Author: mopress

“I fear that we have come full circle. After the Civil War our Government started

several “affirmative action” programs. This Court in the Civil Rights Cases and Plessy v. Ferguson

destroyed the movement toward complete equality. For almost a century no action was taken, and this

nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and the

Civil Rights Acts of Congress, followed by numerous affirmative-action programs. Now, we have this

Court again stepping in, this time to stop affirmative-action programs of the type used by the

University of California.”

–Justice Thurgood Marshall in the Bakke case of 1978. See

more of the Marshall section of Bakke in Read More below.

U.S. Supreme

Court

UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE,
438 U.S. 265 (1978)
438 U.S.

265

[Source: Findlaw]

REGENTS OF THE UNIVERSITY OF CALIFORNIA

v. BAKKE
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

No. 76-

811.

Argued October 12, 1977
Decided June 28, 1978

MR. JUSTICE

MARSHALL.

I agree with the judgment of the Court only insofar as it permits a university

to consider the race of an applicant in making admissions decisions. I do not agree that petitioner’s

admissions program violates the Constitution. For it must be remembered that, during most of the past

200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and

pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of

that legacy of discrimination, I cannot believe that this same Constitution stands as a

barrier.

I

A

Three hundred and fifty years ago, the Negro was

dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into

bondage for forced labor, [438 U.S. 265, 388] the slave was deprived of all legal rights. It was

unlawful to teach him to read; he could be sold away from his family and friends at the whim of his

master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized

both master and slave. 1

The denial of human rights was etched into the American

Colonies’ first attempts at establishing self-government. When the colonists determined to seek their

independence from England, they drafted a unique document cataloguing their grievances against the King

and proclaiming as “self-evident” that “all men are created equal” and are endowed “with certain

unalienable Rights,” including those to “Life, Liberty and the pursuit of Happiness.” The self-

evident truths and the unalienable rights were intended, however, to apply only to white men. An

earlier draft of the Declaration of Independence, submitted by Thomas Jefferson to the Continental

Congress, had included among the charges against the King that

“[h]e has waged cruel war

against human nature itself, violating its most sacred rights of life and liberty in the persons of a

distant people who never offended him, captivating and carrying them into slavery in another

hemisphere, or to incur miserable death in their transportation thither.” Franklin

88.

The Southern delegation insisted that the charge be deleted; the colonists themselves

were implicated in the slave trade, and inclusion of this claim might have made it more difficult to

justify the continuation of slavery once the ties to England were severed. Thus, even as the colonists

embarked on a [438 U.S. 265, 389] course to secure their own freedom and equality, they ensured

perpetuation of the system that deprived a whole race of those rights.

The implicit

protection of slavery embodied in the Declaration of Independence was made explicit in the

Constitution, which treated a slave as being equivalent to three-fifths of a person for purposes of

apportioning representatives and taxes among the States. Art. I, 2. The Constitution also contained a

clause ensuring that the “Migration or Importation” of slaves into the existing States would be legal

until at least 1808, Art. I, 9, and a fugitive slave clause requiring that when a slave escaped to

another State, he must be returned on the claim of the master, Art. IV, 2. In their declaration of the

principles that were to provide the cornerstone of the new Nation, therefore, the Framers made it plain

that “we the people,” for whose protection the Constitution was designed, did not include those whose

skins were the wrong color. As Professor John Hope Franklin has observed, Americans “proudly accepted

the challenge and responsibility of their new political freedom by establishing the machinery and

safeguards that insured the continued enslavement of blacks.” Franklin 100.

The

individual States likewise established the machinery to protect the system of slavery through the

promulgation of the Slave Codes, which were designed primarily to defend the property interest of the

owner in his slave. The position of the Negro slave as mere property was confirmed by this Court in

Dred Scott v. Sandford, 19 How. 393 (1857), holding that the Missouri Compromise – which prohibited

slavery in the portion of the Louisiana Purchase Territory north of Missouri – was unconstitutional

because it deprived slave owners of their property without due process. The Court declared that under

the Constitution a slave was property, and “[t]he right to traffic in it, like an ordinary article of

merchandise and property, was guarantied to the citizens of the United [438 U.S. 265, 390] States . .

. .” Id., at 451. The Court further concluded that Negroes were not intended to be included as

citizens under the Constitution but were “regarded as beings of an inferior order . . . 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 . . . .” Id., at

407.

B

The status of the Negro as property was officially erased by his

emancipation at the end of the Civil War. But the long-awaited emancipation, while freeing the Negro

from slavery, did not bring him citizenship or equality in any meaningful way. Slavery was replaced by

a system of “laws which imposed upon the colored race onerous disabilities and burdens, and curtailed

their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of

little value.” Slaughter-House Cases, 16 Wall. 36, 70 (1873). Despite the passage of the Thirteenth,

Fourteenth, and Fifteenth Amendments, the Negro was systematically denied the rights those Amendments

were supposed to secure. The combined actions and inactions of the State and Federal Governments

maintained Negroes in a position of legal inferiority for another century after the Civil

War.

The Southern States took the first steps to re-enslave the Negroes. Immediately

following the end of the Civil War, many of the provisional legislatures passed Black Codes, similar to

the Slave Codes, which, among other things, limited the rights of Negroes to own or rent property and

permitted imprisonment for breach of employment contracts. Over the next several decades, the South

managed to disenfranchise the Negroes in spite of the Fifteenth Amendment by various techniques,

including poll taxes, deliberately complicated balloting processes, property and literacy

qualifications, and finally the white primary.

Congress responded to the legal

disabilities being imposed [438 U.S. 265, 391] in the Southern States by passing the Reconstruction

Acts and the Civil Rights Acts. Congress also responded to the needs of the Negroes at the end of the

Civil War by establishing the Bureau of Refugees, Freedmen, and Abandoned Lands, better known as the

Freedmen’s Bureau, to supply food, hosp
itals, land, and edu
cation to the newly freed slaves. Thus, for

a time it seemed as if the Negro might be protected from the continued denial of his civil rights and

might be relieved of the disabilities that prevented him from taking his place as a free and equal

citizen.

That time, however, was short-lived. Reconstruction came to a close, and, with

the assistance of this Court, the Negro was rapidly stripped of his new civil rights. In the words of

C. Vann Woodward: “By narrow and ingenious interpretation [the Supreme Court’s] decisions over a

period of years had whittled away a great part of the authority presumably given the government for

protection of civil rights.” Woodward 139.

The Court began by interpreting the Civil War

Amendments in a manner that sharply curtailed their substantive protections. See, e. g., Slaughter-

House Cases, supra; United States v. Reese, 92 U.S. 214 (1876); United States v. Cruikshank, 92 U.S.

542 (1876). Then in the notorious Civil Rights Cases, 109 U.S. 3 (1883), the Court strangled Congress’

efforts to use its power to promote racial equality. In those cases the Court invalidated sections of

the Civil Rights Act of 1875 that made it a crime to deny equal access to “inns, public conveyances,

theaters and other places of public amusement.” Id., at 10. According to the Court, the Fourteenth

Amendment gave Congress the power to proscribe only discriminatory action by the State. The Court ruled

that the Negroes who were excluded from public places suffered only an invasion of their social rights

at the hands of private individuals, and Congress had no power to remedy that. Id., at 24-25. “When a

man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable

concomitants of that [438 U.S. 265, 392] state,” the Court concluded, “there must be some stage in

the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special

favorite of the laws . . . .” Id., at 25. As Mr. Justice Harlan noted in dissent, however, the Civil

War Amendments and Civil Rights Acts did not make the Negroes the “special favorite” of the laws but

instead “sought to accomplish in reference to that race . . . – what had already been done in every

State of the Union for the white race – to secure and protect rights belonging to them as freemen and

citizens; nothing more.” Id., at 61.

The Court’s ultimate blow to the Civil War

Amendments and to the equality of Negroes came in Plessy v. Ferguson, 163 U.S. 537 (1896). In upholding

a Louisiana law that required railway companies to provide “equal but separate” accommodations for

whites and Negroes, the Court held that the Fourteenth Amendment was not intended “to abolish

distinctions based upon color, or to enforce social, as distinguished from political equality, or a

commingling of the two races upon terms unsatisfactory to either.” Id., at 544. Ignoring totally the

realities of the positions of the two races, the Court remarked:

“We consider the

underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced

separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is

not by reason of anything found in the act, but solely because the colored race chooses to put that

construction upon it.” Id., at 551.

Mr. Justice Harlan’s dissenting opinion recognized

the bankruptcy of the Court’s reasoning. He noted that the “real meaning” of the legislation was

“that colored citizens are so inferior and degraded that they cannot be allowed to sit in public

coaches occupied by white citizens.” Id., at 560. He expressed his fear that if like laws were enacted

in other [438 U.S. 265, 393] States, “the effect would be in the highest degree mischievous.” Id.,

at 563. Although slavery would have disappeared, the States would retain the power “to interfere with

the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon

the basis of race; and to place in a condition of legal inferiority a large body of American citizens .

. . .” Ibid.

The fears of Mr. Justice Harlan were soon to be realized. In the wake of

Plessy, many States expanded their Jim Crow laws, which had up until that time been limited primarily

to passenger trains and schools. The segregation of the races was extended to residential areas, parks,

hospitals, theaters, waiting rooms, and bathrooms. There were even statutes and ordinances which

authorized separate phone booths for Negroes and whites, which required that textbooks used by children

of one race be kept separate from those used by the other, and which required that Negro and white

prostitutes be kept in separate districts. In 1898, after Plessy, the Charlestown News and Courier

printed a parody of Jim Crow laws:

“`If there must be Jim Crow cars on the railroads,

there should be Jim Crow cars on the street railways. Also on all passenger boats. . . . If there are

to be Jim Crow cars, moreover, there should be Jim Crow waiting saloons at all stations, and Jim Crow

eating houses. . . . There should be Jim Crow sections of the jury box, and a separate Jim Crow dock

and witness stand in every court – and a Jim Crow Bible for colored witnesses to kiss.’” Woodward

68.

The irony is that before many years had passed, with the exception of the Jim Crow

witness stand, “all the improbable applications of the principle suggested by the editor in derision

had been put into practice – down to and including the Jim Crow Bible.” Id., at 69.

Nor

were the laws restricting the rights of Negroes limited [438 U.S. 265, 394] solely to the Southern

States. In many of the Northern States, the Negro was denied the right to vote, prevented from serving

on juries, and excluded from theaters, restaurants, hotels, and inns. Under President Wilson, the

Federal Government began to require segregation in Government buildings; desks of Negro employees were

curtained off; separate bathrooms and separate tables in the cafeterias were provided; and even the

galleries of the Congress were segregated. When his segregationist policies were attacked, President

Wilson responded that segregation was “`not humiliating but a benefit’” and that he was “`rendering

[the Negroes] more safe in their possession of office and less likely to be discriminated against.’”

Kluger 91.

The enforced segregation of the races continued into the middle of the 20th

century. In both World Wars, Negroes were for the most part confined to separate military units; it was

not until 1948 that an end to segregation in the military was ordered by President Truman. And the

history of the exclusion of Negro children from white public schools is too well known and recent to

require repeating here. That Negroes were deliberately excluded from public graduate and professional

schools – and thereby denied the opportunity to become doctors, lawyers, engineers, and the like – is

also well established. It is of course true that some of the Jim Crow laws (which the decisions of this

Court had helped to foster) were struck down by this Court in a series of decisions leading up to Brown

v. Board of Education, 347 U.S. 483 (1954). See, e. g., Morgan v. Virginia, 328 U.S. 373 (1946); Sweatt

v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). Those

decisions, however, did not automatically end segregation, nor did they move Negroes from a position of

legal inferiority to one of equality. The legacy of years of slavery and of years of second-class

citizenship in the wake of emancipation could not be so easily eliminated. [438 U.S. 265, 395]

II

The position of the Negro today in America is the tragic but inevitable

consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement,

meaningful equality remains a distant dream for the Negro.

A Negro child today has a life

ex

pectancy which is shorter by more than five years than that of a white child. 2 The Negro child’s

mother is over three times more likely to die of complications in childbirth, 3 and the infant

mortality rate for Negroes is nearly twice that for whites. 4 The median income of the Negro family is

only 60% that of the median of a white family, 5 and the percentage of Negroes who live in families

with incomes below the poverty line is nearly four times greater than that of whites. 6

When the Negro child reaches working age, he finds that America offers him significantly

less than it offers his white counterpart. For Negro adults, the unemployment rate is twice that of

whites, 7 and the unemployment rate for Negro teenagers is nearly three times that of white teenagers.

8 A Negro male who completes four years of college can expect a median annual income of merely $110

more than a white male who has only a high school diploma. 9 Although Negroes [438 U.S. 265, 396]

represent 11.5% of the population, 10 they are only 1.2% of the lawyers and judges, 2% of the

physicians, 2.3% of the dentists, 1.1% of the engineers and 2.6% of the college and university

professors. 11

The relationship between those figures and the history of unequal

treatment afforded to the Negro cannot be denied. At every point from birth to death the impact of the

past is reflected in the still disfavored position of the Negro.

In light of the sorry

history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into

the mainstream of American life should be a state interest of the highest order. To fail to do so is to

ensure that America will forever remain a divided society.

III

I do not

believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past

cases lend any support to the conclusion that a university may not remedy the cumulative effects of

society’s discrimination by giving consideration to race in an effort to increase the number and

percentage of Negro doctors.

A

This Court long ago remarked

that

“in any fair and just construction of any section or phrase of these [Civil War]

amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them

all, the evil which they were designed to remedy . . . .” Slaughter-House Cases, 16 Wall., at

72.

It is plain that the Fourteenth Amendment was not intended to prohibit measures

designed to remedy the effects of the [438 U.S. 265, 397] Nation’s past treatment of Negroes. The

Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen’s

Bureau Act, an Act that provided many of its benefits only to Negroes. Act of July 16, 1866, ch. 200,

14 Stat. 173; see supra, at 391. Although the Freedmen’s Bureau legislation provided aid for refugees,

thereby including white persons within some of the relief measures, 14 Stat. 174; see also Act of Mar.

3, 1865, ch. 90, 13 Stat. 507, the bill was regarded, to the dismay of many Congressmen, as “solely

and entirely for the freedmen, and to the exclusion of all other persons . . . .” Cong. Globe, 39th

Cong., 1st Sess., 544 (1866) (remarks of Rep. Taylor). See also id., at 634-635 (remarks of Rep.

Ritter); id., at App. 78, 80-81 (remarks of Rep. Chanler). Indeed, the bill was bitterly opposed on the

ground that it “undertakes to make the negro in some respects . . . superior . . . and gives them

favors that the poor white boy in the North cannot get.” Id., at 401 (remarks of Sen. McDougall). See

also id., at 319 (remarks of Sen. Hendricks); id., at 362 (remarks of Sen. Saulsbury); id., at 397

(remarks of Sen. Willey); id., at 544 (remarks of Rep. Taylor). The bill’s supporters defended it –

not by rebutting the claim of special treatment – but by pointing to the need for such

treatment:

“The very discrimination it makes between `destitute and suffering’ negroes,

and destitute and suffering white paupers, proceeds upon the distinction that, in the omitted case,

civil rights and immunities are already sufficiently protected by the possession of political power,

the absence of which in the case provided for necessitates governmental protection.” Id., at App. 75

(remarks of Rep. Phelps).

Despite the objection to the special treatment the bill would

provide for Negroes, it was passed by Congress. Id., at 421, 688. President Johnson vetoed this bill

and also a subsequent bill that contained some modifications; one of his principal [438 U.S. 265, 398]

objections to both bills was that they gave special benefits to Negroes. 8 Messages and Papers of the

Presidents 3596, 3599, 3620, 3623 (1897). Rejecting the concerns of the President and the bill’s

opponents, Congress overrode the President’s second veto. Cong. Globe, 39th Cong., 1st Sess., 3842,

3850 (1866).

Since the Congress that considered and rejected the objections to the 1866

Freedmen’s Bureau Act concerning special relief to Negroes also proposed the Fourteenth Amendment, it

is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief

measures. It “would be a distortion of the policy manifested in that amendment, which was adopted to

prevent state legislation designed to perpetuate discrimination on the basis of race or color,”

Railway Mail Assn. v. Corsi, 326 U.S. 88, 94 (1945), to hold that it barred state action to remedy the

effects of that discrimination. Such a result would pervert the intent of the Framers by substituting

abstract equality for the genuine equality the Amendment was intended to

achieve.

B

As has been demonstrated in our joint opinion, this Court’s

past cases establish the constitutionality of race-conscious remedial measures. Beginning with the

school desegregation cases, we recognized that even absent a judicial or legislative finding of

constitutional violation, a school board constitutionally could consider the race of students in making

school-assignment decisions. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16

(1971); McDaniel v. Barresi, 402 U.S. 39, 41 (1971). We noted, moreover, that a

“flat

prohibition against assignment of students for the purpose of creating a racial balance must inevitably

conflict with the duty of school authorities to disestablish dual school systems. As we have held in

Swann, the Constitution does not compel any particular degree of [438 U.S. 265, 399] racial balance

or mixing, but when past and continuing constitutional violations are found, some ratios are likely to

be useful as starting points in shaping a remedy. An absolute prohibition against use of such a device

– even as a starting point – contravenes the implicit command of Green v. Country School Board, 391

U.S. 430 (1968), that all reasonable methods be available to formulate an effective remedy.” Board of

Education v. Swann, 402 U.S. 43, 46 (1971).

As we have observed, “[a]ny other approach

would freeze the status quo that is the very target of all desegregation processes.” McDaniel v.

Barresi, supra, at 41.

Only last Term, in United Jewish Organizations v. Carey, 430 U.S.

144 (1977), we upheld a New York reapportionment plan that was deliberately drawn on the basis of race

to enhance the electoral power of Negroes and Puerto Ricans; the plan had the effect of diluting the

electoral strength of the Hasidic Jewish community. We were willing in UJO to sanction the remedial use

of a racial classification even though it disadvantaged otherwise “innocent” individuals. In another

case last Term, Califano v. Webster, 430 U.S. 313 (1977), the Court upheld a provision in the Social

Security laws that discriminated against men because its purpose was “`the permissible one of

redressing our society’s longstanding disparate treatment of women.’” Id., at 317, quoting Califano

v. Goldfarb, 430 U.S. 199, 209 n. 8 (1977) (plurality opinion

). We thus recognized the permissibility

of remedying past societal discrimination through the use of otherwise disfavored

classifications.

Nothing in those cases suggests that a university cannot similarly act

to remedy past discrimination. 12 It is true that [438 U.S. 265, 400] in both UJO and Webster the use

of the disfavored classification was predicated on legislative or administrative action, but in neither

case had those bodies made findings that there had been constitutional violations or that the specific

individuals to be benefited had actually been the victims of discrimination. Rather, the classification

in each of those cases was based on a determination that the group was in need of the remedy because of

some type of past discrimination. There is thus ample support for the conclusion that a university can

employ race-conscious measures to remedy past societal discrimination, without the need for a finding

that those benefited were actually victims of that discrimination.

IV

While

I applaud the judgment of the Court that a university may consider race in its admissions process, it

is more than a little ironic that, after several hundred years of class-based discrimination against

Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is

permissible. In declining to so hold, today’s judgment ignores the fact that for several hundred years

Negroes have been discriminated against, not as individuals, but rather solely because of the color of

their skins. It is unnecessary in 20th-century America to have individual Negroes demonstrate that they

have been victims of racial discrimination; the racism of our society has been so pervasive that none,

regardless of wealth or position, has managed to escape its impact. The experience of Negroes in

America has been different in kind, not just in degree, from that of other ethnic groups. It is not

merely the history of slavery alone but also that a whole people were marked as inferior by the law.

And that mark has endured. The dream of America as the great melting pot has [438 U.S. 265, 401] not

been realized for the Negro; because of his skin color he never even made it into the

pot.

These differences in the experience of the Negro make it difficult for me to accept

that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary

to remedy the effects of past discrimination. In the Civil Rights Cases, supra, the Court wrote that

the Negro emerging from slavery must cease “to be the special favorite of the laws.” 109 U.S., at 25

; see supra, at 392. We cannot in light of the history of the last century yield to that view. Had the

Court in that decision and others been willing to “do for human liberty and the fundamental rights of

American citizenship, what it did . . . for the protection of slavery and the rights of the masters of

fugitive slaves,” 109 U.S., at 53 (Harlan, J., dissenting), we would not need now to permit the

recognition of any “special wards.”

Most importantly, had the Court been willing in

1896, in Plessy v. Ferguson, to hold that the Equal Protection Clause forbids differences in treatment

based on race, we would not be faced with this dilemma in 1978. We must remember, however, that the

principle that the “Constitution is color-blind” appeared only in the opinion of the lone dissenter.

163 U.S., at 559 . The majority of the Court rejected the principle of color blindness, and for the

next 60 years, from Plessy to Brown v. Board of Education, ours was a Nation where, by law, an

individual could be given “special” treatment based on the color of his skin.

It is

because of a legacy of unequal treatment that we now must permit the institutions of this society to

give consideration to race in making decisions about who will hold the positions of influence,

affluence, and prestige in America. For far too long, the doors to those positions have been shut to

Negroes. If we are ever to become a fully integrated society, one in which the color of a person’s

skin will not determine the opportunities available to him or her, we must be willing [438 U.S. 265,

402] to take steps to open those doors. I do not believe that anyone can truly look into America’s

past and still find that a remedy for the effects of that past is impermissible.

It has

been said that this case involves only the individual, Bakke, and this University. I doubt, however,

that there is a computer capable of determining the number of persons and institutions that may be

affected by the decision in this case. For example, we are told by the Attorney General of the United

States that at least 27 federal agencies have adopted regulations requiring recipients of federal funds

to take “`affirmative action to overcome the effects of conditions which resulted in limiting

participation . . . by persons of a particular race, color, or national origin.’” Supplemental Brief

for United States as Amicus Curiae 16 (emphasis added). I cannot even guess the number of state and

local governments that have set up affirmative-action programs, which may be affected by today’s

decision.

I fear that we have come full circle. After the Civil War our Government

started several “affirmative action” programs. This Court in the Civil Rights Cases and Plessy v.

Ferguson destroyed the movement toward complete equality. For almost a century no action was taken, and

this nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and

the Civil Rights Acts of Congress, followed by numerous affirmative-action programs. Now, we have this

Court again stepping in, this time to stop affirmative-action programs of the type used by the

University of California.

[ Footnote 1 ] The history recounted here is perhaps too well

known to require documentation. But I must acknowledge the authorities on which I rely in retelling it.

J. Franklin, from Slavery to Freedom (4th ed. 1974) (hereinafter Franklin); R. Kluger, Simple Justice

(1975) (hereinafter Kluger); C. Woodward, The Strange Career of Jim Crow (3d ed. 1974) (hereinafter

Woodward).

[ Footnote 2 ] U.S. Dept. of Commerce, Bureau of the Census, Statistical

Abstract of the United States 65 (1977) (Table 94).

[ Footnote 3 ] Id., at 70 (Table

102).

[ Footnote 4 ] Ibid.

[ Footnote 5 ] U.S. Dept. of Commerce, Bureau of

the Census, Current Population Reports, Series P-60, No. 107, p. 7 (1977) (Table 1).

[

Footnote 6 ] Id., at 20 (Table 14).

[ Footnote 7 ] U.S. Dept. of Labor, Bureau of Labor

Statistics, Employment and Earnings, January 1978, p. 170 (Table 44).

[ Footnote 8 ]

Ibid.

[ Footnote 9 ] U.S. Dept. of Commerce, Bureau of the Census, Current Population

Reports, Series P-60, No. 105, p. 198 (1977) (Table 47).

[ Footnote 10 ] U.S. Dept. of

Commerce, Bureau of the Census, Statistical Abstract, supra, at 25 (Table 24).

[ Footnote

11 ] Id., at 407-408 (Table 662) (based on 1970 census).

[ Footnote 12 ] Indeed, the

action of the University finds support in the regulations promulgated under Title VI by the Department

of Health, Education, and Welfare and approved by the President, which authorize a federally funded

institution to take affirmative steps to overcome past discrimination [438 U.S. 265, 400] against

groups even where the institution was not guilty of prior discrimination. 45 CFR 80.3 (b) (6) (ii)

(1977).

A Review of Amanda Bright Brownson’s Dissertation on Texas School

Funding

By Greg Moses

Portside, ILCA Online

Indymedia

ATX /

Chicago /

Houston /

LA /

NYC /

Archive

Any hour now, Texas is expecting to read

detailed “findings of fact” from the trial judge who just (and justly) ruled two weeks ago that the

state’s school funding system is flatly unconstitutional. Make no mistake, the facts are plain. And

the future of civil rights is on the line.

In a 2002 statistical review of school equity

in Texas, for example, Amanda Bright Brownson predicted exactly the court rulings that were issued in

mid-September after a six-week trial. Fully two years before the judge ruled that state funding for

education was neither adequate nor equitable, Brownson wrote that, “Issues of both equity and adequacy

must still be addressed as we try to further raise our expectations for schools and students.”

And, with the school funding lawsuit already on the docket (as she was defending her

study before a dissertation committee at the University of Texas at Austin) Brownson even hinted that a

state-mandated $1.50 cap on local property taxes might pose “capacity” problems. The judge, in

striking down the cap, agreed that the cap had reached capacity.

Furthermore, warned

Brownson, “the Legislature will have to proceed with caution if it is not going to lose ground gained

with respect to equity, as it attempts to address capacity.” And on this point, too, Brownson

predicted the structure of the three-point court ruling that now will be taken to higher courts in

Texas for review. While the judge agreed with West Orange Cove plaintiffs that the school system is

under-funded, and that the tax cap should be lifted, he also agreed with intervening districts led by

Edgewood and Alvarado, that the state’s allocation of money is inefficient (the court’s codewords for

inequitable).

Considering Brownson’s impressive run of predictions, an observer of the

school funding trial might stand vindicated for having felt that the state’s defense looked rather

desperate. We’ll get another look at the state’s logic when a formal appeal is filed.

But returning to the Brownson study; even though it presents effective findings, there are

two features of its methodology that worry me in the longer run. First, Brownson’s analysis does not

address the problem of school equity as a civil rights problem. Edgewood interveners, of course, were

more clear on this point, because Edgewood leadership has been working on the problem at least since

1968, when the first “Edgewood” case, Rodriguez vs. San Antonio, was filed in federal court. Although

the US Supreme Court denied the claims of Rodriguez, an eloquent dissenting opinion written by civil

rights legend Thurgood Marshall ended with a footnote in 1973, that suggested a legal appeal to the

Texas constitution. A decade later, the Edgewood cases were resumed, putting Marshall’s advice to good

effect.

Brownson’s study was class-based, with focus on lingering gaps between “all

students” and students who are “economically disadvantaged.” Edgewood interveners, led by attorneys

from the Mexican American Legal Defense Fund (MALDEF) also presented statistical gaps between “Anglo”

and “Hispanic” students; between “English speaking” students and those with “Limited English

Proficiency” (LEP)–terms of struggle that speak more plainly to the civil rights legacy of the school

funding struggle in Texas.

At first glance, the example of the Edgewood interveners

might suggest that Brownson’s methodologies can be easily adapted to civil rights applications.

Brownson, for instance, showed that equity gaps increase when expenses per student include costs of

educating specific populations, such as the “economically disadvantaged.” Using the same kind of

model, Edgewood interveners argued that gaps also increase if one accounts for the cost of bringing

mostly Spanish speaking students into a system of English proficiency. In one of the more thrilling

dramas of the courtroom, trial judge John Dietz took the state’s own bilingual expert, and in three

minutes’ time, got her to admit that Texas should triple its funding formula for bilingual

education.

And, just as Brownson used test scores from state-sponsored exams to

demonstrate lingering performance gaps for impoverished children, the Edgewood interveners plugged in

test scores to show gaps that separate ethnicities and language groups. So the uses made of the

Brownson models might seem to be extended easily to civil rights demographics. As long as the state

keeps pumping out standardized test scores, then inequities in education will continue to be measurable

for civil rights purposes. But this is where I think the model will break down in the longer run.

Tests are convenient measurements of “output” for anyone who needs to place numbers on a

scale. For students, teachers, parents, principals, and policy makers alike, test numbers have become

common currency. In the Texas courtroom, test numbers collected by the state posed invaluable evidence

against the state. Not only were overall passing rates on state exams introduced as evidence of

“inadequacy,” but gaps between student “subgroups” were tagged as exhibits to show inequity.

I have an amateurish hunch that the currency of “test scores” is pretty closely aligned with

the rise of the U.S. dollar (read capitalist ideology), and my suspicion is somewhat validated by

Brownson’s gloss on the history of “production functions” in education. Today’s educational

administrator is addicted to the kinds of fixes that “production functions” make possible.

What is both interesting and tragic, however, is that “production functions” were imported

from industry (capitalists) to education (capitalists in waiting) in order to satisfy a civil rights

mandate. It was the Civil Rights Act of 1964 that called for a major study of educational equity in

the United States and it was the resulting Coleman Report of 1966 that used “production functions” to

demonstrate that schools were less to blame for student performance than, say, “family and peer group

characteristics.” So it was a capital intensive statistical tool that was used to prove how academic

achievement was more or less “inherently” attributable to social conditions rather than schooling. And

all this was done in the name of civil rights.

Of course, if the plain logic of the

Coleman report’s findings were to be followed out, we would have to conclude that social revolution

rather than school reform would be a wiser mechanism for expanding the intelligence of a people. And

there is a deeper civil rights truth to this line of thought, a truth that cost many civil rights

activists their lives during the sixties and seventies. But in the muddled world of everyday politics

in America, there is an oh-so-patient assumption that social reform, if not revolution, might be

nurtured through school reform. And when you get to thinking about all the things that would be needed

for any semi-coherent social revolution, or when you consider the way th

at status quo defenders in

America simply execute civil rights leaders outright, school reform doesn’t look like such a bad place

to both work and live.

At any rate, the marriage of civil rights to test scores is a

tragic match in at least one respect over the longer term. The more that test scores are standardized,

the more the curriculum must follow standardized tests, and, consequently, the less freedom teachers

will have over time to innovate the very social changes that will be needed to stop re-inscribing the

“inherent” structure of social intelligence as we find it. As Carter G. Woodson argued in the

Miseducation of the Negro (1933), standardized education for white students is going to wind up being a

repressive education for black students. Which means to me that attempts to bring “subgroups up to

standards” through “standardized methods” is a logical prescription for intensified “miseducation,”

precisely along anti-civil-rights lines.

Texas state demographer Steve Murdoch is getting

a lot of credit for spurring the Texas court in the direction of its rulings. Murdoch argued that

trends in poverty and “diversity” (more of both coming soon) demand vigorous educational reform. But

if I’m not terribly mistaken in my memory, it was a similar nationwide demographic report from the

Hudson Institute (Workforce 2000, published in 1987) that coincided with the state’s development of

“standards” in the first place. Something at that time looked a little too slick to me, when “scare

demographics” were answered with “standards.” I didn’t believe then that “standards” represented a

sudden eruption of “good faith” among educational leaders of Texas, and I still don’t believe

it.

Consider a recent out-of-class experience. On a recent Monday morning, a guy starts

yelling at a cashier: “well if you understood English I could tell you!” The guy storms out of the

snack bar, and I feel obliged to buy something from the cashier right away. She hides herself,

however, behind a tall stack of product and equipment, avoiding eye contact as she attempts to regain

her self-respect. Her co-worker steps up to take the next pitch. According to Texas standards, we had

just witnessed a so-called “English-proficient speaker” attempting to communicate with a person of

“Limited English Proficiency” otherwise known as an LEP.

I think it was clear to

everyone in the room who had the real problem with intelligent communication that day, but in the

jargon of Texas education policy, there are lots of LEPs, like that cashier, whose relationship to

English is just this shaming, abusive accusation that “standard English” makes speakers so much smarter

and better than all the other people around. Of course, there is no educational justification for this

attitude whatsoever, which makes it all the more shameful that the confrontation that I witnessed was

played out on a campus of higher education.

The Edgewood interveners are not only

property poor, they are predominantly Hispanic. The students, therefore, are facing not only a class

struggle, economically, but their ethnicity also presents them to the Texas educational establishment

as a “special challenge.” And Brownson’s reliance on standardized test scores, a habit picked up by

MALDEF attorneys, begins to solidify (or “legitimate” if you will) a regime of standardized

instruction.

It was profoundly ironic that on Sept. 15 the trial judge in Texas

referenced the Texas Revolution against Mexico in his prepared remarks after closing arguments. He

said that even Texas rebels wanted better education for their kids. The judge was arguing that

educational commitments could not be severed from the cultural history of Texas law. Yet, the very

next day, Diez y seis de Septiembre, or Sept. 16, would be a lively day of celebration among many

Texans of Mexican descent, in commemoration of a quite different revolution—the one that freed Mexico

from Spain. Between the judge’s Sept. 15 reference to the Texas Revolution and widespread celebrations

in of the Mexican Revolution on Sept. 16 lies a borderland of cultural histories that Texas people

share.

After all, Gloria Anzaldua didn’t live for nothing, you know. Her Chicana,

mestiza, frontera sin fronteras sensibilities were Texas-born and Texas-bred, and we are not going to

bury anything she stood for. I remember a job interview once by telephone: “What do you teach?” Well

I’m teaching Gloria Anzaldua’s new book at the moment. “Hmm, I think our committee would be looking

for something a little more standard than that.” Precisely. What would be the point of teaching

borderland consciousness if your students are busy preparing for standardized Graduate Record Exams?

So Brownson did a brilliant job by anticipating the model of judgment that the judge

would eventually adopt. And the judge has wisely folded claims from Edgewood and Alvarado into the

claims of West Orange Cove. As a consequence, Texas school funding is heading in a helpful direction,

toward better and more equitable funding. So I don’t mean to shout “stop the train!” (as if the

conductor would be listening to me anyway). But I do want to suggest that some major “challenges” of

Texas education will require much more from this state than “adequate and efficient funding” or

standardized regimes of tests. If Texas is going to grow, it will also have to grow up. And this will

mean revisiting widespread assumptions about regimes of standardized instruction, the better to keep

“test scores” and “English Proficiency” from killing the spirit of civil

rights.

Notes:

(1) Amanda Bright Brownson: School Finance Reform in Post

Edgewood Texas: An Examination of Revenue Equity and Implications for Student Performance.

Dissertation (Univ. of Texas-Austin: December 2002). Posted in pdf format by Permission of the Author

at the Texas Civil Rights Review: http://texascivilrightsreview.org/phpnuke/downloadz/brownson.pdf

(2) And that cashier I referenced in the incident above? She was not Hispanic. She was

Asian.

Greg Moses is Editor of the Texas Civil Rights Review and author of Revolution of

Conscience: Martin Luther King, Jr. and the Philosophy of

Nonviolence.

The Truth you Can’t Hide From

By Greg Moses

I once asked a

student what percent of the American population did he think was Black. “At least sixty percent!” He

said eagerly.

“Are there any other guesses?” I asked the class. How was I going to

talk this young man down?

In fact, 77 percent of voters in the Bush-Kerry-Nader

election were white. It is the most obvious reason why the election turned out the way it

did.

For white voters and their pundits, however, the stupidity of the election would be

experienced as an expectation of politics as usual. “Of course, it’s a stupid election,” they would

tell you. “Aren’t all elections stupid?” OK. But every great stupidity has its personality. And

not enough folks are talking about the personality of the white vote in the wake of this most recent

election.

In fact, the stupidity of American elections to date has been heavily imprinted

with the specific personality of white America. Imagine, for instance, any other race of a candidate

acting as stupidly as George Bush, performing as poorly, and yet–among white voters–being so well

liked.

But if you live in white America, George Bush’s stupidity is the very form of

mind necessary and sufficient to constitute political power. That’s why white folks in America could

serve up a majority for Bush, unlike Black, Latino, and Asian voters–who would not have re-elected

him.

And if I’m wrong about this, why else do you think the South was considered

untouchable all year long? The solid South is not solid without a big, fat, white vote. So among

elites who claim their latitude to bypass the American South, it sounds like a far better idea to work

around this problem. Pressures are enormous to find some other thing to talk about. Take

responsibility for transforming the white vote and do it in the South, too? Do you have any idea what

you’re talking about?

Only Howard Dean was willing to talk about the Confederate Flag

waving white voters down in Dixie. Dean is occasionally discredited on that account (for example, see

Chait’s column in today’s LA Times [Nov. 26]). Now that we are four years away from the next

Presidential election (Lord willing and the creek don’t rise) it is not yet too late in the election

cycle to raise the question–what are we going to do about the white vote? No white Democrat without

an answer is smart enough to lead.

“But white voters will dominate the electoral process

for decades,” reports Aurelio Rojas in a preview of the California vote. There, Kerry wins 47 percent

of the white vote compared to Bush’s 51. In New York, Kerry gets 49 to Bush’s 50. Compare the margins

of the Kerry losses among white voters in those progressive states to Texas, where Bush got 74 percent

–of the white vote. In none of these states (nor in Illinois for that matter) do white voters favor

Kerry, but in the blue states a significant bloc of white voters present themselves to the Democratic

Party.

A Massachusetts liberal is such a dangerous spectre to raise among white voters

(who are not Massachusetts liberals) because white voters in Massachusetts behave differently. They

actually gave a majority to Kerry.

Tom Hayden in a recent essay encourages anti-war

activists to “become more grounded in the everyday political life of their districts, organizing anti-

war coalitions including clergy, labor and inner city representatives to knock loudly on congressional

doors.” But I wonder if this outreach to “inner city representatives” doesn’t hide the political

problem that anti-war activists actually have, that is, convincing white voters to favor less

belligerent politics.

Perhaps Hayden means to say that anti-war activists should get

more grounded in their existing political base. The Congressional Black Caucus, for example, does very

well on the war issue already. The CBC and the NAACP were two groups who early on expressed “strong

opposition to war” (writes the Associated Press in 2002, archived at NathanielTurner.com). So if it

were up to “inner city representatives” there would be no need for an anti-war movement in the first

place. And if it were up to black voters, Bush would never have been elected.

So, yes,

it was a stupid American election, and many of us did stupid things along the way. Let’s not be so

stupid again as to quit working on the transformation of the white vote–especially in the South–until

we’ve made Massachusetts liberals of them all.

Back to my student. Obviously, he was an

urban youth. For him, sixty percent of life was Black life. And God bless him for not imagining

things any differently. I can still recall, after hearing several guesses from the class, that I

looked back at him and gave him Perlo’s numbers on percent Black in the USA. It was a cruel moment

for the same reason that the election was cruel. And white folks who scoff at Massachusetts liberals

should think about the eagerness that falls out of a person’s eyes when he realizes there’s no getting

around white folks in the

USA.

LINKS

NathanielTurner.com

http://www.nathanielturner.com/pol

lwaragainstiraq.htm

A key question in the school funding trial revolved around the definition of an

adequate education, with state’s attorneys arguing that minimal funds could only be demanded for a

narrow range of instructional purposes. In the following Conclusion of Law, Texas District Judge John

Dietz says that education is a more expansive concept:

(COL 10) This Court rejects

the notion that the general diffusion of knowledge requires expenditures only in the instructional

program described in Section 39.023 of the Education Code and that other expenditures are merely

“extraneous.” A district cannot provide a constitutionally adequate education without a sufficient

support network, which may include, but is not limited to, (a) adequate and well-maintained facilities;

(b) remedial and literacy programs to help Limited English proficiency, economically disadvantaged, and

other special needs students, (c) sufficient numbers of qualified teachers; (d) small class sizes, (e)

preschool programs to give a “head start” to special needs students; (f) dropout prevention programs;

(g) extracurricular activities to keep students in school and assist them with getting into colleges;

(h) nurses to keep students healthy; (i) security guards in certain schools to keep students safe; and

(j) guidance counselors to help students with course selection and with planning for college or

careers.

More key excerpts at “Read More” below.

What

does it mean to have enough local money or “meaningful discretion” in a school budget? For Judge

Dietz, it means that local districts can dedicate ten percent of their available tax revenues toward

“enrichment.”

(COL 14) The Texas Supreme Court has held that a district must have

“meaningful discretion” in setting its property tax rates for a local ad valorem tax to remain

constitutional under Article VIII, section 1-e of the Texas Constitution. The Court concludes that a

district has meaningful discretion only when it can devote, at a minimum, 10% of its taxing capacity,

or approximately 15 cents of tax effort to raise additional revenues to enrich its programs beyond what

is required to provide a “general diffusion of knowledge” and comply with state and federal

mandates.

Adding together the broad definition of education and the ten percent

test for “enrichment” funding, Judge Dietz rules that schools cannot systematically raise enough

money under the tax limit imposed by the state of $1.50 per $100 of taxable

property.

(COL 17) Because the West Orange Cove Plaintiffs have also

established a systemic/statewide violation, this Court declares that the Texas school finance system is

presently in violation of Article VIII, section 1-e of the Texas Constitution

(COL 20)

Because the West Orange Cove Plaintiffs have established that the school finance system fails to

recognize or cover the costs of meeting the constitutional mandate of adequacy, or the Legislature’s

statutory definition of a comprehensive adequate program, this Court declares that the State’s school

finance system is financially inefficient, inadequate and unsuitable, in violation of Article VII,

section 1 of the Texas Constitution.

“Robin Hood”

lives.

(COL 22) The disparate property values among Texas public school

districts, coupled with the State’s continued reliance on local property taxes for the majority of

funding for the Texas school finance system, requires the State to maintain equalization provisions

similar to those at present, in order to ensure an efficient system among public free

schools.

In fact “Robin Hood” needs to do a better job equalizing funds,

especially to pay for facilities.

(COL 23) The prohibition on the use of Tier 2

funds for facilities, combined with the Legislature’s failure to make the IFA and/or EDA programs

statutorily permanent and the Legislature’s inadequate funding of the IFA program, means that property

-poor districts do not have substantially equal access to facilities funding in violation of the

efficiency and suitability provisions of article VII § 1 of the Texas

Constitution.

And the state needs to increase its financial support for districts

that serve bilingual, impoverished, and other special needs students.

(COL 24)

The current funding capacity of the Texas school finance system fails to provide Intervenor districts

with sufficient access to revenue to provide for a general diffusion of knowledge to their students, in

violation of the efficiency, suitability and adequacy provisions of Article VII § 1 of the Texas

Constitution, particularly when taking into account (1) the inadequacy of the weight adjustments for

bilingual, economically disadvantaged, and other special needs students and (2) the greater burden

borne by Intervenor districts of the inadequacy of those weights, given their student populations,

which are disproportionately LEP and economically disadvantaged.

The Legislature

has until Oct. 1, 2005 to fix the system.

1. In addition to the declaratory

relief described … above, this Court hereby enjoins the State Defendants from giving any force and

effect to the sections of the Education Code relating to the financing of public school education

(Chapters 41 and 42 of the Education Code) and from distributing any money under the current Texas

school financing system until the constitutional violations are remedied. The effect of this

injunction shall be stayed until October 1, 2005, in order to give the Legislature a reasonable

opportunity to cure the constitutional deficiencies in the finance system before the foregoing

prohibitions take effect.

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