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Improving How the Legacies of State-Sponsored Segregation In Thompson-Dudiak: Comparison: Improving How the Legacies of State-Sponsored Segrega Thompson-Dudiak camera ready (Do Not Delete) 12/27/2018 11:39 AM COMPARISON: IMPROVING HOW THE LEGACIES OF STATE- SPONSORED SEGREGATION IN THE UNITED STATES AND SOUTH AFRICA AFFECT EQUITY AND INCLUSION IN AMERICAN AND SOUTH AFRICAN HIGHER EDUCATION SYSTEMS TABLE OF CONTENTS INTRODUCTION ........................................................................... 164 I. THE HISTORICAL INEQUITIES STEMMING FROM STATE-SPONSORED SEGREGATION IN EDUCATION ..................... 167 A. Reviewing the Historical Factors Leading to the Contemporary Statuses of Black Americans in Higher Education ........................................................ 167 B. Reviewing the Historical Factors Leading to the Contemporary Statuses of Black South Africans in Higher Education .......................................... 173 II. THE INTRODUCTION OF AFFIRMATIVE ACTION POLICIES IN CONTEMPORARY HIGHER EDUCATION IN THE UNITED STATES AND SOUTH AFRICA ......................................... 177 A. The Dawn of Affirmative Action in the United States 177 B. The Dawn of Affirmative Action in South Africa ....... 182 III. THE EFFICACY OF AFFIRMATIVE ACTION IN UNITED STATES AND SOUTH AFRICA.................................................................... 186 A. The Efficacy of Affirmative Action in the United States .................................................................... 186 B. The Efficacy of Affirmative Action in South Africa .... 191 IV. SOCIAL ATTITUDES TOWARD EFFORTS TO EFFECTUATE RACIAL EQUITY IN HIGHER EDUCATION IN THE UNITED STATES AND SOUTH AFRICA ....................................................... 194 A. Social Attitudes Toward Efforts to Effectuate Racial Equity in Higher Education in the United States .................................................................... 195 B. Social Attitudes Toward Efforts to Effectuate Racial Equity in Higher Education in South Africa ........ 197 V. RECOMMENDATIONS FOR IMPROVING THE STATE OF 163 Published by CWSL Scholarly Commons, 2019 1 California Western International Law Journal, Vol. 49, No. 1 [2019], Art. 8 Thompson-Dudiak camera ready (Do Not Delete) 12/27/2018 11:39 AM 164 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 49 BLACK AMERICANS AND SOUTH AFRICANS IN HIGHER EDUCATION ............................................................... 201 A. Historical Consciousness ........................................... 201 B. Social Responsibility for Attaining Equity in Higher Education in the United States and South Africa .............................................................. 202 C. Calculated Preemptive and Legal Measures in South Africa and the United States .............................. 206 CONCLUSION .............................................................................. 210 INTRODUCTION From time immemorial, our world has exhibited a pattern: people of all races, ethnicities, religions, and backgrounds, have designated themselves the proverbial “in-group” as a means to claim superiority over others.1 Those who identify as being within an “in-group” attribute positive characteristics to the group, and attribute negative qualities to the “out-group.”2 Racial tensions and their societal manifestations in the United States and around the world illustrate a broader human problem.3 Examining the historical and current racial postures in the United States and South Africa reveals education’s crucial role in characterizing status in both nations. These histories reveal how educational systems are used as control mechanisms to perpetuate racial and economic stratification. However, education—particularly higher education—can be utilized to neutralize, rather than exacerbate, racial and economic divides. The phenomenon of people being categorized along white, Black, 4 or yellow lines is a social construct. As a consequence, “Black” is 1. The Making of a Black President, COLORLINES, (Dec. 12, 2016, 12:43 PM), https://www.colorlines.com/articles/watch-ta-nehisi-coates-talks-president-obama- about-social-political-construction-race. 2. Catherine E. Smith, The Group Dangers of Race-Based Conspiracies, 59 RUTGERS L. REV. 55, 68 (2006). 3. The Making of a Black President, supra note 1. 4. Alex M. Johnson, Jr., Destabilizing Racial Classifications Based on Insights Gleaned from Trademark Law, 84 CALIF. L. REV. 887, 913 (1996). https://scholarlycommons.law.cwsl.edu/cwilj/vol49/iss1/8 2 Thompson-Dudiak: Comparison: Improving How the Legacies of State-Sponsored Segrega Thompson-Dudiak camera ready (Do Not Delete) 12/27/2018 11:39 AM 2018] STATE-SPONSORED SEGREGATION IN U.S. AND SOUTH AFRICA 165 understood differently in South Africa than in the United States.5 For instance, someone considered Black in America could be regarded as colored in South Africa.6 In South Africa, a Black person is someone generally accepted as a member of “any aboriginal race or tribe of Africa.”7 The term “colored” refers to South African people of mixed race, and a “white” South African is someone who, based on appearance, is obviously white and “generally not accepted as a colored person.”8 Colored people and people of Indian descent were also identified as second-class citizens in South Africa. Consequently, both groups were also victims of harsh discriminatory laws.9 Each racial group entailed immensely distinct legal entitlements and social statuses.10 However, generally any “African ancestry made one’s racial classification [B]lack.”11 Juxtaposing these racial histories requires mindfulness of the substantial differences in each country. For example, apartheid was a nationally imposed system, while Jim Crow applied regionally in the South.12 Also, de jure segregation in the United States lasted from the early 1600s until the mid-1960s.13 Alternatively, in South Africa, 5. Michael F. Higginbotham, Affirmative Action in the United States and South Africa: Lessons from the Other Side, 13 TEMP. INT’L & COMP. L.J. 187, 188 n.5 (1999). 6. Id. 7. Id. 8. Id. 9. Indian South Africans, S. AFR. HIST., http://www.sahistory.org.za/article/indian-south-africans (last visited Nov. 14, 2018). 10. Higginbotham, supra note 5, at 188 n.5. 11. Id.; see Shari Dworkin & Kari Lerum, Race, Sexuality, and the “One Drop Rule”: More Thoughts about Interracial Couples and Marriage, SOCIETY PAGES (Oct. 18, 2009), https://thesocietypages.org/sexuality/ 2009/10/18/race-sexuality- and-the-one-drop-rule-more-thoughts-about-interracial-couples-and-marriage/ (describing the United States’ “one drop rule” which is how courts and law books historically declared whether a mixed race person with “one black ancestor” or “one drop of black blood” should be categorized or treated as black; this rule reveals the “arbitrary nature of racial classifications.”). 12. Daniel Baker, What are the differences and the similarities between Jim Crow laws and the Apartheid?, QUORA (Feb. 2, 2016), https://www.quora.com/What- are-the-differences-and-the-similarities-between-Jim-Crow-laws-and-the-Apartheid. 13. Civil Rights Act of 1964, HISTORY.COM (Jan. 4, 2010), https://www.history.com/topics/black-history/civil-rights-act (explaining that de jure segregation is “a state of affairs that is in accordance with law (i.e. that is officially Published by CWSL Scholarly Commons, 2019 3 California Western International Law Journal, Vol. 49, No. 1 [2019], Art. 8 Thompson-Dudiak camera ready (Do Not Delete) 12/27/2018 11:39 AM 166 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 49 apartheid existed from 1948 until 1994.14 Remembering these temporal distinctions are useful in appreciating the extent of progress and the need for improvement in each nation. Moreover, in South Africa, white people, who have historically comprised a “distinct numerical minority” of the population, implemented domineering tactics over Black South Africans.15 Alternatively, in the United States, white Americans have historically constituted a “numerical majority,” and have enslaved and oppressed the Black American minority.16 Typically, societal outcomes depend on who holds political and economic power.17 Thus, the differentiations between these social structures contextualize the understanding of potential solutions. Remembering these temporal distinctions are useful in appreciating the extent of progress and the need for improvement in each nation. Considering the distinct cultures, religions, governments, demographics, and economics of each country, it is unrealistic to assume a successful prescription for the United States would automatically produce the same result in South Africa, or vice versa. However, the similar histories and comparable present-day situations in both countries offer a unique lens to examine how each country can redress legacies of state-sponsored segregation within higher education. This note provides a comparative review of the historical inequalities stemming from the legacies of state-sponsored segregation in education. Part I studies the role of affirmative action in addressing the historical inequities in higher education. Part II describes how social attitudes toward affirmative action influence legislation. The note concludes by recommending a synergy of historical consciousness, social responsibility, and calculated preemptive legal measures to address and improve the state of Black Americans and Black South sanctioned)” and that de facto segregation means “a state of affairs that is true in fact, but that is not officially sanctioned.”); cf. Peter H. Wood,
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