Breaking Thurgood Marshall's promise - declining minority enrollment in higher education

Black Issues in Higher Education, Feb 5, 1998 by A. Leon Higginbotham, Jr.

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."

In adopting such drastic reasoning, these three judges ignored the history and evidence of discrimination against minorities at the law school, and they ignored some facts of the case -- most glaringly, that Hopwood's test scores were higher than those of more than one hundred White students who were admitted. They also ignored settled precedent. Starting in 1978 with Bakke v. Regents of the University of California, the Supreme Court has consistently maintained that student diversity, when properly devised, is a valid justification for race-based affirmative action.

The state of Texas appealed the panel's majority opinion in Hopwood, requesting a rehearing before all of its sixteen active judges. The request was denied. All nine of the judges who either voted against the rehearing or declined to vote were appointed by President Reagan or President Bush; six of the seven dissenting judges were appointed by President Carter or President Clinton.