'Before Brown'

When people talk about the demolition of the doctrine of "separate but equal," the case everyone focuses on is Brown v. Board of Education, the U.S. Supreme Court's landmark 1954 ruling. Four years earlier, however, the Supreme Court rejected that doctrine in a higher education case -- one that set the legal framework for Brown and helped shape the strategy of Thurgood Marshall in his assault on Jim Crow in education.

The case was Sweatt v. Painter, in which the court ordered the admission of Heman M. Sweatt, a black man, to the law school at the University of Texas at Austin. Sweatt's lawsuit exposed the extent of the inequalities in Texas higher education. When he sued, the state had no law school at all for black people, and in an attempt to defend "separate but equal," Texas quickly created one. (It is now the law school of historically black Texas Southern University and is named for Marshall.) But the Supreme Court pointed out all that the new law school lacked, including the participation of the students and faculty members one would encounter at Texas -- and rejected "separate but equal."

Before Brown: Heman Marion Sweatt, Thurgood Marshall and the Long Road to Justice (University of Texas Press) tells the story of that case. The author is Gary M. Lavergne, who is director of admissions research at the University of Texas at Austin. He recently responded via e-mail to questions about his new book.

Q: Given that Sweatt v. Painter rejected "separate but equal," why do you think it has received relatively little attention compared to Brown v. Board of Education?

A: Because Brown was such a milestone in the history of our country, and civil rights in particular, it simply overwhelmed Sweatt, which was ruled upon only four years earlier. Brown was emphatic: "...separate is inherently unequal..." but like all milestones, especially in legal history, it was made possible by the events that preceded it. In my view the story of Heman Marion Sweatt is the most underappreciated piece of the remarkable story of the demise of legal racial segregation.

Q: Do you think Sweatt v. Painter made the Brown decision inevitable? Was "separate but equal" actually killed before Brown?

A: Justice Tom Clark, one of the justices who ruled on both Brown and Sweatt, said, "In fact, not in Brown as people say, did we overrule [the separate-but-equal doctrine in] Plessy. We implicitly overruled Plessy in Sweatt." But in Sweatt the Court did so in a subtle way. Separate-but-equal became moribund when they did two things: First, they said that Heman Sweatt could not be separated from the people (and their ideas) he would have to interact with when he became a lawyer. The only possible remedy was admitting blacks to all-white institutions. Second, the Court said that "separate equality" was more than just tangible measures like the number of books, buildings, money, and number of faculty. It was also "those qualities which are incapable of objective measurement" like the reputation of the school and its faculty, the influence of the alumni, and all of the "social and cultural capital" we read about today in books about access. Chief Justice Vinson knew very well that it was impossible to create a separate law school for African Americans, where none had existed before, with equal intangibles like the "position and influence of the alumni" with "traditions and prestige." Thus, they made separate equality in professional schools a practical impossibility. Sweatt made Brown possible insofar as at the time of Sweatt the Court seemed not quite willing to take the final unambiguous step they took only four years later. But they settled for making legal racial segregation in graduate and professional schools impossible.

Q: The University of Texas has continued over the years to debate issues of race -- with the Hopwood decision, with the recent move to rename a dormitory that honored a Klan leader. How has Sweatt shaped the university? Do people at the university know enough about the case?

A: It is my observation that, with the exception of a few classes in some law schools, a negligible number of people, especially in higher education, really appreciate the significance of Sweatt v. Painter. The University of Texas at Austin has a Division of Diversity and Community Engagement that sponsors an annual Heman Sweatt Symposium on Civil Rights and the part of the campus where the Undergraduate Admissions Center is located is called the Sweatt Campus. I know from direct experience that Sweatt's ideals guide the operations of both of those offices. On the other hand, Texas and UT Austin are not unlike other states and institutions: on occasion we are haunted by the vestiges of our unfortunate history when it comes to race. On many occasions I've said to students that wisdom is not possible without studying history -- to believe otherwise is to think wisdom is a psychic phenomenon. So, I wanted to create literature that makes us wiser, and the story of Heman Sweatt was an ideal choice.

Q: Do you see implications in the history of Sweatt for the debates over affirmative action today?

A: The Sweatt story is more than an interesting historical artifact. Indeed, it continues to guide us. My friend, Jonathan Alger, the general counsel of Rutgers University, recently wrote that the Sweatt case foreshadowed the current argument we are having, articulated in Bakke (1978) and then in Grutter (2003), that there are educational benefits for all students when they are exposed to a diversity of ideas, and access to ideas is a constitutional right. In Bakke, the Supreme Court used Sweatt to condemn the isolation of individuals from ideas; in Grutter, it was used to argue that since higher education was the training ground for the nation's leaders, it had to be visibly open to individuals of every race and ethnicity in order to "...cultivate a set of leaders with legitimacy in the eyes of the citizenry... ." Arguably, the "intangibles" in Sweatt, those things that cannot be objectively measured but make for greatness in a law school, bear a resemblance to Justice O'Connor's insistence that applicants not be subjected to a rigid, merely "mechanical" admissions process. In both cases the exclusive use "objective" measures give way to holistic approaches.

Q: The history of desegregation in higher education has been accompanied by concerns about historically black colleges. As your book notes, this case resulted in the creation of a historically black law school -- and the Legislature cut the budget for black colleges after the Supreme Court's decision. Are there lessons in the history of this case for black colleges today?

A: This is such a great story: The Thurgood Marshall School of Law, the "House that Sweatt Built," was named the most diverse law school in the nation three consecutive years by U.S. News & World Report. It is named after the person who fought hardest to prevent its creation. The single richest lesson I learned while investigating the Sweatt case is that I grossly underappreciated how divided the African American community was in Sweatt's time over issues like integration. There were black leaders who clearly feared what impact victories in Sweatt and Brown would have on significant African American social structures, neighborhoods and schools especially. I think present-day discussions about the missions of the historically black colleges are a continuation of that debate. During the preparation of my manuscript, in all of my discussions with African American scholars, lawyers, and clergy, the subject of the role of historically-black institutions came up, and this is one of those rare instances where everyone on all sides has a good point to make. I might add that in spite of the internal divisions among African Americans I described above, the Sweatt case brought the black community together: they all agreed that if Heman Marion Sweatt wanted to go to the University of Texas, he should be able to go.

Q: Not many people in university admissions publish several scholarly books. How have you managed your career to do so?

A: I get asked that all the time ... and the answer is rather unromantic. Some people play music or do art, some do woodworking while others play golf, some travel, and still others read for enjoyment. I enjoy all of those things, but not while I am writing books. After I decide on a topic it takes up a minimum of three years of all of my evenings, weekends, free time, and vacations. That's not as bad as it sounds; I enjoy it. It helps that my wife is in admissions and is a writer and my editor who has a great deal to say about everything I write. Also, while at work the best friends I have on campus are lawyers. I often go home at the end of a day inspired by their expertise and passion. In the admissions profession, I don't know of many officers anywhere who spend a lot of time studying their institution's darkest days; we market the opposite. I found it very helpful. The truth is that in February of 1946 the University of Texas rejected a law school applicant for no other reason than because he was black. At the same time we have to remember that Heman Marion Sweatt eventually came to the University of Texas, and was just as much a Longhorn as anyone else. Sweatt had a thousand reasons not to come here, but he came anyway. He was what a Longhorn should be because he made it easier, though not easy, for everybody that has ever come after him. He made us a better institution. And therein lies a character worth studying.