Time has clouded the inportance of the 1950 Supreme Court decision which desegregated the University of Texas Law School.  In a recent speech,  John Payton, President and Director-Counsel of NAACP Legal Defense and Educational Fund, Inc., maintained that it was a critical step on the road to the Brown v. Board of Education of Topeka. Payton spoke at the U. S. Supreme Court in Washington, D.C. to teenage members of the Just The Beginning Foundation, which seeks to interest youth in careers in the law. The following is the text of his remarks. –The Editors

Just The Beginning Foundation

Sixtieth Anniversary of Sweatt v. Painter

United States Supreme Court

John Payton

Remarks

April 7, 2010

I work at the NAACP Legal Defense Fund. I know from having talked to a lot of people that the title of the organization is confusing. We are neither a “fund” nor are we focused on “defense.” And, though we were originally the legal department of the NAACP, that ended long ago. Since 1940, we have been a separate organization. So, what is the Legal Defense Fund or LDF? Simply put, we are the country’s first civil rights law firm; in today’s nomenclature, the country’s first human rights law firm. And we remain its finest. Thurgood Marshall was our founder; the legendary Charles Houston was the architect of our mission. That mission, from Thurgood Marshall to right now, is literally to transform our country into an inclusive democracy. And far from focusing on defense we have always been on offense.

Sweat v. Painter was one of our cases and one of the cases that began the transformation of our country into an inclusive democracy. That transformation is incomplete. This June we will celebrate the 60th anniversary of the Supreme Court’s decision in Sweatt v. Painter, a landmark on the long road to racial equality. While many people may not have heard of Sweatt, it is one of the critically important Supreme Court cases of the last century. Sweatt led almost inevitably to the dismantling of segregation in American education, opened up formerly white law schools to African-Americans, which is to say that it opened paths to social and political power that were previously closed.

Sweatt was decided in 1950, a time when Black people were denied civil and human rights. They were denied the right to vote, they were discriminated against in employment and housing, the criminal justice system and the education systems were built on racism. Just three years earlier, Jackie Robinson became the first Black person to play a Major League Baseball game when he became a Brooklyn Dodger. Two years earlier, President Truman had issued his famous executive order beginning the desegregation of the United States military. Before that, the military was strictly segregated on the basis of race. And, significantly—because this is an event sponsored by the Just The Beginning Foundation—just the year before, in 1949, William Hastie was sworn in as the first black judge on a federal court of appeals.

This was a very difficult time. By law, custom and the decisions of this Court, the Southern states and their white citizens were free to discriminate against African-Americans in virtually all facets of everyday life. As I am sure you know, there were separate schools for Black children and white children. But racial segregation was much more comprehensive than that. Buses, trains, restaurants, theaters, parks, swimming pools, hotels, stores, restrooms, funeral homes, cemeteries, even drinking fountains were segregated so that Black people were consigned to inferior facilities. In many instances, there were denied facilities outright. Entire job categories were reserved for Black people. The worst job categories. Interracial marriage was a crime in most states.

Separate but equal is the legal phrase that is used to describe this era. Have you heard of that phrase? Do you know what it meant? Well, here is a hint: it did not mean equal in any sense of that word. The phrase is from Plessy v. Ferguson, a 1896 Supreme Court decision. But the phrase never reflected reality. Three years after Plessy, the Court ruled in Cumming v. Board of Education, a Georgia case, that there was nothing unconstitutional about a school district providing a high school for its white children and no high school for its black children. The more accurate phrase would be separate and degradingly unequal.

Do you know the term Jim Crow? Do you know what it means? It is shorthand for what I just described: separate and degradingly unequal. I am going to use that term, Jim Crow.

By the way, if I use a term you don’t understand, or say something that you don’t understand, ask me about it.

It is to address Jim Crow – racial inequality — that Thurgood Marshall and Charles Hamilton Houston at the NAACP Legal Defense Fund crafted the legal strategy and brought several cases, culminating with Brown v. Board, which would ultimately dismantle Jim Crow in the South’s educational system.

First in that line of cases is Missouri v. Gaines. Southern states historically did not provide graduate or professional education to Blacks, at all. If you were a Black Southerner and you wanted to go to law school or some other graduate program, you often could not go to school in your home state. Several Southern states actually established out-of-state scholarships to send their Black citizens to schools in the North. Missouri was no different. The University of Missouri Law School was for white students only. And, Missouri had no law school for Black students. Houston and Marshall sued the university on behalf of Lloyd Gaines, a Black graduate of Lincoln University. They took the case all the way to the Supreme Court where, in 1938, they won a spectacular victory. Their argument was brilliant. Because Missouri did not have a separate state law school for Black students, the state could not claim that the doctrine of separate but equal applied. There was no separate school to be judged equal. That being the case, LDF argued that equal meant the same law school. The Supreme Court agreed and ordered that Gaines be admitted. From this you can see the strategy of showing that an equal education must mean the same education.

Missouri v. Gaines was also one of the most tragic cases that Houston or Marshall worked on. After this stunning victory, Lloyd Gaines, the sole plaintiff, disappeared from the face of the earth. He was never seen again. Ever. I think we all know what happened. At that time, reprisals against Blacks who asserted their rights were not uncommon. Those were times of raw injustice.

As a result of Gaines, some Southern states began to offer some graduate courses to Blacks, but most continued to offer nothing or even defiantly initiated new out-of-state scholarship programs. In the decade following Gaines, only one accredited law school and one accredited medical school in the South accepted African Americans.

So that leads us to the story of Hemann Sweatt, a mail carrier who wanted to go to law school at the University of Texas. In 1946, the law school was all white and the university had done nothing to provide an equal facility for the education of Black lawyers. As it was about to be sued it claimed to have created a separate Black law school. But that school had no separate faculty or library of its own. In fact it only had four shared faculty. It was not accredited. The separate school for Black people was a joke. But Texas argued that it had done all that was required by the constitution.

And it was supported in its argument by eleven Southern states who filed a brief in support of the University of Texas law school. This brief said a tremendous amount about the audacity of the Southern segregationists at that point in our history. The state governments of the South were completely and utterly dedicated to keeping the education of whites and Blacks separate. Underlying that was a concern about race mixing and socializing, especially about the intermingling of Black men and white women. The Southern States’ brief just puts it all right on the table:

“It can safely be said that there exists no desire to discriminate and no prejudice or hatred against Negroes” in the minds of most southern whites. But “there does exist in the minds of majority segments of both whites and Negroes an abiding prejudice against intimate social intermingling of the two races.” This fear of race-mixing, of “crossing the color line in intimate social contact,” they go on to say, exists just as strongly in Blacks as it does in whites. And just in case you miss their point, they explicitly state it for you: “Negro men do not want their daughters, wives, and sweethearts dancing, dating, and playing with white men any more than white men want their women folk in intimate social contact with Negro men.”

Because of these strongly held feelings on both sides, the Southern states argued, the “result of a decision” prohibiting segregation “would be a tragedy.” An order forcing Texas to desegregate would lead to “discontent and unhappiness for both races,” would ruin the “fine and friendly relationships” and “mutual respect” between Blacks and whites in the South, and would destroy “the comfort, peace, and happiness of both races.” Because we all know that the Southern states’ only concern was the comfort and happiness of their African-American citizens. In the view of these seventeen southern states, segregation was a vital part of the social fabric and any attempt to end the practice would tear that fabric apart.

On the other side, a group of nearly 200 well-known legal academics—including then-dean of Harvard Law School, Erwin Griswold—submitted a brief arguing that segregation was incompatible with equality and always discriminatory. They called upon the Court to disavow Plessy and the separate-but-equal doctrine once and for all. Their brief dismissed the Southern states’ reliance on social tradition: “We grant . . . that termination of segregation is a break with tradition. But we contend that there is nothing in the tradition of Negro slavery that is worth preserving.” Their brief also attacked the notion that Jim Crow segregation had produced harmonious relations between the races, calling it a “cancer in our society, progressively threatening the very life of democracy.”

The court had clear choices laid out before it. It could overturn Plessy outright and destroy the legal underpinnings for racial segregation in the South, as the legal academics and LDF advocated. Or, it could defer to the Southern states’ argument that they knew what was best for Blacks and that the Court should just keep out of the way. Ultimately, the court opted for neither of those paths, but the reasoning employed by the Court was critically important to the anti-segregationist movement.

The Court applied the doctrine of separate-but-equal, but found that the law school established for Black students was wholly inadequate. The justices could not “find substantial equality in the educational opportunities offered” to white and Black students. Among other things, the number of teachers, the quality of the library, and the courses offered at the makeshift Black law school were nowhere near equivalent to the University’s law school. But those differences are not what the Court emphasizes.

The Court is far more concerned about the intangible effects of a segregated law school, what the Court calls “those qualities which are incapable of objective measurement but which make for greatness in a law school.” What’s the Court talking about exactly? Reputation of the faculty, experience of the administration, the influence and connections of the alumni, prestige. You just can’t replicate those things. There is no way to do it, and the Court recognizes that in Sweatt. The Court here is also saying something important about the social cost of segregation, something that fundamentally undermines the Southern states’ argument. Law school, the Court observed, is the “proving ground” for legal learning and practice. Hemann Sweatt simply could not get the needed skills through study in an “academic vacuum,” isolated from the vast majority of future lawyers, judges, and other actors in the legal system who were nearly all white. There is an interactive and social component to legal practice that Sweatt could not have obtained in a segregated institution, no matter how well-equipped that institution happened to be. This is the first time that the Supreme Court acknowledges, in a real and serious way, that the social consequences of segregation, the intangible consequences, actually matter. At least in the law school context, separate cannot be equal, and that’s because there are essential social, interactive experiences in a law school that cannot be duplicated. It’s not just about bricks and mortar.

This is the Supreme Court: “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.”

In their brief to the Supreme Court, the Southern states had argued that segregation was not discrimination, that the two concepts had nothing to do with one another. As you can probably see, even though the Sweatt Court declined to overturn Plessy, and chose to ground its decision in the separate-but-equal framework, the decision went a long way towards undermining that notion. It was no longer tenable to claim that segregation was not discriminatory. Sweatt had effectively ended segregation in higher education and had left the doctrine of separate-but-equal in general, as one news publication put it at the time, “a mass of tatters.”

The same day that Sweatt came down, the Court decided a similar case out of Oklahoma. In this case, George McLaurin, a Black teacher who wanted to pursue a Phd in education, had actually been admitted to the University of Oklahoma’s program. Oklahoma chose not to go the Texas route of creating an entirely new school for Blacks; they just admitted him. But there were several catches. McLaurin was required to sit apart from his white classmates at a desk just outside the classroom. For a time, the desk where he sat was surrounded by a rail on which there was a sign stating, “Reserved For Colored.” When he went to the library, he had to sit at a designated desk on the mezzanine floor; he could not use the desks in the regular reading room. For lunch, he had to sit alone at his own table and could not eat at the same time as the other students in the school cafeteria.

The Court found this sort of segregation unacceptable. Again, like in Sweatt, the Court emphasized the social value of education, the need for students to interact with and learn from each other. Because of this, the state’s restrictions impaired McLaurin’s “ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” The opinion ultimately concluded that Blacks “admitted to a state-supported graduate school must receive the same treatment” as white students. You might wonder how the Court squared this result with Plessy and separate-but-equal. The answer is: They don’t. The justices never mention Plessy in the opinion, and that, in of itself, is quite telling.

These two decisions, Sweatt and McLaurin, go hand in hand. The two cases together, one finding that physical equality was not enough and the other emphasizing the stigma imposed by segregated arrangements, laid the foundation for LDF to challenge Plessy and Jim Crow head on. The brilliance and careful planning that went into this strategy cannot be overstated. These victories established precedent that left little room for states to maneuver within the separate-but-equal doctrine by raising the bar higher and higher for what constituted equality. The stage was now set for the complete dismantling of educational segregation in the South. Sweatt and McLaurin certainly did not make the outcome in Brown a forgone conclusion, but both cases—and the emphasis in both on the intangible effects of segregation—were an essential step.

As you all well know, in 1954, the Supreme Court finally held in Brown v. Board of Education that “separate but equal was inherently unequal.” Building on Sweatt and the other cases I’ve discussed today, the Court found that segregating black students from their white peers stamped them with “a badge of inferiority” that irreparably affected both their educational opportunities, and their hearts and minds. So one of the legacies of Sweatt is Brown. Without Sweatt, the Court may not have been ready in 1954 to declare all forms of educational segregation unconstitutional.

But even apart from the broader goal of ending societal segregation, Sweatt brings home how important it was and still is that law school and the legal profession be accessible to people of all backgrounds. The Court expresses concern in its opinion that excluding Sweatt from the University of Texas essentially shuts him out of the profession. It cuts him off from an influential alumni base and from his fellow students, the future leadership of the bar and of the state. Similarly, in McLaurin we see a concern about the “need for trained leaders” and how segregation separates Blacks from the keys to leadership. By opening the doors to advanced degree institutions previously closed to Blacks, the Court expands the opportunities and capacity for Black leaders to emerge.

This is a notion that the Supreme Court recently addressed in Grutter v. Bollinger, a case involving the University of Michigan Law School’s affirmative action program. There, the justices embraced the importance of law school diversity because, as the Sweatt Court observed, law school is a “proving ground” for the future leadership of the nation. More than half of all United States Senators and roughly half of all governors have a law degree. About a third of Representatives in the House are lawyers. Every district and appeals court judge listed on the Just The Beginning Foundation’s website went to law school as a first step in their journey up the ladder.

A quality legal education is often a key asset for civic leadership in the United States. In Grutter, Justice O’Connor and the majority embrace the cause of law school diversity, in part, because they recognize the importance of diverse leadership: In order “to cultivate a set of leaders with legitimacy in the eyes of the citizenry,” the path to leadership needs to be “visibly open to talented and qualified individuals of every race and ethnicity.” O’Connor essentially says that not only do our leaders need to be educated in diverse environments—Sweatt’s point—but that this leadership corps itself needs to be diverse. So there is a clear line from Sweatt v. Painter to Grutter v. Bollinger, from the University of Texas Law School in 1950 to the University of Michigan Law School fifty years later.

This educational diversity is important to our democracy. This is how the Supreme Court said that in Grutter: “Nothing less than the nation’s future depends on leaders trained through wide exposure to the ideas and mores of students as diverse as this nation of many peoples.”

That is an echo from the quote I read earlier from Sweatt – that “legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts.”

At LDF, we are committed to seeing that African-Americans become equal and thriving participants in our democracy. Part of that commitment is to ensure that the paths to leadership and success are open and remain open. And that, of course, begs the question, how far has the legal profession come in terms of educating and supporting Black lawyers? How much work do we have left to do?

Unfortunately, our law schools and the legal profession in general still have a ways to go until we reach true equality. The percentage of African-Americans enrolling in law schools has actually trended downward since 1993, meaning there was a greater proportion of Black students in law school 15 years ago than there are today. Even in real numbers, there are fewer African-Americans in the pipeline than there were in 1993. Black applicants to law school also have higher “shut out” rates, meaning that they are more likely to be denied admission to all the law schools to which they apply. Beyond law school, only about 5% of partners in the nation’s major law firms are African-American. Here in D.C., that number is even lower. On the bench, the number of African-American judges is still far too low, even in the era of Barack Obama.

But this is not reason to be discouraged. It took a long time to get from Plessy to Sweatt. And even after Sweatt was decided, Southern law schools and other institutions didn’t desegregate overnight. The march towards equality is not an easy one and we cannot expect overnight results. We have come a long way over the last 60 years. There is a Black lawyer in the White House and another one heading the Justice Department. But as the numbers I just shared with you demonstrate, our journey is far from completed. This is why the work of organizations like Just The Beginning remains so critical. It also why the hard work and ambitions of students like all of you, our next generation of leaders, is so important. Sweatt and its sister cases opened the doors for all of you, gave you the opportunity to achieve at the best universities in the world and to succeed. But you still have to walk through those doors. To do that requires desire, commitment, and perseverance. I hope that the story of Sweatt inspires you to stay that course. Thank you.