Author: Genevieve Tung
In January 2021, the U.S. Supreme Court granted certiorari to two cases, Students for Fair Admissions v. University of North Carolina, and Students for Fair Admissions v. Harvard University. Both cases present the question of “[w]hether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions.” The decision to grant cert, and the framing of the issues involved, suggests that the Court’s conservative majority is contemplating a drastic change to the rules around affirmative action in higher education.
To understand the struggles, and the stakes, around contemporary consideration of race in university admissions, we need to go further back in time—to the era before Grutter and California v. Bakke. In 1950, the Supreme Court ruled in two companion cases, McLaurin v. Oklahoma and Sweatt v. Painter, which both struck narrow but forceful blows to the “separate but equal” doctrine of Plessy v. Ferguson and set the stage for the massive changes ushered in by Brown v. Board of Education. The arguments raised in the Sweatt case provide important context understanding the pedagogical and ethical value of a diverse student body in law school.
Sweatt v. Painter
Rather than ordering his admission to UT, the court continued the case to allow the state time to open a segregated law school for Black students, after which it denied Sweatt’s petition.3 While Sweatt appealed, the state created a “School of Law of the Texas State University for Negroes,” colloquially known as “The Basement School.”4 The Texas Court of Civil Appeals remanded the case. On remand, Penn Law’s Dean Earl G. Harrison was called as a witness for Sweatt.
A very important facility of a modern law school consists of one’s classmates. In other words, it isn’t enough to have a good professor. It is equally essential that there be a well-rounded, a representative group of students in the classroom to participate in the classroom discussion which centers around previous decisions of the courts.5 Dean Earl G. Harrison
Sweatt’s petition was again denied, and he subsequently lost appeals to Texas Court of Civil Appeals and Texas Supreme Court; the U.S. Supreme Court agreed to hear the case to determine the extent to which the equal protection clause could “limit the power of a state to distinguish between students of different races in professional and graduate education in a state university.”6 The court noted that, during the pendency of the case, Texas’ segregated law school for Black students had made several moves towards parity with UT: increasing the size of its faculty, its library, and moving towards accreditation.7
But these steps, the Court found, did not mean “substantial equality” in their educational offerings—UT remained superior in both material resources and the intangible qualities “which make for greatness in a law school,” such as a faculty’s reputation, alumni networks, and prestige.8 Echoing Dean Harrison’s testimony, the Court further noted that a law school’s community, and the social and intellectual exchange that takes place between students, is a critical component of the educational experience.9
As we wait to see what will unfold in the Harvard and UNC cases, it is helpful to learn more about the long legacy of Heman Sweatt. Check out these titles in Biddle’s collection to learn more:
Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (1994)
