Vol. 10 No. 4 (May 2000) pp. 314-317.
THE QUEST TO DEFINE COLLEGIATE DESEGREGATION: BLACK COLLEGES, TITLE VI COMPLIANCE, AND POST-ADAMS LITIGATION by M. Christopher Brown II. Westport, CT: Bergin and Garrey, 1999. 168pp.
Reviewed by Michelle D. Deardorff, Department of Political Science, Millikin University.
Although much has been written on the struggle to desegregate the public schools, very little has been said regarding the special case of higher education. Although cases such as MISSOURI EX. REL. GAINES v. CANADA (1938), SWEATT v. PAINTER (1950), SIPUEL v. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA (1948), and McLAURIN v. OKLAHOMA STATE REGENTS (1950) provided groundwork for the BROWN v. BOARD OF EDUCATION (1955) assault on the constitutionality of the separate but equal doctrine, there has been sparse research on the consequences of BROWN for higher education.
M. Christopher Brown II's THE QUEST TO DEFINE DESEGREGATION is designed to
address specifically the issues laid out in his subtitle. He examines only historically black colleges and universities (HBCUs), looks solely at the issues and questions surrounding Title VI compliance, and focuses on post-ADAMS v. RICHARDSON (1973) compliance. This narrow focus is both the primary strength and the major limitation of this work. Brown, a professor of Higher Education, writes from his disciplinary perspective, justifying his case law methodology in an appendix and providing a glossary of legal terms. This disciplinary lens may be a source of frustration for public law scholars.
Professor Brown begins his "Introduction to the Quest" by noting that he will be tracing historical and legal foundations of desegregation, as well as its evolution in higher education. Specifically, this work responds to four questions: "(1) What are the higher education desegregation cases that have been adjudicated in the federal courts since ADAMS v. RICHARDSON? (2) What are the history, facts, and outcomes of those cases? (3) What are the legal standards used by the courts in ruling on Title VI compliance? (4) How have courts defined statewide collegiate desegregation?" (p. xix). In chapter one, "Black Colleges and Desegregation," he documents the lack of research on the legal history of higher education desegregation. Desegregation at the collegiate and graduate level largely originates with the Morrill Act of 1890, which prohibited states from using federal funds unless they provided direct access for blacks or "separate but equal" accommodations for blacks and whites. Dual public land-grant systems of higher education in seventeen of the nineteen southern states, which generally continued until the mid-1950s, were the consequence of this legislation. Although BROWN
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reversed "separate but equal" requirements for primary and secondary education, FLORIDA EX REL. HAWKINS v. BOARD OF CONTROL (1956) applied BROWN
to higher education. However, the federal government did not connect funding in higher education to desegregation until the passage of Title VI of the Civil Rights Act of 1964. Title VI prohibits the exclusion of individuals from programs receiving federal funding on the basis of race, color, or national origin. The Office of Civil Rights has since provided administrative procedure guidelines regarding such illegal exclusion but little direction for determining what constitutes compliance with Title VI.
The first test of Title VI in higher education was the federal circuit court case of ADAMS v. RICHARDSON in 1972. The district court required the Department of Health, Education, and Welfare (HEW) to enforce Title VI in ten states identified as having dual systems of higher education. This was to be done by requiring states to submit desegregation plans to HEW and by requiring HEW to develop criteria that would mark a desegregated state system of higher education. Although ADAMS did clarify many of the questions central to collegiate desegregation, there has been little direct Supreme Court guidance. In fact, in 1990 the ADAMS case was dismissed and the enforcement of Title VI compliance was left to each state. According to Brown, ADAMS has been
Seminal in leading to the convergence on "racial identifiability in institutions, enrollment demographics, duplication of academic offerings, collegiate misidentification, physical plant maintenance, and the role of the historically black college" as a means of determining Title VI compliance (p. 9). This focus was maintained in the 1992 Supreme Court case of FORDICE v. UNITED STATES (1992). Concluding that the latter court rulings have been fundamentally procedural in nature and that the dismissal of the ADAMS litigation has weakened compliance efforts by federal agencies, Professor
Brown moves into his case studies of higher education desegregation in Tennessee, Alabama, Louisiana, and Mississippi.
Chapter three, "Desegregation Litigation Reborn," traces the litigation paths of these four states in the post-ADAMS climate. All four cases attempted (quoting Halpern, 1995, p. 180), "the dismantling of a total structure of racist admission standards and ... the reevaluation of a wide range of other educational practices at all public colleges and universities" throughout the specific state (p. 30). After examining each case, Brown
concludes that after thirty years of litigation the questions surrounding the dismantling of higher education remain the same. Arguing that the ambiguity of Title VI compliance standards have allowed states to circumvent the Supreme Court's guidelines in FORDICE, he notes that all state plans must meet strict scrutiny tests for Fourteenth Amendment equal protection claims to comply with Title VI.
Because there is uncertainty about the current legal standard for compliance, "the need exists to analyze the evolution of the legal standard for Title VI compliance in an attempt to emerge with an answer to collegiate desegregation's perennial question: "What is the prima facie evidence of a desegregated statewide system of higher education?" (p 56). Within all the diverse compliance approaches - the historical standards for Title VI
compliance, HEW guidelines, freedom of choice plans, goals of
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racial neutrality, good faith goals, and FORDICE'S articulated test - Brown finds three consistent elements. "First, all the standards recognize segregation as unconstitutional. Additionally, all the standards acknowledge that even minimal desegregation efforts require a formal plan for compliance. Finally, all the standards recognize that the collegiate desegregation process is geared toward achieving 'unity' status" (p. 69).
Chapter five, "Challenges to Compliance," looks at FORDICE and other indicators of changing judicial and societal perceptions especially in "the use of racial classification by
governmental agencies even when they are used for the benefit of remedying past discrimination" (p. 73) and raises concerns about the consequences for HBCUs.
Professor Brown finds no current definition of collegiate desegregation. Instead, he advocates that future litigation must find the balance between Title VI compliance and preserving the unique character of historically black colleges. Desegregation in higher education cannot be based on such easily-measured indicators as "racial enrollment parity;" instead, "the remediation of continuing vestiges of de jure segregation is found in the inequality of state funding formulas.... The democratic ideal of collegiate desegregation is rooted in equal access and opportunity to funding and educational capital" (p. 103).
THE QUEST TO DEFINE COLLEGIATE DESEGREGATION is largely an apologetic for historically black colleges and universities and the unique role they play in the African-American community. Professor Brown is adamant that all future measurements of desegregation compliance be designed to protect their unique characteristics. "Historically black universities have been the primary educators of African-Americans. The black institution has historically created pools of qualified individuals who have traditionally been underutilized in academia and corporate America. While it is true that these black colleges are of great value, they have not convinced some in society of their importance. As a result many questions are being raised about the need to continue their
current configuration and/or existence during this area of collegiate desegregation" (p. 76).
Although Professor Brown does an excellent job demonstrating the significance of black universities and colleges, it may have been more pertinent for him to fully discuss the current tension between Title VI compliance and the protection of HBCUs and to provide more sophisticated remedies. Although in the last chapter he hypotheses potential standards that would provide clearer measurements, the book would have been stronger if he had articulated and discussed those standards, instead of repetitively defending their necessity and describing their current unsuitability. These concerns aside, THE QUEST FOR COLLEGIATE DESEGREGATION emphasizes the clear need for the scholarly and legal communities to address the Title VI compliance vacuum in higher education, as well as the continuing importance of HBCUs in America.
REFERENCES:
Halpern, Stephen. 1995. ON THE LIMITS OF THE LAW: THE IRONIC LEGACY OF TITLE VI OF THE 1964 CIVIL
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RIGHTS ACT. Baltimore: Johns Hopkins University Press.
Morrill Act of 1890, Ch. 841, 26 Stat. 417.
CASE REFERENCES:
ADAMS v. RICHARDSON, 351 F.2d 636 (D. C. Cir. 1972); 356 F.2d 92 (D. C. Cir.
1973); 480 F.2d 1159 (D. C. Cir. 1973).
BROWN v. BOARD OF EDUCATION, 349 US 294 (1955).
FLORIDA EX REL. HAWKINS v. BOARD OF CONTROL, 350 US 413 (1956).
McLAURIN v. OKLAHOMA STATE REGENTS, 339 U. S. 637 (1950).
MISSOURI EX REL GAINES v. CANADA, 305 U. S. 337 (1938)
SIPUEL v. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA, 332 U. S. 631 (1948)
SWEATT v. PAINTER, 339 U. S. 629 (1950).
UNITED STATES v. FORDICE, 505 U. S. 717 (1992).