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MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 35
sented groups are often seen as "those people" or "them," outsiders. 25t As long
as dominant group members identify the under-represented as an out group, they
will lack the motivation to assist them to secure services, treatment, or status
enjoyed by the dominant group.252 Unfortunately, today, identification with the
out group is limited to appropriating the protection of rights defined as a consequence
of advocacy intended to benefit the out group.253 It would appear that
the dominant group believes it would be disadvantaged by a change in the social
order that rendered the out group equa1. 254
B. Preserving HBCUs
Unfortunately, courts look to the percentage of minority students enrolled in
white institutions to determine whether there is equal educational opportunity.255
As to publicly funded HBCUs, courts have required de jure segregation states to
eliminate racially identifiable schools as vestiges of segregation. 256 De jure segregation
states have resorted to closure, merger with white institutions, or campaigns
to enroll significant numbers of white students to satisfy that directive. 257
This approach to desegregation punishes the victim and reflects the "subtle, not
so subtle" tendency to define and devalue culture, institutions, and people who
are not white. 258 "[This] devaluation ... grows out of our images of society and
the way those images catalogue people. The catalogue need never be taught ...
They act as mental standards against which information about Blacks is evaluated:
that which fits these images we accept; that which contradicts them we suspect."
Thus, the desegregation remedy imposed on de jure segregation states
failed to consider whether closure, merger, or significantly increased white enrolment
operate to erode educational opportunity for Blacks and other under-represented
groups or benefit them. 259
Institutions typically replicate the existing culture, faculty and student profile.
High prestige institutions focus on admission scores, undergraduate grade point
averages, the prestige and social status of the student applicant family and educa-
251 See Jack Katz, Caste, Class, and Counsel for the Poor, 1985 AM. B. FOUND. RES. J. 255;
Jacobs, supra note 90, at 298-99 (discussing how to narrow the psychological distance between lawyers
or law students and their poor clients).
252 See Jacobs, supra note 90, at 299-301.
253 [d.
254 [d.
255 Ware, supra note 36, at 678.
256 [d. at 648-49.
257 [d. at 646-76.
258 [d.; Claude M. Steele, Race and the Schooling of Black Americans, 269 ATLANTIC
MONTHLY 68-78 (April 1992), available at http://www.theatlantic.comlpolitics/race/steele.
259 Ware, supra note 36, at 678.