We were hugely aided by the fact that Gary Lavergne had written a short history about Heman Sweatt before we started on this. It is called Before Brown: Heman Sweatt, Thurgood Marshall, and the Long Road to Justice. In the course of writing Before Brown, Gary became close with Heman Sweatt’s descendants.
Our first working day on this was to go to Austin, visit with the folks at UT, and understand their positions in the Fisher case. We had read the lower court opinions and briefing. UT’s brief to the Supreme Court was not yet due. To me, the highlight of the trip was meeting and getting to know Gary, who works as the Research Director for the Admissions Office of the whole university. He is also an amateur historian. He wrote a book about Charles Whitman, the Tower sniper, and a second book about another serial killer. So, his book on Heman Sweatt was a good change. Gary took us on a mini-tour that included Room 1 of the Main Building, where the confrontation between Sweatt and his backers and President Painter and his people took place. This is where Heman Sweatt gave his undergraduate transcript to Painter and asked to be admitted to the Law School. My theme in the brief focused on Sweatt and Painter. I had always thought of Painter as just the bad guy in Sweatt v. Painter. In fact, that’s how I portrayed him in my opening statement in the Hopwood v. Texas trial. From Gary’s book, I came away with a very different picture of Thaddeus Painter. President Painter actually helped Sweatt’s lawsuit by writing to the Attorney General, in the words I’ve used again and again: “This applicant … is duly qualified for admission to the Law School at the University of Texas, save and except for the fact that he is a negro [sic].” This became very important in the major theme of the brief. Gary, in writing his book, had gotten to know the Sweatt family. The very next week, he arranged for us to meet in Dallas with Heman Sweatt II, and Dr. Leonard Sweatt. Heman’s daughter, Hemella – she goes by Mellie – Dr. Mellie Sweatt Duplachan, is in Cincinnati. She’s a dermatological pathologist, so her travel schedule is very limited. She works all the time and had to make arrangements far in advance to attend the oral argument, but we had a good talk with her. We talked with the family generally about the direction we wanted to go with the brief. In drafting the beginning of the brief, I wanted something unique, something that stood out when you read those first words from what ended up being one of almost 100 amicus briefs. We figured there would be a lot of amicus briefs filed. There were a lot in the Grutter8 case. We wanted something that at least a law clerk would say, “Oh, this is interesting. This is different. I think I’ll read this and suggest that my Justice read this.”
I drafted that opening and circulated it. Then, we went up to Dallas and met with Leonard and Heman II. We had an interesting talk about what their lives were like. Heman II went to the University of Texas. He explained what it was like for him not seeing another black face on campus, and how excited he was when he did finally see one. It was a very lonely and isolated existence. Dr. Leonard talked a little bit about his uncle, but he was quite a pioneer himself, too. He was the first African-American to go to medical school at Washington University in St. Louis. He was also the first African-American President of the Dallas Medical Society. He was very opinionated and has a strong personality, as you would expect, having done all of that. After circulating a first draft of the brief, we got feedback from the family. Mellie steered us in a different way, particularly in the introduction. I had said that her 12-year-old son was more serious about soccer than his studies. She is very proud of her son, who is named after her father Heman, with good reason. We shifted the focus in the introduction to praise young Heman and his accomplishments. He had the highest GPA at his school for three years. He had just scored second in the whole country on the National Spanish Test – not being Hispanic, obviously. So, we used that to lead into the line that “He is understandably a source of pride for the Sweatt Family which is serious about education. Historically serious.” We talked about how minorities are still underrepresented, even at the University of Texas, which reminded us of Heman II’s experience there. I also remember, in particular, we discussed the need to expand beyond the Top Ten Percent Law in Texas. One of the points we made in the brief was that you need something beyond the top ten percent, because if you’re really looking for diversity of ideas and backgrounds you must look beyond race. It shouldn’t be just one more African-American or one more Hispanic. Instead, a holistic approach should be taken to include, for example, somebody who might be different from someone who grew up in the Third Ward and went to school with 37 other Jack Yates High School seniors. We wanted to underscore that the Jack Yates students are not only going to have pretty much the same ideas and viewpoints, but will share those with the community they grew up with. I remember Dr. Leonard wanted to be sure we understood that point about sharing views with the community. We assured the family that this was the point we were making in the brief. In the end, the family was very much actively participating in the reviewing and drafting, and finally signing off on the brief. They were not passive acceptors of our work.