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Excerpted From: Roscoe C. Howard, Jr., Getting it Wrong: Hopwood V. Texas and its Implications for Racial Diversity in Legal Education and Practice, New England Law Review 831 (Spring 1997) (237 Footnotes) (Full Document)

RoscoeHowardJrNoted as the world's “melting pot” for people of various races, ethnic backgrounds, religions, social classes, and creeds, the United States is a country in which the differences in its citizenry are its most prominent characteristic. The country is a variegated landscape of skin colors, languages, heritages, and economic strata.

This country is also one in which being a member of a minority group has often meant denial of basic rights: education, access to shelter, and participation in the democratic process. The South was built on the backs of black slaves. Enslavement meant lack of status for black Americans, a feature that this country tried to maintain well after the Emancipation Proclamation ended slavery.

The struggle for equality is a road well-known to blacks in this country. The struggle most often takes place in the courtrooms, where people seek redress for injustices and transgressions. Of course, in the courtroom, lawyers are needed to navigate the path to justice. The Fifth Circuit's recent decision in Hopwood v. Texas, is deeply troubling because it stands for the view that this country has no duty to ensure professional educational opportunities for all of its citizens. Equally troubling is the decision's effective dismissal of the view that minority citizens should have access to legal representation by minority attorneys who may best understand their circumstances and best advocate for them in courtrooms and in other legal settings.

In Hopwood, the Fifth Circuit decided that the admissions process at the University of Texas School of Law violated the United States Constitution because it maintained a process by which black and Mexican-American students were evaluated under a different system in order to obtain proportionate representation of those minorities in their student body. In striking down the law school's admissions procedures, the Fifth Circuit concluded that any use of race in the admissions process was forbidden by the Constitution. By so doing, the Fifth Circuit has made the struggle for equality harder for blacks.

Part II of this Article discusses the origins of the Hopwood decision, reviewing the litigation that attacked the absence of professional level education in Texas and elsewhere, and which culminated with the United States Supreme Court's decision in Regents of the University of California v. Bakke.

Part III reviews the district court and Fifth Circuit opinions in Hopwood.

Part IV opens with a discussion of diversity as a compelling government interest. This Article sets forth reasons why the Fifth Circuit's analysis is flawed and discusses the error the Fifth Circuit made in concluding that race is not a shared experience of blacks, and therefore should not be a factor in law school admissions. In addressing that finding, this Article discusses several realities of racism that still exist in this country and its influence in shaping the collective black experience. This Article then discusses the compelling need for more black and minority attorneys in this country and the need for diversity as a pedagogical tool in the classroom. Yet, achieving diversity does not mean admitting students who are unable to do the work in law school. This Article also addresses how minorities have been disadvantaged in the standardized tests on which law schools rely for admissions and posits that diversity should be a goal that is achieved by looking at other criteria.

I have written this Article from the perspective that I know best: the perspective of a black American. The Hopwood case involved both blacks and Mexican-Americans as the predominant minorities. Although this article does not discuss in great detail Hispanic and other racial or ethnic minorities who have found themselves excluded or disadvantaged in the educational system, I believe that my conclusion--that there is a compelling need to ensure diversity in the law school classroom and the bar--is applicable to all minorities in this country.

[. . .]

The social justification for the Negro lawyer as such in the United States today is the service he can render the race as an interpreter and proponent of (the Negro race's) rights and aspirations.

Charles H. Houston concluded in 1935 that there was a sufficient number of white attorneys available in the country to handle the ordinary legal business that arose, but the white lawyer “cannot be relied upon to wage to an uncompromising fight for equal rights for Negroes.” As the battle over segregation raged in 1935, the black lawyer comprised only .007% of the total population of the country and the numbers of black lawyers were simply inadequate to address the legal concerns of the black population.

Although the problems of 1996 and 1997 are not as blatant and urgent as the problems of 1935, the battles being fought by the black individuals in this country are the same. While white attorneys are better equipped and are willing and able to carry on the battles in the courtrooms, it is the black attorney who has the stake in the battle. It is the black population who should be able to turn to a black attorney to advocate for their rights and aspirations.

In a country with 861,000 lawyers and judges, only 3.3% are black, while just 3% are Hispanic, despite the fact that these minorities make up 12% and 8.8%, respectively, of the total population. In a nation of almost 249 million people, in which lawyers and judges make up approximately .346% of the country's population, black attorneys only make up approximately .0114% of the total population, and .095% of the black population. Hispanics, who comprise 3% of all of the attorneys in the United States, represent just .122% of the Hispanic population, and only .0107% of the total population of the country.

Many of the battles of 1935 are still being waged in the minority communities, while new concerns arise. It is evident that the availability of minority attorneys to carry the message and represent the community is insufficient. The only means to ensure that the concerns and issues of the minority population are adequately addressed is to provide minority attorneys to these communities.

The low numbers of minority attorneys also indicate that the lessons of the law may not be fully incorporated into legal training. Law schools can only benefit from the incorporation of those who have had their viewpoint shaped by their race and ethnicity. The issues of race, ethnicity, and social background so permeate the law that a homogenous classroom will not provide the diverse education for which law schools should strive. The minority law students who provide this diversity have the intellect and capability for law school and practice.

A state's paramount concern should be the education of its future lawyers and the representation of its citizens. It affects the state's judicial system in such a profound way that the interest should be deemed “compelling.” Indeed, the United States Supreme Court agreed. However, in Hopwood, a constitutionally inferior court has seen fit to find differently.

The Hopwood reasoning is flawed. The court's assumptions on the role of race, from the viewpoint of black individuals, are ill-conceived and its disregard of Supreme Court precedent is indefensible. Horace Mann understood over 150 years ago that to realize equality in this country, education must be made available to all people. Education is the great equalizer, and the fight for equality is the struggle that blacks in this country have long endured. The Fifth Circuit in Hopwood wrongly decided that the fight for equality is now over and is no longer worthy of the court's embrace. 

Associate Professor of Law at the University of Kansas; A.B., 1974, Brown University; J.D., 1977, University of Virginia.