<em>Examining the Paradox between Dismantling</em> De Jure <em>Segregation and Affirmative Action: Implications from Contemporary Higher Education Case Law</em>

Abstract

The racial diversification of America's higher education system has been at the forefront of legal argument for the last seventy-five years. There have been landmark Supreme Court decisions (e.g., Gaines v. Canada, 1938; McLaurin v. Oklahoma State Regents, 1950; Sweatt v. Painter, 1950) that would commence the argument and ultimately help to dismantle America's longstanding separate but equal doctrine, a legal doctrine in the United States constitutional law that justified systems of segregation (Plessy v. Ferguson, 1896). Those decisions would eventually give rise to more ground-breaking decisions that would birth the inclusion of affirmative action policies in higher education after the enactment of the Civil Rights Act of 1964 and later challenge the utility and constitutionality of those very same policies (e.g., Gratz v. Bollinger, 2003; Grutter v. Bollinger, 2003; Regents of the University of California v. Bakke, 1978). While many court challenges have occurred and, as a result, many laws have been implemented to facilitate the racial diversification of U.S. public colleges and universities, perhaps none has been more influential and controversial than the action brought about in Fisher v. University of Texas (2013), which threatened to destroy, any and all, contemporary notions of diversity, fostered through affirmative action policies, in today's higher education landscape.Although many states have used affirmative action to diversify their college and university campuses, as these policies continue to be attacked and ultimately prohibited in some cases, many colleges are halting the use of race-sensitive admission practices. As such, the purpose of this research is to discuss a policy contradiction by which public postsecondary educational institutions are aiming to foster the racial diversity of their campuses. Nevertheless, their primary initiative (i.e., affirmative action) for achieving this goal has been consistently attacked legally and faces an uncertain future, causing many colleges to abandon the use of affirmative action because out of fear of litigation. Increasing the racial diversification of higher education is particularly important for colleges in states that have desegregation agreements with the Office of Civil Rights (OCR). To help those colleges and universities in states where the use of affirmative action is permissible, but that are fearful of doing so because of litigation concerns, this article provides several recommendations that they may find helpful as they continue to seek ways to promote racial diversity on their campus. Before the recommendations, however, to provide context, the article will review several critical bodies of literature.First, this study will provide a historical overview of landmark decisions, pre- and post-Civil Rights Act of 1964, which have helped to shape contemporary notions of diversity in higher education. Finally, this article will summarize affirmative action policies and relevant case law. This summary will include a discussion on the racial diversification of higher education in states that have a desegregation agreement with OCR for operating policies traceable to de jure segregation, or those intentional actions by the state to enforce racial segregation (United States v. Fordice, 1992).Much like higher education research, the United States Supreme Court has made it clear that a diverse student body is critical to the educational objectives of colleges and universities across the nation (Grutter v. Bollinger, 2003). Colleges and universities must ensure that their students are prepared to engage, work and live in a global society, which requires understanding and accountability for what may be new or unfamiliar. Affirmative action programs are crucial to achieving that goal. In fact, such programs have resulted in doubling, or even tripling the number of minority applications to colleges or universities (National Conference of State Legislatures, NCSL, 2014). …