The study of education law is rich with history, compelling stories, engaging political debate, and an unpredictable future. In the 1830s, Alexis de Tocqueville wrote of the importance of law in the United States, ‘“Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question’” (as cited by Irons, 1999, p. 147). In this fashion, education law reflects the larger questions of society. Through the analysis of extensive litigation, members of the judiciary, lawyers, and scholars have explored the myriad issues related to the legal struggle for equal student access and the implications of ensuring diversity in the student population.
Remnants of social injustice live on despite extraordinary progress in civil rights. The primary contention in Brown was that even if segregated black and white schools were of equal quality in teacher, resources, and facilities, segregation alone is harmful to black students and unconstitutional. Drawing on research conducted by Kenneth Clark, the Justices found that a significant psychological and social disadvantage was given to black children from the nature of segregation ([Footnote 11, Brown v. Brown v. Board of Education, 347 U.S. 483, (1954)]. The rulings of Brown I and II proved difficult at best to overcome racial prejudices and injustices. The seeds of Plessy took decades to uproot, and there are still many that linger today. The recent cases of Gratz, Grutter, and Parents Involved v. Seattle School District provide scholars an opportunity to reflect upon the progress and gaps that remain for equality in education through school law history.
Most notably, though, is the upcoming decision that the Supreme Court will make to confirm Bakke and Grutter, or, to overrule the constitutionality of the use of race in
higher education student admissions policies. The justices are currently considering Abigail Fisher, et al. v. State of Texas, et al., from the Fifth Circuit of the United States Court of Appeals that was decided on January 18, 2011. It is expected that Justice Anthony Kennedy will be the deciding vote to continue the consideration of race in student admissions or to end affirmative action completely in higher education.
The value of this dissertation is based on critical inquiry of judicial practices affecting higher education. It is important for educators to know and understand
education law in order to contribute to its implementation. In addition, it is important for educators to exercise critical thought and agency in order to recommend changes to the law as needed. In researching equal access to higher education, educators can appreciate the burden and the cost that black citizens endured in order to achieve equal opportunity in education, and for their political and economic rights. Students who research the law and dialogue with other educators and students of law provide a valuable resource to the democratic process of public education.
Exploration of the Gaines case enlightens the scholar into deep aspects of racism, United States history, and the strength of the human spirit. Evaluating the United States Constitution, the established case law of the United States and of Missouri, and the opinions of the judges and Justices through the lens of Gaines, Charles Houston and his team at the NAACP, reveal how the social and political ideology of the dominant race controls the legal structure to which our citizens are bound. It is important for scholars to identify, analyze, and evaluate the lived experiences of the citizens abiding under our law. Most important, Lloyd Gaines said to a friend at one time during the case, ‘“If I don’t go, I will have at least made it possible for some other boy or girl to go’” (as cited in Linder, 2000, p. 21).
In examining the effects of judicial language and judicial interpretation, I have shown the relationships among the political ideology, presidential appointments of justices, and the impact on the Gaines and Grutter cases. Alexis de Tocqueville (1835) explains the importance of judicial language on every day society:
Consequently the language of everyday party-political controversy has to be borrowed from legal phraseology and conceptions. As most public men are or have been lawyers, they apply their legal habits and turn of mind to the conduct of affairs. Juries make all classes familiar with this. So legal language is pretty well adopted into common speech; the spirit of the law, born within schools and Courts, spreads little by little beyond them; it infiltrates through society right down to the lowest ranks, till finally the whole people have contracted some of the ways and tastes of a magistrate. (as cited by Wadel, 1991, p. 11)
Further, a recurring theme throughout my dissertation is the importance of race in connection with education and judicial analysis. Wilkinson’s central theme in From Brown to Bakke is that, “Race is the perpetual American dilemma,” (1976, p. 8), in which the Supreme Court must protect “minority rights in a nation of majority rule” (p. 310). Minorities should be able to seek refuge in the Supreme Court’s principle of “resistance to majority moods” required by the Constitution. Justice Ruth Bader Ginsburg claimed in her dissent in the undergraduate Gratz case, “’The stain of generations of racial
oppression is still visible in our society, and the determination to hasten its removal remains vital’” (as cited in Caldas and Bankston, p. 252). Kluger concludes his 2004 version of Simple Justice with the advances and disappointments experienced by black Americans in the last fifty years since Brown in an epilogue entitled, “Visible Man.” More recent court cases have shown to be more cautious to support redress for past prejudice and less receptive to force integration efforts. This point is illustrated mostly recently in Parents Involved in Community Schools v. Seattle School District, [551 U.S. 701 (2007)]. However, as judges and educators consider school populations, it is