required to recite the oath although many feel pressure to do so.
This decision was lawful but awful. Displaying the “stars and bars” on an official state flag is racially divisive. After the Charleston Emanuel AME Church massacre and the murder of an unarmed African-American man in Tupelo, Mississippi shortly thereafter, in the summer of 2015, South Carolina and Alabama removed the racially charged symbol from their respective state houses, and several national retailers announced they would stop selling confederate battle emblem merchandise. Mississippi’s Episcopal Diocese and Baptist Convention passed resolutions calling for the flag’s removal. And traditionally white colleges in Mississippi such as Ole Miss, Southern Mississippi and Mississippi State have all removed the flag from their campuses. Today Mississippi stands alone. It is the only state to include the confederate emblem it its state flag.
Mississippi’s political elites have dragged their feet on this issue. During the 2015 legislative session, every bill that proposed modifying the flag’s design died in committee. Citizens opposed to the flag removal movement claimed that it was driven by “scalawags who wanted to spit on the graves of [Mississippi’s] ancestors.” Another woman was blunter, arguing that the state “should not change something [it] hold[s] sacred to make a point to Northerners.” Because on balance, she “did not believe in turning to what the colored people want.” Governor Phil Bryant apparently agrees. He decided to celebrate black history month by announcing that April would be Confederate Heritage Month in the state. The struggle is real, and it is racist too.
One reason Moore’s lawsuit was quashed was because the judges in his case felt that it would be better for Mississippi’s political process if the people decided to remove the flag on their own volition. Yet Mississippi tried and failed. Sometimes, courts are the only forum where political and racial minorities can vindicate their rights. Moore’s judges did not just slam the courthouse door on him alone, but racial equality as well.
Contact Habib Olapade at holapade ‘at’ stanford.edu.