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Excerpted from: Brief for the Civil Rights Clinic and the Education Rights Center at Howard University School of Law as Amici Curiae in Support of Respondents, Abigail Noel Fisher, Petitioner, V. University of Texas at Austin, et Al., Respondents. No. 14-981 (November 2, 2015). (Footnotes) (Full Document) (Cases Status Omitted)

 

 

CunningtonFrançoisHoward

 

 

Background Plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz applied to the University of Texas at Austin in 2008 and were denied admission. The two women, both white, filed suit, alleging that the University had discriminated against them on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment. (For More Information)


Table of Contents

I. Elite American Higher Education Institutions Were Founded upon White Supremacy in the Days of Slavery, Built along White Superiority in the Jim Crow Era And, Today, Operate According to White Privilege

A. Our Most Elite Institutions of Higher Education Were Financed by the Slave Trade, Built with Slave Labor, and Flourished in the Slave Economy

B. the Finest Scholars, Alumni, and Students from Our Most Elite Higher Education Institutions Conceived, Promoted and Defended the Theories and Systems That Justified Slavery, Jim Crow and the Narrative of White Supremacy

C. the Same White Supremacist Ideology That Built and Maintained Our Higher Education Institutions Simultaneously Denied Blacks Any Access to Education During Slavery and Equal Access to Education During Jim Crow

D. Today, the Overwhelmingly White Demographics of Our Most Elite Higher Education Institutions Is Neither an Accident of History Nor the Results of Neutral Meritocracy but the Direct Legacy and Inevitable Consequence of White Supremacy, White Superiority, and White Privilege

 

II. Racial Disparities in Public School Discipline, Racialized Enforcement of Zero-tolerance Policies, and the School to Prison Pipeline Are the Modern Implements of a System of White Privilege That Has Transformed Most Black K-12 Schools into Institutions of Custody and Control

A. Racial Disparities in School Discipline Fortify White Privilege at the Expense of Black Students and Low-income Students

B. Racialization of Zero Tolerance Policies Accentuates White Privilege in K-12 Education, and Feeds Black Students into the “School-to-prison Pipeline”

C. Racial Disparities in School Discipline, the Racialization of Zero Tolerance Policies, and the School to Prison Pipeline Explicitly Reify the Narrative of Black Criminality and Implicitly Reinforce the Narrative of White Privilege

 

III. In the Court's Race-conscious Affirmative Action Jurisprudence, Whiteness Is the Privilege That Dares Not Speak its Name

A. the Court's Silence Regarding the Effects of White Privilege on Higher Education Is Part of a Deeper Reluctance to Acknowledge the Legacy or Presence of Racism

B. in Contrast to its Reluctance to Acknowledge the Concept of White Privilege, the Court Has Been Far More Open to Discuss, Whether in Approbation or Condemnation, the Notion of Black Inferiority

C. the Court's Colorblindness, Merit, and Innocence Rhetoric Both Renders Invisible and Perpetuates White Privilege

 

Conclusion


Table of Authorities


CASES
Berea Coll. v. Kentucky, 211 U.S. 45 (1908)
Brom and Bett v. Ashley, (Mass. 1781)
City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) (Some Negative History)
DeFunis v. Odegaard, 416 U.S. 312 (1974) (Some Negative History)
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) (Some Negative History)
Ex parte Endo, 323 U.S. 283 (1944) (Some Negative History)
Fisher v. Hurst, 333 U.S. 147 (1948)
Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) (Some Negative History)
Georgia v. McCollum, 505 U.S. 42 (1992) (Some Negative History)
Gratz v. Bollinger, 539 U.S. 244 (2003) (Some Negative History)
Grutter v. Bollinger, 539 U.S. 306 (2003) (Some Negative History)
Hodges v. United States, 203 U.S. 1 (1906) (Some Negative History)
Hudgins v. Wright, 11 Va. 134 (1806)
Hunter v. Underwood, 471 U.S. 222 (1985) (Some Negative History)
Korematsu v. United States, 323 U.S. 214 (1944) (Some Negative History)
Loving v. Virginia, 388 U.S. 1 (1967) (Some Negative History)
McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950) (Some Negative History)
Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938) (Some Negative History)
“Negro” John Davis v. Wood, 14 U.S. 6 (1816)
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (Some Negative History)
Plessy v. Ferguson, 163 U.S. 537 (1896) (Some Negative History)
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (Some Negative History)
Schuette v. Coal. to Def. Affirmative Action, 134 S. Ct. 1623 (2014) (Some Negative History)
Sipuel v. Bd. of Regents of Univ. of Okla., 332 U.S. 631 (1948) (Some Negative History)
Steele v. Louisville & Nashville Railroad Company, 323 U.S. 192 (1944) (Some Negative History)
Sweatt v. Painter, 339 U.S. 629 (1950) (Some Negative History)
The Civil Rights Cases, 109 U.S. 3 (1883) (Some Negative History)
United States v. Fordice, 505 U.S. 717 (1992) (Some Negative History)
Vaughan v. Phebe, 8 Tenn. (Mart. & Yer.) 5 (1827)
Walker v. City of Birmingham, 388 U.S. 307 (1967) (Some Negative History)
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (Some Negative History)

ARTICLES
Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L. Rev. 1745 (1996)
Alicia Darensbourg et al., Overrepresentation of African American Males in Exclusionary Discipline: The Role of School-Based Mental Health Professionals in Dismantling the School to Prison Pipeline, 1 J. Afr. Am. Males Educ. 196 (2010)
Amy Goodman, Shackles and Ivy: The Secret History of How Slavery Helped Build America's Elite Colleges, Democracy Now (Oct. 30, 2013), http://vmw.democracynow.org/2013/10/30/shackles_and_ivy_the_secret_history
Ariela J. Gross, What Blood Won't Tell: A History of Race on Trial in America (2008)
*vii Bartholomew F. Bland & Irma Watkins-Owen, Winfred Rembert: Amazing Grace (2012)
Christopher A. Mallett, The School-To-Prison Pipeline: A Comprehensive Assessment (2015)
Christopher Tomlins, Transplant and Timing: Passages in the Creation of an Anglo-America Law of Slavery, 10 Berkeley L. Scholarship Repository 389 (2009)
Colum. L. Sch., Standard 509 Information Report (2014), https://web.law.columbia.edu/sites/default/files/microsites/admissions/jd/fi les/2014/std509inforeport-101-101-12-10-2014_13-33-20.pdf
Craig Steven Wilder, Ebony & Ivy: Race, Slavery, and the Troubled History of America's Universities (2013)
Daniel Losen et al., Ctr. for Civ. Rts. Remedies, Are We Closing The School Discipline Gap? (2015)
Daren Lenard Hutchinson, Continually Reminded of Their Inferior Position: Social Dominance, Implicit Bias, Criminality, and Race, 46 Was. U. J.L. & Pol'y 23 (2014)
*viii Devin Bent, Posterity and the Union: In Retirement, Madison Holds Court as Sole Remaining Founding Father, Montpelier James Madison U. Mag., Winter 2001, available at http://www.jmu.edu/montpelier/issues/winter01/madison.htm
Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing, 89 J. Crim. L. & Criminology 775 (1999)
Emily S. Renschler & Janet Monge, The Samuel George Morton Cranial Collection: Historical Significance and New Research, Expedition, Nov. 2008, available at http://www.penn.museum/documents/publications/expedition/PDFs/50-3/renschler.pdf
Emory's Leslie Harris Says We Should Remember The Racist Roots Of American Colleges As We Think About What Went Wrong At OU And Other Schools, Geo. Mason U. Hist. News Network, Mar. 26, 2015, http://historynewsnetwork.org/article/158939#sthash.LhRpLRPb.dpuf
Francis D. Colinano, Thomas Jefferson: Reputation and Legacy (2006)
Gary Peller, Toward Critical Cultural Pluralism: Progressive Alternatives to Mainstream Civil Rights Ideology, in Critical Race Theory: The Key Writings that Formed the Movement (1995)
*ix Gina Crosley-Corcoran, Explaining White Privilege To A Broke White Person, OccupyWallStreet.Net, http://occupywallstreet.net/story/explaining-white-privilege-broke-white-person (last visited Oct. 15, 2015)
Harv. L. Sch., Standard 509 Information Report (2014), http://hls.harvard.edu/content/uploads/2015/02/Std509InfoReport20142.pdf
Heather Andrea Williams, Self-Taught: African American Education in Slavery and Freedom (Waldo E. Martin Jr. et al. eds. 2005)
India Geronimo, Systemic Failure: The School-to-Prison Pipeline and Discrimination Against Poor Minority Students, 13 J. L. Soc'y 281 (2011)
James Baldwin, The Fire Next Time, in The Price of the Ticket: Collected Non-Fiction 1948-1985 (1985)
Jason A. Gillmer, Suing for Freedom: Interracial Sex, Slave Law, and Racial Identity in the Post-Revolutionary and Antebellum South, 82 N.C. L. Rev. 535 (2004)
Jim Crow Museum of Racist Memorabilia, Ferris State University, http://www.ferris.edu/jimcrow/what.htm (last visited Oct. 27, 2015)
John R. Wunder, The New Encyclopedia of Southern Culture, Slave Codes (2008)
*x John Witherspoon 1768-94, The Presidents of Princeton University (Nov. 26, 2013), https://www.princeton.edu/pub/presidents/witherspoon/
Junius P. Rodriguez, Slavery In the United States: A Social, Political, and Historical Encyclopedia (2007)
Justin C. Worland, Harvard Accepts Record Low 6.2 Percent of Applicants to the Class of 2015, Harv. Crimson, Mar. 31, 2011, http://www.thecrimson.com/article/2011/3/31/percent-class-students-year/
Justin C. Worland, Legacy Admit Rate at 30 Percent, Harv. Crimson, May 11, 2011, http://www.thecrimson.com/article/2011/5/11/admissions-fitzsimmons-legacy-legacies/
Kenneth Lawson, Police Shootings of Black Men and Implicit Racial Bias: Cant's We All Just Get Along, 37 U. How. L. Rev. 339 (2015)
Lisa A. Crooms, Speaking Partial Truths and Preserving Power: Deconstructing White Supremacy, Patriarchy, and the Rape Corroboration Rule in the Interest of Black Liberation, 40 How. L.J. 459 (1997)
*xi Melinda Jackson & Dari Green, Contradicting Realities in the Mythical Post-Racial: America Blinded to Matters of Color?, in The Assault on Communities of Color (Kenneth Fasching-Varner & Nicolas Daniel Hartlep eds., 2015)
Mitchell, S. David, Zero Tolerance Policies: Criminalizing Childhood and Disenfranchising the Next Generation of Citizens, 92 Wash. U. L. Rev. 271 (2014)
Monique W. Morris, Race, Gender and the School-To-Prison Pipeline: Expanding Our Discussion to Include Black Girls, Afr. Am. Pol'y F. (2012)
N. Jeremi Duru, The Central Park Five, the Scottsboro Boys, and the Myth of the Bestial Black Man, 25 Cardozo L. Rev. 1315 (2004)
Nancy A. Heitzeg, Education or Incarceration: Zero Tolerance Policies and the School to Prison Pipeline, F. on Pub. Pol'y, no. 2, 2009, available at http://forumonpublicpolicy.com/summer09/archivesummer09/heitzeg.pdf
Naomi Zack, White Privilege and Black Rights: The Injustice of U.S. Police Racial Profiling and Homicide (2015)
Nina Mjagkil, Loyalty in Time of Trial: The African American Experience During World War I (2011)
*xii Office for Civil Rights, U.S. Dep't of Educ., Civil Rights Data Collection Data Snapshot: School Discipline (Mar. 21, 2014), available at http://ocrdata.ed.gov/Downloads/CRDC-School-Discipline-Snapshot.pdf
Osamudia R. James, White Like Me: The Negative Impact of the Diversity Rationale on White Identity Formation, 89 N.Y.U. L. Rev. 425 (2014)
Pamela Paul, Being a Legacy Has Its Burden, N.Y. Times, Nov. 4, 2011, http://www.nytimes.com/2011/11/06/education/edlife/being-a-legacy-has-its-burden.html?_r =2&ref=edlife
Paul D. Grant & Carl A. Grant, To Be Men and Women: The Black Struggle for Justice Continues, in The Assault on Communities of Color, in The Assault on Communities of Color (Kenneth Fasching-Varner & Nicolas Daniel Hartlep eds., 2015)
Paul Finkelman, Scott v. Sandford: The Court's Most Dreadful Case and How It Changed History, 82 Chi.-Kent L. Rev. 3 (2007)
Peter G. Schmidt, Color and Money: How Rich White Kids are Winning the War over College Affirmative Action (2007)
Randy Borum et al., What Can Be Done About School Shootings?, 39 Educ. Researcher 27 (2010)
*xiii Richard Peréz-Peña, Fatal Police Shootings: Accounts Since Ferguson, N.Y. Times, Apr. 8, 2015, available at http://www.nytimes.com/interactive/2015/04/08/us/fatal-police-shooting-accounts.html
Rick Ayers & William Ayers, Breathe: Notes on White Supremacy and the Fierce Urgency of Now, in The Assault on Communities of Color (Kenneth Fasching-Varner & Nicolas Daniel Hartlep eds., 2015)
Russell J. Skiba et al., Race is Not Neutral: A National Investigation of African American and Latino Disproportionality in School Discipline, 40 Sch. Psychol. Rev. 85 (2011)
Stuart Buck, The History of Black Education in America, Acting White: The Ironic Legacy of Desegregation (2010)
The 1930s Education: Overview Gale U.S. History in Context, http://ic.galegroup.com/ic/uhic/ReferenceDetailsPage/ReferenceDe tailsWindow?query=&prodId=UHIC&displ ayGroupName=Reference&limiter=&disab leHighlighting=true&displayGroups=&sor tBy=&zid=&search_within_results=&actio n=2&catId=&activityType=&documentId= GALE%7CCX3468301121&source=Bookm ark&u=sand55832&jsid=55d9d90c4bad28 2ee2debc3c18227fed (last visited Oct. 27, 2015)
*xiv The Charters of Freedom: A New World is At the Hand, Nat'l Archives, http://www.archives.gov/exhibits/charters/constitution_founding_fathers_virginia.html (last visited Oct. 27, 2015)
W. Barksdale Maynard, Princeton In the Confederacy's Service: 150 Years after the Civil War, Rebel Ties Remain Little-Known, Princeton Alumni Wkly. Mar. 23, 2011, available at https://paw.princeton.edu/issues/2011/03/23/pages/4092/index.xml?page=2&
William Goodell, The American Slave Code in Theory and Practice (1853)
William M. Wiecek, Structural Racism and the Law in America Today: An Introduction, 100 Ky. L.J. 1 (2012)
Yale L. Sch., Standard 509 Information Report (2014), http://www.law.yale.edu/documents/pdf/About/ABA509report_Yale.pdf


Statement of Interest

Amici curiae are the Civil Rights Clinic and the Education Rights Center at Howard University School of Law. While Howard is often referred to as one of the nation's premier historically Black universities, the school's mission has always been to provide a premier education to all regardless of race or gender. Our nearly 150-year history of providing education, regardless of race, has been informed by the painful reckoning that, at the nation's founding, white supremacy, white superiority, and white privilege were interwoven into the DNA of this country's institutions. Our history and experience in student diversity has also been driven by the clear-eyed acknowledgment that the remains of white privilege continue to haunt our institutions. We respectfully submit this brief in support of Respondents in the belief that any analysis of the constitutionality of race-conscious affirmative action programs in higher education is, at best, incomplete and, at worst, disingenuous without an honest assessment of the role that racial subordination and separation played in the foundation, establishment, and preservation of our most elite higher education institutions. FN1


Summary of the Argument

 

At their founding in the colonial period, American colleges and universities raised seed money for their endowments by investing in slave ships; constructed their campuses through slave labor; recruited their presidents, trustees, professors, and students among slave traders and slave owners; and, used slaves as campus laborers, staff and servants. As the wealth, power, and prestige of these institutions grew alongside that of the new republic, their researchers and scientists gave intellectual cover for chattel slavery, and later Jim Crow. Through books, papers, and speeches, the eminent faculty and graduates of our best colleges and universities offered what they claimed was irrefutable proof of the inferiority of the Black race and concomitant superiority of the white race. And, in the span of three centuries, institutions such as Yale, Harvard, Princeton, the University of Pennsylvania, the University of Virginia, Brown, Dartmouth, among others, became places where the student body quite literally reified the idea of white supremacy, superiority, and privilege. In the same span of time, under slavery whites, by law, denied Blacks all access to education. Later, under “separate, but equal,” Black children were educated just enough to prepare them to be sharecroppers in the fields. Today, racial disparities in early childhood and K-12 education, coupled with racially discriminatory school discipline reinforce the racial foundations of our educational system, and make it all but inevitable that the demographics of our elite institutions remain overwhelmingly white.

All of this is a matter of historical record; and, none of it can be seriously disputed. And yet, in not one of the roughly thirteen cases this Court has decided where the central issue presumably concerned equal opportunities for Blacks in higher education has a majority of the Court discussed the intersection between higher education and white supremacy, superiority, and privilege. That discussion matters and is long overdue because the nation's continuing struggle with providing fair and equal access for Blacks in higher education is not simply due to the lack of college preparedness on the part of Blacks; nor is the continuing struggle due to what is often quaintly referred to as the Black-White achievement gap, but it is due to a strand of white privilege that is interwoven into the very DNA of our higher education system and cannot be erased by merely pronouncing that “the way to stop discrimination on the basis of race is to stop discrimination of the basis of race.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).


I. ELITE AMERICAN HIGHER EDUCATION INSTITUTIONS WERE FOUNDED UPON WHITE SUPREMACY IN THE DAYS OF SLAVERY, BUILT ALONG WHITE SUPERIORITY IN THE JIM CROW ERA AND, TODAY, OPERATE ACCORDING TO WHITE PRIVILEGE

 

A. Our Most Elite Institutions of Higher Education were Financed by the Slave Trade, Built with Slave Labor, and Flourished in the Slave Economy.

 

From 1746 to 1769, colleges in America went from the original three - Harvard, Yale and William & Mary - to include other elite institutions such as: Brown, Princeton, Columbia, Dartmouth, and the University of Pennsylvania, among others. FN2 The enslavement of Blacks not only helped fund these new educational institutions, but also created a new elite class of merchants. FN3 These slaveholding merchants provided financial support to colonial churches, schools, libraries, missions, and universities. FN4 Specifically, the labor and profits made from slaves created both the physical institution and financed the individuals that attended the schools. Colleges at this time were ranked among the largest slaveholders in America. FN5 In the process, investments in slave ships became college endowments, slaveholders became college presidents, and slaveholding heirs became college students.

The first slave ship to sail out of British North America was built and sent from Harvard. FN6 Colleges received both slaves and land as gifts to help in the creation of these institutions. For example, President Increase Mather, Harvard class of 1656, used “his negro” - a gift from his son Cotton Mather, class of 1678 - to run errands for the college. FN7 Similarly, Reverend Wheelock, who helped establish Dartmouth College, owed much of his success to the slaves he acquired; and indeed, for a time, there were as many enslaved Black people at Dartmouth as there were students in the college. FN8 Yale also benefitted from the slave economy. In 1732, Yale acquired fifteen hundred acres from the Connecticut General Assembly and rented much of their newly acquired property to slaveholding tenants, FN9 allowing the university to increase its influence in real estate and solidify its ties to slavery. FN10 The College of Philadelphia (present day University of Pennsylvania) acquired its land from Governor Thomas Penn who donated his estate in Bucks County - an estate that had been worked on for decades by enslaved Africans. FN11

In addition to using the slave trade to build these colleges, slave merchants used their wealth to fund the education of young white boys at the very schools the slave trade and slave economy had helped to erect. For example, one of this nation's founding fathers, Alexander Hamilton, was able to attend present day Columbia (formally known as King's College) because of money he received from slave traders. FN12 His tuition and fees were paid from the sale of barrels of rum, manufactured on slave plantations. FN13 Charitable gifts helped fund the education of poorer boys, like Hamilton, and announced the influence of American slave traders in the colonies. FN14 Furthermore, these elite families sent their sons to these schools to prepare them to manage their commercial holdings, and eventually the country: FN15 John Adams graduated from Harvard, James Madison from Princeton, and Thomas Jefferson from the College of William & Mary. FN16

This system of education bound the nation's intellectual culture to American slavery and the slave trade. FN17 Reverend John Witherspoon, the sixth president of the College of New Jersey (present day Princeton), and a slave owner, has been credited with establishing the College's elite Ivy League status. FN18 Reverend Witherspoon, and a succession of eight slave owners presided over the College of New Jersey during its first seventy-five years FN19 , establishing their own intellectual freedom upon human bondage. FN20

Reverend Witherspoon's emphasis on politics and religion, his wholehearted support to the national cause of liberty, and his role as lead member of the Continental Congress influenced several students to enter government service and exert influence over America. FN21 His protégés included President James Madison FN22, twenty United States senators, three justices of the Supreme Court, thirteen governors, twenty-three congressmen, and scores of ministers, college presidents, professors, and military officers, FN23 all of whom became prominent slave owners in America, and distinguished alumni. FN24

 

B. The Finest Scholars, Alumni, and Students from Our Most Elite Higher Education Institutions Conceived, Promoted and Defended the Theories and Systems that Justified Slavery, Jim Crow And the Narrative Of White Supremacy.

 

Slavery was “a regime of governance … sustained through the instantiation of its practices in rules of conduct.” FN25 In order to enforce slavery's rules of conduct, slave states enacted slave codes, encompassing three elements: first, they defined slave status; second, they regulated the slave form of real property; and, third, they delineated slaves' social behavior by providing legal forms for social control. FN26 At the heart of these codes was the belief, maintained by none other than Thomas Jefferson, that Blacks were inferior beings incapable of taking care of themselves. FN27 After the Civil War and the end of Reconstruction, as Black Codes replaced slave codes, craniologists, eugenicists, phrenologists, and Social Darwinists, at every educational level, buttressed the belief that Blacks were innately, intellectually, and culturally inferior to whites. FN28

Samuel Morton, a graduate of the University of Pennsylvania - the leading craniologist of the early 1800s and originator of “American School” ethnography - used his study of human skulls to distinguish the intellectual ability of races: Europeans on top, and Africans and Australian Aboriginals on the bottom. FN29 To this day, the University of Pennsylvania continues to hold his skull collection. FN30 Thomas Jefferson, a graduate of William and Mary, believed, much like many founders of our nation's colleges, that “nature, not slavery, explained the intellectual inferiority of the Negro.” FN31 Well-to-do planters and merchants routinely turned to college presidents to find “suitable” scholars. FN32 For example, in 1773, Colonel Henry Lee, the grandfather of General Robert E. Lee, asked his son to help locate a tutor for the children of their family friend Robert Carter, of the Nomini Hall plantation. FN33

The influence of college graduates was so expansive that it reached beyond North America into slave-holding societies in the Caribbean and South America. Graduates took up positions among the slave-holding elite as plantation owners and politicians. Others became ministers or educators who upheld slavery through preaching and teaching. FN34 Moreover, farmers and scientists gave lectures and dissertations on the physical and mental inferiority of these various groups to international audiences willing to listen. FN35 After graduating in Harvard's first class, George Downing, Governor John Winthrop's nephew, spent months preaching to the English in Barbados, Antigua, Santa Cruz, Nevis, and St. Christopher, where he measured demand for New England commodities and gathered advice on establishing slavery in the Puritan colonies. FN36

In the years after the Civil War, some of the best-educated people in the nation began revising history to romanticize and sanitize their relationship to bondage. FN37 In a class with the Harvard anatomist John Collins Warren, Henry Watson, a Harvard trained educator, taught that Black people sat at the bottom of humanity in physical development, cultural accomplishment, and intellectual potential. FN38 In his lectures, Professor Warren revealed that the most advanced scientific research “confirmed the biological supremacy of the boys in that room,” a sentiment carried for generations upon matriculation. FN39

 

C. The Same White Supremacist Ideology that Built and Maintained Our Higher Education Institutions Simultaneously Denied Blacks Any Access to Education During Slavery and Equal Access to Education during Jim Crow.

 

For over two centuries, between 1636 and 1857, elite institutions built their endowment upon slave labor and educated generations of white leaders on the tenets of white supremacy while Blacks were prohibited, by law from being educated. Fearing that Black literacy would prove a threat to the slave system - which relied on slaves' dependence on masters - whites in many colonies instituted laws forbidding slaves to learn to read or write and made it a crime for others to teach them. FN40 An excerpt from the South Carolina Act of 1740 stated:

Whereas, the having slaves taught to write, or suffering them to be employed in writing, may be attended with great inconveniences; Be it enacted, that all and every person and persons whatsoever, who shall hereafter teach or cause any slave or slaves to be taught to write, or shall use or employ any slave as a scribe, in any manner of writing whatsoever, hereafter taught to write, every such person or persons shall, for every such offense, forfeit the sum of one hundred pounds, current money. FN41

Georgia enacted a similar law against slave education in 1770, and all Southern states followed suit by 1803. FN42

Because of this type of legislation, the education of slaves was done in a secret manner - often late at night when slave masters were asleep, or in hidden areas. Only the people who could be trusted were invited to attend “school” in any location “where Secresy [sic] could be secured.” FN43 Sometimes these schools were held in remote swamps and cane-breaks, where, perhaps, the foot of the white man had never trod. FN44 Because of the high level of policing that slave communities experienced, those individuals that did succeed in learning from others had to do so with great care. A Black woman who grew up in Savannah, Georgia stated that “My brother and I being the two eldest, we were sent to a friend of my grandmother, Mrs. Woodhouse, a widow, to learn to read and write …. We went every day about nine o'clock, with our books wrapped in paper to prevent the police or white persons from seeing them.” FN45 As a result of the stringent, restricted access to learning, not many slaves succeeded in being educated. A census in 1860 documented that only about 5% of the population was literate. FN46

During and after reconstruction, Black schools were severely underfunded. Many Southern states spent an annual average of $3.81 for each Black student enrolled in the public schools; whereas, spending for white students averaged $9.37 per year. FN47 One student, when asked why he was not writing on his slate, told a freedom school teacher that he had sold his pencil for a piece of bread. FN48 A ten-year-old girl in Charleston, South Carolina chose to give up meals so that her grandmother's limited funds could pay school fees. FN49 While many students made choices between their livelihood and their education, most during this period also risked their lives by attending school. With the newly instituted plantation schools came a bout of white hostility that impeded school attendance. In many locations, stoning was the preferred method of attack employed by angry white children who resented the idea of Black children attending school. FN50 Colonel Douglass Wilson, a former slave and Civil war veteran recalled school days for his children in New Orleans in 1866.

We sent our children to school in the morning … we had no idea that we should see them return home alive in the evening. Big white boys and half-grown men used to pelt them with stones and run them down with open knives, both to and from school. Sometimes they would come home bruised, stabbed, beaten half to death, and sometimes quite dead. FN51

Coupled with the threat of physical violence, the planting and harvest season proved to be another roadblock in education, halting schooling amici dwindling attendance as children were needed in sharecropping fields. FN52 For at least half of the 20th century, white school officials shortened the academic year to ensure that Black school children would work until the cotton harvest was complete. FN53 By 1910, less than 45% of rural Black Southerners under the age of ten were enrolled in schools, and more than 33% of those aged ten or older were illiterate. FN54 From 1914 to 1915, Southern Black children attended an average of thirty-five days of classes during the entire school year in order to help on the farms. FN55 The pressures for Black students to tend to sharecropping fields, again, balanced on the want for an education, and the need for survival. Subsequently by 1930, 15% of rural adult Blacks had no formal schooling, and 48% percent had never gone beyond the fifth grade. FN56

 

D. Today, the Overwhelmingly White Demographics of Our Most Elite Higher Education Institutions is Neither an Accident of History Nor the Results of Neutral Meritocracy but the Direct Legacy and Inevitable Consequence of White Supremacy, White Superiority, and White Privilege.

 

The overt racial discrimination of yesterday is now hidden deep within today's colorblind rhetoric. Colorblindness is an instrument of white privilege because it undermines the means of promoting racial equality. Ironically, the demographics for these elite institutions, many of which funnel into Supreme Court clerkship positions and top businesses, remain primarily white. The top three law schools - Harvard, Yale and Columbia - have a significant divide of Black and white students. In 2014, Harvard Law School's student body population was 52.3% white and 8.7% Black; FN57 Yale Law School's student body was 63% white and 6.9% Black; FN58 and, Columbia Law School's student body was 51.3% white and 6.5% Black. FN59

White privilege is the understanding that, “being born with white skin in America affords certain unearned privileges in life that people of another skin color … are not afforded.” FN60 With over two hundred years of universities denying Blacks the privilege of entering into these elite institutions, legacy clauses - that pull from families that have matriculated from these schools - affords the children of alumni privileges they may not have earned. Although many legacy admissions rates are self-reported, Harvard's legacy admissions rate in 2011 hovered around 30% FN61, while Yale admitted 20 to 25% of their legacy applicants. FN62 To juxtapose these numbers, 11.8% of the admitted students in 2011 at Harvard were Black. FN63


II. Racial Disparities in Public School Discipline, Racialized Enforcement of Zero-tolerance Policies, and the School to Prison Pipeline Are the Modern Implements of a System of White Privilege That Has Transformed Most Black K-12 Schools into Institutions of Custody and Control.

If the financing of American higher education institutions by the slave economy was a first-generation brute demonstration of white supremacy, and if the academic theories these institution promoted in the service of Jim Crow were a thinly disguised second-generation expression of white superiority, then today, the racialization of K-12 school discipline, the discriminatory application of so-called zero tolerance policies, and the transformation of primarily Black public primary and secondary schools into institutions of custody and control serve as third-generation instruments of white privilege.

 

A. Racial Disparities in School Discipline Fortify White Privilege at the Expense of Black Students and Low-Income Students.

 

Discipline practices in schools affect the social quality of the educational environment, and the ability of children to achieve the academic and social gains essential for success in a 21st century society. FN64 Loss of classroom instruction time damages student performance. FN65 One recent study found that missing three days of school in a month before taking the National Assessment of Educational Progress translated into fourth graders scoring a full grade level lower in reading on this test. FN66 New research shows that higher suspension rates are closely correlated with higher dropout and delinquent rates, having tremendous economic costs for the suspended students as well as for society as a whole. FN67

In K-12 schools throughout the U.S., discipline is disproportionately applied to young Black boys and girls. Research has shown that, typically, the highest suspension rates are for Black males, followed by Black females and/or Latino males. FN68 In regards to suspension rates for students with disabilities at the secondary level, Black males are at the highest risk for suspension at 33.8%, while Black females with disabilities are suspended at 22.5%, which is higher than white males with disabilities at both the elementary and secondary level. FN69 Unfortunately, the national rates for suspensions by race at the secondary level show a darker picture. Black males face the greatest risk for suspension at 28.4%, which is 19 points higher than that of white males at 9.4%. FN70 Meanwhile, Black females suffer the second highest suspension rate at 17.9%, compared to white females' suspension rate of 3.8% - higher than all other females and higher than all male subgroups, except Black males. FN71 Overall, Black students receive more harsh punitive measures (suspension, expulsion, corporal punishment) and less mild discipline than their non-minority peers for the very same conduct, even when controlling for socioeconomic status. FN72

These appalling racial disparities in school discipline at the elementary and secondary level start in the earliest years of schooling. FN73 In May 2014, the U.S. Department of Education's Office for Civil Rights studied data from every one of the nation's 97,000 public schools. Among the key and most startling findings is that Black students represent 18% of preschool enrollment but 42% of pre-school students suspended once, and 48% of the pre-school students suspended more than once. FN74 On the other hand, white children represent 43% of preschool enrollments, but 28% of preschool children suspended once and 26% of preschool children suspended more than once. FN75 The report noted:

[P]articular concern around discipline for our nation's young men and boys of color, who are disproportionately affected by suspensions and zero-tolerance policies in schools. Suspended students are less likely to graduate on time and more likely to be suspended again. They are also more likely to repeat a grade, drop out, and become involved in the juvenile justice system. FN76

 

B. Racialization of Zero Tolerance Policies Accentuates White Privilege in K-12 Education, and Feeds Black Students into the “School-to-Prison Pipeline.”

 

The term zero tolerance describes a range of policies that seek to impose severe sanctions in schools - typically suspension and expulsion - for minor offenses in hopes of preventing more serious ones. FN77 Under these policies, students may also suffer harsher penalties and are referred to juvenile authorities. FN78

The implementation of zero tolerance policies has resulted in a disproportionate number of Black students being suspended, expelled, or attending alternative schools. FN79 The empirical research has demonstrated that Black youth, especially males, are punished disproportionately compared to their white counterparts. FN80 The harm has been so great that it has resulted in what has been termed the “School to Prison Pipeline.” FN81 According to the Advancement Project, “arrests in school represent the most direct route into the school-to-prison pipeline, but out-of-school suspensions, expulsions, and referrals to alternate schools also push students out of school and closer to a future in the juvenile and criminal justice system.” FN82

From 2009 to 2010, it was reported that “[a]lthough Black students made up only 18 percent of those enrolled in the schools sampled, they accounted for 35 [%] of those suspended once, 46[%] of those suspended more than once and 39 [%] of all expulsions.” FN83 The disconnect between white teachers and Black students often exacerbates these policies. FN84 White teachers feel more threatened by young Black boys, seeing them as disruptive, and in need of discipline. FN85 On the other hand, teachers and school officials have a tendency of defining disruptive white youth as in need of medical intervention rather than zero tolerance consequences. FN86 For young Black girls, any deviation from the social norms that define female behavior according to a narrow, white middle-class definition of femininity, brands them as non-conformative, defiant, and disruptive thereby subjecting them to some form of criminalizing response. FN87 The consequences of dumping promising Black male and female students out of schools and into the streets are disastrous. Overall, this equates to Black students suffering from less time in an academic classroom due to zero tolerance policies, which subsequently leads to feelings of alienation from school, elevated dropout rates, and alarming incarceration rates. FN88

 

C. Racial Disparities in School Discipline, the Racialization of Zero Tolerance Policies, and the School to Prison Pipeline Explicitly Reify the Narrative of Black Criminality and Implicitly Reinforce the Narrative of White Privilege.

 

Zero tolerance policies and the disproportionate discipline of Black children in the K-12 environment are key examples of the policies defining today's “School-to-Prison Pipeline” making it more likely for Black students to face criminal involvement with the juvenile courts than to attain quality education. FN89 Black students are more likely to reap the consequences of the “School-to-Prison Pipeline” because whites perceive Black students as “threatening” and “deviant;” FN90 words all too familiar in the lexicon and mythology of Black criminality. FN91

The narrative of Black criminality perpetuates the use of race as a proxy for criminal propensity. Stereotypes of Black people as violent originated in slavery, are perpetuated today by the media, and are reinforced by the huge numbers of Black people under criminal justice supervision. FN92 “Slavery defined Black men as sexual predators and created the image of the violent man, who is the rapist, and who is therefore the target of the law, as a Black man.” FN93 After the end of slavery, the notion that the freed slaves would become lawless bands of savages served as popular justification for lynchings and anti-Black riots. FN94 Today, police killings of Blacks in the form of “justifiable” homicides appear to be a part of America's social milieu. FN95 Although, no one knows just how many people are killed by the police nationwide FN96, the disproportionate representation of Blacks among the dead victims is chilling. FN97 A Black person is slain by law enforcement and security services with guns once every twenty-eight hours. FN98 Young Black males are twenty-one times more likely to be shot dead by police than their white counterparts. FN99 Moreover, in 2014, there was extensive media coverage of police killings of unarmed Black people, including Eric Garner, Michael Brown, John Crawford, Tamir Rice, and Levar Jones. FN100

Though the media sensationalized each of these tragic murders, the driving force behind the sensationalism was arguably two-fold. First, whites were not punished for the homicides they committed. FN101 Second, whites tended to believe the killings were justified, while Blacks did not. FN102 Horrifically, whites' perceived justification of these recent killings mirror the perceived justification of the racialized lynchings and murders of Blacks by whites throughout the nation's history. Each instance became a manifestation of white privilege that exemplified patterns and institutional expressions of social domination and Black criminality. FN103 Each unpunished killing was treated as a symbol of overall social injustice; FN104 one that enforced white privilege FN105 and solidified its presence in the lived experiences of Blacks via the judicial and extra-judicial decision of whites to murder and dehumanize unarmed Black citizens. FN106


III. In the Court's Race-conscious Affirmative Action Jurisprudence, Whiteness Is the Privilege That Dares Not Speak its Name.

The point of recounting the role that the slave economy played in the founding of our elite colleges and universities, the extent to which the best and brightest minds from these institutions provided intellectual cover for American racial segregation, and the fact that racialized discipline policies in public education now serve as invisible third-generation instruments of white privilege is to highlight the moral artificiality - not to say intellectual dishonesty - of constitutional analysis of race-conscious affirmative action programs without a frank discussion of white privilege. Yet, perhaps the most insurmountable obstacle to that sort of intellectually honest discussion is, with all due respect, this Court's own reluctance - not to say, unwillingness - to acknowledge plainly, and without equivocation, the reality that the nation's continuing struggle with providing fair and equal access for Blacks in higher education is not simply due to the lack of college preparedness on the part of Blacks, or due to what is often quaintly referred to as the Black-White achievement gap, but also due to a strand of white privilege that is woven into the very DNA of our higher education system and that cannot be erased by pronouncing that “the way to stop discrimination on the basis of race is to stop discrimination of the basis of race.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).

So, it is more than a little remarkable that, in over two centuries, this Court has decided thirteen cases where the central issue presumably concerned equal opportunities for Blacks in higher education, and in not a single one of these cases has a majority of the Court discussed the intersection between higher education and white supremacy, white superiority, and white privilege. Seven of the Court's decisions - Berea College v. Kentucky, FN107 Missouri ex rel Gaines v. Canada, FN108 Sipuel v. Bd. of Regents of Univ. of Okla., FN109 Sweatt v. Painter, FN110 McLaurin v. Oklahoma State Regents, FN111 Fisher v. Hurst, FN112 and United States v. Fordice, FN113 - grappled with the legitimacy and legacy of racial segregation. The remaining six - Defunis v. Odegaard, FN114 Regents of Univ. of California v. Bakke, FN115 Grutter v. Bollinger, FN116 Gratz v. Bollinger, FN117 Fisher v. Univ. of Texas at Austin, FN118 and Schuette v. Coal. to Def. Affirmative Action FN119 - have directly and indirectly confronted race-conscious affirmative action admission policies at public institutions of higher education. Some, like Berea College, matter only as a sort of historical relic. Others, like Gaines, Sipuel, Sweatt, Hurst, and McLaurin, stand as stark reminders of the Court's fitful attempts over nearly half a century to disguise the doctrine of separate but equal as something other than a moral abomination. But, as for the remaining decisions on race-conscious affirmative action, the Court has insisted time and time again that the single most important lesson to be derived from the American experience with slavery and Jim Crow is that race itself, as opposed to white supremacy, is such a corrosive concept that any and all of its uses should be subject to strict scrutiny.

 

A. The Court's Silence Regarding the Effects of White Privilege on Higher Education is Part of a Deeper Reluctance to Acknowledge the Legacy or Presence of Racism.

 

To borrow language from Justice Thomas, on issues of white supremacy and white privilege, the Court's “silence in this case is deafening.” Grutter v. Bollinger, 539 U.S. 306, 371 (2003) (Thomas, C. dissenting). Despite hundreds of years of discriminatory laws, “racism” was not mentioned in a Supreme Court decision until a 1944 concurring opinion delivered by Justice Frank Murphy in Steele v. Louisville & Nashville Railroad Company. FN120 323 U.S. 192, 208 (1944) (Murphy, F. concurring) (“Racism is far too virulent today to permit the slightest refusal, in the light of a Constitution that abhors it, to expose and condemn it wherever it appears in the course of a statutory interpretation.”). Justice Murphy used the term “racism” again in his dissent in Korematsu v. United States and his concurrence in Ex parte Endo, released on the very same day. FN121 Korematsu v. United States, 323 U.S. 214, 233 (1944) (Murphy, F. dissenting) (“Such exclusion goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism.”); Ex parte Endo, 323 U.S. 283, 307 (1944) (Murphy, F. concurring) ([D]etention in Relocation Centers of persons of Japanese ancestry regardless of loyalty is not only unauthorized by Congress or the Executive but is another example of the unconstitutional resort to racism inherent in the entire evacuation program.”).

For years “racism” only appeared in dissenting and concurring opinions. FN122 The word “racism” was not used in a majority opinion until 1992 in Georgia v. McCollum. FN123 505 U.S. 42, 58 (1992) (“We have, accordingly, held that there should be a mechanism for removing those on the venire whom the defendant has specific reason to believe would be incapable of confronting and suppressing their racism.”).

In 1967, Loving v. Virginia marked the first and only time that the Supreme Court of the United States struck down legislation because it was enacted to support white supremacy. 388 U.S. 1 (1967). FN124 Similarly, the Court has only used the term “white privilege” once in a footnote. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 782 n.30 (2007) (describing white privilege as “an invisible package of unearned assets which I can count on cashing in each day, but about which I was meant to remain oblivious.”).

 

B. In Contrast to Its Reluctance to Acknowledge the Concept of White Privilege, the Court has been Far More Open to Discuss, Whether in Approbation or Condemnation, the Notion of Black Inferiority.

 

Both the notion of Black and white as biologically distinct categories, as well as the identification of the Black race as being of a lower order were in great part the creation of the legal system. FN125 The earliest cases involving questions of race were heard in state courts that, in many instances, had to determine the petitioner's race, which in itself determined the person's status. See Brom and Bett v. Ashley, (Mass. 1781); Hudgins v. Wright, 11 Va. 134 (1806); Vaughan v. Phebe, 8 Tenn. (Mart. & Yer.) 5, 5 (1827). In Hudgins v. Wright, the Virginia Supreme Court heard arguments of a petitioner challenging her enslavement based on her mother's status as a Native American. The court held for the petitioner on the basis that Native American slavery ended in Virginia in 1691. See Wright, 11 Va. at 139. In defining each party's burden, the court stated “[w]here white persons, or native American Indians, or their descendants in the maternal line, are claimed as slaves, the onus probandi [or burden] lies on the claimant; but it is otherwise with respect to native Africans and their descendants, who have been and are now held as slaves.” Id. In Vaughan v. Phebe, the Tennessee Supreme Court of Errors and Appeals, heard the case of a petitioner who claimed that she was wrongly held in slavery because her greatgrandmother was a Native American woman. 8 Tenn. (Mart. & Yer.) at 5. The court held for the petitioner and based its decision on the record that her maternal aunt had previously brought a successful [freedom] case which relied on the same information. FN126

Over time, this Court heard some of these same “freedom suits.” FN127 In “Negro” John Davis v. Wood, 14 U.S. 6, 4 (1816), this Court dealt with very similar facts as those of Hudgins and Vaughan. However, unlike Hudgins and Vaughan, in an opinion delivered by Chief Justice John Marshall, the Court held that: “[e]vidence by hearsay and general reputation is admissible only as to pedigree, but not to establish the freedom of the petitioner's ancestor, and thence to deduce his or her own.” Id. at 8. In the coming years, the Court would buttress its support of “the idea of ‘negros' as a degraded race [helping] justify the anomaly of chattel slavery in a republic that was otherwise devoted to liberty.” FN128 Thus, in 1856, with its opinion in Dred Scott v. Sanford, 60 U.S. 393 (1856), the Court expressly shifted an entire race of people into the non- human category. FN129 In ruling upon Dred Scott's claim for freedom, Chief Justice Roger Taney phrased the question before the Court as “Can a negro, whose ancestors were imported into this country, and sold as slaves, become [a citizen under] the Constitution of the United States, [be] entitled to all the rights, and privileges … guarantied by that instrument to the citizen?” Dred Scott, 60 U.S. at 403. The Court answered that:

[A]s beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, [the Black race] had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. Id. at 407.

So ingrained was this notion of Black inferiority that even while condemning the majority's separate but equal doctrine in Plessy v. Ferguson, 163 U.S. 537, 538 (1896), Justice Harlan pointed out that “[t]he white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.” Id.

 

C. The Court's Colorblindness, Merit, and Innocence Rhetoric Both Renders Invisible and Perpetuates White Privilege.

 

In the place of an honest assessment of the legacy of white privilege in higher education, the Court has, time and time again, reiterated the notion that the United States Constitution requires - and American society should aspire to - colorblindness. This notion of colorblindness emerged even before the end of the Civil War as a means of opposing any attempt to provide for the education and welfare of newly emancipated slaves and, as such, was always more of an idée fixe than a defensible moral philosophy. Between 1863 and 1868, Congress took up a series of social welfare legislation, generally termed the Freedmen's Bureau Act and mostly designed to ease assimilation of newly freed slaves into American society. FN130 In the course of congressional debates over these pieces of legislation, and long before Justice Harlan would declare in Plessy v. Ferguson that “our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” FN131 there developed a basic narrative of colorblindness that race-conscious remedies are per se unconstitutional; that they only serve to confer benefits upon a special class of citizens; that they are better apportioned on the basis of social class rather than race; that they inevitably breed dependency in Blacks and resentment in whites; that they create the impression that Blacks are unable to succeed through their own hard work; and that, once adopted, these remedies risk extending into perpetuity. Not much has changed in the intervening 150 years. The narrative of colorblindness has remained remarkably consistent, as has the seemingly sincere belief on the part of some that it is, or ought to be, the answer to every race question, the solution to every race problem, and the cure to every race conflict.

The harm in failing to acknowledge the effects of years of policies that have promoted white supremacy, white superiority, and white privilege is aggravated by the Court's assessment of race-conscious remedies through the prism of so-called merit-based admissions and white innocence. FN132 Merit-based admission considerations are far from objective. Scholars who defend merit-based admissions assume merit is “neutral, impersonal, and somehow developed outside the economy of social power.” FN133 In Justice Thomas's Grutter dissent, he revealed the myth of meritocracy when he explained that “[t]he rallying cry that in the absence of racial discrimination in admissions there would be a true meritocracy ignores the fact that the entire process is poisoned by numerous exceptions to ‘merit.’ ” Grutter v. Bollinger, 539 U.S. 306, 367-68 (2003).

Legacy status, for example, is considered in the admissions policies of many institutions of higher education. Research has shown that the benefit of having legacy status as an applicant is the equivalent of a 47-160 point increase on the SAT. FN134 Because of the history of discrimination at institutions of higher education, it is rare for Black students to have adequate representation in the legacy applicant pool. FN135 Thus, in effect, legacy status becomes an “educational grandfather clause” benefitting white applicants at a higher rate by allowing racially discriminatory policies that were long ago deemed unconstitutional to continue to influence future enrollment. FN136

Moreover, the Court's seeming acquiescence to the notion of white plaintiffs as innocent victims of race-conscious remedies has resulted in a narrative that finds victimhood in the privileged and villainy in the oppressed. For example, in Regents of Univ. of Cal. v. Bakke, this Court stated that it was inequitable to force “innocent persons … to bear the burdens of redressing grievances not of their making.” 438 U.S. 265, 298 (1978) (emphasis added). The Court further explained that race conscious policies should be “subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” Id. at 308 (emphasis added). By using the language of innocence, the Court has created an unusual dynamic where white persons are assumed to belong in institutions of higher education while Black persons are assumed undeserving of the same opportunity. At least three other examples illustrate this point. In Wygant v. Jackson Bd. of Educ, this Court held that a clause protecting minority teachers from layoffs in a collective bargaining agreement between the Board of Education and the teachers union was unconstitutional. 476 U.S. 267, 283 (1986). The Court emphasized that, while racial discrimination exists in this country, “as the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and over expansive.” Id. at 281 (emphasis added). In Grutter, the majority quoted Justice Powell in explaining that narrowly tailored race conscious policies “are subject to continuing oversight to assure that it will work the least harm possible to… innocent persons competing for the benefit.” 539 U.S. at 341. Even Justice Blackmun's defense of affirmative action policies necessarily included a word about the innocence of those whom the policies affect in explaining that “[h]istory is irrefutable, even though one might sympathize with those who - though possibly innocent in themselves - benefit from the wrongs of past decades.” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 561 (1989) (Blackmun, H., dissenting) (emphasis added). In Parents Involved in Community Schools v. Seattle School Dist. No. 1, a case in which the district's school assignment program was deemed unconstitutional, Justice Thomas explained that “[a]lthough presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 750 (2007) (emphasis added).


Conclusion

There is a longstanding tradition in the Court's “race” jurisprudence of the Court speaking what it believes are hard truths to civil rights plaintiffs. Less than twenty years after the end of the Civil War, Justice Bradley, writing for the majority in The Civil Rights Cases, 109 U.S. 3, 25 (1883), lectured Black plaintiffs who had been denied access to public accommodations not to rely upon the federal government to vindicate their civil rights because “[w]hen a man has emerged from slavery …, 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 …” Similarly, in the days of Jim Crow, when an armed mob of white men nearly lynched a group of Black applicants at a whites-only sawmill, in Hodges v. United States, 203 U.S. 1, 9-10 (1906), the Court found it illegitimate for Congress to make the attempted lynching a federal crime because at the close of the Civil War the nation granted Blacks citizenship “doubtless believing that thereby in the long run their best interests would be subserved, they taking their chances with other citizens in the states where they should make their homes.” More recently, in upholding race-conscious remedies for the sake of student body diversity, Justice O'Connor, writing for the majority in Grutter v. Bollinger, 539 U.S. 306, 343 (2006), believed it necessary to warn that “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In the same spirit, Amicus curiae respectfully submit that no determination of the constitutionality of race conscious affirmative remedies can take place without facing the hard truth that white privilege remains an indelible strand of higher education. “We are capable of bearing a great burden, once we discover that the burden is reality and arrive where reality is.” FN137 If race be the great American burden we must bear, the hard reality this Court needs at long last to face is white privilege.


Footnotes

1 Pursuant to Supreme Court Rule 37, this brief is filed with the written consent of all parties. The parties' consent letters are on file with the Court. This brief has not been authored, either in whole or in part, by counsel for any party, and no person or entity, other than amicus curiae or their counsel has made a monetary contribution to the preparation or submission of this brief.

2 Amy Goodman, Shackles and Ivy: The Secret History of How Slavery Helped Build America's Elite Colleges, Democracy Now (Oct. 30,2013), httpy/www.democracynow.org/2013/10/30/shackles_and_ivy_the_secret_history.

3 Craig Steven Wilder, Ebony & Ivy: Race, Slavery, and the Troubled History of America's Universities 47 (2013).

4

5 Id. at 19.

6 Id. at 29.

7 Id. at 119.

8 Id. at 113.

9 Wilder, supra note 3, at 118.

10 Id. at 117-18.

11 Id. at 118.

12 Id. at 48.

13 Id.

14 Id.

15 Id. at 52.

16 The Charters of Freedom: A New World is At the Hand, Nat'l Archives, http://www.archives.gov/exhibits/charters/constitution_founding_fathers_virginia.html (last visited Oct. 27, 2015).

17 Wilder, supra note 3, at 111.

18 Id. at 81.

19 Id. at 122.

20 Id. at 111.

21 John Witherspoon 1768-94*, The Presidents of Princeton University (Nov. 26, 2013), https://www.princeton.edu/pub/presidents/witherspoon/.

22 Devin Bent, Posterity and the Union: In Retirement, Madison Holds Court as Sole Remaining Founding Father, Montpelier James Madison U. Mag., Winter 2001, available at http://www.jmu.edu/montpelier/issues/winter01/madison.htm.

23 Id.

24 W. Barksdale Maynard, Princeton In the Confederacy's Service: 150 Years after the Civil War, Rebel Ties Remain Little-Known, Princeton Alumni Wkly. Mar. 23, 2011, available at https://paw.princeton.edu/issues/2011/03/23/pages/4092/index.xml?page=2& (Several Princeton Graduates fought for the confederacy and served as clergymen, throughout the war, at least seven Confederate brigadier generals were Princeton men.).

25 Christopher Tomlins, Transplant and Timing: Passages in the Creation of an Anglo-America Law of Slavery, 10 Berkeley L. Scholarship Repository 389, 390 (2009).

26 John R. Wunder, The New Encyclopedia of Southern Culture, Slave Codes 128 (2008).

27 See generally Francis D. Colinano, Thomas Jefferson: Reputation and Legacy (2006) (ebook).

28 Jim Crow Museum of Racist Memorabilia, Ferris State University, http://www.ferris.edu/jimcrow/what.htm (last visited Oct. 27, 2015).

29 See generally Emily S. Renschler & Janet Monge, The Samuel George Morton Cranial Collection: Historical Significance and New Research, Expedition, Nov. 2008, at 30 available at http://www.penn.museum/documents/publications/expedition/PDFs/50-3/renschler.pdf.

30 Id.

31 Wilder, supra note 3, at 192.

32 Id. at 106.

33 Id.

34 Emory's Leslie Harris Says We Should Remember The Racist Roots Of American Colleges As We Think About What Went Wrong At OU And Other Schools, Geo. Mason U. Hist. News Network, Mar. 26, 2015, http://historynewsnetwork.Org/article/158939#sthash.LhRpLRPb.dpuf.

35 Wunder, supra note 26, at 128.

36 Id. at 30.

37 Wilder, supra note 3, at 280.

38 Id. at 3.

39 Id.

40 William Goodell, The American Slave Code in Theory and Practice 2 (1853).

41 Id.

42 Junius P. Rodriguez, Slavery In the United States: A Social, Political, and Historical Encyclopedia 271 (2007).

43 Stuart Buck, The History of Black Education in America, Acting White: The Ironic Legacy of Desegregation 42 (2010).

44 Id. at 44.

45 Id.

46 Id. at 45.

47 Nina Mjagkil, Loyalty in Time of Trial: The African American Experience During World War I 4 (2011).

48 Heather Andrea Williams, Self-Taught: African American Education in Slavery and Freedom 142 (Waldo E. Martin Jr. et al. eds. 2005).

49 Id.

50 Id. at 149.

51 Id. at 150.

52 Mjagkil, supra note 47, at 4.

53 Bartholomew F. Bland & Irma Watkins-Owen, Winfred Rembert: Amazing Grace 16 (2012).

54 Mjagkil, supra note 47, at 4.

55 Id.

56 The 1930s Education: Overview Gale U.S. History in Context, http://ic.galegroup.com/ic/uhic/ReferenceDetailsPage/Reference DetailsWindow?query=&prodId=UHIC&displayGroupName=Refe rence&limiter =&disableHighlighting=true&displayGroups=&so rtBy=&zid=&search_within_results=&action=2&catId=&activit yType=&documentId=GALE%7CCX3468301121&source=Book mark&u=sand55832&jsid=55d9d90c4bad282ee2debc3c18227fed (last visited Oct. 27, 2015).

57 Harv. L. Sch., Standard 509 Information Report (2014), http://hls.harvard.edu/contenT/uploads/2015/02/Std509InfoReport20142.pdf.

58 Yale L. Sch., Standard 509 Information Report (2014), http://www.law.yale.edu/documents/pdf/About/ABA509report_Yale.pdf.

59 Colum. L. Sch., Standard 509 Information Report (2014), https://web.law.columbia.edu/sites/default/files/microsites/admission s/jd/files/2014/std509inforeport-101-101-12-10-2014_13-33-20.pdf.

60 Gina Crosley-Corcoran, Explaining White Privilege To A Broke White Person, OccupyWallStreet.Net, http://occupywallstreet.net/story/explaining-white-privilege-broke-white-person (last visited Oct. 15, 2015).

61 Justin C. Worland, Legacy Admit Rate at 30 Percent, Harv. Crimson, May 11, 2011, http://www.thecrimson.com/article/2011/5/11/admissions-fitzsimmons-legacy-legacies/.

62 Pamela Paul, Being a Legacy Has Its Burden, N.Y. Times, Nov. 4, 2011, http://www.nytimes.com/2011/11/06/education/edlife/being-a-legacy-has-its-burden.html?_r=2&ref=edlife.

63 Justin C. Worland, Harvard Accepts Record Low 6.2 Percent of Applicants to the Class of 2015, Harv. Crimson, Mar. 31, 2011, http://www.thecrimson.com/article/2011/3/31/percent-class-students-year/.

64 Russell J. Skiba et al., Race is Not Neutral: A National Investigation of African American and Latino Disproportionality in School Discipline, 40 Sch. Psychol. Rev. 85, 85 (2011).

65 Daniel Losen et al., Ctr. for Civ. Rts. Remedies, Are We Closing The School Discipline Gap? (2015).

66 Id.

67 Id.

68 Id. at 6.

69 Id.

70 Id. at 25.

71 Id.

72 Nancy A. Heitzeg, Education or Incarceration: Zero Tolerance Policies and the School to Prison Pipeline, F. on Pub. Pol'y, no. 2, 2009, at 1, 12, available at http://forumonpublicpolicy.com/summer09/archivesummer09/heitzeg.pdf.

73 Office for Civil Rights, U.S. Dep't of Educ., Civil Rights Data Collection Data Snapshot: School Discipline 7 (Mar. 21, 2014), available at http://ocrdata.ed.gov/Downloads/CRDC-School-Discipline-Snapshot.pdf.

74 Id.

75 Id. at 1.

76 Id.

77 Randy Borum et al., What Can Be Done About School Shootings?, 39 Educ. Researcher 27, 28 (2010).

78 Mitchell, S. David, Zero Tolerance Policies: Criminalizing Childhood and Disenfranchising the Next Generation of Citizens, 92 Wash. U. L. Rev. 271, 272 (2014).

79 Id.

80 Id.

81 Id.

82 Monique W. Morris, Afr. Am. Pol'y F., Race, Gender and the School-To-Prison Pipeline: Expanding Our Discussion to Include Black Girls 2 (2012).

83 David, supra note 78, at 293-94.

84 Heitzeg, supra note 72, at 12.

85 Id.

86 Id.

87 Morris, supra note 82, at 5.

88 Alicia Darensbourg et al., Overrepresentation of African American Males in Exclusionary Discipline: The Role of School-Based Mental Health Professionals in Dismantling the School to Prison Pipeline, 1 J. Afr. Am. Males Educ. 196, 199 (2010).

89 Christopher A. Mallett, The School-To-Prison Pipeline: A Comprehensive Assessment 1 (2015).

90 India Geronimo, Systemic Failure: The School-to-Prison Pipeline and Discrimination Against Poor Minority Students, 13 J. L. Soc'y 281, 297-98 (2011).

91 Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing, 89 J. Crim. L. & Criminology 775, 805 (1999).

92 Id.

93 Lisa A. Crooms, Speaking Partial Truths and Preserving Power: Deconstructing White Supremacy, Patriarchy, and the Rape Corroboration Rule in the Interest of Black Liberation, 40 How. L.J. 459, 475 (1997).

94 N. Jeremi Dura, The Central Park Five, the Scottsboro Boys, and the Myth of the Bestial Black Man, 25 Cardozo L. Rev. 1315, 1326 (2004).

95 Victims also include the mentally ill and non-racial minorities.

96 See Richard Peréz-Peña, Fatal Police Shootings: Accounts Since Ferguson, N.Y. Times, Apr. 8, 2015, available at http://www.nytimes.com/interactive/2015/04/08/us/fatal-police-shooting-accounts.html; Naomi Zack, White Privilege and Black Rights: The Injustice of U.S. Police Racial Profiling and Homicide 64 (2015).

97 Zack, supra note 96, at 64 (“[F]rom 2005-2012, a white police officer killed a Black person about twice a week; 18[%] of Blacks killed were under 21, compared to 8.7[%] of whites killed. [And,] 136 African Americans were killed by police in 2012, … one every 28 hours.”).

98 See id.; see also Rick Ayers & William Ayers, Breathe: Notes on White Supremacy and the Fierce Urgency of Now, in The Assault on Communities of Color xi, xii (Kenneth Fasching-Varner & Nicolas Daniel Hartlep eds., 2015).

99 Paul D. Grant & Carl A. Grant, To Be Men and Women: The Black Struggle for Justice Continues, in The Assault on Communities of Color, supra note 98, at 173 (2015).

100 Kenneth Lawson, Police Shootings of Black Men and Implicit Racial Bias: Cant's We All Just Get Along, 37 U. How. L. Rev. 339, 339-40 (2015); Daren Lenard Hutchinson, Continually Reminded of Their Inferior Position: Social Dominance, Implicit Bias, Criminality, and Race, 46 Was. U. J.L. & Pol'y 23, 23-24 (2014) (“Reports of racially charged police killings of Black men have generated so much media attention that the Associated Press has named these stories the ‘top news' of 2014.”).

101 See Hutchinson, supra note 100, at 110; Zack, supra note 96, at 18 (“The sense that rights have been violated intensifies when police who kill in such instances fail to be criminally indicted or are acquitted in criminal trial for manslaughter or murder.”).

102 Zack, supra note 96, at 25 (citing public opinion polls).

103 Ayers & Ayers, supra note 98, at xii.

104 Id. at xiii (“[A]fter Mike Brown's murder justice-seeking people said, ‘Hands up, don't shoot!’ and, after Eric Garner was choked to death, [justice-seeking people] chanted ‘I can't breathe!’ And the cohering, crystallizing sentiment has become a simple phrase with massive implications pointing toward profound and radical changes: Black Lives Matter!”); Zack, supra note 96, at 99.

105 Again, by white privilege we mean the understanding that “being born with white skin in America affords certain unearned privileges in life that people of another skin color … are not afforded. See Crosley-Corcoran, supra note 60.

106 Ayers & Ayers, supra note 98, at xii; Melinda Jackson & Dari Green, Contradicting Realities in the Mythical Post-Racial: America Blinded to Matters of Color?, in The Assault on Communities of Color, supra note 98, at 88.

107 Berea Coll. v. Kentucky, 211 U.S. 45 (1908).

108 Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938)

109 Sipuel v. Bd. of Regents of Univ. of Okla., 332 U.S. 631 (1948).

110 Sweatt v. Painter, 339 U.S. 629 (1950).

111 McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).

112 Fisher v. Hurst, 333 U.S. 147 (1948).

113 United States v. Fordice, 505 U.S. 717 (1992).

114 DeFunis v. Odegaard, 416 U.S. 312, 314 (1974).

115 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

116 Grutter v. Bollinger, 539 U.S. 306 (2003).

117 Gratz v. Bollinger, 539 U.S. 244 (2003).

118 Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013).

119 Schuette v. Coal. to Def Affirmative Action, 134 S. Ct. 1623 (2014).

120 William M. Wiecek, Structural Racism and the Law in America Today: An Introduction, 100 Ky. L.J. 1, 2 (2012).

121 Id.

122 Id.

123 Id.

124 The majority has often discussed white supremacy “to describe white supremacy groups. See, e.g., Hunter v. Underwood, 471 U.S. 222, 229 (1985); Walker v. City of Birmingham, 388 U.S. 307, 319-20 (1967).

125 Ariela J. Gross, What Blood Won't Tell: A History of Race on Trial in America 17 (2008).

126 A. Gillmer, Suing for Freedom: Interracial Sex, Slave Law, and Racial Identity in the Post-Revolutionary and Antebellum South, 82 N.C. L. Rev. 535, 537 (2004).

127 Id. at 541.

128 Id.

129 See generally Paul Finkelman, Scott v. Sandford: The Court's Most Dreadful Case and How It Changed History, 82 Chi.-Kent L. Rev. 3 (2007).

130 See Section I.

131 Plessy v. Ferguson, 163 U.S. 537, 559 (1896).

132 Osamudia R. James, White Like Me: The Negative Impact of the Diversity Rationale on White Identity Formation, 89 N.Y.U. L. Rev. 425, 427 (2014).

133 Gary Peller, Toward Critical Cultural Pluralism: Progressive Alternatives to Mainstream Civil Rights Ideology, in Critical Race Theory: The Key Writings that Formed the Movement 124, 132 (1995).

134 Peter G. Schmidt, Color and Money: How Rich White Kids are Winning the War over College Affirmative Action 31 (2007).

135 Id.

136 Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L. Rev. 1745, 1749 (1996).

137 James Baldwin, The Fire Next Time, in The Price of the Ticket: Collected Non-Fiction 1948-1985 333, 372 (1985).


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