By Christina Smith

FEBRUARY 9, 1998:  There's a former University of Texas Law School student over in Houston, George Washington, Jr., who sees the Hopwood decision as a step back in time - to a time when you could count the number of black UT Law students on one hand. "That's back to how it used to be 20 years ago," Washington said, according to his wife Emma. (Mrs. Washington interprets for her husband, a retired lawyer who had a stroke a few years ago and has difficulty speaking.) Even after the Supreme Court's 1950 Sweatt v. Painter decision that allowed blacks into UT's School of Law, the number of black law students remained very low until affirmative action began in the Eighties. But Washington, 67, remembers the time before affirmative action well, because he was one of those handful of students that made history for UT and for the country. In January 1954, he was among the first African-American students to graduate from UT Law. (The first graduate, Virgil Lott, class of '53, and Ollice Malloy, Jr., who graduated with Washington, are now both deceased.)

The recent debate over comments made by UT Law Professor Lino Graglia, coupled with the fact that UT has officially spent one semester bound under the Hopwood decision, which outlawed affirmative action at UT and some other southern law schools, is cause to look back at the history of discrimination and affirmative action at UT Law.

World War II had just ended, and Mr. Heman Sweatt was working for the Post Office in Houston. The 33-year-old black man was about to make a decision that would change his life; a life that until then paralleled the lives of many African-Americans of his time and before. Sweatt and his predecessors lived in a country where being black meant being second class.

As a child, he walked two miles to the black school, passing two white schools on the way; one only a couple of blocks from his home. Back then, black and white didn't mix; separation was the law of the land. But Sweatt, like many, knew that the law of the land was not just, and before 1950 rolled around, Sweatt would find himself at the center of a Supreme Court case that would mark a significant leg in the race for racial equality.

In 1946 Sweatt applied to the University of Texas Law School. At that time, the "separate but equal" doctrine was in effect, meaning that segregation was legal, as long as there was an equal establishment for blacks. (Public schools were not integrated until 1954, with Brown v. Board of Education.) At the time Sweatt applied, Texas did not offer blacks the opportunity to go to law school; a black person who wanted to earn a law degree had to head North, where discrimination still existed, but at least there were more educational opportunities.

Herman Sweatt waiting in a UT registration line photograph courtesy Texas Student Publications

But Sweatt didn't want to go North. He wanted to stay in Texas. And he wanted to go to UT Law School. So he applied, under the guidance of then-NAACP attorney Thurgood Marshall, who later became the nation's first black U.S. Supreme Court Justice. At that time, the only requirement to enter law school was a degree from an accredited university, said former UT student Oscar Mauzy, a '52 graduate and former state senator and Texas Supreme Court Justice. Mauzy, who is white, attended the Law School with the first black students. He attributes his own education to the GI bill, which gave war veterans money to go to college. "I never would have set foot on a college campus without the GI bill," he said.

But for Sweatt to become the first African-American to set foot into UT Law, he needed more than a GI bill. He needed the U.S. Supreme Court. According to Joe Greenhill - a former Chief Justice of the Texas Supreme Court who in 1946 was an assistant Texas attorney general who helped represent the state in the Sweatt case - because there was no law school for blacks, Sweatt had a legal right to be admitted to UT. Instead, the state chose what it considered an acceptable legal option: It hurriedly set up the Texas State University for Negroes (TSUN) in the basement of a building north of the Capitol.

Professor Corwin Johnson taught at the UT Law School during the Sweatt litigation. He was one of a handful of UT professors who was recruited to teach at TSUN, which existed for only two semesters before it was moved to Houston, eventually becoming Texas Southern University. He recalls those two students who took advantage of the makeshift school while the Sweatt case was going on: Virgil Lott, who was to become the first black UT law graduate, and Henry Doyle, who ended up transferring to the Houston school and ultimately became a judge.

"They both turned out to be very good students," Johnson recalled, adding that even though his class met at 7:45am, he never had an attendance problem: "They were very dedicated." Johnson said the strangest thing about the basement school was the fact that there were only two students. He said he viewed his TSUN class as just another section of the same course he was teaching at UT.

Although he did not agree with segregation, Johnson said, he felt like he was doing a good thing by teaching at the separate school. "While segregated education is not as good as non-segregated education, it's better than nothing."

But Sweatt decided to choose nothing, at least for the time being. Although TSUN admitted three students in 1947 (one of whom dropped out immediately), Sweatt was not one of them. He chose to reject segregated education, and stick it out until UT let him in.

"He would not attend separate [school]," Greenhill said. "No matter how equal it was. And so the stage was set." Greenhill, who later became a good friend of Marshall's, said Marshall had been looking for just the right case to take to the Supreme Court. "He was a very wise man," Greenhill said. "He was looking for the best case he could take up there, and this was it."

At the Supreme Court, Marshall argued successfully that separate was not equal; and the Court gave Sweatt and all blacks the right to attend the University of Texas Law School.

Mauzy, who was president of the second-year class when Sweatt entered the Law School doors, said that although there were some overtly negative reactions to the Court's decision, the student body's reaction was better than expected. Having served abroad for two years, Mauzy said he and many of the other war veteran students were more open to the idea of integration because they had experienced it overseas. He said he remembers not understanding why the armed forces did not give minorities better jobs. "I thought it was a terrible waste of talent," Mauzy said, recalling that many of the black men on his ship were delegated to work as mess cooks or valets, even though they had college degrees. "I was a punk right out of high school, and I was treated better than them."

Although Sweatt dropped out of UT after a year, his entry opened the doors for a long list of students, including George Washington, Jr. Washington was in high school during the Sweatt litigation, but he says he already knew he wanted to go to law school. When he entered UT Law School in 1951 he was more concerned with succeeding in school than about breaking new ground, said his wife Emma. "He just didn't have time to worry about it," she said. "He was there to get a law degree." But Washington said her husband did have a sense he was doing something historical. "He knew he was opening doors, and he knew it would be difficult," she said. "And he knew that when he walked out, it wasn't like his white classmates walking out."

Professor Corwin Johnson taught at the UT law School during the Sweatt litigation photograph by John Anderson

Unfortunately, desegregation did not mean the end of discrimination. Black law grads often had a hard time finding jobs. And if they opened their own firms, they had mostly black clients, who didn't bring in as much money, she said. There was still a lot of prejudice, she recalled, "even though you had the same piece of paper, the same J.D. as the guy sitting next to you."

Despite legal remedies to discrimination, Emma Washington believes that minorities still struggle for equal representation. "It isn't that much different now that it was then," she said, explaining that there are very few black judges, and that black attorneys are often hired only as "tokens." Washington said her husband firmly believes in affirmative action and that not having affirmative action at UT Law School will deter blacks from applying.

Mauzy, who describes the Hopwood decision as a tragedy, has consistently worked to promote affirmative action programs in Texas. In 1969, while on the Texas Senate, Mauzy told then-governor Frank Erwin: "I want to see the complexion of the student body at UT change to look like the complexion of the state of Texas. I want to see more black faces, more brown faces, and more female faces."

Still, affirmative action was not formally institutionalized at UT until more than a decade later, in 1983, when the university faced having federal funding pulled if the school didn't come into compliance with Title IV, said Samuel Issacharoff, a UT Law School professor who represented the University in the Hopwood case. Title VI of the 1964 Civil Rights Act made it clear that no university would receive federal funding if it had not overcome its history of discrimination. But while affirmative action has been highly successful in remedying past discrimination, Issacharoff said, the passage of time has highlighted some of its imperfections. "No one can deny that it would be far preferable if we were indifferent to race," he said. But that simply isn't the case.

Our country, for many years, was for "whites only." And affirmative action proponents maintain that the results of that cannot be erased so easily. According to statistics from the Law School's admissions office, only four black students enrolled in the 1997 entering law class of 468 students - less than 1%, as opposed to the previous four years, which included 6-7% black enrollment. (Hispanics made up under 6% of the 1997 class, compared to about 10% the year before.) Clearly these statistics do not, as Mauzy would say, reflect the complexion of the state. Instead they reflect a largely white complexion, eerily similar to that of the 1950 entering class, when Sweatt and his comrades made history.

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