In 1954 with its decision in Brown v. Board of Education, the United States Supreme Court ruled on racial discrimination in public schools, but four years before that (and twenty-four years before Bakke), Boalt Hall was caught up in a controversy concerning the role of racism in the admission of minority law students. The decision in Brown was written by Boalt alumnus Earl Warren, ‘14, who affirmed the rights of black school children in Topeka, Kansas. How did we fare in 1950 with an issue that hit quite a bit closer to home?
Wesley A. Sturges, the Dean of Yale Law School, placed the cat firmly among the proverbial canaries when he circulated an announcement among his fellow deans that at the December 1950 meeting of the Association of American Law Schools he would be presenting a resolution that read: “No school which follows a policy of excluding or segregating qualified applicants on the basis of race or color shall be qualified to be admitted to or to remain a member of the Association.” The measure was aimed directly at the law schools of the Jim Crow south, and threatened the membership status of some of the oldest and most distinguished institutions.
Boalt Hall’s Dean William Prosser, whose opinion of African American law students might most charitably be described as benighted, could not imagine that the issue was one that merited much contentious debate. There were simply too few qualified Negroes to justify raising such a divisive issue. He believed the resolution in actuality to be “a covert attack” on Columbia Law School. “Columbia ostensibly excludes no one on the grounds of race,” he wrote to his mother in November of 1950, “but it selects its students, and the number of Jews admitted is so much less than the proportion you would expect around New York City that it appears obvious that they have some way of achieving a quota.”
Regardless of whether the measure was designed to protect the rights of African Americans or those of Jews, Boalt Hall would need to cast its vote at the AALS meeting. Prosser brought the issue to a faculty meeting on November 30th, and asked for advice. After prolonged discussion, the Boalt Hall faculty decided that Berkeley should vote against the Yale Resolution. But perhaps it wouldn’t come to that. “It was also indicated to be the feeling of the group,” the minutes of that meeting read, “that, if possible, the matter should be tabled or otherwise deferred and that, in any event, it should be made clear that the School did not practice exclusion or segregation and was opposed to such practices.”
At the meeting in Chicago, Dean Sturges rose to present his resolution, and pleaded that the matter not be merely shunted aside by parliamentary maneuvers. “[A]s we may not remain neutral, so by our action on this resolution will we speak the voice of America on behalf of organized legal education — speak it not only to millions of our own citizens but also to peoples of other countries. And I think that whatever action shall be taken by the member law schools of this Association with respect to this resolution will be understood as a statement to the world on the issue of segregation, not only by our law school members, but also of the universities or colleges of which we are a part.”
In response, the dean of Indiana University School of Law proposed a substitute resolution that would postpone the vote for one year by referring the matter to a five-person committee appointed by the president. The Indiana resolution passed, and the matter was shunted to a special committee that was charged to report at the 1951 annual meeting. Dean Prosser, who did not speak at the meeting, voted in favor of the postponement.
The following year the five-person committee submitted its report, which backed away from any suggestion of immediate ouster of law schools that failed to comply, and instead opted merely for “a firm statement of the Association’s position” on segregation — a statement to be directed not at the law schools themselves, but at the trustees and higher administrators who set admissions policies for the colleges and universities. The committee felt a slower course of gradual persuasion would be a more effective strategy. Charles Driscoll, of Loyola, wanted none of it. “The Law School of Loyola University of the South in New Orleans wants to admit qualified Negro students,” Driscoll told the assembly. “We believe we shall be able to do so only when non-discrimination becomes a flat requirement.” Debate ensued, with proposals and counter proposals, amendments and substitutions, measures offered and dissected and quibbled over, until a delegate from the University of Nebraska suggested the body change its name to The American Pussyfoot Law Association.
Lemuel Haslup, of Stetson University College of Law, moved that the committee’s report be merely received and filed, suggesting that ouster from the AALS might not be viewed as much of a punishment by some law schools. “I would like to suggest to you, Mr. Chairman,” he warned, “that some of us may have been told that membership in this Association may be unimportant.” He was ruled out of order.
In the end, the committee’s recommendation for a gradual movement toward the desegregation of American law schools was adopted, with 85 yeas and 15 nays. The nays were almost entirely from the South. Berkeley voted with the majority.