Summer 1964 was a season of organizing, education, and bloodshed in Mississippi.
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.
The statute, currently codified at 28 U.S.C. § 1443,
was drastically narrowed by the Supreme Court in a series of late nineteenth-century decisions that rendered the provision practically useless.
Congress took steps to revitalize it nearly a century later in the Civil Rights Act of 1964,
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.
But just two years later, the Supreme Court once again narrowed the provision, and it has remained mostly dormant ever since.
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.
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.
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.
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.
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.