Nearly a century ago, Thurgood Marshall wanted to go to law school at the University of Maryland, but the Baltimore native was rejected because of his race. So, he went to Howard University instead.
Not many years later, Lloyd Gaines applied for admission to the University of Missouri’s law school and was rejected for the same reason. He sued, but before the case reached its conclusion, Gaines disappeared and was never seen or heard from again.
The University of Texas law school rejected Herman Sweatt’s application in 1946 on the same racist grounds. The NAACP and Thurgood Marshall, by then a civil rights lawyer, sued and won a Supreme Court case, clearing the way for Sweatt to be admitted in 1950.
Before Brown v. Board of Education, law schools discriminated against Black applicants, and not just in southern and border states. Northern law schools enrolled only miniscule numbers of Black students before the landmark decision in 1954. By then, less than 1% of the nation’s lawyers were Black, the vast majority trained at Howard and other historically Black law schools.
Now the Trump administration is pressuring the American Bar Association, which accredits law schools, to drop its standard that they commit to diversity in admissions, recruitment and programming.
The lever that administration is using is the threat that the Department of Education — which the administration has gutted and wants to abolish — will not renew the ABA’s certification to accredit law schools. The department has the power to certify accreditors, or not, because colleges are the conduit for students to receive federal financial aid.
The general body of the bar association has balked, but its accrediting council appears willing to knuckle under to retain its status as an accreditor.
It is most unclear what body would accredit law schools if the ABA doesn’t. Is this another bluff from the Trump administration?
Today, about 5% of American lawyers are Black. That’s progress from the pre-Brown era of discrimination. Still, it’s nowhere near parity with the Black population of about 14%.
The Trump administration has a loose relationship with the rule of law so it’s not surprising it’s seeking to decrease the number of Black lawyers, who might be more inclined to challenge its unlawful actions than their peers. It would be an interesting research initiative to tally the number of times federal courts have ruled that this administration has broken the law after being in power fewer than two years.
The Department of Education, along with the rest of the Trump administration, is overinterpreting the Supreme Court’s retro decision in 2023 to ban the consideration of race in college admissions.
The bar association’s standard does not tell law schools they have to achieve diversity and does not say they must consider race in admissions and hiring.
The standard only mandates they take “concrete” action toward diversity and inclusion by race, ethnicity and gender. They could do that by recruiting at historically Black colleges and universities (whose enrollments are not entirely Black), advertising in Black-owned media, mobilizing Black alumni and engaging in similar activities.
That kind of outreach once was okay with conservative opponents of affirmative action, once again showing just how extreme this administration is.
The larger problem, and not just with Trump’s Education Department, is the prevailing rationale for diversity in higher education is off. It ignores the discriminatory history of admissions and hiring at the nation’s colleges.
That rationale comes from a Republican Supreme Court justice from Virginia nominated by Richard Nixon. Lewis Powell, in the controlling opinion in Regents of the University of California vs. Bakke in 1978, ruled it was permissible to consider race in admissions because diversity in a student body made for a better education for everyone. The case involved an older white man who was denied admission to a medical school.
When the Bakke decision was reached, civil rights advocates considered it a blow to their drive to open the doors of higher education to more African Americans. Those advocates considered affirmative action a make-up call for decades of past discrimination. They had the right idea, but they and colleges, working within the law, adopted Powell’s diversity rap as the only way forward the Supreme Court was allowing.
The American system of law recognizes and embraces the concept of a remedy. If someone or some entity is found to have violated the rights of a person or a class of people, then a remedy for that wrong is in order. That scenario fits with most Americans’ sense of morality, the idea of making amends for doing something wrong.
The first law school was established at a college in this country in the late 1700s, at William & Mary in Virginia. All of 175 years elapsed before the Brown decision was issued.
That’s a long period of discrimination. Reasonably, remedying that wrong should take as long. The American Bar Association, which has its own record of discrimination in membership, ought to remember that when deciding the fate of its diversity standard for law schools. The standard has been suspended since February 2025.
There’s no hope that the Trump administration will see how wrongheaded its attack on diversity is. But for everyone else, mindful of history, the word to use should be remedy instead of diversity.
Ronald Mitchell
Editor and Publisher, Bay State Banner
