Abstract
Excerpted From: Briana Lynn Rosenbaum, Deflect, Delay, Deny: ACase Study of Segregation by Law School Faculty Before Brown v. Board of Education, 90 Tennessee Law Review 1 (Fall, 2022) (291 Footnotes) (Full Document)
“When nobody talks about the complete history of our law schools and the 'leaders' in our legal community, we risk forgetting the truth. Once the truth is forgotten, we have no secure foundation upon which to build a better system.” - J.D. Candidate, Elizabeth Lyon, UALR William H. Bowen School of Law (2022).
The story of the desegregation of the University of Tennessee College of Law has been told many times before. According to the usual account, university officials worked hand in hand with the University of Tennessee Board of Trustees in both the pre- and post-Brown eras to prevent integration. NAACP lawyers filed several cases on behalf of prospective black students to try to force desegregation. They were finally successful in 1952 when certain defeat at the United States Supreme Court forced the University to concede and admit its first black graduate students. One of these students was Lincoln A. Blakeney, the first black student at the University of Tennessee College of Law. Blakeney dropped out of UT Law shortly after enrolling, and R.B.J. Cambelle became the first black student to graduate from the University of Tennessee College of Law in 1956.
This account, while technically accurate, leaves out a vast amount. Like many histories of desegregation at American law schools, it avoids examination of the role of individual faculty members in the perpetuation of segregation at the University of Tennessee (“UT”). Historic documents reveal that, in the pre-Brown era, several UT Law faculty members helped to design and implement UT's segregation strategy. UT Law faculty members led efforts to stall national accreditation policies that would force change and helped to design and promote statewide alternatives to desegregation. They acted as legal and policy advisers to the university officials who were resisting desegregation. And they worked at the college level to deliberately process applications by black prospective students in ways that would ensure that no black student would attend UT Law. The faculty members who were responsible for perpetuating segregation at UT Law are memorialized still today, including through a named professorship and in portraits hanging on campus walls.This Article corrects the oversimplified narrative. To do so, it tells the story of Rudolph Valentino McKamey, a black citizen of Knoxville, TN who applied to UT Law in June 1948 and was denied because of his race. Drawing on documents in numerous archives, this Article reconstructs the facts of Mr. McKamey's efforts to obtain a legal education at Tennessee's flagship institution and the tactics that UT Law faculty used to obstruct that effort.
At the time of his application to UT Law, McKamey had recently returned from serving in World War II. He was a longtime native of Knoxville, TN, having attended primary and secondary schools there. Although he grew up in the same city as UT, he was prohibited from attending. UT refused to admit black students at any level of education, undergraduate or graduate. Nevertheless, McKamey applied to attend UT Law's summer 1948 quarter and was denied admission. The fact of the denial is not surprising considering UT's policy at the time, but the records reveal previously unexplored aspects of the process that the law school used in denying the applications of black applicants. Although law school faculty received McKamey's application in April 1948, they delayed replying. When McKamey made a surprise appearance at the law school on June 14, 1948, one day before the deadline for admission and two days before the start of school, a law school professor explained that he could not attend because he was missing certain documents. It was next to impossible for McKamey to correct the problem and obtain the missing documents in time. Thus, McKamey's effort to attend UT Law was effectively obstructed. Undaunted, McKamey attended Howard Law School and, after returning to his hometown, became a prominent Knoxville lawyer, politician, and activist.
Surviving records from the period--including McKamey's application and internal university correspondence--show that the law school's “missing documents” explanation was a subterfuge, designed to hide the real reason for denying his application: his race. McKamey applied to law school six years before Brown v. Board of Education, at a time when legal victories by the NAACP and other civil rights leaders were making it clear to southern educational institutions that desegregation was inevitable. In the early 1930s, the NAACP--led by Thurgood Marshall and Charles Houston--had started a concerted effort to desegregate education, with an initial focus on graduate schools. When McKamey applied in June 1948, the NAACP had already won several cases that had begun the process of dismantling Plessy v. Ferguson's separate but equal doctrine. The record suggests that McKamey's application was one of several “test cases” that local NAACP lawyers had helped individuals file to challenge segregation at UT. Although McKamey did not end up suing UT for admission, that doesn't make his application less important. Each application to UT revealed--to both civil rights activists and university officials--the weak spots in the practice of desegregation. The records show that UT officials continually adapted their obfuscation strategies in response to McKamey's application and those like his until eventually, they had to say outright what they were doing: denying admission based on race.
Furthermore, whatever value others placed in McKamey's application as a test case, his own personal goal was clear: he wanted to become a lawyer. Despite UT Law's efforts to thwart that ambition, he accomplished his goal, graduating from Howard Law School and enjoying a successful career as a lawyer in Knoxville. McKamey may not be well-known nationally, but he should be. He was a trailblazer, acting at the forefront of several important events in civil rights history, including leading the charge on law school desegregation, representing the next generation of students who sought to desegregate lunch counters in 1960 and advocating against police brutality against black citizens in his community. McKamey's story, one of perseverance despite enormous adverse odds, deserves to be told.
As legal historian Daniel Sharfstein has explained, “[e]very grassroots story complicates what we already know.” This is certainly true of McKamey's story. First, it fills in the gaps of the historical accounts of segregation in legal education by highlighting the specific insidious actions of the law professors. Current narratives of the segregation era at UT Law largely place the College of Law, its dean, and faculty as bystanders to anti-desegregation efforts, not as active participants. Although it is often written that UT officials--including the University President and the Board of Trustees--resisted desegregation pre-Brown, records show that many UT Law faculty in 1948--three out of the eight then full-time faculty members--were responsible for planning, organizing, or implementing the University's segregation strategy. There also is evidence to suggest that the rest of the faculty, if not primary actors in the scheme, were at least complicit.
The literature on pre-Brown school desegregation litigation is extensive. The painstaking work of sociologists and legal historians has brought us rich accounts of the advocates and lawyers, the state officials, the judges, and the major cases of the school desegregation civil rights struggle. A growing body of scholarship has begun to shift the focus from “'top-down’ historical studies ... to 'bottom-up’ investigations of ordinary people often overlooked, shadow figures in the glare of charismatic leaders' spotlight.” This Article adds to these grassroots historiographies by highlighting the role that the faculty played in perpetuating segregation in legal education.
It also adds to the literature by focusing on the individuals who resisted integration. Many histories of school desegregation litigation center on the natural protagonists, usually the lawyers, plaintiffs, activists, and judges who fought the status quo. The antagonists are part of these stories too, but often as anonymous individuals and groups. Thus, “the Board of Regents” refused to change its policy, and “the University” denied a person's application. Passive voice is a common tool used, making the actual individuals a silent presence lurking in the background. When faculty members are named, it is often to point out the rare faculty member who went against the grain. For example, some accounts of Ada Lois Sipuel Fisher's efforts to desegregate Oklahoma University Law School recount the story that OU Law Professor Henry Foster, Jr. testified as a witness on Fisher's behalf. At the trial, Professor Foster famously “lost his temper while on the stand and charged that the creation of a separate law school for Fisher was 'cheap, political chicanery.”’ This is certainly a noble story worth telling. But what about the faculties of the law schools who actively resisted integration? What about those who failed to take a stand?
Supreme Court opinions regarding segregation follow this same pattern, largely leaving out the actions of the responsible individuals. An example can be found in McLaurin v. Oklahoma State Regents for Higher Education, a case brought by the NAACP in 1948 on behalf of George McLaurin, a student who was admitted to the graduate school of the University of Oklahoma but was segregated within it. In its opinion, the Court described some of the changes that had taken place at the school while McLaurin was a student:
For some time, the section of the classroom in which [McLaurin] sat was surrounded by a rail on which there was a sign stating, “Reserved For Colored,” but these have been removed. He is now assigned to a seat in the classroom in a row specified for colored students; he is assigned to a table in the library on the main floor; and he is permitted to eat at the same time in the cafeteria as other students, although here again he is assigned to a special table.
This account of McLaurin's experience is rich in factual detail, painting a tangible picture of his experience. But the only characters in this story are the students: McLaurin and his fellow white students. Who assigned McLaurin to a special table in the cafeteria? Who put up the “Reserved for Colored” sign? Missing from this account are the faculty members at the graduate school. This omission is particularly striking given the fact that faculty members are notorious for protecting their rights to manage even the smallest aspects of education. This silence turns the absent faculty members into witnesses, not participants, and relieves them of individual responsibility for what is portrayed as collective wrongdoing.
Perhaps some of the mystery about faculty involvement in the perpetuation of segregation lies in the private and arcane processes that govern law schools. Faculties conduct meetings that usually result in meeting minutes, but these minutes are often vague and tend to avoid associating specific faculty members with specific views. Much of the work of faculties occurs through committees, but these committees are not automatically expected to produce documents. Thus, there is often very little paper trail to follow.
But it turns out that UT Law is an exception. Due to an extraordinary plethora of segregation-era primary sources at UT, this Author was able to construct a detailed account of McKamey's application and the involvement of UT Law faculty in the policies supporting segregation at the time. Beginning around the early 1940s, faculty at UT Law forwarded the files of black applicants to the university president to coordinate strategy and facilitate a unified response. As a result, McKamey's file, including his application, internal university memoranda, extensive notes taken to memorialize private meetings, and correspondence, can still be found in the University archives of then-UT President, Dr. C.E. Brehm. There, too, are hundreds of pages of documents related to efforts by specific administrators and faculty members to resist integration throughout the pre-Brown era. Furthermore, a recent discovery by this Author revealed the existence of the records of UT Law's dean at the time of McKamey's application, William Wicker. These records, which survive in largely unorganized and uncategorized boxes, include internal and external correspondence, faculty meeting minutes, and committee reports. They offer a rare opportunity to observe the thoughts, motivations, and actions of the faculty members of a legal education institution at the time of segregation.
In addition to the documents preserved by the University, several sources provide opportunities to view the law school application process from McKamey's point of view. NAACP records related to McKamey's case survive in the NAACP archives at the Library of Congress. There can be found the legal file of McKamey's case kept by his attorney, local Knoxville NAACP lawyer Carl A. Cowan (“Cowan”). Furthermore, Cowan kept his own personal records from his practice. These rarely accessed documents are located at the Knox County Public Library in Knoxville, Tennessee. Together, these sources provide a uniquely detailed account of one man's failed effort to challenge segregation and the law school faculty's efforts to resist change.
In addition to filling in gaps of the historical accounts of the period, telling McKamey's story also provides more meaningful opportunities for understanding and change in modern legal education. When we examine the roles and methods used by historical individuals to resist change, we are better able to see (and correct) the lasting effects of these nefarious practices. As just one example, after learning this history, it becomes quickly apparent that the methods used by law faculty to resist change in the segregation era are similar to those used to resist change in legal education today. Pre-Brown UT Law professors designed and enacted a plan to deny applicants, not because of their race, but for “neutral,” technical reasons. They used procedural maneuvers--such as requests to study the issue further--to stall policy change at the national level. Knowing this history invites a more comprehensive critical analysis of modern education, including the relationships--if any-- between the practices of the past and the present and the responsibility of law schools for the insidious actions of our academic ancestors.
Historical accounts often portray the opponents of desegregation as one-dimensional. The famous image of Elizabeth Eckford walking bravely into school with a white woman screaming behind her comes to mind. The hatred on the face of the white woman stands as a symbol of the blatantly bigoted actions that we imagine took place throughout the country at that time. Of course, blatantly bigoted actions did take place, including at UT Law. But McKamey's story also shows a different, but pervasive, kind of resistance to integration. Bigotry masked as neutrality. As Ariela Gross has found in her research of Los Angeles in the 1960s, “Although cross burnings and bombings certainly occurred, the most effective opponents of integration were non-violent--and even race neutral--in their resistance.” Legal historians have documented the widespread use of neutrality as a tool to resist integration and racial justice progress during, civil rights era. It was employed as a tactic by both radical segregationists and so-called “moderates,” throughout the country (not just in the South), and by both national figures and locals. McKamey's story complements these accounts by showing the use of neutrality to resist change by law school faculty, the shadowy, unnamed figures who usually occupy the background of school desegregation stories.
This Article proceeds as follows. Part I provides a summary of the historical background of McKamey's 1948 application, including a brief description of segregated Knoxville and the efforts to desegregate higher education in the south. The summary sets the stage for McKamey's story by relating the social, political, and legal context of his application to UT Law. Part II then chronicles McKamey's application to UT College of Law. This story is uniquely told from the perspective of both the individual applicant and the institution, as it draws from extensive archival records of both the University and the NAACP lawyers representing McKamey. Part III connects the denial of McKamey's application to the broader effort by individual faculty members at UT Law to resist desegregation. A word of caution: this account is not meant to be a full history of UT Law and its faculty. It offers a snapshot of UT Law faculty involvement in segregation during one period of time: after Plessy and before Brown. Accounts of different time periods, different individuals, and different perspectives derived from different primary documents must be told through future research.
One further note before proceeding. There is a growing consensus among social science researchers that scholars should articulate their positionality. Positionality--sometimes called reflexivity or subjectivity--is the recognition of a scholar's “views, values, and beliefs about the research design, conduct, and output(s).” If one accepts that “very little research in the social or educational field is or can be value-free,” then it is important to articulate these values and, ideally, attempt to account for them. This type of positionality statement is rare in legal scholarship, though. Perhaps this is because legal scholars see themselves as objective observers and analysts. But accepting that would mean that we are somehow separate from the processes that we study. This seems, at best, naïve. As one researcher has explained, “there is no way we can escape the social world we live in to study it.” There is no reason to think that law, legal systems, and legal history are somehow different. Accordingly, what follows is my own positionality statement:
I have been a tenure-track professor at UT Law in Knoxville, TN since 2013. Before that, I was a teaching fellow at Stanford Law School, and before that I was a practicing attorney. My tenured faculty position at UT Law makes me an insider of the institution that I'm studying, which gives me unique access to UT Law information, while also raising questions about my ability to remain objective. Also, I grew up on the west coast and, thus, have lived in the South for a relatively short duration. I suspect that this affects my research in two, slightly contradictory ways. On the one hand, I have a limited understanding of the cultural and social norms that might have influenced the historical individuals in this Knoxville-based story. However, that same limited understanding also frees me from biases that might have led me to make different investigative or research process choices. Finally, I identify as a white, heterosexual, cisgendered woman. I can claim no expertise on, or experience with, the black lived experience. I cannot know what it would be like to live in Knoxville as a black person either today or in 1948. Nor can I understand what it would be like to experience discrimination based on the color of my skin. My research uses narrative and storytelling, drawing primarily from historic documents generated contemporaneously by the studied individuals. As a result of my biases and lack of experience, I have sought to limit my own speculations about the documents, and, when I do speculate, to do so transparently.
[. . .]
This Article tells the story of one man's efforts to achieve his goal of becoming a lawyer in his hometown, and the efforts of several law professors to thwart that ambition. Rudolph McKamey persevered, obtaining his law degree and enjoying an illustrious career despite the law school's obstruction. It is a shame that UT Law can't count McKamey as one of its alumni. We have only ourselves to blame.
Upon learning this history, one might feel the urge to downplay the responsibility of the law faculty. One argument might be that the faculty of state-run institutions like UT had limited power to change segregation policy. The record does suggest that faculty members at UT Law indeed felt constrained by political and institutional concerns. Before Brown, numerous state statutory and constitutional provisions prohibited integrated education in Tennessee. According to one internal legal memorandum in President Brehm's files, these laws together made it seem “that the State of Tennessee has gone as far as it can to relieve the University of Tennessee of all responsibility for the education of negroes.” Brehm and other university officials were particularly wary of stepping on the toes of state officials, including the Board of Trustees. As an example, in the June 15, 1950 meeting of university officials arranged by Brehm to discuss strategy for responding to applications by black applicants, Brehm and Baugh repeatedly emphasized that it was out of the University's hands, that the University was “an arm of the state,” and that they were “governed by the Attorney General's office” and the Executive Committee of the Board.
It may be that, as a practical matter, law school faculty felt they were powerless to change the policies of the Board of Trustees. Even still, there are several reasons to think that they should not escape responsibility. The first is the fact that the archives reveal no efforts by members of the College of Law faculty to push-back against segregation. No protests, no letters or memoranda offering an alternative point of view, no discussions in faculty meetings, no community activism. Nothing. The only suggestion of dissent in the internal records is the letter from Dean Wicker to Dean Prince of South Carolina School of Law stating that the rest of the law school faculty wished to desegregate. But even if that letter accurately reflected the faculty's desire, it is telling that no record exists that the faculty of the College of Law took a single concrete action toward its fulfilment. Indeed, as has been documented above, all actions taken by faculty members regarding segregation--specifically by Dean Wicker and Professors Overton and Baugh--were either to promote segregation or to implement faithfully the University's segregation strategy.
Second, there is also evidence that the faculty members at UT Law were motivated by more than just a sense of powerlessness. For Dean Wicker and Professor Baugh, the record described above demonstrates conclusively that a driving force was their own personal views against desegregation. They did not want black people attending their white school. Period. The personal views of the other faculty members are less clear. Professor Overton provides a perfect example of this ambiguity. On the one hand, he worked extensively to assist the administration in their pre-Brownsegregation practices at the law school. That itself is, of course, quite damning. On the other hand, it does not appear that he took a stand on, either in opposition or in support. On the contrary, it seems he took pains to avoid doing so. In 1951, when he wrote to the AALS committee regarding the proposal to make desegregation a condition of membership, he was careful to state that he wasn't writing about the question of whether “segregation is good or bad.” Instead, he assured the committee, he was merely writing to raise process concerns with the method that the committee recommended for enforcement.
But even if one were to assume that the rest of the faculty personally opposed segregation before Brown, it seems that this fact is largely irrelevant to the issue of their culpability for its perpetuation. Much more germane is the lack of evidence showing the faculty did anything to resist. What the record does suggest is that the choice to remain silent was, at least in part, motivated by a desire for self-preservation. Examples in the record abound. In the same June 15, 1950 meeting of university officials described above, some university staff expressed concern that there would be a backlash if “officials of the University just folded up and admitted” black students. In apparent agreement, Brehm responded that it was imperative that the Attorney General decide the matter “rather than you or me.” Professor Baugh then ominously warned the group that “[s]everal members of the Board of Trustees are very jealous of their prerogatives” and reminded them that “a lot of heads were chopped off” at the University of Oklahoma after the Attorney General and Governor accused them of mismanaging the situation. The take-away: at this institution, the state pulls the purse-strings and exercises complete control of your jobs, so don't step out of line.
It seems, then, that the very best interpretation of the views and actions of the faculty at UT College of Law in the late 1940s (or at least of Overton and the five who did nothing) is that they were well-meaning individuals who feared for their jobs and felt powerless to alter the status quo. But again, even accepting that fact, these professors still had the power to make choices, and they did so. Overton chose to actively engage in efforts to keep black students out of the law school, and the remaining faculty members chose to do nothing.
In today's environment, it seems easy to empathize with the choices that pre-Brown faculty at state-run schools made to remain quiet and stay under the radar. That empathy is particularly acute in states like Tennessee, which have recently attempted to effectively outlaw academic reckonings with those states' racist pasts. Some states, like Tennessee, have prohibited academic speech on specific race-related topics. For example, in May 2021, Tennessee passed a statute barring educational institutions from teaching that a person “by virtue of their race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously.” Some states have gone even further, attempting to target speech that makes white students feel badly. In January 2022, the Florida Senate's Education Committee approved a bill pushed by Republican Florida Gov. Ron DeSantis that would prohibit schools from making white students “feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race.” Measures likes these stifle frank discussion about historical truths and the continuing presence of racism in our society. But, as Dr. Martin Luther King argued, “the ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy. The true neighbor will risk his position, his prestige, and even his life for the welfare of others.” At the very least, we know that the pre-Brown faculty at UT Law were not willing to take these risks.
This story attempts to construct the precise actions taken by the individuals who played a role in perpetuating segregation at the University of Tennessee College of Law. Although it may seem counter-intuitive to focus scholarly attention on the antagonists of civil rights history, it is imperative that we do so. As legal historian Christopher Schmidt has argued, “Our understanding of the civil rights era is impoverished when we refuse to take the losing side seriously.” That is certainly true when it comes to telling the stories of segregation at American law schools. As a result of this research, we now know exactly which UT law faculty members resisted change and the methods they used to carry out this resistance. This gives us a richer understanding of both the history of discrimination in legal education and of the potential historical roots of contemporary practices. To point out just one example, through McKamey's story, we see how faculty members like Overton, Baugh, and Wicker used seemingly race-neutral means to delay integration of legal education, and they did so despite (or perhaps because of) numerous court opinions that showed that desegregation was inevitable. These three professors were not the kind of raging segregationists that loudly preached the benefits of segregation. They were the quieter kind. In this way, they were exactly like the “southern moderates” described by Anders Walker in his book, The Ghost of JimCrow. Walker offers a powerful critique of seemingly “moderate” southern governors like J. P. Coleman of Mississippi, Luther Hodges of North Carolina, and LeRoy Collins of Florida and the tactics they used to stall the civil rights movement after Brown v. Board of Education. Just like these governors, Overton, Baugh, and Wicker “did not boast” of their efforts to maintain segregation (at least they didn't publicly); they “hid the lengths they had gone to in thwarting black political gains.” Just like these southern governors, they, too, used “facially neutral, standards based criteria” that were not obviously segregationist, but they did so to maintain racial inequality at UT Law. Although Walker's focus was on the use of such tactics by high-level state actors to stall the civil rights movement after Brown, McKamey's story shows their earlier origins.
Carl Sagan said, “You have to know the past to understand the present.” This is certainly true of legal education. Law schools play an important role in shaping the legal profession, and thus the law itself. Therefore, those institutions should be subject to critical inquiry. The archival research described above establishes that the University of Tennessee College of Law faculty and administration were not just complicit in the anti-desegregation efforts of the 1940s-50s but helped design, steer, and implement those efforts. They did so both openly (for example, by advocating against policy change at the AALS and providing legal advice to those pushing the segregation agenda) and covertly (such as through the obfuscation strategy implemented by Overton and the procedural mechanisms used by Wicker to stall change at the AALS). Accepting these facts, what is the role of the faculty of the College of Law today? What is the role of law faculties at the many other educational institutions with similar segregationist academic ancestors? Do we faculty members have a responsibility to make up for their past insidious actions? Do any of our modern practices and policies have their roots in this sinister history? This work raises these, and many other questions. It is left for future conversations to answer them.
A final word. Some would resist efforts to reckon with the past in this way. Indeed, the modern anti-critical race theory movement is premised on just this thought: people of today should not bear responsibility for, or be made to feel bad about, the decisions of those in the past. But there is no doubt that a reckoning should occur. The reason is not because our academic forebearers were racists, although the evidence suggests that they were. Instead, to the extent that the effects of their racism persist (and extensive research suggests that it does), we modern faculties bear direct responsibility for perpetuating them.
Associate Professor, University of Tennessee College of Law.
