| Over the past half-century, the struggle for integration
and equality in American legal education has been long and arduous. While
a history of the carefully orchestrated series of legal challenges to
segregation is beyond the scope of this Article, because Sweatt v. Painter
has both historical and contemporary significance, it is a logical
starting point for the discussion of law school admissions. In Sweatt, the
Supreme Court unanimously held in 1950 that, under the Equal Protection
Clause, Heman Marion Sweatt had a right to enroll at the University of
Texas Law School (UTLS) rather than a hastily constructed separate and
inferior law school designated for African Americans. At the time that
Sweatt, a postal worker, filed suit against UTLS, there were only about a
dozen African American lawyers in the state of Texas. In the fall of 1950,
Sweatt and I’ve other trailblazing African Americans finally became a
part of the UTLS entering class of 280 after a four-year legal challenge
to a provision of the Texas Constitution that reserved the University of
Texas for White students. While UTLS did not explicitly bar Chicanos and
Latinos from enrolling, at mid-century, it was more typical for Latinos to
be completely excluded from law school simply by virtue of myriad social
and economic barriers that forced them into the lowest rungs of the labor
market.
In Sweatt v. Painter, an important forerunner of the more famous Brown
v. Board of Education case, the Court also noted the importance of
integration to the functioning of legal education and the practice of law:
Moreover, although the law is a highly learned profession, we are well
aware that it is an intensely practical one. The law school, the proving
ground for legal learning and practice, cannot be effective in isolation
from the individuals and institutions with which the law interacts. Few
students and no one who has practiced law would choose to study in an
academic vacuum, removed from the interplay of ideas and the exchange of
views with which the law is concerned.
While the Court spoke eloquently about equality under the Constitution,
Heman Sweatt and others had a daily confrontation with the real meaning of
inequality. After bravely enduring cross-burnings, tire slashings, and
racial slurs from students and faculty, Sweatt withdrew from UTLS in 1951
without graduating. Subsequently, during much of the 1950s and 960s, and
as late as 1971, UTLS, like most of the ABA-accredited law schools, had no
entering African American students.
Perhaps the most extreme example of entrenched obstructionism in
defending Jim Crow racism in law school admissions involves the University
of Florida College of Law (UFCL) and Florida public officials. Virgil
Hawkins first applied to UFCL at the age of forty-three in April 1949 and
was denied admission solely because he was Black. Hawkins's tortuous legal
battle spanned nine years, and it became embroiled in the Florida
gubernatorial race. The litigation included several petitions to the U.S.
Supreme Court and five appeals before the diehard segregationist Florida
Supreme Court, which repeatedly and illegally ignored the U.S. Supreme
Court's orders that Hawkins be admitted without further delay. By 1958,
Hawkins withdrew his application to UFCL in exchange for an agreement that
other African Americans would at last be permitted to enroll.
The Association of American Law Schools (AALS) Committee on Racial
Discrimination typified the landscape of opportunity in the 1950s . In
1955, the Committee on Racial Discrimination proposed a rule requiring
that law schools keep their doors open to African Americans or have their
ALS membership revoked. The AALS Committee's proposal was not approved
because it failed to gain the endorsement of two-thirds of member law
schools. After the proposal was rejected, AALS president Maurice Van Hecke
gave an annual address in which he stated:
[T]he adoption by the Association of any coercive measures would delay
further racial integration in the schools by aggravating present
resentment and resistance.
The wisest course, I believe, is for the Association to continue to
serve in the role of mediator, keeping the situation fluid and in the
realm of discussion and making suggestions, from time to time, that will
encourage the several schools to work out their own problems as conditions
change.
National data, discussed shortly, indicate that the legal education
establishment's "wisest course" in fact meant that conditions
did not change and that students of color made no significant inroads
until the late 1960s.
In the 1950s and early 1960s, aspiring minority attorneys outside the
South did not confront Jim Crow segregation, yet the barriers of racial
and ethnic exclusion in legal education were nonetheless quite formidable.
While 1950s national law school enrollment figures broken down by race and
ethnicity are unavailable due to poor data collection, it is safe to
conclude that American law schools were approximately 99% White during
this period. For example, there were an estimated 1450 African American
attorneys in 1950 out of a total of 221,605 lawyers, meaning that African
Americans were 0.65% of the legal profession. In 1960, there were 2180
African American attorneys out of a total of 285,933 lawyers, or 0.76% of
the profession. Erwin Smigel, author of a major 1964 study of Wall Street
lawyers, reported, "In the year and a half that was spent
interviewing, I heard of only three Negroes who had been hired by large
law firms. Two of these were women who did not meet the client."
Likewise, 1963 study of firm lawyers and solo practitioners in Detroit
found that all 206 of the attorneys surveyed were White. Law firm
practitioners in this Detroit study consisted primarily of Northern
European Protestants who had attended elite schools like Yale, Harvard,
and Michigan.
Comprehensive data on African American law school enrollment are also
difficult to come by for much of the 1960s. The ABA and other national
organizations did not collect data on Latino, American Indian, and Asian
Pacific American students until 1969. In 1965, the AALS Committee on
Minority Groups, in the most comprehensive effort up to that point,
surveyed ABA-accredited law schools about minority enrollment figures. The
AALS Committee found that most law schools could not provide information
on either Latin American or Puerto Rican students for two reasons: (1)
there was confusion among deans over what these terms meant; and (2) most
schools simply had no idea of the past or present enrollment levels of
these groups. Even after reluctantly restricting the focus of their study
to African Americans, the AALS Committee had to rely on help from faculty
members, students, and personal visits to law schools, because some
uncooperative deans would not provide the requisite data. The Committee
eventually estimated that there were a total of 701 African American law
students in the 1964-1965 academic year (combining first, second, and
third year students), with 267 at six predominantly Black law schools,
including 165 at Howard. Thus, African Americans were about 1.3% of
national law school enrollments and less than 1.0% of enrollments
excluding these six schools. Prior to 1968, there were about 200 African
Americans graduating from law school annually.
.S. Census data indicate that between 1960 and 1970, the number of
African American attorneys grew by 76% (from 2180 to 3845), while the
total number of American lawyers grew by 24% during that span. Not
surprisingly, the shortage of Black attorneys was most severe in the
South. Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North
Carolina, South Carolina, Tennessee, and Virginia had a combined total of
393 African American lawyers in 1970, even though the total Black
population of these states was over 8.8 million at that time. In 1970, the
number of African American lawyers in states outside the South with Black
populations over one million were as follows: 373 in California, 667 in
Illinois, 650 in New York, and 141 in Pennsylvania. A committee of the
Philadelphia Bar Association reported in 1970:
The scarcity of Black lawyers in Pennsylvania--just 130 for a Black
population of nearly 1,000,000 persons--is scandalous to a Commonwealth
professing to serve all its people. This shortage of Black lawyers has
undeniably decreased the effectiveness of the Black community in seeking
to achieve equality of opportunity through traditional legal channels. And
while the Black community is principally harmed by what has amounted to
the total exclusion of Blacks from the Pennsylvania Bar, the entire
Commonwealth and nation suffer irreparable harm.
In the 1960s, the scarcity of American Indian and Latino attorneys and
law students was startling. In 1968, there were fewer than twenty-five
American Indian attorneys nationwide, even though the American Indian
population at that time was well over a half-million. Moreover, through
the late 1960s, no American Indians had ever graduated from law school in
Arizona, New Mexico, or Utah--nor had any American Indians ever practiced
law in Arizona or New Mexico--though these three states had an American
Indian population of over 135,000 at that time and had substantial legal
needs associated with the management of tribal holdings. Similarly, only
three Chicanos graduated from "major" California law schools in
1969, and it was estimated that less than .006% of all American law
students enrolled in 1969 belonged to the "amorphous category
entitled Spanish American, which include[d] all Spanish surnames and
Spanish speaking groups."
A decade after Brown v. Board of Education, the Civil Rights Movement
was at its height, and the Civil Rights Act of 1964 was just approved by
Congress and signed into law by President Johnson. Yet at this time,
American law schools, especially elite schools, were still almost
completely segregated. In fact, when Erwin Griswold, the dean at Harvard
Law School and later the U.S. Solicitor General, testified before a Senate
Committee that national registration and voting statistics proved
discrimination and the need for the voting rights bill, he was embarrassed
by a Southern segregationist senator who wanted Griswold to concede that
application of the same logic compelled the conclusion that Harvard must
be discriminating against African Americans since the Law School's African
American enrollment numbers were substantially below the national average.
As indicated in Table 1 and Chart 1, in the early 1960s at schools like
Boalt Hall, Michigan, and University of California, Los Angeles (UCLA),
the "inexorable zero" routinely characterized African American
enrollment patterns. In the fall of 1965, Boalt, Michigan, New York
University (NYU), and UCLA had a combined total of four African Americans
out of 4843 students, which, shockingly, is one fewer than the University
of Mississippi (Ole Miss), where the law school begrudgingly enrolled five
Blacks in 1965 to avoid jeopardizing a substantial grant from the Ford
Foundation. Similarly, between 1948 and 1968, the University of Texas
enrolled a total of 8018 White first-year law students and only 37 African
Americans. Between 1956 and 1967, there were between zero and two African
American enrollments at UTLS annually.
TABLE 1: AFRICAN AMERICAN FIRST-YEAR ENROLLMENTS AT FOUR ELITE LAW
SCHOOLS, 1963-1971 (Ommited)
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