Surveying the battleground in the fight for access – equal opportunity in education cases - Higher Education


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Surveying the battleground in the fight for access – equal opportunity in education cases

by Cheryl D. Fields

Forty-three years have passed since the Supreme
Court issued its decision in Brown v. Board of
Education, which desegregated the nation’s
public schools, yet America’s war over equal
educational opportunities continues to rage. And
the most heated battles in recent years have
centered around access to education at the
postsecondary level.

A series of federal court rulings and political
battles have begun to effectively chip away at
the legislative framework upon which the
desegregation and affirmative action strategies
are constructed. The message these rulings and
actions seem to convey is that neither state nor
federal government intervention is needed to
assist the process of balancing the scales of
opportunity, even when, as in Mississippi, the
court finds that vestiges of segregation remain.

Today, even though record numbers of
African Americans are enrolling in and
graduating from colleges and universities around
the country, whites continue to represent
approximately 80 percent of the student
population at four-year institutions, according to
the National Center for Education Statistics
(NCES). In contrast , African Americans, who
according to a recent study published by The
College Fund/UNCF represent approximately 14
percent of the traditional college-age
population, constitute only 10 percent of the
Student Population at four-year institutions.
Data gathered by the NCES reveals that on
the whole, minorities represent approximately
20 percent of all the students attending
four-year institutions. It is important to note that of
the Black students attending four-year
institutions, approximately one in four attend a
historically Black college or university (HBCU).
On the faculty and administrative side of the
higher education equation, the statistics paint an
even less diverse picture. Roughly 88 percent of
full-time faculty at the nation’s colleges and
universities are white, according the NCES.
African Americans represent roughly 5 percent
of full time faculty and many of these work at

To understand the war, it is important to
know the terrain upon which the war is being
fought. The following offers a bird’s eye view of
the events that have occurred over the past
couple of years. But the situation is constantly
evolving and changing.


Three trials and fifteen years after the U.S.
Department of justice filed a case against
Alabama, U.S. District Judge Harold Murphy told
the state its responsibility to desegregate its
higher education institutions includes giving two
historically Black colleges, Alabama A&M and
Alabama State University in Montgomery, up to
$1 million a year each for ten years for
scholarships to recruit white students.
The mostly white schools that shared the
focus of the 1995 trial are not required to take
further steps to increase minority enrollment
or faculty.


In California, the Ninth U.S. Circuit Court
of Appeals recently ruled that Proposition 209
— the controversial ballot initiative aimed at
prohibiting state-funded institutions from
considering race and gender in admissions,
hiring, promotions, and contracting decisions
— does not violate the U.S. Constitution, as had
been suggested by a lower court judge in an
earlier review of the case. Proponents of the
ballot initiative have applauded the ruling
and have committed themselves to assisting
other states in following California’s lead.
Leading Proposition 209 advocate Ward
Connerly, an African American businessman
and former regent of the University of
California, is drafting similar legislation for
consideration by the U.S. Congress.

Opponents of Prop 209 are expected to
appeal the case as far as the U.S. Supreme Court.
Even before the proposition passed, however,
the University of California (UC) Board of
Regents banned the use of race, religion, sex,
color, ethnicity, or national origin as
considerations for admissions and hiring
decisions into the UC system.


In Colorado, State Attorney General
Gayle Norton decided more than a year ago
that race-based scholarships would no longer be
allowed in her state. That decision not only
affected the way public institutions dole out
scholarship funds, but also influenced the way
private scholarship funds, such as the
non-profit Colorado Scholarship Coalition,
provide scholarships to minority students.
Even though the scholarship program had
traditionally collected contributions from
communities of color and awarded the funds to
students of color, it was forced to abandon the
race-based eligibility criteria for its
scholarships so that white students would also
be eligible. Students who win
Coalition scholarships must now demonstrate
that they belong to an underrepresented or
nontraditional student group, but that status
does not have to include being a person of


A case filed in U.S. District Court in
Savannah could potentially threaten the very
existence of historically Black colleges and
universities in the state.
The case, filed by Lee Parks, the attorney
who helped dismantle the former
majority-Black congressional district of U.S.
Representative Cynthia McKinney, D-Ga., calls
on the Board of Regents to admit more whites
to the three state HBCUs and offer
preferential admissions to students based on
socio-economics, not race. The suit also calls
for more Black enrollment at predominantly white
schools via a “uniform, systemwide admissions


Louisiana is at the end of the second year of
a ten-year consent decree imposed by the U.S.
District Court that essentially kept Louisiana’s
higher education system intact while ordering it
to desegregate. The consent decree, which
follows twenty years of litigation, calls for $122
million to be spent on integration efforts over
the course of the ten years — $65 million in
capital funds, $48 million for program
implementation, and $9 million for scholarships
to attract Black students to traditionally white
schools and white students to historically Black

In addition, the consent decree calls for the
opening of an integrated Baton Rouge
Community College, which has as its mandate to
prepare students who otherwise would not
necessarily go to college to matriculate into a
four-year college or university.


Since the Podberesky v. Kirwan decision,
which was decided by the Fourth Circuit U.S.
Court of Appeals in 1994, scholarships only for
Black students are no longer permitted in
Maryland. That case, brought by a student of
Hispanic descent, involved publicly funded
scholarships for African American students
administered by the University of Maryland.
Other states, most recently Florida, have
followed suit by opening minority-based
scholarships to all students.


Mississippi has the dubious distinction of
being caught in the middle of two Fifth Circuit
Court of Appeals decisions in Hopwood (see
Texas) and Fordice. In Fordice, the Fifth
Circuit has ruled that some vestiges of the old
system of segregation still exist in higher
education and has ordered some changes and
further study. (For extensive coverage of the
Fordice decision, see stories beginning on page


Ohio’s Central State University is fighting
for its very survival under the pressure of years
of disproportionate funding from the state and
fiscal irresponsibility on behalf of the university
administrators. Recently, state officials have
announced that they will work to preserve the
institution, possibly merging the HBCU with its
former parent institution, Wilberforce
University. That proposal prompted the Office
for Civil Rights (OCR) of the U.S. Department
of Education (ED) to reopen
its investigation into whether Ohio is engaging
in discriminatory practices.


In Texas, public colleges and universities
have been instructed by State Attorney General
Dan Morales to adopt race-neutral policies with
respect to admissions, financial aid, hiring, and
promotions policies. The attorney general based
his actions upon the 1996 Fifth U.S. Circuit
Court of Appeals (which presides over
Louisiana, Texas and Mississippi) ruling in
Hopwood v. The State of Texas, which decided
that the University of Texas Law School at
Austin should not use race as a factor in making
admissions decisions. Several of the plaintiffs in
that case are now suing for damages.

Last month, Norma Cantu, the assistant
secretary for the OCR, challenged Morales’s
position by asserting that the Hopwood case
only applied to the University of Texas and that
other institutions in the state would be expected
to abide by the Supreme Court’s decision in the
1978 Bakke case. But Cantu amended her
position after an uproar in Texas caused U.S.
Senator Phil Gramm (R-Texas) to urge
Education Secretary Richard Riley to rescind
Cantu’s directive.


In Virginia, a battle is being waged in the
Northern Virginia Community College system
over a privately funded scholarship that has
traditionally been given to African American
students. The $500 Leslie V. Forte scholarship
has historically been administered by the college,
but now a white student has cried foul, claiming
that the public institution shouldn’t be involved
in administering a scholarship that discriminates
on the basis of race. The OCR is investigating. If
the case ends up in federal court, the Fourth
Circuit U.S. Court of Appeals, which ruled in
Maryland’s Podberesky decision, will have
jurisdiction. Because Virginia and Maryland
previously maintained legal systems of
segregation, they are bound by a previous court
decision in the Adams case, which means they
are obligated to eliminate any vestiges of
segregation. Other Adams states discussed in this
article include: Texas, Alabama, Louisiana,
Mississippi and Ohio.


Meanwhile in the northwestern state of
Washington, the same legal team that
represented the plaintiffs in the Hopwood case
— the Center for Individual Rights — has stepped up
to represent another white student, who is suing
the University of Washington Law School on
grounds that she too was denied admission on
the basis of race.

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