Article by Bryan K. Fair
Why do children of different races perform differently on standardized tests in reading and math? Is there a biological explanation? Are some races intellectually superior? Are slavery, segregation, and discrimination in educational opportunities relevant to current disparities? Are the disparities statistically significant? Should those with the highest scores receive the best educational opportunities? Is affirmative action a legitimate remedy for past educational discrimination?
Fifty years after the decision in Brown v. Board of Education, educational equity remains elusive for many Americans with darker skin. Some commentators lament the racial resegregation of public schools. Others note the large resource disparities between schools for the rich and schools for most Americans.
The nation's very best universities are all but closed to minorities, and it is unlikely that Grutter v. Bollinger will alter this historic pattern. Grutter rests on an antidiscrimination theory of equality that renders cumulative educational disadvantage invisible. It ignores educational caste. It imposes on government no duty to dismantle educational caste. The Court must adopt an anticaste equality principle to realize the promise of the Equal Protection Clause.
About the Author
Bryan K. Fair. Thomas E. Skinner Professor of Law, The University of Alabama School of Law. J.D., UCLA School of Law, 1985; B.A., Duke University, 1982.
Citation
78 Tul. L. Rev. 1843 (2004)