Out of 268 first-year students enrolled at the law school of the
University of California at Berkeley, only on is African American. Out
of 468 at the University of Texas School of Law, only four are.
Embedded in these cold facts is a personal story of how, forty-seven
years ago, I witnessed the birth of racial justice in the Supreme court
and how now, after forty-five years as a lawyer, judge, and law
professor, I sometimes feel as if I am watching justice die.
In 1946, when Heman Marion Sweatt, an African American, was denied
admission to the University of Texas School of Law, the state set up a
makeshift, unaccredited “law school for Negroes.” In 1950, toward the
end of my first year at Yale Law School, I watched Thurgood Marshall
argue Heman Sweatt’s case before the Supreme Court. With controlled
outrage, Marshall eloquently asserted the constitutional promise of
equality for sweatt, for all African Americans and, it seemed, for me
personally.
In a unanimous opinion, the Supreme Court held that Sweatt had to
be admitted to the Whites-only school, but as a federal judge later
noted, he eventually dropped out “after being subjected to racial slurs
from students and professors, cross burning, and tire slashings.”
Indeed, there were some years between 1950 and 1971 when the school’s
entering classes did not have a single african American Throughout the
1960s, Latino students were officially excluded from university
organizations. African Americans were forbidded to live in or even
visit White residence halls. As recently as 1080, the U.S. Department
of Health, Education and Welfare concluded that Texas’s higher
education system remained segregated, in violation of the 1964 Civil
Rights Act.
Gradually this situation began to improve. From the 1970s to 1992,
the law school adopted various affirmative action programs for minority
students who could compete successfully. Ultimately, about 10 percent
of each entering class tended to be Mexican American and 5 percent
African American. And from the 1970s on, the school produced nearly
2,000 minority lawyers. Many of these alumni assumed leadership
positions, among them Ron Kirk, the mayor of Dallas, and Federico Pena,
the U.S. secretary of energy.
Now, with only four African Americans in the first-year class,
these painstakingly won gains are at great risk. This startling
reversal arises entirely from decisions by some federal judges —
appointed by Presidents Reagan and Bush — who seem utterly indifferent
to the dangers of turning back the clock of racial progress.
No case better demonstrates these judges’ callousness than that of
Hopwood v. Texas. Cheryl Hopwood, a White woman, along with three White
men, claimed that the University of Texas School of Law’s affirmative
action program violated the equal protection clause of the Fourteenth
Amendment. The plaintiffs, who had been rejected for admission, alleged
that they had higher grade-point averages and test scores than
ninety-three African American and Mexican American students who had
been admitted.
In 1996, a three-judge panel of the U.S. Court of Appeals for the
Fifth Circuit reversed a district court judge and held that the law
school could “not use race as a factor in deciding which applicants to
admit.” Two judges concluded that considering race or ethnicity in ad
missions would always be unconstitutional — even if it was intended
“to comb at the perceived effects of a hostile environment,” to remedy
past discrimination, or to promote diversity. The third judge disagreed
that diversity could never be a compelling government interest but
reasoned that “the admissions process here under scrutiny was not
narrowly tailored to achieve diversity.” These judges’ views are in,
stark, contrast to those of many American educators, among them Dr.
Nannerl Keohane, the president of Duke University, who stated that “my
experience as a teacher at three institutions of higher education and
as the president of two others is that diversity benefits students,
faculty, institutions, and the world of knowledge.”
