II. Historical Racial Oppression by Governmental and Private Actors and Ongoing Discrimination Continue To Affect Significantly the Lives and Opportunities of African Americans
Any meaningful evaluation of the need for race-sensitive admissions policies at the University of Michigan or at any other college or university must first take account of the central role that slavery, racial segregation, and systematic racial oppression by public and private actors have played in depriving generations of African Americans of social, political, and economic opportunity, while concurrently according profound advantages to whites.
A. Slavery and Jim Crow Constituted An Unbroken Chain of Racial Oppression That Remained Intact Until the Second Half of the Twentieth Century
From the framing of the Constitution, governmental and private actors legitimized and strengthened a system of apartheid that enslaved African Americans. The original Constitution sanctioned and preserved the institution of slavery; Congress passed laws that bolstered slavery; and federal and state courts perpetuated the subjugation and dehumanization of even free blacks through decisions that concretized racial oppression. The most abhorrent of these cases was Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which eviscerated any real distinctions between slaves and free blacks.
Even after the abolition of slavery and the ratification of the Fourteenth Amendment in 1868, public and private actors maintained a strict racial caste system that subjugated African Americans in every way. The Hayes-Tilden Compromise of 1877, which authorized the withdrawal of federal protection of former slaves, removed the last obstacle to reinstating a system of white supremacy in the South. Southern whites embarked upon widespread lynching and terrorism against blacks, and a campaign of voter intimidation denied blacks the right to have any voice in the political process. State legislatures approved voting requirements specifically designed to eliminate the black vote, such as poll taxes and literacy tests. Consequently, blacks lacked the power to vote out the very governments that imposed the rigid hegemonic system that denied them resources and full citizenship.
A series of decisions by this Court ratified the denial to blacks of the rights of full citizenship. In the Civil Rights Cases, 109 U.S. 3 (1883), the Court declared unconstitutional the Civil Rights Act of 1875, which had outlawed racial segregation in public accommodations. After more than two hundred years of systemic white supremacy, in which governmental resources had been routinely employed to perpetuate the institution of slavery, the Court held that any remedy for racial injustice was beyond Congress's power. In Plessy v. Ferguson, 163 U.S. 537 (1896), this Court delivered the implicit deathblow to the civil rights of African Americans, with the “separate but equal” doctrine. This paved the way for the extension of white supremacy to all areas of social life, particularly education.
By 1900, every Southern state had enacted laws requiring separate schools for blacks and whites. As blacks migrated to the North in the first part of the twentieth century, they were urged, if not forced, to attend segregated schools. Indeed, for the first half of the twentieth century, the majority of African-American children were confined to impoverished, short-term schools. By 1930, $7 was spent for whites to every $2 spent for blacks. These separate and unequal schools helped to perpetuate the mythology of white supremacy and paralyzed any hope of black advancement.
In higher education, the disingenuous creed of “separate but equal” restricted blacks to segregated institutions. See Sweatt, 339 U.S. 629; Sipuel v. Okla. State Regents, 332 U.S. 631 (1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). It was not until Brown v. Board of Education, 347 U.S. 483 (1954), decided two generations later, that this Court really began to undo this nation's sordid history of racial oppression. Even after this momentous decision, however, it would be years before many of this nation's elementary and secondary schools and colleges would readily open their doors to African Americans.
Meanwhile, both before and after Brown, the federal government carried out a series of policies that created and perpetuated a system of residential segregation, the effects of which are still manifest today. Starting with the New Deal, “federal housing policies translated private discrimination into public policy” and officially endorsed the discriminatory practices of real estate developers, banks, mortgage brokers, appraisers, and insurance agents. Blacks were confined to overcrowded, overpriced, and deteriorating “ghettos” whose inferior services included inadequate, segregated schools. Many black communities were completely isolated by an iron curtain of legally enforceable covenants on all sides, which created massive overcrowding, a “race tax” on housing prices, and deterioration of housing within predominantly black neighborhoods. The sorry legacy of these policies persists long after the enactment of fair housing laws, as fears of the “black ghetto” contribute to racial discrimination and flight from integrated neighborhoods.
Through the 1960s, federal “urban renewal” strategies devastated black neighborhoods and pushed blacks further into racially isolated, economically depressed areas. “Slum clearance” leveled black communities to produce new developments near downtown areas, and displaced black families into segregated housing markets. This has created new isolated pockets of poverty, reinforced racial ignorance and hostility against blacks, and set in motion a catastrophic economic avalanche that further circumscribed blacks' access to capital. The federal government's calculated involvement in these discriminatory housing policies not only reinforced already established patterns of racial isolation and subjugation, it lent them “a permanence never before seen” that “virtually constituted a new form of de jure segregation” and contributed to the existing racial isolation in this country's schools.
Predominantly black or mixed-race neighborhoods seldom received federal mortgages and loan guarantees, a practice that continued into the 1970s. To this day, private banks patterned their lending policies after the FHA's discriminatory practices, which extended the reach of such practices deep into the private sector. Private banks continue to prey on African American homeowners through “reverse redlining” practices that offer excessive loans at exorbitant fees. This has the effect of further destabilizing black neighborhoods and impeding black economic development.
These systemic government actions, in concert with discriminatory private behavior, continued to deny equal opportunity to African Americans. The combined force of public and private discrimination for more than 300 years has had a devastating impact on all aspects of black social, educational, political, and economic opportunity in America.
B. The Cumulative Effect of Generations of Racial Subordination and Continued Discrimination Has Produced Stark Inequality Which, By Any Measure, Leaves African Americans Significantly Disadvantaged
Race remains the critical dividing line in American society. More than 300 years of calculated and profound racial persecution by public and private actors have produced an entrenched racial hierarchy that pervades every facet of life in this country. Twenty-five years after the Court ruled in Bakke that race-conscious admissions policies were constitutionally permissible, some African Americans have made significant progress as a result of opportunities that were once denied. Nevertheless, widespread racial inequality remains a fundamental fact of American life, including for the current generation of college, graduate, and professional school applicants who have grown up in a deeply racially fragmented society. Until race ceases to be the barometer of economic, social, and political opportunity, it will continue to be an essential factor in higher education admissions.
The legacy of racial subjugation is acutely evident in the persistence of residential segregation. Where one lives affects one's schooling, peer groups, safety, job options, insurance costs, political clout, access to public services, home equity, and, ultimately, wealth. While America has become increasingly racially diverse, blacks in major metropolitan areas continue to be extremely racially isolated in a manner unlike any other ethnic group in this country. This is true for all black Americans, regardless of income level. Even middle class black Americans tend to live in areas with a higher concentration of poverty, higher crime rates, and less access to services than white neighborhoods. Blacks are also less likely to own homes than whites. While home ownership increased to an overall rate of 66.8% in 1999, a disparity of 26% remained between black and white ownership rates.
In Michigan, the vast majority of whites and blacks live in separate worlds. In 2000, Detroit ranked as the most racially segregated city of the 50 largest metropolitan areas in this nation. Within the last decade, four other Michigan metropolitan areas have ranked in the nation's top twenty-five most racially segregated urban areas. This extreme racial isolation is a direct result of a history of state-backed discriminatory policies and practices, and continuing private discrimination.
Such persistent racial segregation has had profound consequences for black Americans, particularly in the area of education. Fifty years ago, Brown signaled the promise of a more racially inclusive society; today, however, we are more than a decade into the continuous resegregation of American public schools. The racial isolation of black students has increased to levels not seen in three decades. The nation's largest city school systems are, almost without exception, overwhelmingly nonwhite. White students are the most segregated; on average, they attend schools where eighty percent of the student body is white.
This racial balkanization of American schools is a direct result of the deeply rooted racial caste system that continues to permeate our society and to wreak havoc on the life opportunities of black children. This Court correctly ruled 50 years ago in Brown that “separate is inherently unequal.” Yet, one-sixth of all black students in the nation and one-fourth of black students in the Northeast and Midwest are educated in virtually all-non-white schools that have concentrations of enormous poverty and very limited resources. Segregated schools have lower average test scores, fewer qualified teachers, and fewer advanced courses. Many black students, regardless of their family income, have markedly diminished opportunities for educational, social, and economic advancement. The same cannot be said for the majority of poor white Americans.
The persistence of residential segregation and these disparate educational opportunities are compounded by the continued exclusion of African Americans from full participation in the political process. Even today, racially polarized voting remains as pervasive in many parts of the country as it was almost forty years ago when Congress enacted the Voting Rights Act of 1965, 42 U.S.C. § 1973 (2002), for the purpose of dismantling the many invidious practices that denied the franchise to black voters.
The specter of apartheid also haunts African Americans' opportunity for occupational advancement. The risk of unemployment looms larger for African Americans than for whites, both in good economic times and in bad. Despite the enactment of federal and state anti-discrimination laws, employment discrimination against African Americans still exists across all regions, in all industries and in all occupations, affecting as many as 2 million minority and female workers. For the 2002 year, both the mean and median weekly earnings of whites exceeded those of blacks in virtually every occupational group. All factors being equal, blacks on average are less likely to receive job offers than whites. This discrimination exacerbates the barriers already created by segregated social networks and informational bias that infects employment opportunity for blacks. Access to the highest paying occupations is also much more restricted for African Americans than whites both in terms of the range of positions available, compensation, and the educational and experience requirements for selection. Such racial discrimination persists across all class levels and affects even those African Americans with advanced skills and credentials.
Despite modest economic progress, the black middle class still lags overwhelmingly behind their white counterparts in income and occupational status. The salience of race, over class, in determining socioeconomic mobility became more pronounced in the 1980s when “60 percent of whites but only 36 percent of African Americans from upper-white-collar backgrounds were able to maintain their parents' occupational status.” Lower middle class whites also proved more upwardly mobile, with more than half finding their way into upper middle class jobs, “compared to only 30 percent of blacks.” African Americans were also more downwardly mobile.
By 1995, the percentage of black workers in middle class occupations had grown to half, “while 60 percent of whites had middle class jobs.” Yet even these figures mask the significant differences in occupational distribution between the black and white middle class, with blacks tending to occupy lower paying jobs with less prestige.
Not surprisingly, this lack of black occupational opportunity has resulted in continued racial disparities in access to capital and in the accumulation of wealth. As of 2000, 22.1% of African Americans lived below the federal government's poverty line, compared to 7.5% of white non-Hispanics. Between 1984 and 1999, the mean household wealth for white families increased from $51,600 to $103,600; for black families, it rose from a meager $6,100 to $9,100.
African Americans also suffer from less adequate health services and treatment relative to whites. This is true across a variety of medical conditions, and occurs independently of insurance status, income, and education, among other factors that influence access to healthcare. These disparities are markedly present in the care that African Americans receive for cardiovascular conditions, various cancers, strokes, kidney disease, HIV/AIDS, diabetes, and mental health. Moreover, these disparities are associated with greater mortality among African-American patients. African Americans experience infant morality rates two to three times that of whites and have a lower life expectancy.
Despite significant progress by some African Americans, the chasm between blacks and whites remains enormous. In the absence of slavery, de jure segregation and persistent “societal discrimination,” this generation of applicants might have lived in a society where 700,000 more African Americans have jobs, and nearly two million more African Americans hold higher paying and managerial jobs. They might have lived in a society where the average African-American household earns 56% more than at present, and altogether, African-American households earn another $190 billion.
Similarly, the wealth of black households would have risen by $1 trillion. African Americans might have had $200 million more in the stock market, $120 billion more in our pension plans, and $80 billion more in the bank. African Americans could have owned over 600,000 more businesses, with $2.7 trillion more in revenues. There might have been 62 African Americans running Fortune 500 companies, rather than three. Two million more African Americans could have high school diplomas, and nearly two million more could have undergraduate degrees. Close to a half-million more could have master's degrees. If racial disparities did not exist in health insurance rates, 2.5 million more African Americans, including 620,000 children, could have health insurance. Three million more African Americans might have owned homes.
The inescapable conclusion is that this is not a “color blind” society where opportunity is singularly determined according to individual ability. Rather, it is a socially-constructed racial hierarchy with whites firmly on top. The only other conceivable explanation — that this gross inequality is the consequence of a natural order of black inferiority and white supremacy — is, of course, wholly unacceptable.
