Friday, December 03, 2021

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Article Index

I. A HISTORY OF DISCRIMINATORY AND EXCLUSIONARY ADMISSION PRACTICES BY LAW SCHOOLS

There has been a lengthy history of racial exclusionary practices, which prohibited the admission of African American students, particularly males, into white public law schools. Charles Hamilton Houston and Thurgood Marshall, two African American male lawyers, led the fight for the admission of African Americans into white law schools through their brilliantadvocacy. One of their first cases, Pearson v. Murray, challenged the practice of excluding African Americans from attending the University of Maryland Law School. Murray, an African American male, alleged that he was denied admission because of his race. The court of appeals held that while the separation of races was permissible, equal treatment was still required. Thus, requiring African American law students to travel out of state to attend law school violated the Equal Protection Clause of the Fourteenth Amendment. The court required the University to admit Murray since there were no separate law schools for African Americans in the state of Maryland.

In 1938, Lloyd Gaines, an African American male, challenged the University of Missouri's policy of excluding African Americans from admission to law school. In Gaines v. Canada, Gaines alleged that his denial of admission because of his race violated the Equal Protection Clause of the U.S. Constitution. Even though Gaines met the qualifications for admission to the law school, the University nevertheless denied his admission purely because he was an African American. He was directed to apply for state aid to attend a law school in another state that admitted African Americans.

The U.S. Supreme Court held that if the state provided higher education to white residents, it had to provide higher educational opportunities to black residents within the state, but not necessarily in the same school. Gaines opened the pipelines for African American students to receive legal training within the state, although it would be segregated. The Gaines decision did not overrule Plessy v. Ferguson, which upheld the separate but equal doctrine.

Twelve years after the Gaines decision, the U.S. Supreme Court was again confronted with the issue of whether the exclusion of an African American male from a state supported law school because of race violated the Equal Protection Clause of the Constitution. In Sweatt v. Painter, an African American male applied and was denied admission to the University of Texas Law School. Sweatt alleged that the white law school had substantially more resources than the separate law school established for blacks. The U.S. Supreme Court agreed with Sweatt and ordered his admission to the white law school. The Court held that Sweatt had been denied privileges, advantages and opportunity to study law in comparison to white law students. Again, the Supreme Court refused to re-examine the separate but equal doctrine it first articulated in Plessy. Even with the Court maintaining the doctrine of separate but equal, the Sweatt decision further opened the pipelines for African American students to attend white law schools.

In 1954 the U. S. Supreme Court issued the seminal case Brown v. Board of Education, which held that the separate but equal doctrine in segregated public schools violated the Equal Protection Clause under the Fourteenth Amendment. Specifically, the Court stated that the doctrine of separate but equal has no place in public education. The Court also indicated that [t]oday, education is perhaps the most important function of state and local governments. The ending of the separate but equal doctrine and the Court's confirmation of the importance of education further opened the pipelines for African American students to apply to and attend state supported law schools, which had previously refused to admit African American students. The Brown decision, however, failed to have a major impact on the admission of African American students into white law schools. Without a doubt, the number of African American students increased as a result of widespread integration, but the number of African American male lawyers remains considerably low in comparison to the total population of African Americans. Ironically, the Brown decision led to the unintended result of the closure of many black law schools that enrolled African American males. Although black law schools served their purpose during the period governed by the separate but equal doctrine, the end of de jure discrimination undercut the need for black law schools because African American students could now attend integrated law schools. Consequently, the Brown decision also allowed for the mass closure and consolidation of black and white schools, especially in the South.

Almost fifty years after the decision in Brown, the U.S. Supreme Court issued the highly divided decision of Grutter v. Bollinger. In Grutter, the University of Michigan Law School used race, among other factors, in making admission decisions for entrance into the law school. The law school's admission policy sought to ensure diversity among its students. The Supreme Court held that the University of Michigan's program was narrowly tailored and furthered a compelling state interest in obtaining the educational benefits that flow from a diverse student body. Even though the Grutter decision was a victory for proponents of affirmative action, the decision did not prevent a decline in enrollment of African American students.

Nevertheless, the Grutter decision in theory prevented a fragile pipeline for African American males to be admitted into law school from narrowing. However, after more than seventy years of state and federal litigation involving admission policies, the number of African American males attending law school and entering the legal profession remains low and continues to stagnate.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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