A legal history of desegregation in higher education

Journal of Negro Education, The, Summer 1994 by Stefkovich, Jacqueline A, Leas, Terrence

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. (Justice John Marshall Harlan, dissenting opinion in Plessy v. Ferguson, 1896, p. 559)

For almost a century now, the American judiciary has struggled with issues of segregation and desegregation in higher education. Justice Harlan's simplistic characterization of a "color-blind" Constitution fails to address adequately our contemporary racially stratified, culturally diverse, and economically divided nation (Gotanda, 1991). The United States Supreme Court's 1992 decision in United States v. Fordice is only the most recent of many unsuccessful attempts to solve this thorny problem. With litigation still under way in several states, the Court's ruling in Fordice does not promise to be the final word on this topic. The issue of desegregation in higher education remains unresolved for many reasons--some of which are examined in this article.

Focusing on United States Supreme Court rulings, this article highlights legal, educational, and social issues surrounding the court-ordered desegregation of higher education. It also offers insights about the general effectiveness of the Court's rulings in this vital area. To accomplish this task, the article is divided into three parts. Part one provides a chronological, historical perspective of important court cases as well as relevant federal legislation on this topic.(1) Part two introduces and discusses concepts of academic freedom at the postsecondary level and their influence on higher education desegregation efforts. Part three concludes the article and offers a partial explanation why the judiciary has been unable to desegregate higher education.

THE LEGAL HISTORICAL PERSPECTIVE

The legal history of higher education desegregation is appropriately divided into three distinct segments. The first period, starting in the late 19th and early 20th centuries, focuses on early law that emphasized equal protection as guaranteed by the 14th Amendment of the United States Constitution. Stressing the importance of institutions and facilities, these decisions maintained that a separate education may be an equal education and, in essence, supported laws that mandated separate facilities for the races.

During the second period, which began in the late 1930s and reached its apex with such important rulings as Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents (1950), the focus shifted from the institution to the individual, as individual plaintiffs, mostly African Americans, sued to attend the institution of their choice. In some of these cases, no separate facility was available while in others, such as Sweatt, a facility was available but the Supreme Court deemed that it was not equal. These cases began to question the separate but equal doctrine as it applied to higher education, and they laid the groundwork for the Court's 1954 Brown v. Board of Education declaration that, when it comes to education, separate is inherently unequal.

The third period shifted emphasis back to the institution. Encompassing litigation that occurred after the passage of the Civil Rights Act of 1964, this analysis focused on cases that called for dismantling dual systems of education for Whites and Blacks and that reconsidered the role of choice in this process. Desegregation litigation in higher education during this period is best characterized by the most recent applicable Supreme Court ruling in United States v. Fordice (1992).

Early Higher Education Litigation and the Separate-but-Equal Doctrine

The history of higher education desegregation litigation began as early as 1862,(2) with the passage of the Morrill Act, which extended federal financial support for the nation's land grant universities to provide the masses with scientific and practical training. Passed before the Emancipation Proclamation, the Act did not specifically address the educational needs of Blacks. On the other hand, it was significant in this regard because three states--South Carolina, Virginia, and Kentucky--established land grant colleges for African Americans with these monies (Preer, 1982). The Hatch Act of 1887, which funded state agricultural experiment stations at colleges and universities throughout the United States, stated that monies should be equally divided between White and Black institutions unless the state legislature deemed otherwise. Documenting this history, Preer observes that the Second Morrill Act of 1890 provided a more reliable source of funding for Black institutions by specifically requiring equitable distribution between these and White institutions. Simultaneously, however, the 1890 Act legitimized this separate status. As Preer notes, "Ironically, the earliest efforts to provide equal educational opportunities for Negroes came to be viewed as an impediment to desegregation" (p. 7).