'A Bulwark Against Anarchy': Affirmative Action, Emory Law School, and Southern Self-Help

Abstract

This article presents archival evidence about Pre-Start, Emory Law School's affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are a chronic, anarchic threat to the rule of law, increasing the number of African American attorneys, everywhere but especially in the South, contributes to the state's role as a bulwark against anarchy, in Justice Thomas's phrase (539 U.S. at 353). I demonstrate that Pre-Start is an important case study in at least two other ways as well. First, very little legal discussion of affirmative action has focused on the South, yet any race-based policy will have a disproportionate impact in the South, given the region's history of slavery and segregation, and the fact that most of the nation's African Americans still live in the South. Second, opponents of affirmative action routinely characterize the originators and defenders of such policies as misguided or duplicitous. Emory administrators were neither. Pre-Start gives us the opportunity to look closely at the decisions of a group of law school administrators who ran an affirmative action program before Bakke, when neither public nor legal scrutiny was as significant as it is now. Finally, the historical context for Pre-Start demonstrates how much the current arguments against affirmative action in law school admissions resemble the arguments against racial integration of public schools in the first half of the twentieth century. This is not a claim about the intent of persons who oppose affirmative action, but a structuralist observation about the persistence of types of argument.