PLESSY V. FERGUSON is the celebrated Supreme Court decision that declared that segregation was lawful so long as it was "separate but equal". This was interpreted to mean that, for example, segregated schools were lawful so long as the school qualities were equal. They weren't, of course, so Southern school systems were in violation even of existing law in, say, the 1920's, but for many years nobody challenged them in court. In the 1940's, they started to, and Southern states started to hurriedly upgrade their black colleges, knowing they'd lose lawsuits otherwise.

The lesson for today? That American universities will engage in racial discrimination that is illegal even under our tolerant Supreme Court unless they are challenged in court. The Center for Individual Rights has started to do this, challenging outright segregationist programs in universities such as MIT and Princeton, and most universities have backed down immediately (perhaps to redesign the programs to be covertly discriminatory instead) .

What made me think of Plessy v. Ferguson, though, was the recent Grutter decision . Plessy v. Ferguson, people rarely note, was not a pro- South decision. It did require equal treatment of different races, and merely noted that segregation did not imply inequality. The difference in Brown v. Board of Education was that Brown said that separate treatment based on race was inherently demeaning and discriminatory, even if the treatments were equal.

O'Connor's majority opinion is more pro-segregationist than even Plessy v. Ferguson. On O'Connor's logic, separate treatment is clearly allowed, for "diversity" purposes. But it does not have to be separate but equal. Blacks (or, if the argument is anything but special pleading, whites) could get extra scholarship money, or other special treatment. Bakke's conclusion that quotas are illegal does not fit her logic. If a university claims that having a separate all-black luxury dorm has an educational purpose, that should be allowed, by her logic. As should a separate, all-white university. Thus, the University of Mississippi was in the right in 1962, in the current Supreme Court's view.

[ http://php.indiana.edu/~erasmuse/w/03.06.25a.htm ]

To return to Eric Rasmusen's weblog, click http://php.indiana.edu/~erasmuse/w/0.rasmusen.htm.