Anna Wolfe

The Clarion-Ledger

Jackson's strategy of closing public swimming pools instead of integrating them in the 1970s has made its way into President Donald Trump's defense of his travel ban on six Muslim-majority countries.

In a recent filing, Trump's Justice Department briefly cited a 1971 Supreme Court decision in which justices ruled 5-4 that the pool closures were OK and that the Jackson officials' motives in closing the pools should not dictate whether the action is unconstitutional.

Hence, Trump's numerous calls for a "Muslim ban" on the campaign trail should not be considered in the suit challenging his travel ban, the attorneys argued. It's too hard to determine intent, they suggested.

"Searching for governmental purpose outside the operative terms of governmental action and official pronouncements is fraught with practical 'pitfalls' and 'hazards' that would make courts' task 'extremely difficult,'" the brief states.

If ever there were a smoking gun proving suspicions about the purpose of the federal travel ban, "this is it," said CJ Rhodes, local pastor and son of civil rights attorney Carroll Rhodes Sr.

In its defense of Trump's order, Rhodes said, the administration sought to uphold "something most of us would find reprehensible today."

"I would hope (Attorney General) Jeff Sessions has more sense than that. Either he didn't care or wasn't sensitive to that," Rhodes said. "It speaks more to either they're tone deaf or that they could be racist."

The Justice Department would not comment.

On Monday, USA Today reported that Trump had scrubbed language about his promises of "preventing Muslim immigration" from his campaign website.

"They're groping back for reasons to oppose the court orders and they're using the same mentality, I think, that was used back in the day," said Jackson's Bill Chandler, executive director and founder of Mississippi Immigrants Rights Alliance.

After being ordered to desegregate its public recreational facilities in the 1960s, the then three-member, all white Jackson City Council closed four swimming pools and gave a fifth to the YMCA to operate for whites only.

This certainly doesn't reflect where the city stands now: In 2010, the seven-member council passed an anti-racial profiling ordinance prohibiting police from asking about immigration status.

Citing the Supreme Court case upholding discrimination in the '70s in Jackson "fails to respect all of the work that's gone into moving beyond that moment," said Naomi Tsu, deputy legal director of Southern Poverty Law Center's Immigrant Justice Project.

"If (the Justice Department is) citing that flawed piece of legislation that came out of Jackson, then we have work to do," said the longest sitting council member, Margaret Barrett-Simon.

Dissents in the 1971 case, Palmer v. Thompson, went like this: "The record is clear that these public facilities had been maintained and would have been maintained but for one event: a court order to open them to all citizens without regard to race," Justice Byron White wrote. "It is also my view, but apparently not that of the majority, that a State may not have an official stance against desegregating public facilities and implement it by closing those facilities in response to a desegregation order."

Tsu said that while the Palmer v. Thompson case is technically still a precedent, it's been "undermined by subsequent cases" and is rarely cited for its holding anymore.

"As a practical matter, the idea that the federal government is putting forth the notion that even the most insidious, harmful discrimination is OK, so long as the executive says the purpose is for something other than discrimination, that takes us backwards in a really concerning way," Tsu said. "It really undermines the power of the judiciary."

"It has a 'Wizard of Oz' quality," said constitutional law expert and Mississippi College School of Law professor Matt Steffey. "'Don't look at the man behind the curtain.'"

The Justice Department argued that the district judges who struck down Trump's travel ban did not determine the order was unconstitutional "based on what it says or does, but based on an assertedly improper motive inferred primarily from campaign statements."

Further, the brief argued, "a short, temporary suspension of entry of nationals from specific countries previously identified by Congress and the Executive as presenting special concerns bears no resemblance to a 'Muslim ban.'"

As far as using the Palmer case to discount the significance of motive, the attorneys could have just as easily reached back and found "a large and tall stack of rulings that contradicted that one," Steffey said.

"It feels like a desperate search for legitimacy rather than real legal analysis," Steffey said.

Contact Anna Wolfe at 601-961-7326 or awolfe@gannett.com . Follow her on Twitter.