Revisiting "The Need for Negro Lawyers": are today's black corporate lawyers Houstonian social engineers?

I. INTRODUCTION

The fiftieth anniversary of Brown v. Board of Education provided scholars with numerous opportunities to discuss the legal importance and historical implications of this landmark decision. (1) For countless black law students, who obviously benefit from Brown, these symposia were the first time many of them had in-depth, scholarly discussions about the impact of the Brown participants, particularly Charles Hamilton Houston. (2) However, while there has been a renewed interest in the life of Houston, who designed the gradual attack on the "separate but equal" doctrine and pioneered the concept of "social engineering" to alleviate black subordination, (3) many black law students, and even some black lawyers, still neither know nor understand the legacy of Houston. (4) Consequently, during various Brown commemorations, legal commentators attempting to compare Houstonian social engineers to today's black corporate lawyers often sanitized Houston's legacy by disregarding his insistence that social engineers must use their careers and an unwavering moral commitment to racial justice to challenge white supremacy. (5)

The misinterpretation of Houston's legacy reflects a growing trend in black America, particularly among black elite, who are rethinking their approaches to collective black empowerment. Noted black authors, including Jabari Asim and Ishmael Reed, have also noted the "changing face of black power" (6) and have asserted that the black middle class is increasingly turning away from politics in favor of economic development to end racial inequalities. (7) Public intellectuals, such as Cornel West, have also observed that while the Civil Rights Movement allowed significant numbers of blacks to become middle-class, many "well-to-do black parents no longer sent their children to Howard, Morehouse, and Fisk 'to serve the race' (though often for indirect self-serving ends), but rather to Harvard, Yale, and Princeton 'to get a high-paying job' (for direct selfish reasons)." (8) Similarly, legal scholars, such as David Wilkins, have remarked that Houston's social engineers, who frequently championed traditional civil rights issues and served primarily black clients, "are slowly being replaced by a new generation of elite black lawyers." (9)

Due to this renewed interest in the life of Houston, coupled with the changing face of black power, critics have debated whether today's black corporate lawyers are Houstonian social engineers. (10) Today's black corporate bar, which is still relatively small, continues to grow steadily, largely due to elite black law students joining large corporate firms. (11) Therefore, some commentators have asserted that today's black corporate lawyer is essentially the dream of Houston, as black lawyers continue to desegregate the corporate bar, work on multimillion dollar transactions, and often seek to channel their moral obligations to the black community through their pro bono work. (12) Others have argued that despite Houston's desegregationist agenda, black corporate lawyers are not social engineers, because they perpetuate the maldistribution of legal resources and sometimes fail to link their everyday work to the larger struggle to end legal racist discrimination. (13)

This Article will assert that today's black corporate lawyers who are concerned with racial justice are not Houstonian social engineers, because Houston's social engineers addressed the "economic, political, and social problems of the Negro" rather than advancing large corporate interests. (14) Part I of this Article will explore Houston's definition of a social engineer and how his influence, coupled with the moral obligation of many black lawyers to serve their communities, shape modern perceptions of the role of the black bar. Part II will demonstrate that while today's small, but growing, black corporate bar is a product of Houston's efforts and often seeks to promote social justice, it nonetheless implicitly recreates some of the racial and economic divides that Houston sought to overthrow. Part III will examine black corporate lawyers' efforts toward racial justice and will provide Houstonian critiques of each. Some of the Houstonian criticisms offered will certainly apply to black lawyers who do not practice corporate law, but the focus of this Article will be on black corporate lawyers.

Undoubtedly, many black corporate lawyers contribute to the social good in numerous ways. Accordingly, this Article will reject the prevailing, binary characterization of black lawyers as either "sellouts" or those who have recklessly "played the race card." (15) Such a narrow construction of black lawyering cripples the ability to critically analyze the history of black lawyers, obscures the current complexity of the value choices that black lawyers make, and creates a dialogue largely based on ahistorical evaluations and alienating constructions of black identity. (16)

This Article seeks to dispel a myth among a growing number of lawyers and law students that black lawyers' meaningful desegregationist efforts in the corporate bar and pro bono work constitute Houstonian social engineering. While Houston and others fought to allow blacks the opportunity to enter all legal fields, current black corporate lawyers are not social engineers, primarily because they perpetuate the maldistribution of legal resources, disproportionately harming the black masses. Houston never intended for social engineers to solve the problems of large corporations. Rather, Houston's social engineers directly challenged the social, political, and economic problems confronting the black masses. Thus, the true heirs to Houston's legacy are legal advocates whose work redistributes legal resources along race and class lines. This group typically includes public interest lawyers committed to advancing racial justice, administrators who are deeply dedicated to the success of black law students, critical race scholars, and black lawyers who serve black communities, particularly in the South. Describing black corporate lawyers concerned with racial justice as social engineers overlooks the maldistribution of legal resources, often fails to note the moral nature of Houston's critiques of white supremacy, and disregards social engineers' personal and professional sacrifices for often unpopular, dangerous, and unprofitable causes.

Moreover, this Article aims to spark dialogue with black lawyers and law students about balancing their professional interests and responsibilities. These conversations are crucial because fifty years after Brown, countless black law students enter elite law schools aspiring to become Houstonian social engineers, yet become corporate lawyers because of substantial educational debt, lifestyle choices, or even a sincere, yet misguided, belief that they will become social engineers in a large corporate firm. Far too frequently, black lawyers and law students do not discuss the conflict between advancing racial justice and representing an employer in a racial discrimination suit, or how educational debt severely restricts one's ability to become a social engineer. Thus, as black lawyers increasingly join the corporate bar, legal scholars must develop a new, critical vocabulary to discuss how black corporate lawyers must balance their professional responsibilities and personal values to advance racial justice.

II. MORE THAN PROVIDING A LEGAL EDUCATION--TRAINING SOCIAL ENGINEERS

Charles Hamilton Houston was born in 1895 in Washington, D.C. to a family deeply dedicated to racial uplift. (17) Houston's grandfather was born as a slave named Thomas Jefferson Hunn. (18) After a particularly gruesome beating at the hands of his slave master, Hunn fled Missouri one night with a badly injured leg and broken ankle. (19) He escaped to Illinois, a free state, and changed his name to Thomas Jefferson Houston "to throw the slave hunters off his track." (20) Subsequently, he became a conductor on the Underground Railroad, crossing the Mississippi River repeatedly to help slaves, including many of his own family members, reach Illinois. (21) Similarly, due to the extreme cruelty of her master, Houston's grandmother, Katherine Theresa Kirkpatrick Houston, was prompted to escape from slavery in 1862. (22)

A. Charles Hamilton Houston's Tradition of Resistance

Charles Hamilton Houston, born out of this tradition of resistance, spent his legal career attempting to reconcile the stark contrast between formal guarantees of equality and the second-class status relegated to black Americans. Although blacks during Houston's childhood frequently accommodated white supremacy, blacks during Houston's early adulthood were increasingly New Negroes, who resisted white supremacy and fostered racial pride through self-determination and innovative self-expression. (23) The New Negro sought to be in control of his own social reality and reshape a group psychology wounded by white supremacy. (24) Houston, who was certainly influenced by New Negro philosophy, understood that if blacks were to ever level the social order and seek to repair blacks' damaged group psychology, the race needed "capable and socially alert Negro lawyers." (25)

As Vice Dean of Howard School of Law, Houston helped transform Howard into a first-rate law school designed to uplift the race. During Houston's tenure, he was integral in eliminating the law school's evening program, recruiting black students and professors with very high academic credentials, attaining American Bar Association (ABA) accreditation and American Association of Law Schools (AALS) membership for Howard, greatly expanding the law library, and creating a far more demanding legal education. (26) Although Houston was repeatedly criticized for the "Harvardization" of Howard, Houston understood that in order to litigate constitutional cases, well-trained lawyers, whom he called social engineers, would be necessary. (27) He envisioned Howard as the institution that would create the black lawyers deeply dedicated to ensuring the constitutional promises denied to black Americans. (28)

Consequently, social engineering became central to Howard's mission and Houston's vision of the black lawyer. (29) Although Houston never fully defined "social engineering" in one speech or article, (30) he believed that a social engineer was a highly skilled lawyer who understood how to use the United States Constitution, statutes, and "whatever science demonstrates or imagination invents" to solve the problems of local communities and better the conditions of underprivileged citizens. (31) Moreover, Houston noted that black communities, particularly in the South, were highly underserved by lawyers, and social engineers addressed the maldistribution of legal resources by serving black clients and "problems of the Negro." (32) In The Need for Negro Lawyers, Houston noted the following:

 
  Yet it is where the pressure is greatest and racial antagonisms most 
  acute that the services of the Negro lawyer as a social engineer are 
  needed. If a Negro law school is to make its full contribution to the 
  social system it must train its students and send them into just such 
  situations.... [This] does mean a difference in emphasis with more 
  concentration on the subjects having direct application to the 
  economic, political and social problems of the Negro. In other words, 
  the emphasis in the law of business associations is on small 
  businesses rather than the larger, more complicated highly financed 
  organizations. (33) 

Accordingly, to Houston …