V. Epilogue: Brown and Beyond
On May 17, 1954, the Supreme Court delivered its decision in the landmark case of Brown v. Board of Education of Topeka. 1 On June 23, 2003, the Court delivered equally important decisions in Grutter v. Bollinger 1 and Gratz v. Bollinger, 1 cases which presented a direct *108 attack upon the efficacy of affirmative action--a tool used by colleges and universities to counter a historical effect of segregation: low numbers of minorities in higher education. 1 Both Brown and the 2003 affirmative action cases of Grutter and Gratz benefited from Randolph's fight against segregation in the military, as well as President Truman's subsequent issuance of Executive Order 9981.
President Truman's Executive Order was based on the underlying assumption that segregation in the military bred inherent inequities. By attacking segregation in the military, the President's actions provided a concrete and official statement against the institution of segregation. Six years later in Brown, Thurgood Marshall made the same argument to the Supreme Court in the context of secondary education. 1 While no direct mention of Executive Order 9981 or the military's fight to end segregation in federal service was mentioned in the transcript of the oral argument, the Court nevertheless was reminded of the significance of the Executive Order through amicus briefs. In its amicus brief, the American Federation of Teachers urged the Court to consider the fact that "[t]he armed forces, once completely segregated has in three years, almost become totally desegregated." The American Veteran's Committee, Inc. urged that the Court recognize the impact of segregated schools upon national defense. 1 And in November of 1954, when the Court was deciding how to implement its decision, another amicus brief from the American Veterans Committee, Inc. reminded the Court of the *109 rapid and smooth desegregation of the military. Although not cited in its opinion, the efforts of those who fought against segregation and discrimination in the military context, as well as the resulting Executive Order, provided a backdrop for the Court's decision in Brown.
On June 23, 2003, just eleven months shy of Brown's fiftieth anniversary, the Court was again confronted with the issue of segregation in schools. In Grutter v. Bollinger and its companion case, Gratz v. Bollinger, the issue was not the elimination of segregation in education, but the protection of affirmative action, a remedial tool used by the University of Michigan's Law School and undergraduate institutions to rectify past segregation and discrimination. On this occasion, the amicus curiae specifically cited Executive Order 9981 in its argument supporting the University of Michigan's affirmative action program. 1 After describing the positive effect Executive Order 9981 and subsequent integration had on the military and national defense, the amici urged that "[t]he modern military judgment is that full integration and other policies combating discrimination [e.g., affirmative action] are essential to good order, combat readiness, and military effectiveness." A great portion of the oral arguments for Grutter and Gratz contained discussion on the need for educating minorities for the purpose of military defense and the concomitant need for programs to increase the number of minorities in institutions of higher learning. 1 Finally, in upholding the law school's program in Grutter, the majority made reference to the need to support diversity in higher education in light of national security and found that the law school had a narrowly tailored program which supported a "compelling interest in attaining a diverse student body." 1 The ideals set forth in Executive Order 9981 were appropriately used to support a tool in the combat against one of the historical effects of segregation, namely the low number of minorities in higher education.
