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The University of the District of Columbia Law Review Volume 7 Spring 2003 Number 1 MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW AND NON-WHITE ACCESS TO PUBLIC HIGHER EDUCATION: WOLVES CIRCLING AT THE HENHOUSE DOOR Stephanie Y. Brown* INTRODUCTION Institutions of higher education are uniquely positioned to influence the tone and character of justice available in the society. As centers of information and acculturation, colleges, universities, and professional schools determine the next generation of legal innovators and how they will be trained. In an era when aggressive opponents of racial equality indulged by a conservative court impede the gradual progress made possible through affirmative action programs, I believe that legal educators share considerable responsibility for the chronic deficiency of equal access to education plaguing racial minorities in this country. Intoxicated by the rhetoric of public interest and ritualistic tilting toward the challenge of social injustice, law faculty rest comfortably behind a fence of color blind neutrality and a phobia of change. Through a melange of omission and deliberate undertaking, "would be champions of the people," we train and commission lawyers who undermine and ravage the very Constitution and people they claim to serve. As a stakeholder in an institution that aspires to train lawyers who will serve in the public interest, I am disquieted by the apparent failure of the public interest oriented educational community to better navigate and champion equal access to higher education for people of color. This dereliction is evidenced by diminished access to higher education for African Americans and other people of color and the systematic dismantling of affirmative action programming directed at facili- * Associate Professor of Law, University of the District of Columbia David A. Clarke School of Law. I wish to thank Christine Jones, Laurie Morin, Lewis Perry and Alice Martin Thomas for their unconditional encouragement, support and assistance in the completion of this article. I honor the memory of Jean Camper Cahn who understood legacy and the significance of holding those in the present accountable for the future.
2 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW tating equal access. This crisis persists for several reasons. Within the groups of lawyers who characterize their work as supporting the public good, there is conflict between the concerns of the disadvantaged and those dedicated to stop or avoid the changes essential to equal access. 1 Efforts to unify the several constituencies comprising public interest law focus on eliminating differences. Coalition, compromise, and divergent perspectives on priority of interest have robbed people of color of their voice and progress toward equality of opportunity and access. Personal ambition and the vestiges of white supremacy also complicate the struggle for equal access. There is a palpable preoccupation with appearing colorblind or unconscious of race, even where use of race has and continues to deprive constituents of basic constitutional rights. The popular notion of justice and equal access has become fragmented, disassociated with objective goals consistent with equality and fairness. Quantifiable outcomes illustrative of the moral underpinning of the society and concomitant political reality should be apparent. However, procedure has replaced substantive protection. 2 In short, society has satisfied its obligation to provide equal access to education as long as the citizen has been subject to an admission process, irrespective of whether the citizen gleaned any improvement, enhanced knowledge or ability. Equally damaging to the pursuit of equal access, deliberate initiatives to minimize the influence of non-whites in higher education persist. 3 There is the continuing myth of unavailability. Whether the focus is student enrollment, faculty hiring or appointment as chief executive officer, public interest organizations are just as likely to claim that the paucity of qualified non-whites explains the continuing overrepresentation of whites. 4 Status, wealth, and the society's general discomfort with racial issues permit the public interest community to undermine equal access with relative immunity. Even as it relates to institutions historically engaged in the service of racial minorities, the interest of non-white constituencies is overlooked. This is most evident in desegregation efforts that challenge the existence of Historically Black Colleges and Universities (HBCUs).5 The elimination of HBCUs, whether accomplished by merger with a historically white institution, adoption of more restrictive admission standards, and the substitution of white governance, has contributed to a decline in non-white college enrollment. 6 1 See David R. Esquivel, Note, The Identity Crisis in Public Interest Law, 46 DUKE L. J. 327, 337 (1996); Our Roots, available at http://www.naacp.org/pasCfuture/naacptimeline.shtml. 2 Esquivel, supra note 1, at 340-44. 3 John A. Powell & Marguerite L. Spencer, Remodeling the Urban University for the Urban Student: Talking about Race, 30 Conn. L. Rev. 1247, 1251 (1998). 4 Derek Bell, Xerces and The Affirmative Action Mystique, 57 GEO. WASH. L. REV. 1595, 1605 (1989). 5 Esquivel, supra note 1, at 330-35. 6 Harold Wenglinsky, Students at Historically Black Colleges and Universities: Their Aspirations & Accomplishments (1997), available at http://www.ets.org/research/piclhbcintro.html.
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