Affirmative Action and Minority Enrollments in Medical and Law Schools

1. Desegregation, Affirmative Action, and Bakke

CHAPTER 1 Desegregation, Affirmative Action, and Bakke When the Supreme Court established the separate-but-equal doctrine in Plessy v. Ferguson in 1896, Justice John Harlan, a former slaveholder, was the sole dissenter: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens" (163 U.S. 537, 559). During the first decades of the civil rights movement, Harlan's statement would be quoted by proponents of equality as the embodiment of the real meaning of the Fourteenth Amendment's equal protection clause. But after the initial gains, and inherent limitations, of the movement, the use of race-conscious remedies would be urged by many proponents of equality, while Harlan's statement would be quoted by some persons who seemed to have little desire for equality among the races. The question of whether and under what circumstances could government policies not be color-blind is at the heart of the Bakke case. Desegregation The Separate-but-Equal Doctrine Plessy upheld a Louisiana law mandating separate accommodations in trains. By establishing the separate-but-equal doctrine, the Court validated the numerous Jim Crow laws requiring segregation throughout southern society (and in some northern communities) that had been adopted by state legislatures after slavery had been abolished. Although, according to the doctrine, the facilities were supposed to be equal, they rarely were. Three years after Plessy, the Court upheld segregation in public schools (Cumming v. Richmond County Board ofEducation, 175 7 8 Affirmative Action and Minority Enrollments U.S. 528 [1899)). A Georgia school board changed a high school that blacks had attended into an elementary school for blacks but did not build a new high school for blacks or allow them to attend the existing high schools with whites. Yet the Court did not consider that a violation of the separate-but-equal doctrine. In practice, then, the doctrine meant separation but not equality. The Supreme Court did strike down the "grandfather clause," which exempted persons whose ancestors could vote from the literacy test, in 1915 (Guinn v. United States, 238 U.S. 347) and a law prescribing residential segregation two years later (Buchanan v. Warley, 245 U.S. 60), but the Court showed little inclination to confront most Jim Crow laws or the separate-but-equal doctrine itself. Overturning the Separate-but-Equal Doctrine When the National Association for the Advancement of Colored People (NAACP) invigorated its legal defense arm in the 1930s, it began to challenge segregation in graduate schools, and the Supreme Court justices indicated some willingness to address this problem. Missouri had not allowed blacks to attend the state university law school and had not provided them with a separate law school. In 1938 the Court said the state had to do one or the other (Missouri ex rel. Gaines v. Canada, 305 U.S. 337). Texas had provided a black law school, but it was clearly inferior to the white law school, at the University of Texas, in size of facuity, student body, library, and opportunities for students to specialize. In 1950 the Court said the black school had to be substantially equal to the white one (Sweatt v. Painter, 339 U.S. 629). Oklahoma had allowed a black graduate student to attend the white graduate school at the University of Oklahoma, but it had designated a separate section of the classroom , library, and cafeteria for the student. In 1950 the Court said this arrangement deprived the student of the exchange of views with fellow students essential to education (McLaurin v. Oklahoma State Regents, 339 U.S. 637). In these decisions the Court did not invalidate the separate -but-equal doctrine, but it did make segregation almost impossible to maintain in graduate and professional schools. With these successes, the NAACP moved to challenge segregation in grade schools and high schools. By 1950, seventeen states and the District of Columbia required segregation in their schools, and four others allowed it by local option. These states provided white students with Desegregation, Affirmative Action, and Bakke 9 better facilities and white teachers with better salaries. Overall, they spent from two to ten times more on white schools than on black ones (Kluger 1976, 134). The NAACP's legal defense team, headed by Thurgood Marshall, filed suits in two southern states, one border state, one northern state, and the District of Columbia. These suits were consolidated under the name of Brown v. Board of Education, the name of the suit from Topeka, Kansas, and decided in 1954 (347...