36 J.C. & U.L. 983 (2009-2010)
From Desegregation to Diversity and beyond: Our Evolving Legal Conversation on Race and Higher Education

handle is hein.journals/jcolunly36 and id is 1033 raw text is: FROM DESEGREGATION TO DIVERSITY AND
BEYOND:
OUR EVOLVING LEGAL CONVERSATION ON
RACE AND HIGHER EDUCATION
JONATHAN R. ALGER*
I. IN TRO DUCTION  ....................................................................................... 983
II. STRICT  SCRUTINY  ................................................................................. 985
III. A HISTORY OF DISCRIMINATION AND THE REMEDIAL RATIONALE .... 986
IV. THE FIRST COUNTER-REACTION  ......................................................... 988
V. THE DIVERSITY RATIONALE TAKES HOLD, AND THE NEXT
B ACKLASH  B EGIN S  ......................................................................... 990
VI. THE ESTABLISHMENT REACTS TO DEFEND DIVERSITY ...................... 992
VII. WHERE IS THE LEGAL DIALOGUE GOING NEXT? ............................... 993
VIII. SOME REFLECTIONS ON THE DEBATE AND WHAT WE'VE
L EA RN ED   ......................................................................................... 997
I. INTRODUCTION
At the dawn of the twentieth century, civil rights leader W.E.B. Du Bois
famously declared that the problem of the Twentieth Century is the
problem of the color-line.' He was speaking at a time when slavery had
been abolished but when separate but equal segregation was nevertheless
recognized and reinforced by the law of the land,' and when true equality
of opportunity was far from a reality. His prediction foreshadowed a
century of conflict and change in race relations, which was perhaps
nowhere more prominent than in the field of education. By 1960, when the
* Senior Vice President and General Counsel, Rutgers, The State University of
New Jersey (B.A., Swarthmore College; J.D., Harvard Law School) and First Vice
President of the National Association of College and University Attorneys, 2009-10.
The author would also like to thank Sarah Luke, Assistant General Counsel at Rutgers,
for her research and editorial assistance.
1. W.E.B. Du BoIs, THE SouLs OF BLACK FOLK xxxi (A.C. McClurg & Co.,
1903).
2.  See Plessy v. Ferguson, 163 U.S. 537 (1896).

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