On an October day in 1963, Jangaba Johnson walked into a downtown Spokane barbershop, sat down and waited for a haircut.
And waited and waited.
At long last, the barber, 76-year-old John W. Wheeler, came out and told Johnson, an exchange student from Liberia and Fulbright scholar at Gonzaga University, that he did not cut “colored hair.”
Humiliated, Johnson left. He filed a complaint with local NAACP officials in what would become one of the city’s most important civil-rights cases – in which the barber argued unyieldingly, and unsuccessfully, that his rights were being abused if he was forced to serve African-American clients. The case, and the entire evolution of anti-discrimination law in the 1960s, parallels in many ways a case the U.S. Supreme Court is weighing right now: Whether an Oregon bakery can be required to bake a wedding cake for a gay couple.
The bakers’ attorneys argue that certain discriminatory behavior – refusing to make a wedding cake for a gay couple – is protected because a wedding cake is a specific, commissioned, creative product. By the lights of this argument, bakers would be required under anti-discrimination laws to sell a gay couple a pre-made cake, but should not be compelled to create a new cake, with its implicit message of support.
That would be discrimination, the argument goes.
This is not.
The case of Jangaba “Gus” Johnson followed similar lines. Johnson argued that a barbershop was a “public accommodation,” open to all, and therefore required to serve everyone under the law. But Wheeler’s attorney distinguished between two types of activity: A basic retail transaction, such as selling a can of corn, upon which, he argued, we all can agree there can be no discrimination, and certain services that are more personal or intimate. Forcing Wheeler to cut the hair of African-American clients, he argued, was akin to slavery itself.
That form of discrimination is clearly wrong, Wheeler’s attorney argued.
This one is different.
The effort to draw such distinctions reached bizarre proportions when the bakers’ case was heard before the Supreme Court in December. Attorneys for the bakers argued that making a cake on commission was a creative act that expressed a message. Their free speech and religious rights should not be infringed by being coerced into “speaking” in favor of gay marriage by making a cake.
Justices set out to see which wedding-related activities would be considered speech by this metric. What about hair stylists and florists? Was their work a form of speech?
Nope, the bakers’ attorney, Kristen Waggoner, said.
What about chefs? Nope.
Justice Elena Kagan was baffled: “Well, why … well, woah. The baker is engaged in speech, but the chef is not engaged in speech?”
‘The right to reject any person’
When he arrived at Gonzaga in 1963, Johnson was 22, an accomplished student and the son of the cultural minister of Monrovia, the capital of Liberia. Spokane, meanwhile, was a mostly white city with a lot of formal and informal segregation in public places such as bars and restaurants, social clubs, the housing market – everywhere.
Wheeler’s Barbershop, located on Sprague on the block where the STA Plaza now sits, was definitely one of those places.
“For more than forty years, Wheeler, a Spokane native, had denied African-Americans service at his state-licensed downtown business on Sprague Avenue,” wrote Dwayne A. Mack in his 2014 book, “Black Spokane.”
Johnson would later say that he was accustomed to barbers in Liberia, a majority black nation founded as a repatriation colony for freed slaves and African-Americans born out of slavery, who would cut everyone’s hair and expected the same here. When he entered the barbershop, according to several accounts, one barber was already cutting another client’s hair, with another waiting. He told Johnson to wait for the owner, Wheeler, to return.
When Wheeler did return, he told Johnson that he couldn’t cut his hair. He later told a reporter, “I believe I have the right to accept or reject any person.”
He said it had always been his policy “not to serve colored people, because you cannot mix trade in a barbershop and keep your customers.”
Johnson left, and reported what happened to the NAACP. Carl Maxey, Spokane’s legendary civil-rights attorney, took up his case, and filed a complaint with the Washington State Board Against Discrimination. Maxey argued that a barbershop was a place of “public resort and accommodation,” and therefore could not discriminate under state law, according to the biography “Carl Maxey: A Fighting Life,” by Jim Kershner, a longtime Spokesman-Review reporter.
Johnson’s fellow GU students took up his cause. A group of students picketed the barbershop a few days after he was turned away. Seven students at a time, picketing in shifts. About 35 students overall participated, most of them white.
Efforts to track down Johnson and several other students involved in the picketing were unsuccessful in recent weeks. This account is based on the books by Kershner and Mack, as well as news accounts from The Spokesman-Review and Spokane Daily Chronicle. Some of the accounts referred to the case as the “Haircut Uproar.”
The Gonzaga Bulletin also reported on the protest; a photo was accompanied with this cutline: “A group of well-dressed Gonzaga students carry posters protesting racial discrimination, in front of a downtown barber shop last Saturday.”
The mobilization of the young white students at Gonzaga marked a turning point in the city, Mack wrote.
“In addition to the NAACP, Spokane now had a more radicalized citizenry of younger whites aroused to defend black civil rights,” Mack wrote, adding “This act of civil disobedience became Spokane’s first major organized interracial and intergenerational civil rights demonstration.”
‘What would I have done?’
A lot of people in establishment Spokane, however, sided with Wheeler. As is often the case, some people took up the cause of the person accused of discrimination – by claiming he was himself the victim of discrimination.
A Wheeler defense fund was opened at a local bank. An anonymous letter was circulated in the business community, urging people to support Wheeler. His rights as a business owner, the letter said, were being trampled.
“This is a moment when we must all get together and give a fellow barber assistance,” the letter said. “Stop a moment and asked yourself, what would I have done?”
Rep. Alfred O. Adams, a Spokane Republican, complained that Wheeler had been “framed” – reflecting the apparent belief among some that Wheeler had been entrapped by crafty leftists out to erode his constitutional rights. Adams said most Washingtonians wouldn’t support any situation “which takes away from majority groups their civil rights under the guise of protecting civil rights of minority groups.”
The discriminator-as-victim argument reached an absurd, audacious pitch in the legal arguments crafted by Wheeler’s attorney, Michael Hemovich. After refusing to stop discriminating, the barber was hauled before the Washington State Board Against Discrimination in November 1963. Hemovich argued that forcing Wheeler to cut the hair of black customers amounted to “involuntary servitude” and violated the 13th Amendment.
Which was the amendment that abolished slavery.
Hemovich acknowledged the state had a legitimate interest in outlawing discrimination at many types of businesses, but that “acts of service” were different. Forced acts of service, he said, were “as degrading and demoralizing as a state of absolute slavery.”
Maxey, according to Kershner’s biography, scoffed openly at the argument, and said it was a very straightforward case: the barbershop was a public accommodation, and discrimination in such an establishment was against the law.
“The eyes of the world are on Spokane and a small barbershop,” he said, “but the issue is not small.”
‘We find no merit’
The board quickly ruled in Johnson’s favor, and ordered Wheeler to stop discriminating and post signs indicating everyone was welcome at his shop. He refused, appealing to Superior Court. There, Judge William H. Williams also ruled against him.
“The statute will not permit (Wheeler) to say, ‘You are a slave or the son of a slave; therefore I will not shave you,’” Williams said.
Wheeler fought on, appealing to the state Supreme Court. On May 15, 1967, a unanimous court ruled against him. Regarding his “involuntary servitude” argument, the justices were terse: “We find no merit in this contention.”
If you open your doors to all, you must serve all, they concluded. The justices cited several other cases that dealt with the ramifications of anti-discrimination law and defining “public accommodations.”
One such case was Sellers v. Philip’s Barber Shop, a New Jersey state Supreme Court case from 1966 that defined barber shops as public accommodations and rejected arguments that the barber provided a particularly “personal service” different from other public accommodations.
The Washington justices also cited Heart of Atlanta v. United States, in which a Georgia hotel owner argued that his constitutional rights were being violated if he could not refuse to rent rooms to black people. The hotel owners’ attorneys also made the “involuntary servitude” argument, as well as the claim that forcing anti-discrimination law on the business owner was an unconstitutional “taking” of his property.
The U.S. Supreme Court ruled against him.
A Seattle case also served as a precedent. In Browning v. Slenderella Systems of Seattle, an African-American woman successfully challenged a “reducing” salon’s refusal to serve her. The state Supreme Court ruled in Ola Brown’s favor in 1959, but the involuntary servitude argument was undertaken with great vigor by justice Joseph Mallery, who cited the 13th Amendment and said that forcing Slenderella to accept black clients was akin to “destroying our most precious heritage.”
“Negroes should be familiar with (the 13th) amendment,” he wrote. “Since its passage, they have not been compelled to serve any man against their will. When a white woman is compelled against her will to give a negress a Swedish massage, that too is involuntary servitude.”
There are significant differences with the case now before the Supreme Court, particularly the argument that a wedding cake is protected speech under the First Amendment. It may be that the argument will succeed where others have not. More than one observer has predicted that the court and its conservative majority will side with the bakers in this case on religious freedom grounds.
But in broad ways, the bakers’ argument grows from the tradition of the arguments made by barbers, hotel owners and slenderizing salons a half-century ago.
That is discrimination. This is different.
Wheeler never changed his mind or acquiesced. To the end, he refused to admit black customers to his chairs. Refused to post a sign saying everyone was welcome. Refused to give an inch.
When the state Supreme Court ordered him to do these things, he closed his shop instead.