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Birmingham Bar Association Spring 2014

holding that the Commerce Clause gave Congress the power to tell restaurants – even little BBQ joints in Birmingham, Alabama – that they can’t refuse to serve people based on their race, color, religion, or national origin. Depending on your political bent, McClung was either a very good or a very bad recognition (or expansion) of the reach of the federal government. Regardless of all that, however, McClung remains a significant part of Birmingham’s rich legal and civil rights history. A 2001 article in the ABA Journal clumsily observed that “the impact of the U.S. Supreme Court ruling that bears the Mc- Clung family name still hangs heavy in the air at Ollie’s Bar-B-Q.” Apart from its place in constitutional law, however, McClung has a compelling background story that reveals some interesting facts about the case. Here are five that you probably didn’t know: 1. The entire case was cooked up and funded by the Birmingham Restaurant Association. My personal recollection, as well as the recollections of the vast majority of former law students which I have unscientifically surveyed, was that the genesis of McClung was an enforcement action by the federal government against a little BBQ restaurant because they refused to comply with the 1964 Civil Rights Act. The truth is that the case was actually a declaratory judgment test case filed by the owners of Ollie’s seeking to have the Civil Rights Act declared unconstitutional. The lawyers representing the Mc- Clungs thought that Ollie’s presented an “almost perfect case” to argue “the narrow little point that we thought we could raise.” In 1964, there were 115,000 restaurants, lunch counters, and gas stations, plus another 20,000 motels and hotels in the South that were subject to the public accommodations provision of the new Civil Rights Act. According to Archibald Cox, the U.S. Solicitor General at the time and the lawyer who argued the case in the Supreme Court: “Prior to July 31, 1964 the day that the McClungs filed suit, the Department of Justice had never heard of the McClungs or of their restaurant.” Essentially, the McClungs launched a preemptive strike, rather than wait for the feds to come knocking. Much less well known about Mc- Clung is that the whole case was orchestrated by a group of the leading restaurant owners in Birmingham in an effort to fight by proxy the mandatory integration of their own restaurants. Even prior to the formal enactment of the 1964 Civil Rights Act, the Birmingham Restaurant Association (“BRA”) retained the venerable Birmingham law firm of Lange, Simpson, Robinson & Somerville to identify the best avenue to challenge the Act on constitutional grounds and to describe the characteristics of the ideal plaintiff to act as the face of such a challenge. Once they determined that they needed a small, Mom and Pop restaurant not affiliated with any hotel or national chain, the BRA approached Ollie Mc- Clung, Sr., about serving as the plaintiff. McClung was an easy recruit; although Ollie’s was not a member of the BRA, he was worried about a recent suit filed by the Department of Justice against restaurants in Tuscaloosa in the weeks following passage of the Civil Rights Act and he was concerned that Ollie’s might be next after his restaurant was visited by several “well-dressed young black men” who took notes after being refused service at the counter. Ollie “wrestled with his conscience and prayed for guidance” and then headed to court. Despite the McClungs’ willingness to serve as plaintiffs, the Birmingham Restaurant Association, not the profits from Ollie’s, paid Lange, Simpson lawyers Robert McDavid Smith and William G. Somerville to take the case all the way to the United States Supreme Court; an expensive trip even then. On October 27, 1964, three weeks after the Supreme Court heard oral argument, the BRA placed the following request for financial assistance in the Birmingham News: Nobody at Lange, Simpson knew about the ad or even who had sponsored it, but Ollie, Jr., later acknowledged that the McClungs had received help with the legal fees from “a number of restaurants, a hotel or two” who “had a direct interest” in the outcome of the case. Not surprisingly, the lawyers ended up getting paid substantially less than it cost them to handle the case. Birmingham Bar Bulletin/ Spring 2014 17


Birmingham Bar Association Spring 2014
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