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I'm CONFUSED: HOW CAN the FEDERAL GOVERNMENT PROMOTE DIVERSITY in HIGHER EDUCATION YET CONTINUE to STRENGTHEN HISTORICALLY BLACK COLLEGES? Sean B

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I'm CONFUSED: HOW CAN the FEDERAL GOVERNMENT PROMOTE DIVERSITY in HIGHER EDUCATION YET CONTINUE to STRENGTHEN HISTORICALLY BLACK COLLEGES? Sean B Washington and Lee Journal of Civil Rights and Social Justice Volume 12 | Issue 2 Article 9 Spring 3-1-2006 I'M CONFUSED: HOW CAN THE FEDERAL GOVERNMENT PROMOTE DIVERSITY IN HIGHER EDUCATION YET CONTINUE TO STRENGTHEN HISTORICALLY BLACK COLLEGES? Sean B. Seymore Follow this and additional works at: https://scholarlycommons.law.wlu.edu/crsj Part of the Civil Rights and Discrimination Commons, and the Education Law Commons Recommended Citation Sean B. Seymore, I'M CONFUSED: HOW CAN THE FEDERAL GOVERNMENT PROMOTE DIVERSITY IN HIGHER EDUCATION YET CONTINUE TO STRENGTHEN HISTORICALLY BLACK COLLEGES?, 12 Wash. & Lee J. Civ. Rts. & Soc. Just. 287 (2006). Available at: https://scholarlycommons.law.wlu.edu/crsj/vol12/iss2/9 This Note is brought to you for free and open access by the Washington and Lee Journal of Civil Rights and Social Justice at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Journal of Civil Rights and Social Justice by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. I'M CONFUSED: How CAN THE FEDERAL GOVERNMENT PROMOTE DIVERSITY IN HIGHER EDUCATION YET CONTINUE TO STRENGTHEN HISTORICALLY BLACK COLLEGES? Sean B. Seymore* Table of Contents I. Introduction ..............................................................288 U . Background ........................................................... 294 A. History and Mission ......................................... 294 B. A Dual System of Education ............................... 296 C. The Current Situation ....................................... 299 III. Federal Support of HBCUs: A Discrimination "Remedy" Which Frustrates Diversity .................................................. 303 A. The Scope of Federal Involvement ........................ 303 1. Empowerment from the White House ................. 304 2. The "HBCU Aid Act" ................................... 305 3. Fordice: Savior or Death Knell? ................. .. .. .. 306 B. Why Federal Support of HBCUs Should Cease .......... 308 IV. Why the Federal Government Promotes Two Divergent Initiatives: A H ypothesis .............................................................. 312 A . L egacy ................................................................. 312 B . White G uilt ............................................................ 312 1. Is America Confused? ............................... .. .. .. .. .. 312 2. White Redemption and Entitlement .......................... 313 C. "Those Qualities Which Are Incapable of Objective Measurement" ........................................ 314 D. De Facto Segregation and "The Race Problem" ................316 V . C onclusion ...................................................................... 318 287 12 WASH. & LEEJ. C.R. & SOC. JUST. 2 (2006) L Introduction Education remains the key to success in America,' and often is the most important public priority.2 Although the Supreme Court does not consider education a fundamental right, 3 the Court recognizes the importance of equal access to education. Fifty years have passed since Brown v. Board of Education,5 yet substantial racial sorting persists in education at all levels.6 At the K-12 level, white families-and even middle-class black families- flee to the suburbs when urban neighborhoods and schools reach their "tipping point,"7 which occurs when the number of blacks in a setting * J.D., Notre Dame Law School, expected 2006; Ph.D., University of Notre Dame, 2001; M.S. Chem., Georgia Institute of Technology, 1996; B.S., University of Tennessee, 1993. Mailing address: P.O. Box 1103, Notre Dame, IN 46556. Phone: (617)894-5079; E-mail: [email protected]. i Shaakirrah R. Sanders, Twenty-Five Years of a Divided Court and Nation: "Conflicting" Views of Affirmative Action and Reverse Discrimination, 26 U. ARK. L-rrLE ROCK L. REV. 61, 109 (2003); Harold McDougall, School Desegregationor Affirmative Action? 44 WASHBURN L.J. 65, 65 (2004). 2 Gary Orfield, Metropolitan School Desegregation:Impacts on Metropolitan Society, 80 MINN. L. REV. 825, 857 (1996). 3 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) ("Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected."); Plyler v. Doe, 457 U.S. 202, 221 (1982) ("Public education is not a 'right' granted to individuals by the Constitution."). 4 Brown v. Bd. of Educ., 347 U.S. 483 (1954). Matthew S. Lerner, Comment, When Diversity Leads to Adversity: The Principles of Promoting Diversity in EducationalInstitutions, Premonitions of the Taxman v. Board of Education Settlement, 47 BUFF. L. REV. 1035, 1066 (1999) (citation omitted) (Equal access to education is, among other things, "the key to good jobs, quality housing, political influence, economic parity and social stability."). 347 U.S. 483 (1954). In Brown, Plaintiffs were denied admission to the public schools of their communities based on laws that required or permitted segregation according to race. Id. at 488. The Supreme Court overruled Plessy v. Ferguson by holding that the "separate but equal" doctrine has no application in the field of education. The segregation of children in public schools based solely on their race violates the Equal Protection Clause. Id. at 494-95. Following this case, schools were required to become desegregated. Id. at 495. 6 See Cheryl L. Wade, The Impact of U.S. Corporate Policy on Women and People of Color, 7 J. GENDER RACE & JUST. 213, 221 (2003) ("The gap and its disproportionate impact on people of color and the poor are exacerbated by failing urban school systems that, even fifty years after Brown v. Board of Education,remain segregated by race and class as a result of de facto circumstances.") (citations omitted); J. Clay Smith, Jr. & Lisa C. Wilson, Brown on White College Campuses: Forty Years of Brown v. Board of Education, 36 WM. & MARY L. REV. 733, 737 (1995) ("In looking at the bare principle of integration, the ideals of Brown, which call for the elimination of statutory segregation, apparently have been met. However, when looking closely at what is occurring, and recurring, on historically white campuses, it appears that the vestiges of segregation continue."). 7 Paul Gewirtz, Remedies and Resistance, 92 YALE L.J. 585, 629-30 (1983). Professor Paul Gewirtz's landmark article introduced the tipping point theory: Whites who object to integration in a city's public schools and who have the flexibility and the resources may decide to "flee" by sending their children to private schools or by choosing to live in another community... .The degree to which white flight occurs in a school system depends upon the proportion of black enrollment in the schools as well as other variables. If the proportion of blacks in the schools is greater than some "tipping point," it is commonly believed that white flight significantly escalates, and the schools may become or remain identifiably black.... A tipping point and flight therefore put a I'M CONFUSED 289 prompts whites to leave in order to find a more homogenous environment. 8 The inability of whites and blacks to live, worship, commute, shop, and learn together makes de facto segregation 9 a fundamental characteristic of American life.'0 limit on achievable integration .... The very transition from segregation to integration sets in motion a movement towards resegregation. Id. Since all parents want the best for their kids, white parents "fight against any element that could be perceived as watering down the quality of their kids," and black middle-class parents "worr[y] that teachers have low expectations of their children." SHERYLL D. CASHIN, THE FAILURE OF INTEGRATION: How RACE AND CLASS ARE UNDERMINING THE AMERICAN DREAM 78 (2004) (citation omitted). 9 See Parents Ass'n of Andrew Jackson High Sch. v. Ambach, 738 F.2d 574, 576-77 (2d Cir. 1979) (stating that promoting a more lasting integration is a sufficiently compelling purpose to justify as a matter of law excluding some minority students from schools of their choice under the obviously race- conscious Rate of Change Plan). The court recognized tipping points. Id. at 576. Some courts have allowed school districts to limit black enrollments in certain schools in order to prevent white flight. Id. at 580; Riddick v. Bd. of Norfolk, 784 F.2d 521, 528-29 (4th Cir. 1986) (finding that school board may legitimately consider white flight when formulating a plan to stabilize school integration), cert. denied, 479 U.S. 938 (1986). Indiscussing these cases, Professors Lively and Plass note that "[c]onsequently, black students could be denied admission to a particular school even though it would accept white students." Donald E. Lively & Stephen Plass, Equal Protection: The Jurisprudence of Denial and Evasion, 40 AM. U. L. REv. 1307, 1338 n.168 (1991) (discussing ParentsAss'n of Andrew Jackson High Sch. v. Ambach and Riddick v. Bd. of Norfolk). Tipping points are also observed in housing and employment choices. See, e.g., Sheryll D. Cashin, Localism, Self-Interest, and the Tyranny of the Favored Quarter:Addressing the Barriersto New Regionalism, 88 GEO. L.J. 1985, 1994 n.34 (2000) ("At the neighborhood level, although white attitudes toward integration have become more liberal over time, there is strong evidence that white demand for housing in a neighborhood is clearly affected, to some degree, by its racial composition,
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