Heman Marion Sweatt: The Unsung Civil Rights Hero

Before Brown
Heman Marion Sweatt, Thurgood Marshall, and the Long Road to Justice
Gary M. Lavergne
October 28, 2010
Education Policy

By Gary M. Lavergne, director of admissions research for the University of Texas at Austin, and the author of four books.

Writing about race is emotional and difficult. Telling the story of Heman Marion Sweatt was a task in which I took great care. For the few who know the story, it is generally known that he was a mail carrier from Houston who applied for admission to University of Texas School of Law in February of 1946 and that the University of Texas President Theophilus S. Painter followed Texas's Constitution, statutes, and an attorney general's opinion and rejected Sweatt's application "...save and except for the fact that he is a negro [sic]."

It is not generally understood that Heman Marion Sweatt was at that time an integral key to an NAACP master plan aimed at breaking down racial segregation in education. His lawyer, Thurgood Marshall, who eventually became the first African American member of the U.S. Supreme Court, took Sweatt v. Painter to the highest court, and the result was that Sweatt became the first African American ever ordered admitted to an all-white institution. The 1950 opinion predated Brown v Board of Education, which explicitly ended legal racial segregation in the United States. In my book, Before Brown: Heman Marion Sweatt, Thurgood Marshall, and the Long Road to Justice, I argue that the Court in Sweatt had already implicitly done so by prohibiting Sweatt's "isolation from . . . individuals and institutions" that he would have to eventually deal with as a lawyer. Moreover, "equality," as the Court defined it under Sweatt, required that law students be exposed to the "interplay of ideas and exchange of views." After Sweatt, any judicially acceptable separate equality became a practical impossibility.

That interpretation is not original to me: Associate Justice Tom Clark, who voted with majorities in both the Sweatt and Brown cases, put it best during an oral history interview when he 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 and Painter." Robert L. Carter, Marshall's assistant, recently wrote in his autobiography that Sweatt left the separate-but-equal doctrine "moribund." Before Sweatt, "equality" tended to be quantified by measures like budgets, buildings, books, and number of faculty. Chief Justice Vinson, the author of the Sweatt opinion, introduced "intangibles."

What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige.

The Vinson Court knew very well that it was impossible to create a law school for African Americans, where none had existed before, with equal intangibles like the "position and influence of the alumni" and "traditions and prestige."

Also, the Sweatt case is important not just because it came first. Marshall used it strategically to abandon attempts at "equalization" in favor of a direct attack on the constitutionality of segregation itself. It was also the first showcase of the "Sociological Argument," that segregation had no rational basis, and that it was destructive because it merely sought to subjugate one race to another - in violation of the equal protection clause of the 14th Amendment.

Neither is the Heman Marion Sweatt story merely an interesting historical artifact. Indeed, it continues to guide us. As Jonathan Alger, the general counsel of Rutgers University, recently wrote in the Journal of College and University Law, the Sweatt case foreshadowed the current argument, articulated in the Bakke (1978) and Grutter (2003) affirmative action cases, 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; 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..."

Of course, none of this is to detract from the milestone that was Brown. In my book I try to show that Brown was not merely an event; it was the product of a linear process, and Sweatt was a big part of that process.