University Of Texas Conservative Students Hold Affirmative Action Bake Sale

http://www.huffingtonpost.com/2013/10/01/affirmative-action-bake-sale_n_4025362.html

The Limits of Brown v. Board of Education, Latin Americans in San Antonio v. Rodriguez

“In the Rodriguez case, Demetrio Rodriguez and six other parents of children who attended school in the poor, overwhelmingly Mexican American Edgewood section of San Antonio filed suit in federal court arguing that the Texas funding system violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.” (Sracic 1)

The question would arise as to how best to equalize education. The well off would be protected by laws that ensure the rich to maintain their wealth. However the indigent poor would be at the mercy of historically racist state policies, ex. Jim Crow.

In Pierce v. Society of Sisters (1925) the Supreme Court ruled that laws attempting to ban private education was a violation of the Due Process Clause of the Fourteenth Amendment. Again reiterating that the amendment which called for the citizenship of black people, in the wake of the Civil War, would be used, ironically, for those who have never endured discrimination and injustice.

In Cummings v. Board of Education, the U.S. Supreme Court heard a challenge by a group of African American parents in Georgia when the school board cut off funds for a segregated black high school. The Court decided in favor of the school board. Curiously enough the author of the Court’s opinion in Cummings, Justice John Marshall Harlan, had three years earlier authored a famous dissent in the case of Plessy v. Ferguson  (1896). Justice Harlan claimed that the Constitution is color-blind and that the Louisiana statute was based “on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” (Scracic 9) It would seem that along with legislation such as Jim Crow, Supreme Court justices would hold onto antiquated perspectives on race. And strangely enough would open lanes for whites to use an amendment created to help people of color, whom have been historically disenfranchised.  

One way that states got around mandatory laws (de jure) and enforcing Supreme Court rulings such as Brown V. Board, was to allow gerrymandering and redistricting (de facto), making it impossible for people of color to collectively escape poverty. “Although there was no Texas law that said Mexican Americans could not attend the same schools as white students, school district lines were drawn around existing neighborhoods; since neighborhoods were (effectively though not legally) segregated, so were the schools.” (Sracic 10) In addition Deed restrictions in many areas prevented houses being sold to Mexican Americans, African Americans, or Native Americans, including those of mixed race.

Miraculously these Mexican- AMERICANS would organize like many ethnic groups in this great country, to better the situation for their people and create a better America. “In 1929, Texan attorney Alonso Perales formed the League of United Latin American Citizens (LULAC) to focus on civil rights concerns including the problem of education.” The GI Forum was also established in 1948 and their motto was “education is freedom and freedom should be everyone’s business.” (Sracic 12)

And in 1968 the Mexican American civil right organization, the Mexican American Legal Defense and Education Fund (MALDEF) was formed by Pete Tijerina, a lawyer who worked for LULAC. This organization was similar to that of the NAACP Legal Defense Fund.

In search of a solution to the penniless budgets of predominately Mexican American districts, the groups came up with The Minimum Foundation Program, where a base number of dollars would be established and plans made to close the education gap. The effort to bridge the gap was well intended but a band-aid nonetheless.

In Serrano v. Priest the California Supreme Court had declared that state’s school financing systems to be inconsistent with the demands of both the federal and situational infirmity was the direct result of California justices, this dual constitutional infirmity was the direct result of California making “the quality of a child’s education depend upon the resources of his school district and ultimately upon the pocketbook of his parents.” Since this was nearly identical to the issue raised in Rodriguez, it made sense for Greider [journalist] to search for a precedent in the former. This led him to an individual who played a critical role in all of the early school funding litigation: John E. Coons, who was at the time a law professor at the University at California at Berkeley.  (Sracic 17)

“Whether a student attended a well-funded school was to a large degree dependent on the property wealth of the district in which he or she resided. This was a form of inequality, he [Professor Coons] thought, that might have constitutional significance.” (Sracic 17)

In McInnis v. Shapiro, 1968, Illinois district court ruled against a group of Cook County students who had argued that the Illinois school funding system violated the Equal Protection Clause of the Fourteenth Amendment.

Students in Edgewood, Texas took action on May 16, 1968, as 400 students at Edgewood High School decided to stage a walk-out. Demetrio Rodriguez for who the case was named, was a parent, member of the GI Forum as well as LULAC. He with 5 other parents processed the suit. “Although Edgewood had the highest property tax rate in the San Antonio area, the district had only been able to raise about $26 per student. In the nearby community of Alamo Heights, a much lower tax rate yielded $333 per student. (Sracic 22)

In Hobson v. Hansen (1967), Judge Wright ruled in favor of the plaintiff, Hobson, issuing an injunction that barred the District of Columbia from engaging in either racial or economic discrimination and ordering the district to integrate in schools and to dismantle both the track system and the optional district provision that had exacerbated segregation. Gochman, representing the parents of Edgewood, was interested in Wright’s opinion because of the way in which Judge had combined the notions of racial and economic discrimination.  Judge Berger dissented in the case. (Sracic 26)

“Powell’s opinion in Rodruguez helped to construct boundaries regarding the Fourteenth Amendment that remain in place to this day.

Together, the strict scrutiny and rational basis test form the two tiers of scrutiny available to those, like the plaintiffs in Rodriguez, who would bring challenges under the Equal Protection Clause of the Fourteenth Amendment. The two- tier approach also governs some decisions under the Fifth Amendment since—following its decision in Bolling v. Sharpe (1954)—the Supreme Court has recognized an equal protection component within the Due Process Clause of the amendment. (Sracic 32)

Justice William Douglas, writing for the Court in the 1966 case of Harper v. Virginia Board of Elections, suggested that ‘lines drawn on the basis of wealth or poverty, like those of race, are traditionally disfavored.’ Toward the end of his tenure as chief justice, Earl Warren had relied on Harper when he concluded in McDonald v. Board of Election Commissioners of Chicago (1969) that classifications based on wealth or race were ‘highly suspect’.  (Sracic 34)

Gochman explained to the court ‘that under the Fourteenth Amendment the courts will tolerate differences relating to people that are in the same category, historically, but that the courts will not tolerate differences where there has been historical discrimination as stated in Hobson v. Hansen, that the courts will look closely at discrimination if it involves the poor or minority groups.” (Sracic 38)

In McInnis v. Shapiro (1968) students from Cook County, Illinois, brought a suit against Governor Shapiro. The students claimed that the education funding laws in Illinois violated the Fourteenth Amendment “because they [permitted] wide variations in the expenditures per student from district to district, thereby providing some students with a good education and depriving others, who have equal or greater educational need.” On November 15, 1968, a three judge district court ruled unanimously against the students. If Gochman expected to win in district court, he would have to be able to distinguish Rodriguez from McInnis. The fact that, unlike Hobson, McInnis did not involve a racial element might be crucial. (Sracic 38-39)

Unanimously, the judges decided that the Texas school funding system violated the Equal Protection Clause of the Fourteenth Amendment. (Sracic 60) This most likely had to do with the fact that race and class were determinate factors

Justice Powell, who worked in Virginia and had a comprehensive background in educational politics both local and state, was the “education justice” on the bench when the appeal was filed, and he would take a special interest in the case, hiring many law clerks and keeping them abreast with frequent memos regarding his perspective.

Charles Allen Wright would argue the appeal for the State of Texas and the city of San Antonio.

In Bullock v. Carter (1972) Bullock was a challenge to a Texas law that required a substantial filing fee to be paid by candidates seeking to have their name placed on a ballot in that state. This law was found to discriminate against those who were poor to pay the fee, and the Court used a version of the strict scrutiny standard to overturn the requirement. (Sracic 82) However in the Edgewood case it was harder to illustrate the complex web of institutional racism that lead to a district of poor, under-represented Mexican Americans. To make a court decision was going to be difficult. With regard to Rodriguez Justice Berger ended his summary with an interesting confession: He claimed that he would support a constitutional amendment that would achieve the result reached by the three-judge court in Texas. Without that amendment, however, he thought the Constitution simply did not address the issue of school funding. (Sracic 93)

Justice Byron White, from Colorado, a former Rhodes Scholar, and winner of Heisman trophy in football claimed: “Rather than demanding absolute equality in funding, White thought that the Court should be clear in endorsing a system like district power equalizing that would not mandate equality but would free up districts that wanted to provide more for their students.” (Sracic 95) a sort of opportunity for community agency and not futile discriminatory policies.

Powell explained that although he had ‘no doubts about the importance of education—especially in a democracy,” education was ‘not guaranteed’ by the Constitution. (Sracic 96)

“Rehnquist explained that the accepted history of the Equal Protection Clause was that it was only intended to eliminate discrimination based on race.” (Sracic 98) and not wealth, no matter how mutually constitutive the two were.

March 21, 1973, Powell in majority opinion stated: We disagree with the District Court, and reverse its judgment.” (Sracic 110)

Powell brought up Brown v. Board of Education as a possible precedent for a different outcome. Although the Court was surely right to order desegregation, said Powell, there are—there have to be—stopping points.” Rodriguez was that stopping point. (Sracic 113) Arguably because Brown V. Board did not overtly called for a redistribution of funds, rather access to a historically disenfranchised group.

Powell’s finding that the right to an education was neither ‘explicitly or implicitly’ protected by the constitution, coupled with his earlier determination that Texas had not created a suspect classification, meant that the proper test to be applied to Rodriguez was the rational basis standard. (Sracic)

“Powell’s background on the Richmond School Board played into his analysis. He concluded from his own experience that local control over the schools was real and not a ‘mere sham’ as Justice Marshall [Thurgood] had asserted in his dissenting opinion.” (Sracic 116)

In dissent was Brennan, Marshall, White, Douglass

In approval was Powell, Rehnquist, Stewart, Chief Berger, Blackmun

Marshall claimed “wealth was as immutable as race; also, the poverty into which children were born—through no fault of their own—closely resembled the hardships and stigma faced by illegitimate children recognized in Powell’s opinion in Aetna v. Weber Casualty and Surety Company (1972). Furthermore, Marshall wrote ‘it is the State that has created the local school districts, and tied educational funding to the local property tax and thereby local district wealth.” (Sracic 121)

 Bibliography:

San Antonio v. Rodriguez: The Pursuit of Equal Education, The Debate Over Discrimination and School Funding by Paul A. Sracic published by University Press of Kansas 2006

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Bakke, University of Michigan, Tim Wise

            The 14^th Amendment has done more for individual American citizens than disenfranchised minority groups, and it is unfortunate because it was in the interests of displaced Africans by which granted them citizenship. The essence of the 14^th Amendment and the Civil Rights Act of 1964 is so comprehensive that it has universalized basic rights while ameliorating the horrific American pastime of slavery.

The University of California Davis Medical school in the Bakke Case demonstrated how, in efforts to rectify past racial discrimination, no one wants to take responsibility. Justice Matthew O. Tobriner states: “ The Fourteenth Amendment that served as the basis for the requirement that elementary and secondary schools be ‘compelled’ to integrate should now be turned around to forbid graduate schools from voluntary seeking that very objective.” (Ball p. 61) Tobriner seems to be harping on the efforts of the NAACP Legal Defense Fund to integrate schools. Interestingly enough many of the cases preceding Brown v. Board of Education (1954) dealt with higher education admissions (law and medical schools). With the periodic triumph of these cases, momentum of resistance developed and Plessy v. Ferguson separate but equal clause was finally overturned. What Tobriner believes to be a shame is that the spirit of the Brown v. Board of Education is going down the drain, all because a few individuals believe they are entitled to a higher-education. Unfortunately, college in this country is a privilege not a right. And for a long time blacks were denied access into these honorable institutions we call the University. This literal white privilege has been part of college admissions, private and public, for a long time. And it seems that the rights of an individual (of a majority group), is becoming more important than the rights to a historically disenfranchised  minority group.

Title VI of the Civil Rights Act of 1964 comes from a long history of racial justice. And surprisingly the roots of its language stems from the semantics of the Bill of Rights. While slavery was still well in place, Americans fought the tyrannical power of British Colonists and after declaring independence drew up the Constitution. The Bill of Rights, the first ten amendments, was created in order to protect citizens from such Intolerable Acts as the Quartering Act, and no Taxation without representation. These first ten amendments addressed the needs of Americans.

The Civil War was a war to end slavery. And legislation which would follow was created to protect the rights of black people against the hegemony of the southern Confederacy. The 13^th, 14^th, and 15^th Amendments gave black people citizenship, the vote, and total abolishment of America’s peculiar institution. Similar to the way in which the Bill of Rights protected Americans from a tyrannical federal government, the 13^th, 14^th, and 15^th protected black people from racist state power, especially in the south, where Jim Crow Laws ran rampant. And then finally Title VI of the Civil Rights Act of 1964 and Brown v. Board of Education 1954, would protect individuals from local, state, and federal policies denying citizens “regardless of race, color, or national origin” their basic human rights. What seemed like a series of laws that had black people in mind, at its center, would transform and become the grounds by which disgruntled white folks would illustrate their custody over the few and far in between college seats across the nation. Lawyers for Bakke, “sued on the grounds that both the Fourteenth Amendment’s equal protection clause ‘Nor shall any state…. Deny to any person within its jurisdiction the equal protection of the law.’ And the title VI of the 1964 Civil Rights Act, the very same Title VI used by university administrators to justify preferential admissions prohibited such race- based preferential admissions procedures.” (Ball p. 7)

This use of the Fourteenth Amendment did not end in the Bakke case, it would also apply to what we now know as the Michigan Affirmative Action Cases. Things would not look good for black folks wanting to attend law school at the University of Michigan “The law school’s inability to meet the standards of constitutional statutory review for its affirmative action program led the district court, via Judge Freidman’s opinion, to conclude that the affirmative action policy violated the equal protection clause of the Fourteenth Amendment and Title VI of the 1964 Civil Rights Act.” (Perry 75)

There were however Judges who did believe that the fruits of affirmative action was priceless. “O’ Connor responded for the majority that the Fourteenth Amendment’s ‘Equal protection clause does not prohibit the law school’s narrowly tailored use of race is admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” (Perry 146)

Much of what created such a permanence among white students was the notion of white privilege, Time Wise illustrates this interesting phenomenon that occurs amid white students. “Although not every white person’s story is the same as mine, the simple truth is that any white person of color, and as such received directly the privileges, the head start, the advantages of whiteness as a matter of course. This goes for all whites not merely some, but all.” (Wise 13)

“Whiteness, as these stories in part demonstrate, is about never being really out of place, about having access and, more to the point, the sense that wherever you are, you belong, and won’t be likely to encounter much resistance to your presence. Despite my lousy test scores and mediocre grades, no one ever thought to suggest, for example, that I had somehow gotten into Tulane because of some form of ‘preferential treatment’ or as a result of standards being lowered. Students of color though, with similar grades and scores regularly had to content with this sort of thing, prescribed to be the less qualified beneficiaries of affirmative action.” (Wise 44)

“People of color can’t really avoid white spaces, and if they do it’s probably because they live in the poorest areas, and are the most destitute persons of color around: after all, having much the opportunity in the job market or in education typically requires a fairly high level of interaction with white folks, since so much of the power within either setting resides in white hands. (Wise 47)

            Wise emphasizes the point that the reason why many white students file law suits is because they feel privileged. And that years of discrimination is mutually exclusive of the law. Everyone attending college should start on a clean slate, and should be judged by the content of their character and not the color of their skin. Unfortunately the law historically has not been mutually exclusive of social constructs such as race. And that race has played a part in such pieces of legislation as the 3/5 compromise. The spirit of the 14^th Amendment and Title VI of the Civil Rights Act was to make sure that everyone was treated fairly. And in order to do so, white students must make room for their colleagues who, may have been qualified generations ago, but was denied entrance due to Jim Crow Laws. Sure, white students may not get into the college of their first choice, but this doesn’t mean that they are not going to college. These students in fact get accepted in greater numbers than blacks, and go on to have an easier time landing a job. Call it whatever you want: achievement gap, white privilege, reverse discrimination, whichever way you slice it there is social divide along lines of race, one in which becomes difficult to resolve. This dilemma however, as difficult as it may seem, often times is remedied on the college campus, where the magic word diversity becomes the byproduct of affirmative action. Students get to meet other students who may not be of the same gender, race, religion, or economic class, and forge bonds that may seem incredible. It is the conversation and actions of these young people, harmonizing with one another that will determine if affirmative action is worthwhile. And sometimes moral authority trumps legality. 


Bibliography

Ball, Howard The Bakke Case published by University of Kansas 2000

Perry, Barbara A. Michigan Affirmative Action Cases published by the University of Kansas 2007

Wise, Tim White Like Me: Reflections From a Privileged Son published by Soft Skull Press
                  New York 2005