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Breaking Thurgood Marshall’s promise – declining minority enrollment in higher education

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

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.

The dissenters wrote that the majority’s opinion “goes out of its
way to break ground that the Supreme Court itself has been careful to
avoid and purports to overrule a Supreme Court decision.” They added
that “the radical implications of this opinion … will literally
change the face of public educational institutions throughout Texas,
the other states of this circuit, and this nation.”

The majority opinion in Hopwood stands in sharp contrast to the
role that the Fifth Circuit has played in the civil rights era. In the
1950s and 1960s, many Southern officials, White citizens’ councils, and
vigilante groups urged total defiance of the federal courts’ civil
rights decrees. Despite the persistent hostility, virtually every Fifth
Circuit judge — all appointed by President Eisenhower — repeatedly
affirmed the constitutional rights of Black citizens, among them Rosa
Parks and Martin Luther King Jr.

When President Reagan took office, he pledged to bring a “new breed
of conservatism” to the judiciary. Under his and President Bush’s
administrations, the judiciary became not only far more conservative
but also far more White than it had been. Of eighty-three appointments
to the appeals courts, Reagan appointed only one African American. Bush
appointed two, and one of those was Clarence Thomas. (Carter appointed
nine African Americans and Clinton has appointed five.)

In 1983, during his less conservative days, Clarence Thomas said,
“But for affirmative action laws, God only knows where I would be
today.” Now that he is on the Supreme Court, he repudiates affirmative
action and has made it safe for people like Prof. Lino A. Graglia, of
the University of Texas School of Law, to assert openly that “Blacks
and Mexican Americans are not academically competitive with Whites in
selective institutions” because “they have a culture that seems not to
encourage achievement. Failure is not looked upon with disgrace.”
Thomas’s skewed and hostile views have also paved the way for the
ascent of anti-affirmative action crusaders like Ward Connerly, a
driving force behind California’s Proposition 209, the philosophy of
which seems to be that anything expressly benefiting African Americans,
no matter how benign, useful, or good, is inherently suspect and wrong.

Certainly, it is appropriate for a president to consider what he
views as the mandate of the voters who elected him and t o nominate
those who seem to share his judicial philosophy. Still, it’s impossible
to ignore the tragic impact of the Reagan and Bush appointments.

In a 1989 employment discrimination case, justice Harry Blackmun, a
Nixon appointee, wondered whether a majority of the Supreme Court
“still believes that … race discrimination against non-Whites is a
problem in our society, or even remembers that it ever was.” This
question reverberates today in the chilling legacy of the Hopwood
decision. Hopwood has already had a pervasive impact on decreasing
minority enrollment in many higher-ereducation institutions. The number
of medical school applications from under-represented minorities has
dropped by 11 percent nationally and 17 percent among students who live
in Texas, Louisiana, and Mississippi, where the Fifth Circuit now has
jurisdiction. The group that represented the plaintiffs in the Texas
case recently filed suit to have the affirmative action program for
undergraduates at the University of Michigan declared unconstitutional.

In December 1996, a few months after Hopwood was decided, I
underwent the first of three open-heart surgeries. Late each evening,
after my family and friends had left, I would slip in and out of
consciousness and dream of a sign that I saw long ago on the bumper of
a rickety cab in Lagos, Nigeria. The sign said, in big, bold letters:
NO MORE TIME FOR FOOLISHNESS. The long winter ended, the spring rains
came, and I got better. But still that sign haunted my dreams. As I
returned to the work to which I had dedicated my career, I began to
understand — slowly and then clearly — the meaning that sign held for

At times, this country seems intent on returning to the foolishness
of the past. Donald M. Stewart, president of the College Board, has
said that in the wake of court decisions like Hopwood, “we’re looking
at a potential wipeout that could take away an entire generation” of
Black and Hispanic students. When I think about this potential wipeout,
I wonder whether I am still in intensive care, drifting on anesthesia.
I ponder: is it a hallucination that in public law schools in
California and Texas, the two most populous states in the country,
minority enrollment is shrinking almost to the vanishing point? Is the
lone Black first-year student at Berkeley representative of a dying
breed, a tragic echo of James Meredith, who desegregated the University
of Mississippi in 1962? How will Texas and California, which are more
than a third African American and Latino, survive with the future
shortage of trained minority leadership?

There is a curve of time that separates Heman Sweatt and Cheryl
Hopwood. It has been a long while since that spring afternoon in 1950
when, as a first-year Yale law student, I heard the promise of freedom
in the voice of Thurgood Marshall. Since then, I have observed
commendable progress, lately some tragic retrogression, and now I see
even more clearly that, in the long, bloody history of race relations
in America, there is no more time for foolishness.

RELATED ARTICLE: Present Enrollment

The University of Texas at Austin, School of Law Student Enrollment Demographics for the 1997 Entering Class

Black (1%)
Mexican American (6%)
Other Minority (10%)
White (83%)

SOURCE: [C] A. Leon Higginbotham, Jr., Jeff Ross, and Linda Yush.
Compiled by Judge Higginbotham and associates, Harvard University, John
F. Kennedy School of Government.

RELATED ARTICLE: Past Enrollment

The University of Texas at Austin, School of Law Student Enrollment Demographics for the 1998 Entering Class

Black (8%)
Mexican American (11%)
Other Minority (2%)
White (79%)

SOURCE: [C] A. Leon Higginbotham, Jr., Jeff Ross, and Linda Yush.
Compiled by Judge Higginbotham and associates, Harvard University, John
F. Kennedy School of Government.

A. Leon Higginbotham Jr. is a retired chief judge emeritus of the
United States Court of Appeals, the Public Service Professor of
Jurisprudence at the John F. Kennedy School of Government at Harvard,
Counsel to the law firm of Paul, Weiss, Rifkind, Wharton & Garrison
in their New York and Washington offices, and the author of In the
Matter of Color and Shades of Freedom (Oxford University Press).

COPYRIGHT 1998 Cox, Matthews & Associates

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