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* The Courts and Equal Educational Opportunity * Wilson Smith Thomas Bender context The phrase “affirmative action” came to mean a national effort to overcome past injustices in the lives of women and ethnic minorities, chiefly African Americans, by assuring them of some advantage in employment opportunities and college admissions. The phrase was first used in President John F. Kennedy’s Executive Order Number 10925 of March 6, 1961, and was used again in President Lyndon Johnson’s Order Number 11246 in September 24, 1965. Directed at business contractors, both orders decreed that all applicants for employment will be treated “without regard to their race, creed, color, or national origin.” Johnson amended 11246 as 11375 in October 1967 to include affirmative action for women. The landmark Title VII of the Civil Rights Act (1964) prohibited racial and gender discrimination in any federally financed program (IX, 4). In 1967 the U.S. Commission on Civil Rights, reporting on southern and border state school desegregation in 1966–67, concluded that “freedom of choice” plans at Southern schools could no longer be seen as supporting the “all deliberate speed” policy of Brown II (1955). Schools must, it declared, “require affirmative action by both Negro and white parents and pupils before disestablishment [of segregation] can be achieved.” From the Supreme Court, Justice William Brennan in Green v. County School Board of New Kent County (391 U.S. 440–441, 1968) cited the words of the Civil Rights Commission approvingly. The phrase was now becoming widespread and applied to all levels of education. Beyond legislation, the turbulent decade of the 1960s was also recording Thurgood Marshall at the courts continuing his tireless work with the National Association for the Advancement of Colored People (NAACP) to open equal opportunities to black citizens, Martin Luther King leading nonviolent freedom marches and boycotts, followed by Freedom Riders, the horror of urban riots and burnings, and, not irrelevantly, the national wound of the Vietnam War accompanied by college and university student dissent against campus administrative policies and at times outright rebellion (VII, 11–12). These events spurred affirmative action. And some college administrators were also initiating programs to diversify campuses ethnically. In a longer view almost two centuries earlier, in a new white republic that included enslaved black people as 18 percent of the population, a vision for affirmative action appeared in Thomas Jefferson’s claims for both equality and merit. These two elements of Gunnar Myrdal’s modern “American dilemma” still stand counterpoised within the concept of affirmative action for a multiethnic nation. The simple judgment by Chief Justice Earl Warren in Brown v. Board of Education, 1954 (3), that separate public schooling is “inherently unequal,” invoked the idea of human equality from Jefferson’s Declaration of Independence, recalled as colorblind by Abraham Lincoln and remembered by Martin Luther King as “a promise not a reality.” Almost a quarter century after Brown had emphasized equality, the Supreme Court in University of California Regents v. Bakke (4) confronted the Jeffersonian design for recognizing merit or talent through education. Jefferson had advocated educational advancement for all white young men up an increasingly selective and tested ladder or pyramid of academic merit to produce talented republican leaders for an American “aristocracy” of civic leaders. In the 1930s and 1940s James Bryant Conant at Harvard proposed and implemented a similar Jeffersonian meritocracy for higher education drawn from a wide pool of national applicants (II, 5). Thus Justice Lewis F. Powell’s opinion for the Court in Bakke sought to widen the step on the professional education ladder by admitting the white medical student Allan Bakke, whose academic qualifications were at least equal to those of black applicants, but did not rate higher than the Davis Medical School’s admissions quota preferring minority applicants. In his dual judgment Powell nevertheless allowed that an applicant’s race could be one criterion for admission among several. The purposes of equality and merit were then presumably satisfied. Over the next twenty-five years, however, shifting public sentiment against affirmative action, together with lower court challenges that Bakke was unsatisfactory law, brought affirmative action once again to a head at the Supreme Court in the twin cases from the University of Michigan in 2003 (5). Throughout the 1970s and 1980s justices on the Supreme Court bench remained reluctant to consider academic policies. After Brown word had it that, ironically, the Court was “the national school board.” Justices took pains to indicate that this was a misleading characterization, at least...

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