When did segregation end? In 1954, in the famous case of Brown v. Board of Education the Supreme Court held that “in the ﬁeld of education the doctrine of “separate but equal” has no place.”
But it was not until Brown II, a year later, that the court confronted the question of “What did this require states to do?” and “When?” Majestically, the Supreme Court stated desegregation must proceed “with all deliberate speed."
As the South chose to interpret it, “deliberate speed” meant never. In 1956 19 Senators and 77 members of the house signed a “Southern Manifesto” calling the Brown decisions “an abuse of judicial power." A few years later Texas Judge T. Whitﬁeld Davidson stated in a court ruling, “the white man has a right to maintain his racial integrity and it can’t be done so easily in integrated schools.” In 1959, in Prince Edward County Virginia, the school board voted to close its schools rather than integrate them.
But in 1968 in a case called Green v. Kent County, the court stated “there had been too much deliberation and not enough speed.” For two decades after Green schools in the South made significant progress. However, beginning around 1988, the Supreme Court, with
Rehnquist as chief justice, issued decisions making it easier for Southern school districts to gain release from desegregation orders. A process of “resegregation” began.
In Southern school districts where court ordered desegregation was ended there was a major increase in segregation.
As a result, Gary Orﬁeld notes, “Central cities of large metropolitan areas have now become the epicenter of de facto segregation. The problem is the worst in inner city areas.
Inner city blacks are mostly poor. They are socially isolated and concentrated in inner city schools. The concentration of poverty is deeply linked to low academic achievement. Also, schools in the inner city tend to have teachers with less seniority than suburban schools and they tend to receive less funding.
This led Justice Sotomayor to say, in an October 2022 hearing, “If you are black, you’re more likely to be in under-resourced [K-12] school” and “You’re likely to be taught by teachers who are not as qualiﬁed as others. You’re more likely to be viewed as…having less academic potential.”
It is in this context we must understand the achievement gap between Blacks and Whites. Stanford researchers have found that Blacks nationally trail a grade or two behind their White counterparts.
As of 2017 the average SAT score for Blacks is 428. For Whites it is 534. By the time students get to law school the racial achievement gap is still there. The average Black score is 142. For Whites it is 153. These disparities are largely the legacy of segregation.
Opponents of afﬁrmative action have long insisted on “colorblindness.”
But this ignores our history.
Aesop tells a story about the stork and the fox. The stork invited the fox to dinner and gave him a tall vase from which to drink. The stork’s advantage in the length of his/her beak provided the ability to drink from the tall vase, the fox’s anatomy did not. So, the fox later invites the stork to dinner to drink from the flat pan. We cannot have equality in the sense of the stork and the fox. We need real equality.
The opponents of afﬁrmative action also argue that considering race ignores merit. But do standardized tests actually measure merit? For example, the LSAT claims to predict who will get the best ﬁrst year grades, it cannot predict, nor does it claim to predict who is going to be the best lawyer.
Because of the discriminatory effect of these tests afﬁrmative action is necessary: to create a diverse educational environment. As Justice Blackmun said in the Bakke case many years ago, ”In order to get beyond racism, we must ﬁrst take account of race. There is no other way."
But now in a recent case the Supreme Court has ruled race can no longer be considered as a factor in university admissions.
The color line is gone but, unless something is done, the impact of this recent decision may be classes in many colleges which mirror those of the 1950s, when only token Blacks got into the nation’s best schools. Most qualified Blacks will still gain admission to a college, of course, but more so now in schools which are less selective.
We had a wake-up call. We as a country have yet to fully address the legacy of segregation in our schools. We must! And we must fight for admissions processes which are fair to all. Neither the SAT nor the LSAT should be the measure of reality.
In the words of Ted Kennedy, “The work goes on, the cause endures, the hope still lives, and the dream shall never die.”
Donald Jones is Professor of Law at the University of Miami, School of Law. He is the author of The Presumption: Racial Injustice In The United States, forthcoming from Bloomsbury.