Legal and policy issues in higher education

Journal of Negro Education, The, Summer 1994 by Butler, Grace L

Each generation of Americans appears to be challenged anew to confront the problems of defining equal access and equal opportunity. The 40 years since the Supreme Court's ruling in Brown v. Board of Education of Topeka, Kansas (1954) have taught us that while a great deal has changed, much remains the same. Many still wonder whether African Americans will ever benefit fully from the principles enunciated in Brown. While Brown addressed segregation in elementary and secondary public schooling, several other cases have challenged the issue in higher education (Stefkovich & Leas, 1994). Accordingly, this article raises questions regarding the influence of the law and the courts on policies, programs, and practices specific to higher education. It identifies policy issues that continue to compel the attention of educational decision makers, and concludes with perspectives regarding the outlook for historically Black institutions vis-a-vis the desegregation of higher education in the United States.

LAW AND LITIGATION

The constitutional and legal bases for pursuing equality of educational opportunity are firm and indisputable, as the following section of the 14th Amendment makes clear:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

Title VI of the Civil Rights Act of 1964 reinforces this position:

No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (Section 602)

Simply put, U.S. citizens may not be denied equal protection under the law, nor may they be subjected to exclusion or discriminatory practices in programs receiving federal funds. Nonetheless, citizens seeking equality have repeatedly had to put these high-sounding constitutional ideals to the test to determine whether they were rhetoric or reality. In 1892, for example, Homer Messy, a African American shoemaker in New Orleans, sought to determine whether the Constitution protected people of his race (Medley, 1994). Plessy purchased a first-class railway ticket, boarded a train, and, ignoring the "Colored Only" sign, took a seat in the section reserved for Whites. An account of this event appeared in the local newspaper:

On Tuesday evening, a Negro named [Homer] Plessy was arrested and locked up for violating Section II of Act 111 of 1890, relative to separate coaches....He waived examination yesterday before Recorder Monlin and was sent before the criminal court under $5.00 bond. (quoted in Medley, 1994, p. 105)

In his effort to test the constitutionality of separate and unequal commercial practices, Plessy found that the Constitution fell short of extending the same protection to African Americans that it extended to Whites. Moreover, in Plessy v. Ferguson (1896), the Supreme Court set forth its odious "separate-but-equal" doctrine.

Race-based segregation was challenged again in 1954, but with a different outcome. In its ruling in Brown, the Supreme Court overturned the constitutionality of segregated facilities in public education. The Brown decision moved the nation to acknowledge that separate was inherently unequal, and that public institutions had an obligation to eliminate all barriers separating the races (Russo, Harris, & Sandidge, 1994; Tushnet & Lezin, 1991).

Although school systems from kindergarten through higher education have had 40 years to comply with Brown, the question of the duty of the state to eliminate vestiges of segregation in higher education seems still to mystify state officials. Some say the duty imposed in Green v. New Kent County School Board (1968) to "take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch" should rule (pp. 437-438). Others cite the duty imposed in Bazemore v. Friday (1986) to satisfy the constitutional obligation to desegregate by removing discriminatory barriers to admission and employment and by good-faith implementation of race-neutral practices and procedures. The latter case, Bazemore, formed the basis for the position of Mississippi's college board, which, in a nine-to-four vote in 1986, proposed drastic measures that appeared bent upon harming that state's three historically Black public institutions of higher education (IHEs): Jackson State University, Mississippi Valley State University, and Alcorn State University (Mercer, 1992). While the board proposed that Jackson State University be allowed to continue with its program offerings, it recommended dismantling Mississippi Valley State and merging Alcorn State University with predominantly White Delta State University (Fisher, 1992). The U.S. Department of Justice interceded, seeking a more salutary remedy that recommended strengthening Mississippi's Black IHEs (Mercer, 1994). Under the Justice Department plan, Mississippi Valley State and Delta State, along with predominantly White Mississippi University for Women, would focus primarily on undergraduate and master's programs. Alcorn State would become the Alcorn Institute of Applied Sciences and Technology. The three larger universities--historically Black Mississippi State and the predominantly White University of Mississippi and University of Southern Mississippi--would serve as the state's public doctoral-granting institutions. Additionally, Jackson State would be given control over the state's medical school and its community colleges ("Jackson State," 1993). This plan was summarily denounced by Mississippi education officials.