This article places current controversies over affirmative action and higher education desegregation in the broad historical context of legal challenges to the racial social order in the United States. With a specific focus on the role of federal courts, the article provides an overview of the legal cases and issues involved in the efforts to address the present effects of segregation and discrimination in higher education.
Efforts to enhance opportunity for African Americans through higher education desegregation remedies, including affirmative action, currently are receiving somewhat hostile receptions before federal courts. Thus, they remain important but nonetheless tenuous approaches in the struggle to rectify the historic denial of educational opportunity. To understand the precarious position of these efforts, it is important to examine the historic role that federal courts have played in preserving America's racial social order and, recognizing the critical role of education in social advancement, the role that these courts have played in protecting and expanding-but also, and importantly, curtailing and denying-Blacks' educational opportunities. This history underscores the critical role that historically Black higher education institutions have played in the higher education successes of the African American community, and suggests that the tenuous quality of legal remedies requires both continued persistence in those pursuits and a call for all colleges and universities voluntarily to shoulder an even greater share of the responsibility to devise new means to redress the cumulative and pervasive effects of this historic wrong.
THE SUPREME COURT'S PROTECTION OF THE U.S. RACIAL HIERARCHY
One cannot fairly discuss the legal struggle for educational opportunity for Blacks in the United States without first reviewing the history of the Supreme Court's role in protecting a racial social order that sought to place Whites in a superior and controlling position and relegate Blacks to an inferior, subservient one. The Court, in excruciating detail, fully explained and endorsed this racial hierarchy in the 1857 Supreme Court decision in Dred Scott v. Sanford. A politically charged Supreme Court in Dred Scott addressed whether the descendants of African slaves, when emancipated or born of parents who became free before their birth, could be considered citizens under the Constitution. The Court held that Blacks were not intended by the framers of the Constitution to be citizens because they were universally considered as "a subordinate and inferior class of beings... subjugated by the dominant race" (p. 700), with a stigma of the deepest degradation fixed upon the entire Black race.' Chief Justice Roger Taney's now infamous words expressed the Court's sentiment about the status of Blacks:
They had for more than a century before been regarded as beings of an inferior order; and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.... This opinion was at that time fixed and universal in the civilized portion of the white race. It was an axiom in morals as well as in politics, which no one thought of disputing, . . . ; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion. (pp. 701-702)
The seven-justice Supreme Court majority in Dred Scott both acknowledged and upheld, as a matter of law, the racial caste system operating in the United States. In such a system, it maintained, no person of African descent, regardless of their status as a slave or a free Black, was to be afforded the status of citizenship or the rights that accompanied that status.
Following the Civil War, Congress adopted and the states ratified the 13th Amendment to the Constitution to abolish slavery in 1865. …