The journey from Brown v. Board of Education to Grutter v. Bollinger: from racial assimilation to diversity.

• Author: Edwards, Harry T.

Fifty years ago, in Brown v. Board of Education, (1) the Supreme Court confronted a precise and straightforward question: "Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities?" (2) The Court's answer was precise and straightforward:

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs ... are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. (3) I was only 13 years old when the Court rendered its judgment in Brown on May 17, 1954. I vaguely recall my mother telling me about Thurgood Marshall having won an important case at the Supreme Court, and I remember seeing his picture in the newspaper the next day. But I did not then understand the enormity of the decision. And it certainly never occurred to me that Brown would precipitate the major changes in race relations that we have seen in the United States over the past 50 years.

In 1954, racial bigotry was firmly entrenched in our society. African Americans faced blatant discrimination in education, employment, housing, voting rights, public office, public accommodations, and interstate travel. Brown addressed segregation in public education, but the case was symbolically about so much more. The decision implicitly endorsed the idea that integration through racial assimilation would eventually cure racial bigotry. (4) And the Court was firm in concluding that "'[t]he impact [of racial segregation] is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.'" (5) This was a powerful statement about racial inequality in America. The crucial precept underlying the decision in Brown is simple: the law cannot be used to separate the races to the detriment of the minority. As the legislatures and courts have enforced this principle over the past 50 years, African Americans have gained opportunities and access--in employment, politics, public and private accommodations, housing, and travel--that were unheard of in 1954.

The great irony is that, although we have seen many advances in racial equality over the past 50 years, we have yet to find a cure for the problem that precipitated Brown--racial inequality in public education. The Court in Brown said that "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education." (6) Yet, in 2004, thousands of African-American students in inner-city schools are impoverished for want of a decent elementary and secondary education. (7) Poverty, racially segregated housing patterns, and failed programs to force integration through busing, as well as inadequate funding, facilities, and teachers, have left these students without adequate educational opportunities. (8)

The history of racial inequality in higher education has been different, however. When I graduated from high school in 1958, African Americans were largely excluded from schools like Cornell University, where I attended college, and the University of Michigan, where I attended law school. There were fewer than a dozen African Americans at Cornell during the four years when I was there, and I was the only African American enrolled in the University of Michigan Law School when I graduated in 1965. The absence of African Americans was not for want of qualified candidates--we were simply unwelcome. However, beginning in the latter half of the 1960s, many colleges, universities, and professional schools adopted "affirmative action" programs that have gone a long way toward ensuring that African Americans have equal access to higher education.

In 2003, in Grutter v. Bollinger, (9) the Supreme Court addressed the issue of affirmative action in higher education. The Court held that "student body diversity is a compelling state interest that can justify the use of race in university admissions" (10) and found lawful an affirmative action program at the University of Michigan Law School designed to ensure "racial and ethnic diversity." (11) The Court saw the pursuit of student body diversity as justified, because it prepares students for an increasingly diverse work force and society. The majority also tellingly noted that "it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." (12) Through the ideal of diversity, Grutter reaffirmed Brown's commitment to racial equality. (13)

Brown and Grutter are landmarks in the evolution of race relations in the United States. Each case also dramatically highlights how the force of law can be an indispensable weapon in the quest for racial equality. Their holdings are quite different, however. Brown sought to foster equality through integration by prohibiting forced segregation on the basis of race; Grutter aims to foster equality by permitting forced racial integration to achieve diversity. It is noteworthy that, taken together, the two decisions mirror a major societal phenomenon: over the past 50 years, many African Americans have abandoned assimilation as a model of integration in favor of today's ideal of diversity. In other words, many African Americans have rejected the idea that they should "blend in" with the majority, choosing instead to value their distinct racial identity. (14)

In this Essay, I briefly journey from Brown to Grutter. Drawing upon my own personal and professional experiences, I reflect on racial equality and inequality in America over the past 50 years, and I ponder the consequences of the shift from racial assimilation to diversity as a means of achieving racial equality.

1. PROGRESS AFTER BROWN AND THE NECESSITY OF RACE-CONSCIOUS ACTIONS

   In thinking about the 50 years since Brown, it is important to be clear about one thing: American society could not have achieved meaningful progress in race relations without race-conscious actions. (15) Color-blind remedies could not cure race discrimination in America. It would be absurd for anyone to suggest otherwise. Before and shortly after Brown was decided, African Americans were largely excluded from the most preeminent universities. We were effectively barred from all but segregated practices in major professions. We held very few important political positions. We were denied employment on the basis of race and paid less for the work we did. We were denied access to recreational facilities, eating places, housing, hotels, and means of travel. We were told not to commingle with--much less date or marry--members of the majority race. We were denied full participation in major league sports. We were foreclosed from most roles on television and radio and excluded from mainstream news media, movies, and theater. We had no meaningful voice in America. In short, by dint of racial bigotry, African Americans were mostly insignificant participants in American society.

   The "second-class" status of African Americans was attributable, in no small part, to the legacy of slavery. Slavery significantly fueled the deeply held belief of many Americans that African Americans were innately inferior. Even a century after emancipation, that belief had not been dispelled. Consequently, when Brown was decided, it was relatively easy for members of the majority to characterize bigotry against African Americans as judgments based on "merit," rather than as invidious discrimination on the basis of race. Bigotry was entrenched and resistant to easy cure.

   In plainly and simply insisting on equality for all, Brown set a standard for Congress, the courts, and the executive branch in their later quests to ban racial discrimination. In the decade and a half following Brown, major legislation was enacted to address longstanding problems of race discrimination in employment, (16) housing, (17) travel, (18) and public accommodations and facilities. (19) Three principal goals prompted these legislative actions: redress for past discrimination, equal opportunity without regard to race, and integration. The latter goal--integration--always has been the most controversial. (20) Indeed, the meaning and desirability of integration has long been the subject of disagreement among African Americans. As the political stakes have evolved, the debates among Black intellectuals and political leaders have taken many guises and involved many notable participants, including Booker T. Washington, W.E.B. Du Bois, Marcus Garvey, James Weldon Johnson, Walter White, A. Philip Randolph, Bayard Rustin, Dr. Martin Luther King, Jr., Ella Baker, Roy Wilkins, Whitney Young, James Farmer, Malcolm X, Stokely Carmichael, and Angela Davis, to name but a few. (21) The seminal debates between Booker T. Washington and W.E.B. Du Bois at the start of the twentieth century highlight several of the principal issues.

   During the Jim Crow era, Booker T. Washington called for investment in vocational training for Black workers, largely in separate Black schools, so that they could become economically self-sufficient. Washington believed that, "in all things that are purely social we can remain as separate as the fingers," emphasizing that "[t]he opportunity to earn a dollar in a factory just now is worth infinitely more than the opportunity to spend a dollar at the opera house." (22) Thus, he did not challenge the separation of the races that was imposed by law.

   During the same period, W.E.B. Du Bois called for integration: he pressed for civil and political rights and the expansion of access to higher education for Blacks. (23) Du Bois famously believed that educated Blacks, the "talented tenth" of the...