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Colleges and Universities

Racial Discrimination

The Equal Protection Clause and Public Institutions The Equal Protection Clause of the Fourteenth Amendment prohibits a state from denying to individuals the equal protection of the laws. This clause requires, among other things, that a state and its instrumentalities may not treat members of different racial or ethnic backgrounds differently unless the discriminatory action is necessary to achieve a compelling government purpose and is narrowly tailored to satisfy that purpose. Despite the Fourteenth Amendment's passage in 1870, public higher education in the United States remained legally segregated on the basis of race until the mid-1950s. This de jure (i.e., legally sanctioned) SEGREGATION may be traced to a pre-Civil War decision by the Massachusetts Supreme Court upholding the legality of segregated schools in the heart of abolitionist territory (Roberts v. Boston, 59 Mass. [5 Cush.] 198 [1849]).

After the Civil War, Congress outlawed SLAVERY and made discrimination by the state unconstitutional, with the Thirteenth and Fourteenth Amendments to the Constitution. Not much changed, however, as states, obligated to provide all citizens with the equal protection of the laws, devised bifurcated educational systems that provided white citizens with one set of schools and black citizens with a supposedly parallel, but grossly underfunded and qualitatively inferior, set of schools. These systems were approved by the U.S. Supreme Court as "separate but equal" in Cumming v. Board of Education of Richmond County, 175 U.S. 528, 20 S. Ct. 197, 44 L. Ed. 262 (1899).

Public centers of higher education also remained segregated and unequal. Many states established dual systems of higher education. A number of states established whites-only flagship campuses, with separate blacks-only campuses that received less funding and fewer resources; others simply refused to admit black students.

In the early twentieth century, the National Association for the Advancement of Colored People (NAACP) began its attack against segregated schools at the university level, where it won a series of cases that eroded the SEPARATE-BUT-EQUAL principle. In the first of these cases, decided under the Equal Protection Clause, the U.S. Supreme Court ruled that a state could not avoid training qualified black law students by providing them tuition payments to out-of-state

law schools rather than permitting them to attend an in-state school (Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 [1938]). Next, in McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149 (1950), the Court held that the University of Oklahoma could not force its only black graduate student to sit in a hallway adjoining the classroom in which a course was offered, nor could it require the student to sit behind a railing marked "Reserved for Colored." Finally, in Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114 (1950), the Court found that a proposed blacks-only law school in Texas would be unequal to the prestigious and then-all-white University of Texas Law School not only in the quality of its tangible facilities but also in the quality of such intangibles as reputation and education.

Despite these early victories, de jure racial segregation of public colleges and universities did not become illegal until the Court decided BROWN V. BOARD OF EDUCATION OF TOPEKA, KANSAS, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873

In McLaurin v. Oklahoma (1950) the Supreme Court ruled that the University of Oklahoma could not force G.W. McLaurin, the school's only African American graduate student, to sit in a hallway adjoining the classroom.

(1954). Following Brown, schools throughout the United States were required to adopt desegregation policies, but de facto (i.e., actual) segregation remained in many university systems.

Litigation in the federal courts continues more than 40 years after Brown. In 1992, the U.S. Supreme Court held that the state of Mississippi had failed to satisfy its duty to desegregate the state university system, in United States v. Fordice, 505 U.S. 717, 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992). In Fordice, the state had eliminated its requirement that blacks and whites be educated separately, but allowed previously white schools to remain distinct from previously black schools, and inaccessible to black students. By the mid-1980s, previously all-white schools in Mississippi remained over 80 percent white and previously all-black schools remained over 90 percent black. The Court found that the state's policy of requiring higher American College Test (ACT) scores for admission to white schools than to black schools perpetuated the state's formerly de jure dual system because it effectively foreclosed many black students from attending white schools and forced them to attend black schools, which received less funding. The Court ruled that merely abolishing legal segregation and implementing race-neutral policies (i.e., policies that purport to treat individuals equally without regard to race) did not satisfy the state's duty to desegregate. Instead, the Court held, if schools or school policies maintain racially identifiable characteristics that can be traced to STATE ACTION, the state may be deemed to perpetuate former discriminatory practices in violation of the Equal Protection Clause. In the wake of Fordice, federal courts re-examined segregated systems of higher education in several states (Knight v. Alabama, 14 F.3d 1534 [11th Cir. 1994]; United States v. Louisiana, 9 F.3d 1159 [5th Cir. 1993]).

Federal Law and Private Institutions In 1964, in response to the slow pace of racial reform, Congress passed the Civil Rights Act of 1964, which prohibited discrimination on the basis of race (and sometimes gender) in public accommodations, federally funded programs, and employment. Title VI of the act prohibits discrimination "on the basis of race, color, or national origin," in "any program or activity receiving Federal financial assistance," which includes many centers of higher learning in the United States. Title VI reaches state and private schools that receive direct federal funding. It also reaches some institutions that receive no direct federal aid but that have a significant proportion of students who do (Grove City College v. Bell, 465 U.S. 555, 104 S. Ct. 1211, 79 L. Ed. 2d 516 [1984]).

Affirmative Action Beginning in the late 1960s, in response to the CIVIL RIGHTS MOVEMENT, many universities began adopting AFFIRMATIVE ACTION policies. Such policies attempt to encourage or to promote racial equality by ending de jure inequalities that remain even though legal inequalities have been abolished. In the beginning, many institutions employed quotas that reserved a certain number of spots for applicants of racial minorities. Other institutions considered membership in a racial minority as one variable in determining whether to admit a student.

It was not long before affirmative action policies came under legal attack as "reverse discrimination." The first serious challenge to affirmative action, REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), fundamentally changed its structure. In Bakke, Allan Bakke, a civil engineer of Norwegian descent, applied for admission to a medical program at the University of California. The program in question set aside 16 spaces for minority students out of a class of 100. Candidates for the set-aside spaces did not have to meet the minimum grade-point-average threshold established for other candidates. Although Bakke's grade-point average fell slightly below the minimum, he argued that he would have been admitted on an evaluative basis if the set-aside spots had not existed. He sued the university under Title VI and the Equal Protection Clause, arguing that the affirmative action program discriminated against him on the basis of his race. The U.S. Supreme Court found that the university's affirmative action program violated Title VI because it used strict racial quotas to determine admission.

The Court found that the program also violated the Equal Protection Clause, because it was not narrowly tailored to meet a compelling government interest. The Court observed that the program was designed to remedy the effects of general societal discrimination (a legitimate, but not compelling, government interest), not its own specific discriminatory practices, which might constitute a compelling interest. Nonetheless, the Court held that the use of race as one criterion in determining admission does not violate either Title VI or the Fourteenth Amendment. In doing so, it did not prohibit all consideration of race in admission decisions, noting with approval certain programs that take race into account to promote educational diversity.

Following Bakke, programs that set aside a fixed number of spaces for minority students no longer constituted an acceptable means of affirmative action. Most universities that maintained affirmative action programs adopted the type of program approved in Bakke, which permits the consideration of race in admission or scholarship decisions in order to encourage diversity. Some schools also introduced scholarships that were designed to benefit only certain groups, such as students belonging to a particular race. Beginning in the mid-1980s, as the U.S. Supreme Court began holding that affirmative action programs designed to remedy the effects of past discrimination would need to satisfy the same strict standards as other race-based classifications (City of Richmond v. J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 [1989]), race-restricted scholarships became the focus of lawsuits.

In Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), the U.S. Court of Appeals for the Fourth Circuit considered a challenge to the University of Maryland's Banneker Scholarship program, a merit-based scholarship for which only black students were eligible. Daniel J. Podberesky, a Hispanic student, qualified for the Banneker Scholarship in all respects but race. He sued the university, alleging that the scholarship program discriminated on the basis of race. The university countered that the program was designed to remedy the institution's own past discrimination, which had led to the underrepresentation of black students at the university. The court held that the Banneker program violated the Fourteenth Amendment because it was not narrowly tailored to remedy the effects of the university's past discrimination.

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