by Sarah A. Seo
Driving While Black: African American Travel and the Road to Civil Rights
by Gretchen Sorin
Liveright, 332 pp., $28.95
Overground Railroad: The Green Book and the Roots of Black Travel in America
by Candacy Taylor
Abrams, 360 pp., $35.00
The New York Review of Books
In 1963, after Sam Cooke was turned away from a hotel in Shreveport, Louisiana, because he was black, he wrote “A Change Is Gonna Come.” He was right. The next year, Congress passed the Civil Rights Act of 1964, which dismantled a cornerstone of the racial caste system known as “Jim Crow” by banning discrimination in employment and public accommodations. Change seemed to be coming in other areas of American law as well. Congress followed with the Voting Rights Act of 1965, and during the 1960s the Supreme Court waged a “Due Process Revolution” that established more criminal defense rights, such as the guarantee of state-funded counsel for indigent suspects and defendants. The decade seemed poised to bring about a more equal and just America.
Today, two generations later, American society is confronting a carceral state that Michelle Alexander has called “the new Jim Crow.” Abundant statistics show what is now an undeniable fact: people of color, especially black people, are overrepresented and treated unequally in the criminal justice system. According to the most recent Bureau of Justice Statistics report, blacks make up 33 percent of the prison population, nearly triple their 12 percent share of the US adult population. Many more individuals, charged with low-level offenses, may not be incarcerated but end up in what legal scholar Issa Kohler-Hausmann calls “misdemeanorland,” where they are subject to prolonged oversight that requires them to demonstrate good behavior before a judge will dismiss the charges against them. Unsurprisingly, this legal purgatory is racially skewed as well.
These disparities in large part reflect unequal law enforcement. In New York City, for example, blacks are stopped more frequently than whites, even after one accounts for neighborhood crime rates. In 2013 54 percent of all police stops were of blacks while 12 percent were of whites (29 percent were of Hispanics). This finding, based on the police department’s own records, prompted a federal judge to hold the city liable for its unconstitutional stop-and-frisk policy in the 2013 case Floyd v. City of New York.
In the rest of the country, where driving rather than walking is the norm, most people’s interactions with the police occur in their cars, and blacks experience starkly different traffic stops from whites. The Stanford Open Policing Project has examined data from twenty-one state patrol agencies and twenty-nine municipal police departments, which showed that officers stopped black drivers at higher rates than white drivers. Black people are not only searched more frequently than whites once they have been pulled over; they are often searched with little or no cause for suspicion. Even if a cop finds nothing incriminating, a “routine” traffic stop can still serve as an entry point to the justice system: a ticket results in fines, fees, and court costs, which, if the driver cannot afford to pay, will then lead to license suspensions, arrest warrants, contempt procedures, and, ultimately, jail. The sequence from traffic ticket to incarceration or even death has ensnared so many that the movement to defund the police after George Floyd’s death has prompted demands to remove traffic-law enforcement from police work in many cities, including Berkeley, Chicago, and Durham.
Contemporary movements against mass incarceration have recast histories of the civil rights movement, urging scholars to make sense of what happened to the promise of the Sixties. In Driving While Black: African American Travel and the Road to Civil Rights, Gretchen Sorin examines the struggle to abolish segregation on the highways and byways in Jim Crow America. Unlike some of the more familiar narratives—the march from Selma to Montgomery that culminated in the Voting Rights Act, or Loving v. Virginia, which invalidated anti-miscegenation laws—the story Sorin tells does not conclude with a victory but with today’s crisis of mass incarceration. The open road is where many black Americans have been unjustly stopped, searched, and arrested—or worse. Still, Sorin maintains that black drivers and the black businesses that catered to them were crucial to the fight for equality by resisting restrictions on their mobility: the automobile paved the “road to civil rights,” as Sorin suggests in her subtitle. So how did it ultimately lead to unequal justice?
Journalists started using the phrase “driving while black” to refer to the racial profiling of black drivers by law enforcement in the 1990s, around the time that the American Civil Liberties Union proved with statistical evidence in the 1996 case State v. Soto that New Jersey state troopers disproportionately stopped minority motorists. In Sorin’s book, however, the phrase does not refer only to discriminatory traffic stops. Rather, “driving while black” is an all-encompassing term that captures the social history of African-Americans on the road as well as the roadside businesses that were open to them in Jim Crow America. Modern automotive travel would not have existed without mass-produced cars, but travel across great distances would not have been possible without the gas stations, restaurants, and motels along the way, many of which refused black customers. As Sorin points out, motorists’ experiences varied by race long before the 1990s, and the particular experiences of black drivers included not only harrowing police encounters but also the racism of white commerce.
Driving While Black highlights the dangers of such discrimination by describing the necessities that were denied to black Americans as they traveled. Vacationing families had to plan ahead, for they could not run out of gas or need a bathroom break or a place to sleep where local businesses were likely to turn them away. Many kept a portable toilet and an extra tank of fuel in the trunk, packed their meals, and slept in their cars or drove through the night. Those who chose to keep driving risked falling asleep at the wheel. Treatable injuries from car accidents could become life-threatening. Because ambulances and hospitals were segregated, dispatchers often asked about race when they received an emergency call, knowing that whites-only medical service providers would deny black patients. In many communities, black funeral homes came to the rescue, and using a hearse as an ambulance became such a common solution that some manufacturers like Cadillac offered the “combination coach,” which had a bed that moved up or down, depending on whether the person in the back was on a stretcher or in a casket. Finding a hospital with available beds was another matter entirely, and too many injured motorists died in search of medical care.
To navigate Jim Crow America, black motorists relied on guidebooks that listed the establishments that would serve them. These black travel guides, mostly produced by individual entrepreneurs without much in the way of resources and staff, never covered the entire country and initially focused on cities and surrounding areas with large black populations, such as Chicago and New York City. Over time and with the help of black travel agents, they were able to expand their scope. By the 1950s, the most successful guide, The Negro Motorist Green Book, even devoted issues to international travel. Published from 1936 to 1966 by Victor Hugo Green, a mailman, The Green Book has seen a resurgence of interest recently with the 2018 Oscar-winning film Green Book(much criticized for its idealized portrayal of race relations), the documentary The Green Book: Guide to Freedom (2019), and the current exhibition Traveling While Black: A Century of Pleasure and Pain and Pilgrimage at the New York Public Library.
The guide’s wide distribution—circulation hit more than a million copies a year by the mid-1950s—reflects how eagerly black Americans embraced the open road and the freedom it represented, in part because automobility offered an escape from the humiliations of segregated public transit. But the very existence of guides like The Green Book also shows how qualified that freedom was for people of color. While driving one’s own car provided greater mobility for black people, it also subjected them to a great deal of harassment and danger. Despite the perils, black families got in their cars, many with a copy of The Green Book tucked in the glove compartment, to visit relatives across the South or to explore new attractions that were popping up to satisfy the demands of automotive travel.
Sorin argues that black motorists should be counted as active participants in the civil rights movement. “Not every African American stood on the front lines of a civil rights march or a sit-in,” she writes, “but many were able to nudge the cause forward by exercising their freedom of mobility. Resistance could take many forms.” For Sorin, although the strategies of leisure travelers and protesters may have been different, their goals were the same. Her argument raises an intriguing question: Can consumerism count as activism?
Going on a road trip certainly can be seen as defiance against the laws and norms that restricted the mobility of black Americans, just as sitting at the lunch counter at Woolworth’s was done in defiance of segregation. But there is also a significant difference between patronizing businesses that were open to black people and demanding to be served at businesses that weren’t. It’s the difference between seeking equality by adopting the decorum of white society versus insisting on equality by forcing white society to change its rules.
Sorin alludes to this distinction in her discussion of Green and William Butler, the publisher of another black guidebook, Travelguide. According to Sorin, both were gradualists, not radicals, believing that “travel would ultimately help defeat prejudice” by bringing together people of difference races. Their plan depended not only on black travelers’ willingness to conform to white bourgeois standards of respectability but also on their financial ability to do so. The guidebooks accordingly exhorted readers to demonstrate “their supposedly sophisticated middle-class demeanor, their worthiness to be granted full access” to accommodations. Liberal white allies embraced Green and Butler’s “travel-guide approach” to eventual integration because “it involved good manners rather than direct confrontation” and so was “among the least-threatening demands for civil rights.”
A political strategy based on modeling dominant social and cultural values proved insufficient to combat racism, especially at the structural level. Some white proprietors may have begun to act friendlier toward their middle-class black patrons, but without legal and policy changes, white society steadfastly refused to share access to good education, jobs, housing, and other privileges. Indeed, those in charge of The Green Book after its founder’s death in 1960 came to this very realization; according to Sorin, the last few issues finally declared “support of the ‘militancy’ of the civil rights organizations.” By then, more and more black Americans realized that change would not come by waiting for others to extend equality or by asking judges to uphold their constitutional rights. They would have to demand equal rights through direct action, insisting on being served at businesses that refused them and facing the possibility of arrest and jail time by flouting Jim Crow laws. By the last chapter of her book, Sorin recognizes that the polite politics of middle-class respectability were no match for structural racism, and she backs away slightly from her argument when she grants that Green “gave too much credit to travel as the reason for gains in civil rights.”
Still, the consumerism that Green promoted does appear to have contributed to the passage of the Civil Rights Act, at least in the aggregate. This federal legislation, which prohibited discrimination at all establishments, including lodgings and gas stations, clearly benefited black motorists. Driving While Black also briefly mentions the 1964 test case challenging the new law, though a fuller discussion would have been pertinent to the question of mobility and civil rights, since the case centered on the rights of black travelers. In Heart of Atlanta Motel, Inc. v. United States, a motel owner filed suit in federal court arguing that the new civil rights law violated his constitutional right to have his motel “choose its customers and operate its business as it wishes.” He further claimed that by forcing him to rent rooms to black guests, Congress subjected him “to involuntary servitude in contravention of the Thirteenth Amendment.”
In a landmark decision, the Supreme Court rejected the proprietor’s claims and ruled that Congress could prohibit racial discrimination under the Constitution’s commerce clause, which granted the national legislature the power to regulate commerce “among the several States.” It agreed with the government that “the unavailability to Negroes of adequate accommodations interferes significantly with interstate travel” and, for support, cited congressional hearings that included testimony from Under Secretary of Commerce Franklin D. Roosevelt Jr. The Court even mentioned that “these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook”—the guides featured so prominently in Driving While Black. The opinion also pointed out that the Heart of Atlanta Motel was located near interstate highways 75 and 85, two major arteries that stretched across much of the eastern half of the country. It advertised in national magazines and on over fifty highway billboards, and approximately 75 percent of its guests were from out of state. A unanimous court concluded that the motel’s business clearly fell within Congress’s purview of interstate commerce.
At the same time, the Supreme Court decided a companion case involving a restaurant in Birmingham, Alabama. Ollie’s Barbeque also refused to serve black customers, but, unlike Heart of Atlanta Motel, had hardly any out-of-state patrons. The Court again defended the 1964 act by maintaining that interstate commerce included businesses that bought and sold products that had “moved in commerce.” In the twentieth-century US economy, that meant that federal antidiscrimination laws applied even to local, mom-and-pop shops. Although compliance was uneven at first, most white business owners eventually obeyed, in sharp contrast to the extensive resistance against Brown v. Board of Education’s desegregation mandate for public schools ten years earlier. The crucial difference was that integration expanded an establishment’s clientele and bolstered the bottom line.
Had Driving While Black ended with the Civil Rights Act and Heart of Atlanta Motel, it would have hewed to traditional narratives of the civil rights movement, which typically begin with a struggle against legalized discrimination, climax with nonviolent protest, and conclude with a legislative or courtroom victory. But a triumphant history that ends with a hard-won antidiscrimination law would seem naive today, especially when poverty and injustice exact an uneven toll on people of color. Instead, Driving While Black jumps to the 1990s and continues to the present day in its epilogue. The last few pages note the post-1990s definition of “driving while black”—racial profiling in traffic stops—and the 1996 ACLU legal challenge against the State of New Jersey; the 2015 Department of Justice report about the police’s predatory use of traffic citations against black residents in Ferguson, Missouri; and the 2017 Post-Racial Negro Green Book, which provides a state-by-state survey of police brutality.
But even before the 1990s, black motorists experienced disproportionate abuse by traffic cops and highway patrol. Candacy Taylor’s recently published Overground Railroad: The Green Book and the Roots of Black Travel in America (2020) begins with a heartrending story from the author’s stepfather, Ron. During a family road trip in the South sometime in the 1950s, a police officer pulled Ron’s family over and launched an interrogation, demanding to know who they were, who owned their well-appointed car, and where they were going. Ron’s father calmly explained that the car was his employer’s, that the woman sitting next to him in the passenger seat was the employer’s maid, and that Ron was the maid’s son. Then the officer asked, “Where’s your hat?” After Ron’s father pointed to a cap hanging in the back-seat area, the officer let the family go. That chauffeur’s cap, Ron realized, was a lifesaving prop, “the perfect cover for every middle-class black man pulled over and harassed by the police.”
Taylor, like Sorin, focuses on the racism of white commerce and celebrates “black travelers, armed with the Green Book,” who used their cars as “a formidable tool that pushed the pendulum of equality forward.” At the same time, because it cannot ignore the current crisis of over-policing and mass incarceration, Overground Railroad wavers between commending and qualifying the efforts of black motorists and businesses. Left unexplained in both Overground Railroad and Driving While Black is what happened after the midcentury struggle for equal access to public accommodations. After the promise of the Sixties, how did American society end the century with racial inequality even more entrenched, especially in the criminal justice system?
By focusing on the people who pursued equality in their cars and with their roadside businesses, Sorin and Taylor miss a larger story about the social and legal changes wrought by the automobile that ultimately led to the injustices cited at the end of their books, which formal equality under the law could not possibly have addressed. The mass production of cars facilitated the development of modern policing, with individual officers wielding unprecedented power in ways that further perpetuated systemic racism.
Cars were not just freedom machines; they were also dangerous. Consequently, they were extensively regulated from their earliest years. In the 1920s and 1930s, local governments throughout the country enlarged and professionalized their police forces and expanded the discretion of individual officers to stop motorists and search their cars for safety violations and, soon, for contraband as well. Because most drivers violated traffic laws—at some point, nearly everyone is guilty of speeding, one of the leading causes of car accidents—the police came to exercise an inordinate amount of discretionary authority to decide which cars to pull over and which cars to search. The ubiquity of traffic violations created nearly limitless pretexts for policing. Enforcement in the War on Drugs, which increased during the mid-1980s, institutionalized pretextual traffic stops, which targeted drivers of color and compounded existing inequality in the justice system.
The broad coalition of activists in the 1960s didn’t follow their civil rights achievements with a widespread movement to reform policing. While poor black Americans became mired in the resistance to school desegregation orders or were struggling for greater welfare benefits during the 1970s economic downturn, the middle class turned its attention to the War on Crime amid that decade’s surge in gun violence. A new politics of respectability emerged, this time extolling drug-free and crime-free lives.
As legal scholar James Forman Jr. detailed in Locking Up Our Own: Crime and Punishment in Black America (2017), African-American judges, prosecutors, mayors, and police chiefs supported tough-on-crime measures and even pretextual policing to combat rising crime rates and drug addiction in poor black communities. Of course, black leaders are not the only ones to blame. Scholars such as Michelle Alexander, Elizabeth Hinton, Julilly Kohler-Hausmann, Naomi Murakawa, John Pfaff, and Doris Provine have offered additional explanations, including harsh drug and anti-crime laws, social welfare programs that allied with the criminal justice system, and all-too-powerful prosecutors.
Significantly, American constitutional law also played a part by allowing discriminatory policing. In 1996 a unanimous Supreme Court approved pretextual traffic stops in Whren v. United States, even though, the opinion recognized, the practice disproportionately affected people of color. Technology has only made it easier for officers to discriminate. Just this past April, the Supreme Court decided 8–1 in Kansas v. Glover, with Justice Sotomayor alone dissenting, that a patrol officer can stop a driver based solely on a license-plate check showing that the vehicle’s registered owner—who may or may not be the driver—has a revoked driver’s license. This decision essentially allows officers to go fishing. A quick search of the license-registration database accessed from their patrol car’s mobile data terminal might turn up a suspended or revoked license, as in Glover, or even an outstanding warrant for unpaid traffic tickets, which would also provide justification for a stop and could lead to more intrusive policing.
Antidiscrimination laws certainly made a difference to many black Americans, among them Sam Cooke, who sang for equal dignity as a citizen and human being. But the centuries of suffering and struggling against racism, and the way it has nonetheless persisted in new and evolving forms, are palpable in today’s ongoing protests. Understanding the history of the racist policing we see today is necessary to move forward. One place to start is to understand how the combination of crime control and traffic-law enforcement conferred tremendous power to the police in our car-dependent country, where traffic stops are the most common police encounter. A logical reform, informed by this history, is to revoke that power. It would have saved Philando Castile, Sandra Bland, and countless other black lives.
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Sarah A. Seo is a Professor at Columbia Law School and the author of Policing the Open Road: How Cars Transformed American Freedom.