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Excerpted From: Kevin D. Brown and Vinay Sitapati, Lessons Learned from Comparing the Application of Constitutional Law and Federal Anti-discrimination Law to African-Americans in the U.S. and Dalits in India in the Context of Higher Education, 24 Harvard BlackLetter Law Journal 3 (Spring 2008) (355 Footnotes) (Full Document)

 

 

BrownandSitapatiIn this Article the authors will compare the development of constitutional law and federal anti-discrimination law in the context of higher education of African-Americans in the U.S. with Dalits in India. Both groups suffer from oppression and discrimination based upon a hereditary trait and related to their integration into mainstream society; neither group is completely isolated from the majority population responsible for the discrimination; and African-Americans and Dalits approximate similar percentages of their country's population. Based upon the 2000 census, African-Americans constitute 12.7% of the American population, and, according to the 1991 Census Report of India, Dalits make up 16.5% of the Indian population. Yet, although African-Americans have been victims of hereditary racial oppression in the U.S. for almost 400 years, Dalits have suffered oppression for 3,500 years and counting.

In India, Caste Hindus have traditionally considered Dalits--members of society located below the caste system be religiously polluted because of their hereditary occupations. Dalits were--and for the most part still are--confined to doing the worst work in India. Dalits take care of trash and body disposal, maintain the sewage system, clean toilets, work with dead animals, collect cow manure and turn it into cooking fuel, labor in the fields, work on leather, and dig the wells for water. For millennia, Caste Hindus denied Dalits the most basic human rights. They were denied access to Hindu temples and to formal education, prohibited from drawing water from public wells (often the very wells that they themselves dug), prevented from walking on the road in broad daylight and compelled to wear dirty clothes--if they were allowed to wear clothes at all. Caste Hindus segregated housing for Dalits and placed them on the outskirts of town.

Though India is one of humanity's oldest civilizations, the Republic of India was founded in 1947 when it gained independence from Great Britain's colonial control. For Dalits, the ratification of the Indian Constitution in 1950 marks the watershed moment for their legal rights. With the ratification of the Constitution, Indian society formally recognized the need to address the historic oppression of many groups, including the Dalits, which plagued Indian society for thousands of years. Many provisions were included in the Indian Constitution to address the discrimination Dalits faced. Regardless of the constitutionally required efforts aimed at advancing Dalits over the past 60 years, a 'number of recent sociological studies indicate that... the idea of their inherent pollution continues to be what sets Dalits apart.' A 2003 story in the National Geographic News on Dalit oppression started by stating:

Human rights abuses against these people, known as Dalits, are legion. A random sampling of headlines in mainstream Indian newspapers tells their story: 'Dalit boy beaten to death for plucking flowers'; 'Dalit tortured by cops for three days'; 'Dalit 'witch’ paraded naked in Bihar'; 'Dalit killed in lock-up at Kurnool'; '7 Dalits burnt alive in caste clash'; '5 Dalits lynched in Haryana'; 'Dalit woman gang-raped, paraded naked'; 'Police egged on mob to lynch Dalits.'

According to Government of India statistics, in 1986-87 only 21.38% of Dalits were literate, 16% lived in urban areas, 48% were agricultural laborers, 4% were employed in industrial occupations, and 50% lived below the poverty line (compared to 30% of the entire population living below the poverty line). Half of Dalits are landless agricultural laborers, and only 7% have access to safe drinking water, electricity and toilets. A survey of forty-one Indian higher education institutions showed that Dalits constituted only 0.61% of the professors, 1.04% of the associate professors, and 3.16% of the lecturers. In a society still marked in many places by deprivation and destitution, Dalits are the most deprived and destitute.

In contrast to African-Americans, Dalits have not made significant progress towards eradication of their historic oppression over the past 60 years. Typically, when comparisons of the status and conditions of African-Americans are made to another group, it is with non-Hispanic whites in the United States. Due to the history of oppression suffered by the descendants of the soil of Africa in the U.S., there is good reason for this normal comparative framework. The comparison of differences between the social, economic, education or political status of blacks and non-Hispanic whites is intended to illuminate the progress, or lack thereof, in the efforts of American society to eliminate the effects of historic racial oppression. But such comparisons carry with them an inherent difficulty and enduring problem for African-Americans. This normal comparative framework used to judge the socio-economic condition of African-Americans in the United States systematically fails to appreciate the strengths of the African-American community and the positive aspects of its struggle for racial liberation.

No matter how much progress African-Americans have made, in such a comparative framework they are almost always portrayed as being too discriminated against, committing too many crimes, too poor, too unemployed, too undereducated, too short-lived, too underrepresented, or having standardized test scores that are too low. Even if progress on the road to racial equality is recognized, the almost always concomitant recognition is that African-Americans still have a long way to travel before they reach their goal. Thus, the fire of the victory celebrations for the accomplishments of African-Americans is drowned in the water of despair that comes from the recognition that much is left to be done.

Notwithstanding the societal differences between the United States and India, this comparison of the application of constitutional and federal discrimination laws to the higher education opportunities for African-Americans and Dalits should yield some important lessons, especially for appreciating the African-American struggle for equality. Our intention in this Article is to look at African-Americans from a comparative framework that is positive as opposed to negative. In so doing we can highlight some of the successes of the African-American Community in its historic struggle and the strengths in American society that can make continued advancement possible.

There are a number of reasons to focus on opportunities for higher education. First, globalization has increased the value of knowledge. Higher education is where the most valued knowledge is created and disseminated. Second, in the United States, prestigious occupational opportunities are tied to education credentials. Thus, the best way to assure an individual access to a socially and economically advantageous career in the U.S. is through ensuring access to a college or university degree. For Indians the benefits of globalization are often tied to education as well. Those who seem to benefit the most in India from globalization are in the service sector. Education is a critical determinant of who receives the most sought-after employment opportunities in that sector. Third, policy making in India is dominated by upper caste Hindus whose percentages in important social positions far exceeds their percentage of the population. More Dalits in higher education should translate into more Dalits in decision making positions in the economy, media, politics and education. The same holds true in the United States as well. Holders of degrees from higher education institutions in the United States come to occupy the boardrooms, the corner offices, the faculty lounges, the press rooms, the Courthouses and the Statehouses. Higher education is also a hedge for both individual blacks in the United States and Dalits in India to combat negative stereotypical assumptions that have long plagued members of these groups. Finally, individuals who have tremendous influence over society's culture are primarily those who are well-educated. Thus, access to higher education can also influence how society regards Dalits and African-Americans in the future.

Section I will present an overview of the legal treatment of African-Americans and Dalits over time.

Section II will discuss the application of constitutional law and federal anti-discrimination law to African-Americans in the context of higher education.

Section III will discuss the application of constitutional law and federal anti-discrimination law to Dalits in the context of higher education.

Section IV will discuss five principal lessons learned from this comparison. First, judicial interpretation of each country's constitutional equal protection clause reduced educational opportunities for the oppressed. This simply reflects the double-edged-sword nature of individual rights. On one hand, the theory of individual rights seeks to eradicate conscious discrimination, yet on the other hand, it provides the logic to undercut policies and programs motivated by a conscious desire to attenuate the effects of that discrimination because they take specific traits into account. Such policies are often viewed as reverse discrimination. The second lesson evidences the benefits of having a specific provision in the Constitution to protect the government when it makes special provisions for the advancement of oppressed groups. The Indian Constitution includes such a provision but the United States Constitution does not.

The third lesson derives from comparing the justifications for affirmative action that exist in the United States to those for reservations in India. Justice O'Connor's opinion for the Court in Grutter v. Bollinger identified substantial benefits from affirmative action, including bettering cross-racial understanding, breaking down racial stereotypes, and improving national security. In contrast, the only justification for reserving seats for Dalits in higher education in India is compensating for the long history of untouchability and oppression. In the United States, many proponents of affirmative action, including one of the authors, would justify it on similar notions of responding to historic discrimination. This presents the rhetorical question of whether it is better to enter into an institution of higher learning with the goal of learning from a diverse group, or due to a sense of guilt about the past oppressive treatment of one's group. Justifications for affirmative action in the United States carry a much more positive connotation than the rationales for reservations for Dalits. Fourth, a system of historically black colleges and universities (HBCUs) were created during the “separate but equal” era in the United States, providing many blacks with opportunities for higher education and becoming symbolic of self-help. The normal debate surrouding HBCUs in the United States evidences the paradox of their existence. HBCUs are criticized for their shortcomings in comparison to mainstream higher educational institutions, yet praised because they are essential institutions serving the interests and needs of the black community. As Professor Gil Kujovik put it, “the worst qualities of the colleges made them candidates for extinction while their best qualities made them essential institutions serving the needs of the black community.” While African-Americans had access to education at HBCUs, Dalits were not admitted to any educational institution, and therefore did not enjoy this marginal success that African-Americans did.

The fifth lesson relates to the changing racial and ethnic make-up of blacks benefiting from affirmative action. Currently, most affirmative action programs at selective colleges, universities, and graduate programs do not draw racial and ethnic distinctions among black applicants. There is growing evidence, however, of an increasing under-representation of “Ascendants” among black college students. Terminology is going to be a very difficult aspect of this part of the Article because it requires that we think of blacks in the United States with conscious reference to their ancestry. We use the term “Ascendants” to refer to two different groups of people. The first group is composed of those born in the United States who have four grandparents that would have been considered as “black” Americans at the time they were born. These Ascendants are third-generation African-Americans. However, due to historic racial oppression, the disdain for interracial marriage and classification of mixed-race black children as “black” for such a long period of America's history, we believe that any individual with a significant amount of black ancestry born before the Supreme Court's 1967 opinion in Loving v. Virginia should also be considered as an Ascendant. Such a person would have grown up in conditions where the racism of his or her time demanded that he or she consider himself or herself to be black, despite a mixed-race heritage. The reason that we are using the term Ascendants in this case is to identify the line of ancestry through to ancestors who were chattel slavery and/or experienced segregation. We use the term “Black Biracials” to refer to individuals born after the Supreme Court's 1967 decision in Loving who have one parent that is black and one that is not. We use the term “Black Immigrants” to refer to individuals who were born in a foreign land or have at least one parent born outside of the United States. We use the terms “Black,” “African-American,” or “black” in the historic and inclusive sense of referring to all people in the United States who are of African descent. It is too early to tell what impact the increasing diversity of the black population will have on affirmative action. However, increasing interracial marriages and cohabitation reflect weakening racial barriers and increasing social interaction between racial groups in America. In India, however, racial barriers remain strong. Dalits who marry Caste Hindus often must flee their homes to avoid “honor killings” by relatives of the higher-caste spouse.

[...]

The goal of this article was to compare the application of constitutional and federal anti-discrimination law to the higher education opportunities of African-Americans in the U.S. to Dalits in India. In so doing, we sought to provide an alternative view to the normal comparison of the condition of African-Americans to non-Hispanic whites. We understand the reason for this normal comparative framework to be a discussion of the progress, or lack thereof, on the way to racial equality. This normal comparative framework, however, carries with it an ongoing difficulty for African-Americans. As discussed in detail above, the comparison to non-Hispanic whites almost always leads to a perception that blacks have not made major gains in combating oppression. Even when progress on the road to racial equality is recognized, it is almost always accompanied by a simultaneous recognition that there is still a long way to go. Thus, in the midst of hope, there is always despair.

By shifting the comparative framework from non-Hispanic whites to Dalits, the strengths, accomplishments and positive aspects of the African-American struggle can more readily be identified. For example, the equal protection justifications for affirmative action are viewed in a completely different light. We do not address whether more African-Americans would benefit from affirmative action if it were based on a social justice rationale instead of diversity. That question is foreclosed by thirty years of Supreme Court opinions. However, basing affirmative action on the widespread benefits of diversity and inclusion requires a much more positive view of African-Americans than if it were based solely on notions of social justice. These justifications stem from a respect for the point of view of African-Americans instead of the notion that affirmative action is needed in order to elevate a degraded African-American community. Every college, university or graduate program that adopts affirmative action admissions policies must believe (or at least articulate a belief) that it enhances the education of all of its students. Thus, affirmative action operates as a sort of welcome sign posted on the door inviting equals, as opposed to an apology for making a group of people worse off through historic oppression.

Comparing the higher educational opportunities of African-Americans to Dalits also presents HBCUs in a much more positive light than the normal comparative framework. A look at the situation regarding the Dalits, who have never had separate colleges and universities, plainly reveals that the black community in the United States was made better off because of HBCUs. What becomes salient about HBCUs in this comparative framework is not their shortcomings, but their strengths. This perspective makes it far easier to see how HBCUs have aided the African-American community. Thus, regardless of the genesis of HBCUs, these education institutions enhanced the higher education opportunities of blacks in the past and continue to do so in the present.

In comparison to Dalits, the increasing diversity of black students--as a result of immigration of other black nationalities and interracial marriages-- demonstrates how American society is in the process of overcoming its history of racial oppression of African-Americans. This phenomenon is an indicator of widening racial acceptance. In addition, the increase in immigration of foreign black students may be another indicator of the increasing racial acceptance, since people within the African diaspora expect to enjoy it when they come to the U.S. to pursue education. The lack of immigrants seeking education in India may reflect the lack of opportunities and equality there.

Our arguments are not meant to understate the serious issues facing African Americans today. Reports generated by the No Child Left Behind Act show the dire condition of educational achievement of blacks in comparison to non-Hispanic whites reported by virtually every community in the United States. We are also aware of the gaps between blacks and non-Hispanic whites on standardized tests used to determine admissions to selective colleges, universities and graduate schools. We know about the differences in college attendance and graduation rates between blacks and non-Hispanic whites. We have also considered the socio-economic statistics of income, family wealth, life expectancy, incarceration rates and health-related disparities, and the image painted by them. But we are also aware that in the almost 400 years that African descendents have been in North America, comparing blacks to non-Hispanic whites has always led to negative conclusions about African-Americans. As our world continues to become smaller because of developments in technology and means of communication, it may become more appropriate to view the plight and advancement of African-Americans in the U.S. to communities in other places in the world. There are 160 million Dalits in India who would consider African-Americans to have experienced substantial progress in the way of achieving racial equality and opportunities in education and professional development. While this view may not be the best, we hope that it encourages broader considerations in the future of the progress of African-Americans in the area of equality and anti-discrimination in the United States.


Kevin D. Brown is Professor of Law and Director of the Hudson & Holland Scholars Programs, Indiana University Bloomington; B.S., Indiana University, 1978; J.D., Yale Law School, 1982.

Vinay Sitapati is LLM candidate at Harvard Law School, 2008; Graduate of National Law School, Bangalore, 2006.


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