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Tuesday, December 18, 2001

"The Dream with Its Back against the Wall"--A Speech by A. Leon Higginbotham

In the fall of 1989, at the Law School's Alumni Weekend, a portrait of Judge Higginbotham was unveiled in University Commons. At the unveiling, Judge Higginbotham gave a moving speech, "The Dream with Its Back against the Wall," which was subsequently printed in the Spring 1990 issue of the Yale Law Report. We print it here again because it tells--in a way no one else can--his remarkable life story.


I cannot thank you enough for this honor. I have reason to accept it with great humility and some pride. Because I don't think I am unique, I would like to give you first an autobiographical point of view, tracing my luck and good fortune in getting into Yale Law School. How did I get here, from Trenton, New Jersey? Like everyone else: I have been the beneficiary of the significant efforts of others. We all stand on the shoulders of those who preceded us. Our success has occurred because of very special persons who walked with us when the future was uncertain, when the path was quite steep and blocked by many barriers. I'd like to recognize some of those individuals who, in a very special and intimate way, made possible my coming to Yale and this portrait.

I would like to note my late mother, Emma Lee Higginbotham, whose spirit, wisdom, decency, and indomitability were so important a part of my early life. She is a part of that portrait, not merely in a biological sense, for that is obvious, but more importantly, in an emotional sense. She was a woman who disregarded the probability curve. For if she had paid attention to it, I would have ended up working at the C. V. Hill factory in Trenton, as my father did--a laborer for forty-five years, having been late only once, and that was in the midst of a blizzard. The president of C. V. Hill used to talk about the Higginbotham boys always having jobs at his factory. My grandfather had worked there for more than four decades. My father followed that precedent, and maybe that's where I was supposed to go.

My mother had been raised in rural Virginia and was a victim of its worst racist and economic policies. She attended school for at most a few months each year and did not get past the seventh grade. When she had saved up enough money from the plot of land where she raised tobacco, she made the trip north, in fear, but in hope, in search of a life less harsh than she knew she would have if she stayed in Amherst County.

But even in the North, life was far from easy in the 1930s and '40s. I, and all of my neighbors, attended the racially segregated Ewing Park Grammar School--no, not in some southern state, but in Ewing Township, a few miles from the statehouse in Trenton, and a few miles from Princeton University. All the white children were bussed to marvelous schools, which, unlike our school, had libraries, cafeterias, gymnasiums, language teachers, science teachers. But we went to a four-room schoolhouse, where each teacher taught three grades. We did not have the superior curriculum available for all of the other students in the township: no foreign languages, no science, no hard academic options.

When we finished the eighth grade, all of the Ewing Township kids were transferred to Trenton. The whites went to the white schools, and the Ewing Park students went to Lincoln, a segregated junior high school. And no one from our grammar school in a period of forty years, had ever gotten into the academic program. Why not? Because a prerequisite for the ninth grade academic program was one year of Latin. You didn't get Latin at Ewing Park. When I see students who went to Ewing Park with me now working as elevator operators, on street maintenance, or at the General Motors plant, I often wonder what their future would have been if Ewing Park had offered Latin.

But my mother worked for very wealthy people, and she was confident that, with or without Latin, I was as talented as the children of her employers. And she knew that education was the sole passport to a better life. I worked, as a thirteen-year-old and fourteen-year-old boy, hustling trays at the Stacey Trent Hotel. When I was fifteen years old I committed a crime: I forged my birth certificate by moving back the year I was born in order to get a job at the Trenton Pottery, pushing a wheelbarrow up into a boxcar full of clay. I was tall; at the hotel, they didn't know I was thirteen or fourteen, and at the factory, they didn't know I was fifteen. I'd come home aching with pain. And my mother, as she rubbed me down with alcohol, would say, "Son, I don't want you to be a busboy all of your life. And I don't want you to be pushing wheelbarrows all of your life like your father. And I don't want you to do what I've done, always washing other people's dishes, cleaning other people's toilets, scrubbing other people's floors. I want you," she would look to the ceiling, sometimes, as she was rubbing my back, "I want you to be in an office, boy, wearing a white shirt and having a tie on."

So it is not surprising that this woman of such extraordinary determination made a personal visit to the ninth grade principal at Lincoln, and got me enrolled in the academic program. She talked to the principal, P. J. Hill (I never knew what his real name was; the students called him Pickle Juice), and I was registered for a second-year Latin course, though I had never had first-year Latin. It wasn't easy, not at all. But I had a very gifted teacher, Bernice Munce, and she's a part of that portrait too. She knew my disadvantage. I got a D, maybe a C minus; a matter of grace, more for effort than accomplishment. She said to me, "Look, Leon, if you will ride over to my house in Hamilton Township this summer, I will tutor you."

So I rode my bike about twenty miles, two or three times a week, for about five or six weeks, never gave her even a quarter. She never knew what my future would be, but she cared about all of the kids. And with that, I was able to go on to high school, to compete effectively, and to go to a Big Ten college.

Negative Motivation

I'd like to pay tribute next to the individual who forced me to recognize that I had to go to law school: Edward Charles Elliott, powerful president of Purdue University, at a time when presidents ran the universities.

There were a couple of problems at Purdue when I entered it as a sixteen-year-old freshman in 1944. There were about 6,000 white students, twelve black students. The twelve black students lived at a house that they had the temerity to call International House. We slept in an attic with no heat. And after December and January, going to bed every night with earmuffs on, sometimes wearing shoes, other times three or four pairs of socks, jackets, I decided that I should go and talk to the university president.

Monday morning at 10:00, I walked into his office by myself. And what was my radical request? Was I going to ask him to integrate the university dormitories? No. I asked if we could have a section in any dormitory, a section for twelve students, which was warm. Now if President Elliott had talked with me sympathetically, explaining his own impotence to change things but his willingness to take up the problem, perhaps to make a study, I might not have felt as I did. If he had communicated to me with some kind word or gesture, or even a sigh, that I had caused him to review his own commitment to things as they were, I might have felt that I had won a small victory, that I could go back and sleep in that attic. But he looked me in the eye, and he said, "Higginbotham, the law doesn't require us to let colored students in the dorm, we will never do it, and you either accept things as they are or leave the university immediately.

I am a lawyer today because of Dr. Elliott's negative motivation. Because, as I walked back from his office, I had a thousand thoughts. How could it be, that the law would not permit twelve good black kids to sleep in a warm dormitory? The law had been very effective in the draft. Some of my best friends had gone and died for our country. That very night, hundreds of black soldiers would run the risk of being injured in some far-off battlefields to make the world safe for democracy. And yet, the legal system that proclaimed equal justice for all would not give any semblance of dignity to a sixteen-year-old boy who had committed no wrong. I felt that I could not go into engineering, that I had to try to challenge the system.

Integrating Antioch

But, unlike my children today, who would have been in a sit-in in the president's office, I took my lumps--and I received quite a few. I made the Purdue debate team; we went up to Northwestern to debate. The debate coach always said, "When you're debating, be firm, speak loud, and even if you don't believe the proposition, act as if you do."

We walked into a hotel in Evanston, Illinois. The manager came up and said to me, "You can't stay here." What did my debate coach do at that moment? In a voice without any indignation or firmness he said, "Is there a colored YMCA?"

And I went to a mice-infested colored YMCA on Emerson Street. I left my classmates, got in there about 1:30 in the morning, and didn't sleep that night: there was no alarm clock. The next morning at 9:00, I was supposed to be sharp and ready.

I had the good fortune to win second place, but I also saw a professor who at a simple moment of truth wouldn't stand up. And I think it was then that I said, I'll take a football coach anytime. Because two weeks earlier, my cousin, Mel Grooms, Big Ten player for Indiana University, had walked into that same hotel. No issue was raised, because Coach MacMillan had said, "If black football players can't stay here, no one from Indiana University will ever stay here again."

So I left Purdue, and I went to Antioch. I guess the major reason I feel quite comfortable in a pluralistic community, functioning with whites and blacks and others of different backgrounds, is a person by the name of Jessie Treichler, of Antioch College. She was a gifted short-story writer. She was not a faculty member; she was a special assistant to the college president, and she was white. And she felt that there was something ironic about Antioch College in 1944, which boasted of its liberalness on so many policies and educational issues, and yet had not had one black student in the college for decades. So, on her own, she created a committee to raise a race relations fund to attract black students to the college. I came there the second year the fund existed. Corretta Scott came in with me. I was the first black male to be at the college, and Corretta and I integrated that class. You may know of her as Corretta Scott King, Martin Luther King's wife and in her own right an important person in the civil rights movement. Jessie Treichler had the capacity to extend us her hand, to recognize our loneliness, and most important, to believe in us.

In 1962, when I became a commissioner on the Federal Trade Commission, I sent Jessie a letter and an airplane ticket. I was going to be the first black ever on a regulatory commission. The New York Times thought it was significant news. I wanted Jessie Treichler to be there.

Choosing Yale

It was a close issue as to whether I should go to Yale Law School. Burns Weston '29 was on the Antioch College Board of Trustees. Somehow or other, they told him about me. He asked to have lunch with me in my senior year. I wanted to know the difference between Harvard and Yale and Columbia. He said, "No question! Only one place to go: Yale. Don't, don't, don't get this mediocre education which Harvard will throw on you." I listened to him, and he persuaded me that Yale was the best. And I think it was, and I think it still is.

But then I went back home, and I had to talk to my father. I had gotten a partial scholarship to Yale. Jessie Treichler had found a man whom I have never met--though I have tried to see him, to thank him--Charles Noyes, a Wall Street real estate broker, who had put up a few thousand dollars from time to time, to help black students. I was a beneficiary; Eleanor Holmes Norton was also a beneficiary.

I had enough money, with what Rutgers Law School had offered me, that there would be no tuition costs. But if I came to Yale, I would have enough only for the first semester. My father and a minister talked to me. And they couldn't understand why I would choose Yale over Rutgers, when at Rutgers, everything was paid for. The minister had this clincher: "No one in Trenton who's done anything has gone to Yale!" He said, "They either go to Rutgers or to Temple, or to Trenton State Teachers' College. Nobody goes to Yale!" Nevertheless, I felt that if the mistake was going to be made, I was going to make it. I came up here with my cardboard suitcase and a bellyful of determination.

When we talk these days about meritocracy, quality, and competence, we still have to think about the background from which one comes. That came home to me in my first three classes in torts, taught by the great Harry Shulman. There was a young lady next to me; her name was Alice Gilbert. The first day, he called on her; she gave an answer using nomenclature I had never heard. I had read the case, and I couldn't understand it. I though maybe she had read a couple of cases ahead. So, next time, I read not only the case assigned but three or four cases as well. Because there were so few black students, we weren't really in the Yale network, but I heard there was some book by Prosser. So, I went up to the law library, because I couldn't afford to buy it, and started to read it, too.

The next day, Shulman called on Alice Gilbert again. She reeled off another of her spectacular answers. To be honest with you, I hadn't fully unpacked that cardboard suitcase. I was really wondering whether I should stay. The third day, the same thing happened.

Now, my mother always used to say to me, "Son, God moves in mysterious ways." I asked Alice a question, which I'm certain she has forgotten, and I don't know why I asked her. It almost borders on stupidity. I said, "Alice, what's your full name? What's your full name?"

She said, "Alice Brandies Gilbert."

Her grandfather was Justice Brandeis. Her father was a lawyer, and her mother, I believe, had her Ph.D. and also maybe a law degree. My father was a laborer, two books in the house. One we had purchased, a Bible; the other, my mother had gotten out of the trash of one of the people she worked for, an old dictionary. In a race where some start twenty yards from the starting line, they may not get to the finish line at the same time. I did not begin Yale at the same starting line as many of my contemporaries.

I persevered through the first year, and I shall never forget participating in moot court finals that year. Justice Clark, of the U.S. Supreme Court, was there; John W. Davis, considered to be America's finest appellate advocate; and Judge Edwin Lewis. In my second year, I was part of a four-person team that represented Yale in the Inter-Law School Moot Court competition. My colleagues were Louise Farr, Steve Ives, and Richard Gardner--a great devotee of Professor McDougal and a Rhodes Scholar, who later got his Ph.D. in economics at Oxford. We were fortunate enough to win the national first prize for the brief. My third year, I won the John Fletcher Caskey Award. I'm not mentioning these awards to congratulate myself, to pat myself on the back. I'm mentioning them because of what happened afterward.

'A. Leon Higginbotham, Jr. from Yale'

Wesley Sturges said in a letter he wrote to the Yale Alumni representative in Philadelphia, that I had won more honors in oral advocacy than anyone in the Law School while he was there. This Philadelphia alumnus responded, "Your problem will be deciding to which law firm you want to go. Come down to visit me."

I went to visit him during Christmas break in 1951. I did all the things my mother told me: my shoes were polished, fingernails very clean, hair combed, suit pressed.

But let me tell you how I got that suit; it was through Wesley Sturges. When we were going down to New York to represent Yale on the Inter-Law School Moot Court Competition, he called me in. He said, "Leon, I'm proud of you. Here's a check. Why don't you buy a suit." You see, like every other black kid in my Law School class, I purchased only second-hand suits, from a place on Whitney Avenue. These were good-quality clothes, because on a football weekend, when the wealthy students had to entertain the girls from Wellesley and Smith on the limited allowance their fathers had given them, they could always sell some of their suits to raise extra money. The problem is that if you are 6'6", and you're buying the suit of a six-footer, it shows a bit in the sleeves.

So I wore my new suit, one that fit, and went to see the Yale representative in Philadelphia. I walked into his office in the Girard Trust Building and said, "I'm Leon Higginbotham."

The secretary said, "Well, are you A. Leon Higginbotham, Jr.?"

I said, "Yes."

"I mean A. Leon Higginbotham, Jr. from Yale Law School."

And I said, "Yes."

I walked in, and the Yale representative looked me in the eye and said, "Marvelous record, Dean Sturges has written a great letter in your behalf. Of course you know there's nothing I can do for you, but I can give you the telephone number of two colored lawyers, and maybe they can help you."

I said to him, "Sir, if the only thing that an Eli representative can do is give me two telephone numbers, I can find those myself. Don't burden yourself."

I went down the elevator in the Girard Trust Building, and I cried. I mean it. I cried because I thought of my mother. I thought of all the dishes she had washed, all the floors she had scrubbed, all the pain she had suffered. And after seven years, I couldn't get a job.

The Yale Tradition

I got one, ultimately. Tom Emerson called up some people, John Frank called up some people, and I got a clerkship with Justice Bok of the Pennsylvania Supreme Court. I don't know why I was so upset. It was not as if I were unique. Bill Coleman, a black student who finished Harvard Law School magna cum laude and then clerked for Justice Frankfurter, also couldn't get a job in Philadelphia when he first applied after his Supreme Court clerkship.

But there were Yale people who did a lot for me. I want to mention one now, particularly: John Frank. I lived at 258 Star Street, because I couldn't afford to live on campus. There was a corner store where on Saturday, at six o'clock, I'd be there: I would get all the leftover hamburger the guy had--sometimes it was brown, sometimes it was gray--and take it home and cook it. John Frank seemed to know I was struggling. He offered me a job. A job, paying me $1.50 an hour. But for John Frank, I wouldn't have been able to eat. That is one thing Yale did for me.

John Frank made a difference. And there were a lot of other people on this faculty whom I shall never forget: Myres McDougal, Boris Bittker, Charles Clark, all of whom gave me dignity. I loved them for it.

But some day you have to leave, to go back into the outside world. Do you know what was so great? The Yale tradition never abandoned me. I came to Philadelphia after the clerkship. Where could I go? I couldn't go with the law firms.

A Yale graduate by the name of Richardson Dillworth had become district attorney a year earlier. Until Dillworth became district attorney in Philadelphia, no black lawyer had been permitted to try a case as an assistant district attorney in the regular trial courts. People like Mercer Lesis, who had graduated from Harvard and spent twenty years in that office, were never allowed to get above the magistrate's court. And people who had gone to schools that were certainly no better were in eight months or a year trying major felony cases. Dillworth just said, "Look, I'm going to choose the people in my office on the basis of whether I feel they can do the job."

And he changed that whole system. At that time there was not one black judge in the state common pleas court. Dillworth brought in assistant D.A.s who handled everything. That was then an amazing phenomenon. He put me in the appellate division.

Finally, there's one other great Yale figure: J. Austin Norris. When the High Court of History decides the great American lawyers, it will choose not merely those who informed the Supreme Court of the right direction to go; it will also choose those who gave backbone to later generations to go forward. Austin Norris used to say--and I don't mean to be disrespectful--"I don't give a damn about the big firms. We'll whip 'em, and we'll be as good as they are, even though we'll have only four or five lawyers." Norris had the capacity to take young men and force them to recognize that if you persevere, you'll make it. I've always said that he was a true and great hero.

Why have I focused, in this speech, on my humble background? Not for accolades for Leon Higginbotham. Today, on the streets of New Haven, and Philadelphia, and Chicago, and New York, there are thousands of other kids who would do the same thing as I did if they didn't get pushed out of the academic system. If we had more Bernice Munces, if we had more Jessie Treichlers, if we had more John Franks.

So, when my portrait hangs, I don't want it to be considered a portrait of a unique individual in the history of the school, or in the history of the society. I truly believe that there are many others, many who could do what I have done.

I want my portrait to stand for someone who had the opportunities, the good fortune, and the support that, ideally, our society should give to all its citizens.

The greatness of Yale is not its age but its mission. And what makes Yale even greater today is its pluralism. Yale's greatest days are not those in its past, when women and blacks were unheard of on the faculty and were barely visible in the student body. Today more than ever our students come from all states, they practice different religions, they represent all races. In this milieu of erudition and diversity the best in all of us is brought out.

I hope we give to young people today what I was given: determination and discipline, a willingness to face the odds and come up again and again in pursuit of justice. I hope they come out with a vision they would otherwise not have known.

I hope they will be competent technicians. But I ask them also to think about what Dr. Martin Luther King said and what a black poet said.

King said, "I have the audacity to believe that people everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality, and freedom for their spirits." And when the High Court of History looks on Yale, it will not ask small questions on forum non conveniens, or even the uniform commercial code. It will ask, "Have we been part of a system to make this world better, so that more people can have three meals a day for their bodies, education and culture for their minds, and dignity, equality, and freedom for their spirits?" That is what Yale must stand for in its finest and most noble hours.

I will close with a poem, which says to me what Yale is or what Yale should be about. it's by Langston Hughes, a great poet, who happened to be black.

There is a dream in the land
With its back against the wall
By muddled names and strange
Sometimes the dream is called.

There are those who claim
This dream for theirs alone--
A sin for which we know
They must atone.

Unless shared in common
Like sunlight and like air,
The dream will die for lack
Of substance anywhere.

The dream knows no frontier or tongue,
The dream, no class or race.
The dream cannot be kept secure
In any one locked place.

This dream today embattled,
With its back against the wall--
To save the dream for one
It must be saved for all.