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Indians and Diversity

Steve Russell
5/3/12

This term, the Supreme Court has agreed to hear a case about affirmative action in university admissions, where my alma mater is on the side of diversity for a change. Most observers agree diversity is likely to lose, but if that happens it does not mean Indians have to quit banging on the doors of higher education.

Indians know diversity, and knew it before Columbus got lost. My people, woodland hunters and farmers, traded with salt water fishermen on the coast and some copper ornaments smelted in Cherokee country turned up in Southwestern pueblos, where they grew the "three sisters" crops on dry land farms and built with stucco. When the Spanish proved unable to keep track of their livestock, many tribes took up the buffalo culture on the Great Plains. Athabascan speakers live in icy Alaska and desert Utah. We know diversity.

To the colonists, we are all “Indians,” one of the most exotic minorities in modern politics. We all have this experience at some point if we leave home: “Do you want to be called Indian or Native American?” Tribal identity requires explanation, and it does get tiresome.

African-Americans, by the tragedy they have endured, belong in any discussion of diversity in the United States. The Civil War was, much as the Confederates denied it afterward, about slavery.

The Civil War added the 14th Amendment to the Constitution, importing into law the statement of faith in the Declaration of Independence that “all men are created equal.”

Republicans, then the anti-slavery party, controlled the Congress and the Presidency, but the Supreme Court changes much more slowly and it remained in the hands of Democrats. The Democratic Court quickly gutted the Privileges and Immunities Clause in The Slaughterhouse Cases (1873) and the Equal Protection Clause in Plessy v. Ferguson (1896), and legal equality died for another half century.

Homer Plessy’s case was particularly ironic. Plessy was one-eighth African-American by blood quantum, and so considered himself a white man—but the Court found he was not white enough to sit where he pleased on public transportation. There things stood until Rosa Parks came along not claiming to be a white woman, but insisting she was a human being.

The fight to pry education loose from “separate but equal” started at the graduate level, where facilities were too scarce to be made equal. Texas was sued in the seminal law school case, Sweatt v. Painter, a case that began in the courthouse where I spent my first career. The first thing the state court did was give Texas time to create a “Negro Law School.” This law school was staffed by practicing black lawyers, not the widely published scholars found at any top law school like the University of Texas.

In 1950, the Supreme Court cut though this transparent nonsense. On any level, schools are not “equal,” and the Justices on the Supreme Court, graduates of excellent law schools, knew that. It would be satisfying to end this by pointing out that the state courthouse where Sweatt vainly sought justice was renamed in 2005 The Heman Marion Sweatt Travis County Courthouse, but the fight for equality goes on, as does Texas’ role in it.

The “separate but equal” fiction finally died as a matter of law in the famous 1954 case, Brown v. Board of Education. Prevailing counsel in that case was Thurgood Marshall, who himself had been denied admission to the University of Maryland School of Law on account of his race. Later, President Lyndon Johnson appointed Marshall to the Supreme Court and today the University of Maryland Law Library is named after Marshall, the man not good enough to study there.

Brown killed segregation as a matter of law, but housing patterns continued segregation as a matter of fact. For a few years, there were attempts to achieve racial integration by having kids ride school buses, but that turned into a cultural wedge issue and was eventually beaten back. I personally bought a house in a racially integrated neighborhood in Austin both because I favored integration and because I would rather my son be able to walk to school.

As the Harvard Civil Rights Project has documented, schools in the United States have been re-segregating since 1988. It should be no surprise that predominantly minority schools lag in per pupil spending, teacher salaries, and results, whether measured by test scores or by college admission rates. The race that experiences the most going to school with children of the same color is…the “white” race.

That’s diversity in K-12. It takes little imagination to see how segregating whites in K-12 leads to mostly white universities. For reasons I shall explain soon, Indians are better fixed to push into those white universities than other minorities, no matter how Fisher v. University of Texas is decided this year.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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