Affirmative Action in American Colleges After Fisher v. Texas

QUEEN ELIZABETH I TRIED TO ESTAB-LISH HER VISION OF AN OFFICIALENGLISH PROTESTANT CHURCH. SHEFACED MANY OBSTACLES: CATHOLICPLOTS, PROTESTANT PURITANS, ARIVAL CATHOLIC QUEEN, AND EVENTHE QUESTION OF WHO WOULD SUC-CEED HER ON THE THRONE.

In the early 1500s, the Protes-tant Reformation was transformingmuch of Europe, but England re-mained solidly Catholic. Thisbegan to change when King HenryVIII decided to end his marriage toCatherine of Aragon.

King Henry blamed QueenCatherine for giving birth to onlyone child, a girl named Mary,rather than producing a male heirto the throne. Henry asked thepope to annul (make invalid) hismarriage, citing an obscure biblicalreason. But the pope refused togrant Henry’s appeal.

Angered by the pope’s refusal,Henry went ahead and marriedAnne Boleyn, one of Catherine’sattendants. Then, Henry brokefrom the Roman Catholic Church.He denied the authority of thepope in English religious mattersand declared himself the“supreme head” of the Church ofEngland. In 1534, Parliament con-firmed Henry’s actions by passingthe Act of Supremacy.

WORLD HISTORY

© 2014, Constitutional Rights Foundation, Los Angeles. All Constitutional Rights Foundation materials and publications, including Bill of Rights in Action, are protected by copyright. However, we hereby grant to all recipients alicense to reproduce all material contained herein for distribution to students, other school site personnel, and district administrators. (ISSN: 1534-9799)

WINTER 2014 Volume 29 No 2

MAKING A DIFFERENCEThis edition of Bill of Rights in Action focuses on making a difference. The first article explores the battle over the Church of England during the reign of Elizabeth I. The second article profiles Harriet Tubman, a leader of the Under-ground Railroad. The last article reviews Fisher v. Texas, a recent U.S. SupremeCourt decision on affirmative action, and looks at the future of affirmative action.

World History: Queen Elizabeth I: Religion and the State

U.S. History: Harriet Tubman and the End of SlaveryGovernment: Affirmative Action in American Colleges After Fisher v. Texas

Our longtime contributor Carlton Martz wrote the article on Elizabeth I. Theprofileof Harriet Tubman was written by freelance writer Brian Hagenbuch. Guest writerPaul Baumgardner, a graduate student at Princeton University and a former CRFsummer intern, contributed the article on affirmative action.

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One of the most celebrated English monarchs, Elizabeth I reigned from 1558–1603.

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QUEEN ELIZABETH I:RELIGION & THE STATE

2 WORLD HISTORY

The bishops of the Church ofEngland now answered to Henry,not the pope. Henry arranged tohave his archbishop of Canterbury,Thomas Cranmer, annul his mar-riage to Catherine, making his mar-riage to Anne legal.

Queen Anne gave birth to an-other girl, Elizabeth, which dis-pleased the king. Soon, Henry wasseeking a way to get rid of Anne inorder to marry another who couldproduce a male heir. With little evi-dence, he tried and convicted Annefor adultery. She was imprisoned inthe Tower, England’s chief royalprison. Later, he had her beheaded.

Archbishop Cranmer annulledHenry’s marriage to Anne. Henrythen quickly married Jane Seymourwho finally produced a male heir,Edward, in 1537.

Traditionally in Europe, the reli-gion of the monarch was the religionof the people. Henry’s Church ofEngland was not much differentfrom the Roman Catholic Church ex-cept that the English king took theplace of the pope. English Protes-tants wanted more radical changessimilar to those brought on by theReformation in the rest of Europe.

Henry died in 1547. A few yearsearlier, he and Parliament put Maryand Elizabeth in the line of succes-sion to the throne after Edward.

Protestant or Catholic?King Henry’s only son was just

9 when he inherited the throne ofEngland as Edward VI. A specialcouncil was empowered by Henry’swill to actually rule the countryuntil Edward turned 18.

During this time, “advanced”Protestants gained more influencein the government. They began toadopt religious doctrines and prac-tices for the Church of England thatwere more in line with the main-stream Protestant Reformation. Forexample, the Catholic Mass in Latinwas abolished and replaced by a

simpler religious service in English.The Church of England’s Book ofCommon Prayer, adopted in 1549,dictated England’s only legal formof worship.

As a young teenager, Edward ex-pressed great support for establishingProtestantism as the official state re-ligion of England. In 1553, however,he died of tuberculosis at age 16.

After a period of uncertaintyover the succession, Edward’solder half-sister, Mary, took thethrone. At age 37, she was the firstqueen to rule England alone. Likeher mother, Catherine, Queen MaryI was a strong Catholic. She beganto reverse the Protestant reforms ofEdward’s reign and forcibly at-tempted to restore Catholicism asEngland’s established religion.

Mary’s half-sister Elizabeth,next in line to the throne, wasraised a Protestant and had sup-ported the religious reforms advo-cated by the young King Edward.After Mary became queen, Eliza-beth assured her that she wouldworship as a Catholic. But Marynever trusted her.

In her effort to restore Catholi-cism, Mary revived the old heresylaws. These punished people for re-ligious beliefs and practices thatcontradicted the teachings of theRoman Catholic Church.

In her eagerness to rid Englandof Protestant heretics, Mary orderedhundreds of them burned at thestake, imprisoned many more, anddrove others into foreign exile. Shetried the Church of England’s Arch-bishop Thomas Cranmer for heresyand burned him at the stake. Lateron in English history, she becameknown as “Bloody Mary.”

In 1554, a Protestant rebellion at-tempted to overthrow Queen Maryand replace her with Elizabeth.Poorly organized, the revolt wasquickly put down. Mary orderedElizabeth be brought to the Tower,the place Elizabeth’s mother, Anne,had been beheaded.

No evidence ever surfaced thatElizabeth had been involved in therebellion. Mary eventually re-leased her, but placed her underhouse arrest.

Mary married Philip II, the heirto the throne of Catholic Spain. Shedid not, however, conceive a child,who would have become herCatholic successor. Following an ill-ness, she died in 1558. Under themarriage contract, her husband, bythen King Philip II of Spain, heldno claim to the English throne.

Elizabeth was escorted to Londonby a huge number of nobles. Wearinga spectacular golden dress, she wascrowned Queen Elizabeth I at age 25on January 15, 1559.

The ‘Elizabethan Settlement’Queen Elizabeth was well-edu-

cated and fluent in several languages.But unlike her half-brother Edward,she had not been trained to rule a na-tion. Forced to rely on advisers, shemade a wise choice for her top ad-viser, William Cecil, and for the othermembers of her Privy Council.

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Written in English, the Book of CommonPrayer set out prayers and other forms ofworship for the Church of England.

Elizabeth remained a Protes-tant, but she recognized that themajority of her people still consid-ered themselves Catholics. There-fore, she set out to establish acompromise religion with elementsof both Protestantism and Catholi-cism. Her spokesman before Par-liament explained her goal:“Well-making of laws for the . . .uniting of the people of this realminto a uniform order of religion.”

Shortly after her coronation,Elizabeth called her first Parliamentinto session and proposed two laws.Her Act of Supremacy, making herthe “supreme head” of the Churchof England, raised the questionwhether a woman could hold sucha position. Elizabeth compromisedand accepted the title “supreme gov-ernor.” This act also abolished theheresy laws that Queen Mary hadused against Protestants.

Elizabeth’s second law, the Actof Uniformity, raised much morecontroversy and barely passed Par-liament. This act spelled out themiddle way she envisioned for theChurch of England.

The act restored King Edward’sBook of Common Prayer, which in-cluded Protestant doctrines and wor-ship practices. The act also abolishedthe Catholic Mass and practices suchas the use of religious images, can-dles, and altar ornaments. It furthermade church attendance mandatory.Anyone who failed to attend Churchof England services every Sundaywould be fined.

The Act of Uniformity retainedsome Catholic traditions. These in-cluded kneeling for communion, bow-ing at the mention of Jesus, churchmusic, and certain Catholic rituals.

Elizabeth believed keepingthese traditions would makeCatholics more comfortable attend-ing the mandatory services. Overtime, Elizabeth hoped, Catholicswould adopt Protestantism as the“true religion.”

The Act of Supremacy and Actof Uniformity were passed by Par-liament and approved by QueenElizabeth in May 1559. Togetherthey are known as the “ElizabethanSettlement,” which established hervision of Protestantism for theChurch of England.

To carry out the new religiouslaws, the queen sent officialsknown as “visitors” to administeran oath to the bishops and priests.The clergymen had to swear theirallegiance to Queen Elizabeth asthe supreme governor of theChurch of England and not to theCatholic pope. Most bishops re-fused as did many priests. In mostcases, they were simply removedfrom their church positions. Somewho were more outspoken werefined and imprisoned.

The “visitors” also supervisedthe burning of priest vestments (dec-orated robes), Catholic books, cruci-fixes, and other Church ornaments.By 1560, Elizabeth thought thechanges were going too fast. She is-sued proclamations that amongother things ordered bishops andpriests to wear the old vestments.

Most Catholics accepted the newchanges, but were unhappy about

having to give up the Roman CatholicChurch and attend religious services inthe Protestant Church of England. Atthe same time, radical Protestants crit-icized the Church of England for hang-ing on to elements of Catholic worshiplike priest vestments, which they called“the rags of Rome.”

Catholic PlotsIn 1568, Protestants in Scotland

forced out their Catholic queen,Mary, Queen of Scots (also knownas Mary Stuart). They elevated herinfant son, James, to the throne. Hewould be raised as a Protestant.Mary escaped from Scotland andfled to England.

Mary expected that Elizabethwould support her in an attempt toreturn to Scotland and regain herthrone. Elizabeth did not approveof the overthrow of a monarch, butshe and her advisers also saw Maryas a threat to Elizabeth’s reign.Mary did indeed become involvedin a number of Catholic plots to putherself on the English throne. Eliz-abeth resisted calls to executeMary. Instead, she placed herunder house arrest. Mary spent thenext 18 years living in various cas-tles and estates under supervision.

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In 1588, English ships defeated the Spanish Armada, preventing an invasion of England.

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In 1569, Catholic nobles innorthern England rebelled. Theydemanded the restoration of “thetrue and Catholic religion,” butwere quickly defeated by Eliza-beth’s army.

The following year, the pope inRome issued a bull, or declaration,calling Elizabeth “the pretendedqueen” and declaring Mary, Queenof Scots, the rightful queen of Eng-land. As a descendant of HenryVIII’s sister, Mary had probably thestrongest claim to succeed Eliza-beth on the English throne.

Religious tensions mounted.Catholic priests were smuggled intoEngland from Europe to illegally con-duct the Mass and persuade thefaithful not to attend the ProtestantChurch of England. Several Catholicplots, threatening to assassinate Eliz-abeth, were harshly suppressed.

Elizabeth finally agreed to crackdown on Catholic activities. Procla-mations and laws made it illegal todistribute and read Catholic worksor even “imagine” the death ofElizabeth. Catholic publicationswere burned. Active Catholicpriests were fined, imprisoned, andsometimes hanged, although Eliza-beth was reluctant to use the deathpenalty. Ordinary Catholics facedthe dilemma of loyalty to the popeor to Elizabeth.

Despite the harshness of theCatholic crackdown, Elizabeth in-sisted there would be no inquisition

into the religious beliefs of individ-uals. Francis Bacon, an Englishphilosopher at the time, wrote thatElizabeth had no desire “to makewindows into men’s hearts and se-cret thoughts.”

Protestant ChallengesWhile her troubles with

Catholics were going on, Elizabethalso faced growing criticism fromradical Protestants about Catholicworship practices she allowed,such as priests wearing vestments.Some of these Protestants objectedto the structure of the Church ofEngland, calling bishops a holdoverfrom the Catholic Church.

The most radical Protestantswere sarcastically called “Puri-tans.” They wanted to purify theChurch of England by abolishingall remaining Catholic elementsand simply rely on preaching andthe Scriptures of the Bible.

Elizabeth condemned Protestantpractices that did not conform to theBook of Common Prayer. She can-celled the licenses of non-conformingpreachers who refused to recite gov-ernment-approved church sermons.

Radical Protestants gained seatsin Parliament and called for Eliza-beth to agree to laws changing theBook of Common Prayer. But, as thesupreme governor of the church,she refused to allow any changes oreven debate on this issue.

The Execution of Mary After years of plots to place Mary

on England’s throne, Sir FrancisWalsingham, Elizabeth’s spy master,devised a plan in 1586 to trap Maryby using a double agent. The agenthelped Mary secretly smuggle hercoded letters to her supporters. Allher letters were intercepted, decoded,and copied. The plot was to put Maryon the English throne by starting a re-bellion and assassinating Elizabeth.

Mary was arrested and taken toa secure castle. Elizabeth was will-ing to pardon her if she admittedher guilt in the plot. But Mary re-jected the offer.

Elizabeth had Mary tried for trea-son. Mary refused to mount a defense,claiming Elizabeth had no authority toput a foreign monarch on trial. ButMary’s letters proved her guilt. Shewas sentenced to be executed.

Elizabeth hesitated about put-ting to death a queen. But her reign

In 1601, nearing the end of her life and reign, Queen Elizabeth addressed membersof Parliament’s House of Commons at her London palace. The members had cometo thank the queen for agreeing to reform her grants of monopolies to those shefavored. The excerpt below is from this address, which became known as her“Golden Speech” since it seemed to be her farewell to the English people.

There will never Queen sit in my seat, with more zeal to my country, care for mysubjects, and that sooner with willingness will venture her life for your good andsafety, than my self. For it is not my desire to live nor reign longer, than my life andreign shall be for your good. And though you have had, and may have manyprinces, more mighty and wise, sitting in this state; yet you never had, or shallhave any that will be none more careful and loving.

How did Elizabeth think of herself as queen of England? Do you agree with herself-assessment? Why?

QUEEN ELIZABETH’S ‘GOLDEN SPEECH’

Elizabeth’s Catholic rival, Mary, Queen of Scots was executed in 1587.

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and the established Protestant reli-gion were threatened as long asMary lived.

After agonizing over the sentence,Elizabeth finally signed Mary’s deathwarrant. Her Privy Council ordered itquickly sent to the castle where shewas imprisoned. On February 8,1587, Mary, Queen of Scots, was be-headed. One of those present criedout, “So let Queen Elizabeth’s ene-mies perish.” Mary died that day, buta Catholic martyr was born.

Last Years and SuccessionThe execution of Mary, Queen of

Scots, enraged Catholic Europe.Pope Sixtus IV told King Philip II ofSpain that it was his duty to over-throw Elizabeth and restore Catholi-cism in England. A year after Marywas beheaded, Philip assembled ahuge naval armada, carrying 20,000soldiers, to invade England.

The size of the Spanish Armadagreatly outmatched Elizabeth’snavy. Though fewer in number, theswifter, more powerful Englishships held the Armada at bay. Theinvasion ended in failure whenhigh winds and storms sank nu-merous Spanish ships. Many of theEnglish people believed the defeatof the Spanish Armada was a signthat God approved of Elizabeth’sProtestant Church of England.

The conflict continued between

Protestant England and CatholicSpain, the richest and most powerfulnation in Europe. Elizabeth sent aidto Protestants fighting against Span-ish control of the Netherlands. Eng-lish privateers like Sir Francis Drakeattacked Spanish ports and treasureships in the Caribbean. In 1599, Eliz-abeth sent a large army to CatholicIreland to end a rebellion againstEnglish rule and to prevent it frombecoming the launching site for anew Spanish invasion of England.

Elizabeth also encouraged Eng-lish exploration and colonization. In1584, Elizabeth granted Sir WalterRaleigh a charter to explore the coastof North America. He claimed a largearea north of Spanish Florida andnamed it Virginia, probably after Eliz-abeth who was widely known by thistime as the “Virgin Queen.”

Elizabeth never married or hadchildren even though she had manysuitors. This matter troubled Eng-land throughout her reign becauseher successor to the throne was atstake. But she, her council, Parlia-ment, or the people always seemedto object to any proposed matches.

For many years, Elizabeth de-clined to name a successor. But inher last years, she and her advisersdeveloped good relations withJames, the son of the beheadedMary, Queen of Scots. James hadbeen raised a Protestant, and was

now Scotland’s king. Shortly beforeElizabeth died on March 24, 1603,she named him her successor. Hewas crowned with little oppositionas King James I of England.

By the end of Elizabeth’s nearly45-year reign, Protestantism wasthe religion of the majority of hersubjects. The Elizabethan Settle-ment had created a moderateProtestant Church of England thatwas firmly established. But bitterand sometimes bloody conflicts be-tween Protestants and Catholicscontinued for another century.

DISCUSSION & WRITING1. What was the Elizabethan Settle-

ment? Why did Queen Elizabethchoose to combine elements ofProtestantism and Catholicismfor the Church of England?

2. Why did both Catholics and Pu-ritan Protestants dislike Eliza-beth’s Church of England?

3. The writers of the U.S. Bill ofRights placed the followingclause in the First Amendment:“Congress shall make no law re-specting an establishment of reli-gion or prohibiting the freeexercise thereof.” In light of whathappened in England before andduring Elizabeth’s reign, why doyou think this clause was put inthe First Amendment?

What Should Queen Elizabeth Have Done About Mary, Queen of Scots?Queen Elizabeth hesitated before ordering the execution of Mary, Queen of Scots, after her trial. Elizabeth did not

like the precedent of beheading another monarch. She worried that Mary would become a martyr for English Catholics.She feared the reaction of Catholic Europe. But the prevailing view of her advisers was that Mary would have to die topreserve the Protestant Church of England. What do you think? Was the sentence of beheading Mary the only choiceElizabeth reasonably had, or should she have considered other alternatives?1. Form small groups to discuss what Elizabeth should have done about Mary, Queen of Scots. Identify the pluses

and minuses of the following alternatives and choose one:A. Imprison Mary in the Tower.B. Place Mary under house arrest.C. Exile Mary to a Catholic country.D. Negotiate an agreement with Mary, making her Protestant son, King James of Scotland, Elizabeth’s succes-

sor to the throne.E. Execute Mary.

2. Each group should defend its choice and explain why the other alternatives should be rejected.

ACTIVITY

6 U.S. HISTORY

NICKNAMED THE ‘MOSES OF HERPEOPLE’ FOR LEADING RUNAWAYSLAVES TO FREEDOM IN THE NORTH,HARRIET TUBMAN WAS THE MOSTFAMOUS MEMBER OF THE UNDER-GROUND RAILROAD. SHE BECAME ACELEBRITY IN HER LIFETIME AND AHERO OF THE CIVIL WAR.

The Underground Railroad wasa secret system of anti-slavery ac-tivists providing food, shelter, trans-portation, and protection forrunaway slaves on their dangerousjourney north. Most historianscredit Tubman with personally lead-ing more than 300 former slaves tofreedom on the Underground Rail-road and rallying hundreds more todefect from Confederate forces dur-ing the Civil War.

The Making of a FugitiveThe year of her birth is un-

known. Tubman believed it was1825. Her death certificate gives1815 as her date of birth, but hergravestone reads 1820. Regardless,she was born in Maryland’s Dorch-ester County to slave parents, Har-riet Green and Benjamin Ross.They named their daughter Aram-inta Ross. Later, when she escapedto the North, she took the nameHarriet to honor her mother andmask her own identity.

She was one of nine children,many of whom she would later leadnorth. Slave traders often purchasedyoung slaves in Dorchester County,and they routinely separated mem-bers of slave families. Traders tookaway two of Tubman’s siblings, andit’s likely that the painful loss of hersisters drove her later to work withthe Underground Railroad.

At just 5 years old, Tubman wastaken from her home to look after awhite infant. When the child cried,Tubman was whipped, leaving

scars on her neck and back for therest of her life.

As a young girl, Tubmanbounced between several house-holds, serving various masters andmistresses. She fled one home aftergetting caught stealing a lump ofsugar. She hid in a pigpen for days,fighting the swine for scraps offood until she grew so hungry thatshe returned to face punishment atthe hands of her mistress. Later inlife, Tubman would sum up the in-dignities of her childhood by say-ing she was “a neglected weed,ignorant of liberty.”

She often fought illness in herchildhood, but as she grew older,the “sickly” young household girlgrew stronger and even became afieldhand. On a secluded planta-tion during her adolescence, Tub-man attempted to warn anescaping slave that his master wasnearby. She was caught betweenthe slave and his master when thetwo confronted each other. Themaster slung a lead weight at theescapee, but hit Tubman in thehead. The force of the blow “brokeher skull and drove a piece of herbandana” into her head. The headinjury would cause her to haveheadaches, fainting spells, and vi-sions for the rest of her life.

In 1844, she married a freeblack man named John Tubman.Around this time, she hired alawyer to investigate her family’sslave contracts. The lawyer foundher mother should have been freedat the age of 45, meaning thatsome of her siblings should havebeen born free.

Escape NorthThe revelation about her mother

angered and saddened Tubman, soshe decided to do what she hadthought about for years: flee to theNorth. In September 1849, shemade off. She was one of about 280slaves who escaped Maryland fromJune 1849 to June 1850.

Tubman became so closely linkedto the Underground Railroad thatmany assume she founded it, but bythe 1840s a system of clandestineroutes already existed. Women rarelymade the dangerous journey alone,but Tubman, with her husband’sblessing, set out by herself.

Throughout her life, Tubmantreated the details of her escapeas a secret. Freed slaves were in-tentionally secretive about howthey escaped, so as not to revealprecious escape routes. Histori-ans suspect Tubman took the

HARRIET TUBMANAND THE END OF SLAVERY

Harriet Tubman led hundreds of slaves tofreedom on the Underground Railroad.

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most common “liberty line” ofthe Underground Railroad, whichcut inland through Delaware alongthe Choptank River.

Fugitives, or runaways, on theChoptank liberty line traveled byfoot at night and rested during theday, generally doing about 10 milesa night on the roughly 90-milejourney to the Pennsylvania stateline. The trip usually took between10 to 20 days.

Since it was called a “railroad,”many of its elements were knownby common railroad terms. Peoplewho gave shelter to fugitives werecalled “stationmasters,” and theirhomes were known as “stations” or“depots.” The volunteers whoguided fugitives between stationswere “conductors,” and the fugitivesthemselves were called “cargo.”

The railroad was “under-ground” in the sense that it wasclandestine. Its routes, safe houses,and the identity of participantswere closely guarded secrets. Overtime, the Underground Railroad de-veloped an elaborate system ofcatchphrases, code words, secretknocks, lamps lit at night, andhymns to warn of slave catchersand to identify sympathizers.

The gateway for runaway slavesheading north was Philadelphia,which had a strong UndergroundRailroad network. The city attractedabolitionists and upwardly mobileAfrican Americans. Here, freeblacks formed their own busi-nesses, schools, and churches. Tub-man got a job and was able to livefreely. She also likely expanded hernetwork, meeting UndergroundRailroad members and activists.

But life in Philadelphia was noteasy. Philadelphia was the last stopfor recaptured slaves being shippedback south. Slave catchers raidedblack communities and wereprominent in Philadelphia. Fear ofrecapture among fugitives wasconstant, and racial tensions ran

high. Tubman found herself feelinglonely and frustrated by the uncer-tainty of freedom.

By the late 1840s, slave ownersclaimed they were losing $200,000annually to the Underground Rail-road. (This would be about $4.5million in today’s money.) In 1850,Congress passed the Fugitive SlaveLaw, which opponents dubbed the“Bloodhound Law.” The law gavefederal authorities sweeping pow-ers to seize fugitives and returnthem to the South. Without legalprotection, even free blacks were atrisk. As former slaves wereplucked out of unlikely places likeNew York and Boston, anger grewin the anti-slavery community. Theissue of slavery increasingly di-vided the nation.

The AbductorWithin the growing climate of

fear and persecution, Tubman, mostlikely still in her teens, undertookher legendary career as an “abduc-tor.” Abductors, true folk heroes ofthe Underground Railroad, venturedinto slave states and led fugitivesout. Prior to Tubman, most abduc-tors were adventurous white men.Tubman was five feet tall, illiterate,and a fugitive, with little idea of ge-ography and subject to frequentfainting spells.

Tubman’s first rescue missionwas prompted by news that herniece Keziah would be sold intoslavery in the Deep South. Keziah’shusband, John Bowley, sent word toTubman in Philadelphia of the pend-ing sale. In 1850, risking capture,

When Harriet Tubman first escaped, she probably followed the route that passes nearDover and leads to Philadelphia.

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Tubman returned to the slave stateof Maryland. Bowley deliveredKeziah and her children to Tubmanin Baltimore, where she hid thembefore using her contacts to movethe fugitives into Philadelphia.

She went south a second timein the spring of 1851 to rescue oneof her brothers. Two of his fellowslaves joined their expedition. Inthe fall of 1851, Tubman returnedto Dorchester County to persuadeher husband to return north withher. The risk of being recognizedby a former master was enormous,and the result, heartbreaking. JohnTubman refused to flee with her ashe had taken another wife.

Despite her grief, Tubman com-pletely committed herself to the taskof freeing slaves. She returned toMaryland in December 1851, rally-ing a large band of fugitives. Reportsindicate there were as many as 11,among them relatives. Tubman ledthem north to Philadelphia, but thenew border of freedom had beenpushed still further north by theFugitive Slave Law. Tubman movedinto uncharted territory, guiding hergroup up through New York to Ni-agara and into the new promisedland of Canada.

It was far easier to lead smallgroups, or for slaves to flee on theirown. But Tubman became a masterat organizing large groups. She sentword ahead through the Under-ground Railroad network of up-coming missions, and she quicklyassembled groups of fugitives.

Thomas Garrett, a stationmas-ter in Wilmington, Delaware, shel-tered many of Tubman’s groups ata blacksmith shop. While manystationmasters destroyed theirrecords of fugitive slaves to avoidprosecution, Garrett’s records re-main. A Quaker who believed inthe equality of all people beforeGod, Garrett sheltered some 2,500fugitives, scores of whom had beenunder Tubman’s care.

Starting in 1852, Tubman madeone or two trips a year, shepherdingfugitives through the night. She fa-mously toted a pistol and wasknown to point it at fugitives whothreatened to turn back and put theentire band at risk. “You’ll be free ordie,” she would say to them.

She often worked in winterwhen the days were short, facingdarkness and bad weather on the ex-hausting and perilous journey intoMaryland and Virginia. The Under-ground Railroad’s path then took herback through stations in Wilming-ton, Philadelphia, New York, and onto the Canadian border. During thistime, Underground Railroad mem-bers and anti-slavery admirers gaveher the nickname “Moses.”

General TubmanAs the numbers of fugitives she

rescued swelled, so did her fame.Tubman was a celebrity among theelite abolitionists of Boston andNew York.

Southern authorities fumed asthey failed at efforts to “end herreign.” In 1856, a $40,000 rewardwas offered for her recapture in theSouth. Once, she overheard menreading a wanted poster that men-tioned her illiteracy. She cleverlypretended to read a book to avoidbeing recognized. She not onlyeluded capture, but later in life sheclaimed that she never lost a singleslave on any of her missions.

She had become a devoutChristian in her childhood. Herstrong faith and uncanny ability toavoid capture also earned her a

reputation as a mystic, or person indirect contact with God.

Tubman helped her own familygain freedom. She was able toguide five of her siblings to St.Catharines, outside present-dayToronto, Canada. In 1857, her par-ents were technically free, but facedpenalties for sheltering slaves intheir Maryland home. Knowing herparents were in danger but notphysically strong, Tubman fash-ioned a primitive horse-carriage andcarried them 80 miles to Garrett’ssafe house in Wilmington. Garrettsupplied them with train tickets toCanada, where they joined theirchildren and grandchildren. Tub-man spent time there gatheringfunds for missions to the South.

In 1859, Tubman got help fromSenator William Seward, a high-profile admirer of Tubman’s work.Seward, who later became Lin-coln’s secretary of state, sold Tub-man a small piece of land inAuburn, New York, for a home,and Tubman moved her parentsand siblings there from Canada.But just as it looked like she mightsettle down, firebrand abolitionistJohn Brown sought her out inCanada. He called her “GeneralTubman.” She supported his mis-sion to wage war to end slavery.

Brown’s plan involved raidingthe U.S. arsenal, or weapons stor-age, at Harper’s Ferry. He wantedto arm slaves to fight their masters.Tubman began to raise money andgather former slaves in Canada tohelp with the raid, but she fell sickbefore she could participate herself.Brown’s poorly planned missionfailed, and he was hanged at thegallows. Brown’s execution, how-ever, made him a martyr for theabolitionist cause.

Meanwhile, slave owners com-plained of a “stampede” of slavesto the North. Abolitionists fearedTubman would be executed, justlike Brown, if ever recaptured.

It was far easier tolead small groups, orfor slaves to flee on

their own. But Tubmanbecame a master at

organizing large groups.

9U.S. HISTORY

Daring and TenacityIn 1860, Abraham Lincoln was

elected president. The slaveholdingSouth viewed him as an abolition-ist, though he did not think of him-self that way. He opposed slavery,but his main goal was to stop thespread of slavery into new Ameri-can territories. Beginning withSouth Carolina on December 20,1860, Southern states began to se-cede from the Union and in 1861formed the rebellious ConfederateStates of America. In April, theConfederate Army’s attack on FortSumter in South Carolina beganthe Civil War.

While Lincoln’s primary aimwas to keep the country from split-ting apart, Tubman and other ac-tivists were convinced the warshould put an end to slavery. “Godwon’t let Master Lincoln beat theSouth,” she was quoted whilefundraising in Massachusetts, “tillhe does the right thing.” The rightthing was to abolish slavery.

Tubman used her detailed knowl-edge of routes through swamps,rivers, and wetlands to help Uniontroops in Maryland. Later, she sailedto South Carolina, extending her lib-erty lines into the Deep South as thewar raged. She spent much of hertime caring for fugitives and guidingthem back north.

Tubman wanted to join the mil-itary. Through influential aboli-tionist friends, Tubman met theabolitionist governor of Massachu-setts, John Albion Andrew. In re-sponse to a Union general’s requestfor volunteers, Andrew said thatTubman would be “a valuable per-son to operate within enemy linesin procuring information andscouts.” At first, however, Tubmanworked as a cook and a nurse inUnion camps. She also taughtslaves freed by the Army.

Early on, Lincoln opposed arm-ing freed slaves, but Tubman en-thusiastically supported bringing

them into the U.S. Army. With theEmancipation Proclamation in1863, the first black troops of theArmy appeared ready for battle.Tubman then joined, too. She be-came the leader of a team of spies,sending valuable information tocommanders and recruiting restlessslaves in the South to join Unionforces.

On June 1, 1863, Tubman aideda mission of black soldiers up theCombahee River in South Carolinato take supplies and free slavesfrom plantations controlled byrebels. Serving as navigator on the

lead gunboat, Tubman took charge.The raid on the plantations freed atleast 750 slaves. Tubman was theonly woman in the Civil War toplan and lead an armed assault.

The Wisconsin State Journalsoon published an article about hertitled “A Black She ‘Moses’ — HerWonderful Daring and Tenacity.”But the article did not use hername. The Boston Commonwealthnewspaper reprinted the article.The editor let his readers know thatthe “black heroine” of the storywas Harriet Tubman.

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In the Civil War, Tubman worked tirelessly, leading a team of spies and even raiding plantations.

10 U.S. HISTORY

Continued StruggleWhen the war ended in 1865,

Tubman returned to Auburn to livewith her parents and siblings. Al-though she struggled financially,Tubman opened her home to peo-ple in need. Her former husband,John Tubman, was gunned downin 1867 by a white man in Mary-land. She then married NelsonDavis, a veteran of Civil War fromthe U.S. Colored Troops, the blacksoldiers of the U.S. Army.

Tubman, who had survivedslavery, illness, heartbreak, andeven battle, experienced hardshipin her later life. Even with the helpof powerful friends like William Se-ward, it took 30 years for Tubmanto receive payment for her wartimeservices from the U.S. Army. Shealso struggled to receive widow’sbenefits when Nelson Davis died.

In 1896, Tubman bought theland where she and Nelson hadlived to create a home for aging,poor African Americans. With onlya $20 per month pension, shecould not afford upkeep of theproperty. She donated the land tothe African Methodist EpiscopalZion Church. The Harriet TubmanHome officially opened in 1908.

In the meantime, Tubman be-came active in the women’s suffrage,or voting rights, movement alongside

Susan B. Anthony and others. As awar hero, Tubman stood as an exam-ple of equality between women andmen. She spoke at suffrage meetingsthroughout the Eastern states andalso used her respected status to con-tinue speaking out for equality forAfrican Americans.

Former slave and influentialabolitionist Frederick Douglass ad-mired her greatly and wrote abouther. After lengthy bouts with ill-ness, Tubman died in 1913. Promi-nent African American reformer

Booker T. Washington gave the eu-logy at her funeral.

During her lifetime, she had be-come widely known. In 1869, a bi-ography of her sold well. Thoughcriticized for inaccuracies, the bookspread her fame, and she was in-vited many places to speak abouther experiences with the Under-ground Railroad and the war. Manybiographies have been writtensince. Although for a period afterher death, her story lapsed into ob-scurity, it has since risen into thestuff of legend.

DISCUSSION AND WRITING1. Why do you think it was called

the Underground Railroad?2. What was the Fugitive Slave

Law? What effects did it haveon the Underground Railroad?

3. What made Harriet Tubman anunlikely person to be a leader?What do you think motivatedher? Explain.

4. Tubman made many decisionsin her life. Which do you thinkwas the bravest? Which do youthink was the most question-able? Explain your answers.

Tubman (far left) poses for a photograph with her family and neighbors in Auburn, N.Y.

The Traits of LeadershipHarriet Tubman was a great leader. In this activity, students discusswhat makes a great leader and evaluate Tubman’s leadership qualities. 1. Form small groups.2. Each group should:

a. Discuss traits that leaders should have.b. Choose the five most essential traits of a leader. c. Evaluate Harriet Tubman’s leadership based on these five traits.d. Discuss what other leadership traits Tubman possessed.e. Be prepared to report your conclusions and reasons for them

to the class.3. Call on groups to report their conclusions and hold a class

discussion on the traits of leadership.

ACTIVITY

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facebook.com/ConstitutionalRightsFoundation

11GOVERNMENT

ON JUNE 24, 2013, THE U.S. SUPREMECOURT DECIDED THE AFFIRMATIVEACTION CASE OF FISHER V. UNIVER-SITY OF TEXAS. SOME HAD EXPECTEDTHE COURT TO STRIKE DOWN AFFIR-MATIVE ACTION PROGRAMS IN HIGHEREDUCATION. INSTEAD, THE FISHER DE-CISION CLARIFIED PREVIOUS RULINGSBY THE COURT AND GAVE INSTRUC-TIONS ON HOW LOWER COURTSSHOULD DETERMINE WHETHER AN AF-FIRMATIVE ACTION PROGRAM IS CON-STITUTIONALLY PERMISSIBLE.

Affirmative action in higher ed-ucation provokes great controversy.Affirmative action programs andpolicies attempt to create greaterdiversity on campuses by takinginto account factors such as race,sex, and ethnic origin when admit-ting student applicants. Opponentsof affirmative action argue thatthese factors should not be consid-ered, because students should beadmitted on merit alone (e.g.,grades and test scores).

Affirmative action programs arosefollowing the successes of the civilrights movement in the 1960s. In aspeech at Howard University in 1965,President Lyndon Johnson voiced therationale for affirmative action:

You do not wipe away the scarsof centuries by saying: “Now,you are free to go where youwant, do as you desire, andchoose the leaders you please.”You do not take a man who foryears has been hobbled bychains, liberate him, bring himto the starting line of a race,saying, “You are free to com-pete with all the others,” andstill justly believe you havebeen completely fair . . . . Thisis the next and more profoundstage of the battle for civilrights. We seek not just free-dom but opportunity — not just

legal equity but human ability— not just equality as a rightand a theory, but equality as afact and as a result.

The federal government initi-ated affirmative action programs tocontinue the push for greaterequality in American society. Afterthe passage of the Equal Employ-ment Opportunity Act in 1969, theNixon administration pressed em-ployers to hire more minorities andto help these workers rise in theranks. By the 1970s, this concertedeconomic effort broadened. ManyAmerican universities began affir-mative action programs for admis-sions decisions and hiringpractices.

One result of affirmative actionprograms is that sometimes a mi-nority applicant for school admis-sion will be preferred over white

applicants with similar or even bet-ter qualifications. This amounts toa racial preference.

Many public college and uni-versity programs have faced courtchallenges. Several cases havereached the U.S. Supreme Court.The legal question in most affirma-tive action cases is: Does this affir-mative action program violate the14th Amendment?

The 14th Amendment to theU.S. Constitution guarantees equalprotection. It reads: “No state shall. . . deny to any person within itsjurisdiction the equal protection ofthe laws.” The amendment appliesto all state entities, including pub-lic colleges and universities.

Bakke The first affirmative action case

to reach the Supreme Court was Re-gents of the University of California

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Fisher v. Texas is the most recent of a line of cases the Supreme Court has decided onaffirmative action in higher education.

AFFIRMATIVE ACTION INAmerican Colleges After Fisher v. Texas

12 GOVERNMENT

v. Bakke (1978). Allan Bakkeclaimed that the U.C. Davis Schoolof Medicine had unlawfully dis-criminated against him and fellowwhite applicants by reserving atleast 16 seats in each incomingclass for members of historicallydisadvantaged groups. Bakke be-lieved that the medical school’s af-firmative action policies violatedthe 14th Amendment’s equal pro-tection clause.

In a sharply divided ruling, theSupreme Court held in Bakke thatthe Constitution does not permitpublic institutions of higher educa-tion to apply racial quotas in ad-missions decisions. But the courtalso recognized the importance ofdiversity on college campuses, call-ing it a “compelling state interest.”It therefore ruled that race could beconsidered in applications but onlyas a “plus” factor when the univer-sity reviews the many factors in anapplicant’s profile.

After Bakke was decided,American colleges did away withracial quotas, but many continuedaffirmative action programs usingrace as one factor in admissions de-cisions. Even so, affirmative actioncontinued to be a hot-button issuein state politics.

In 1996, Californian voters ap-proved an amendment to the stateconstitution that made it illegal forCalifornia public institutions —such as state universities — to dis-criminate “on the basis of race, sex,color, ethnicity, or national origin.”Proposition 209 has been chal-lenged multiple times in court, buthas withstood attack. Defenders ofProposition 209 point to the risinggraduation rates at Californian pub-lic universities since the passage ofthe constitutional amendment. Op-ponents of the proposition decryhow the constitutional amendmenthas led to lower numbers of mi-nority students at California’s pub-lic universities.

Gratz and GrutterTwenty-five years went by be-

fore the court heard another affir-mative action case on highereducation. In 2003, the SupremeCourt issued two landmark affir-mative action decisions in Gratz v.Bollinger and Grutter v. Bollinger.(Both cases involved lawsuitsagainst the University of Michigan,and Lee Bollinger, the university’spresident, was named as a defen-dant in both lawsuits.)

At issue in Gratz v. Bollinger wasthe undergraduate admissions sys-tem at the University of Michigan.The university had been using a 150-point scale to judge undergraduateadmissions. Applicants needed 100points for automatic acceptance. Ifapplicants came from a historicallydisadvantaged racial or ethnicgroup, they automatically received20 points. By comparison, an appli-cant with a perfect SAT score re-ceived 15 points. Jennifer Gratz, awhite applicant with above-averagetest scores and high grades, was de-nied admission to the University ofMichigan, while all minority stu-dents with Gratz’s academic qualifi-cations were admitted. She sued theUniversity of Michigan, arguing thatthe undergraduate point system vio-lated the 14th Amendment.

Six Supreme Court justicesagreed with Gratz. The majority ofthe court held that the University ofMichigan’s point system failed the“strict scrutiny” test. In order to passthis test, the university needed to

show that a compelling state inter-est justified its admissions system.Additionally, the University of Michi-gan’s point system would need to be“narrowly tailored” toward achiev-ing the compelling interest.

The majority in Gratz v.Bollinger did not question the uni-versity’s stated compelling interest:diversity within the student body.Instead, the court asserted that theUniversity of Michigan’s admis-sions system was not narrowly tai-lored to the university’s interest ina diverse student body. The pointsystem did not allow for an indi-vidual analysis of each applicant.The court stated:

Justice Powell’s opinion in Bakkeemphasized the importance ofconsidering each particular appli-cant as an individual, assessingall of the qualities that individualpossesses, and in turn, evaluatingthat individual’s ability to con-tribute to the unique setting ofhigher education. The admissionsprogram Justice Powell described,however, did not contemplatethat any single characteristic au-tomatically ensured a specific andidentifiable contribution to a uni-versity’s diversity.

Grutter v. Bollinger was decidedon the same day as Gratz. The Uni-versity of Michigan Law School hadan admissions policy that used raceand ethnicity as a plus factor. Thepolicy aimed to produce “racial andethnic diversity with special refer-ence to the inclusion of studentsfrom groups which have been his-torically discriminated against, likeAfrican-Americans, Hispanics andNative Americans, who without thiscommitment might not be repre-sented in our student body in mean-ingful numbers.” The school wanteda “critical mass” of underrepre-sented students to ensure “their abil-ity to make unique contributions tothe character of the Law School.”

After Bakke wasdecided, colleges did

away with racial quotas,but many continuedaffirmative action

programs using race asone factor in

admissions decisions.

13GOVERNMENT

Barbara Grutter, a white appli-cant who was denied admission intothe University of Michigan LawSchool, challenged the school’s ad-mission policy. She charged that thepolicy was unconstitutional and rep-resented reverse discriminationagainst white applicants.

In a 5–4 vote, the court upheldthe law school’s practices. Writingfor the majority, Justice Sandra DayO’Connor stated that the Universityof Michigan Law School’s admis-sions standards passed the strictscrutiny test. The law school had acompelling reason for furnishing aqualified and diverse student body,which could prepare students forthe diverse world beyond lawschool. It also had used appropri-ate means to achieve its compellinginterest. Michigan understood thata student could add to the qualityand diversity of the student body inmany ways, and therefore it con-sidered numerous factors in its ad-missions decisions. Unlike theundergraduate admissions programin Gratz, the law school engaged inan individual analysis of each ap-plicant. Although the University ofMichigan used racial preferences,the law school’s interest in studentdiversity included much more thansimply racial and ethnic makeup.

One of the most surprising as-pects of Justice O’Connor’s opinionwas the timetable that she set foraffirmative action programs.O’Connor stated all these programsneeded “sunset provisions” inplace, so that “all race-consciousadmissions programs have a termi-nation point.” The judge also fore-cast when such a termination pointwould arrive: “We expect that 25years from now, the use of racialpreferences will no longer be nec-essary to further the interest ap-proved today.”

After Gratz and Grutter were de-cided, many universities that hadbeen uncertain about the legality of

race-conscious admissions policieseither became cautious about imple-menting affirmative action programsor cancelled their race-consciousplans altogether. The University ofMichigan, which closed its affirma-tive action program because ofGratz, witnessed a downturn in mi-nority enrollment for the next sev-eral years. Over the past decade,several more states, includingMichigan, have passed bans onrace-conscious admissions. (TheMichigan ban was challenged incourt, and unlike the bans in otherstates, a federal appeals courtstruck it down in 2011. The casewas appealed to the U.S. SupremeCourt, which will issue its decisionduring the 2013–14 term.)

Background to FisherAfter the Gratz and Grutter de-

cisions, the University of Texas atAustin enacted a two-tiered admis-sions approach for undergraduateapplications. The top tier waslinked to the Top Ten Percent Lawpassed by the state legislature inthe mid-1990s. Under this law, allTexas high school students in the

top 10 percent of their high schoolclass are assured admission intoany public university in the state.The majority of the University ofTexas’ entering freshmen comefrom this admissions tier.

For those applicants who do notfall within the top tier, the universityapplies a separate admissions crite-ria. Admissions counselors evaluatea greater number of factors thanclass rank when looking at applica-tions in the second tier. The Univer-sity of Texas reviews factors such asstandardized test scores, personalessays, examples of leadership, workexperience, and race and ethnicitywhen making admissions decisionsin the second tier.

Abigail Fisher, a white Texan,applied to the University of Texasat Austin in 2008, when she was asenior in high school. Fisher wasnot in the top 10 percent of herhigh school class, so her applica-tion was evaluated under the sec-ond tier of the university’sadmissions approach. After theuniversity denied her admission,Fisher sued the University of

Do you approve or disapprove of affirmative action admissions programs at colleges and law schools that give racial preferences to minority applicants?

Approve Disapprove Unsure

29% 68% 3%Source: CNN/ORC Poll. June 2013.

In order to make up for past discrimination, do you favor or oppose programswhich make special efforts to help blacks and other minorities get ahead?

Favor Oppose Other Unsure/Refused

68% 24% 2% 6% Source: Public Religion

Research Institute. May 2013.

Of the two following statements on affirmative action programs, which one comescloser to your own point of view. Affirmative action programs are still needed tocounteract the effects of discrimination against minorities, and are a good idea aslong as there are no rigid quotas. OR, Affirmative action programs have gone toofar in favoring minorities, and should be ended because they unfairly discriminateagainst whites.

Still needed Should Unsurebe ended

45% 45% 10% Source: NBC News/

Wall Street Journal Poll. June 2013

NATIONAL OPINON POLLS ON AFFIRMATIVE ACTION

14 GOVERNMENT

Texas. She claimed that the uni-versity’s consideration of race im-properly influenced the outcomeof her application.

Employing the language of theUniversity of Michigan Law School’sadmissions policies, Fisher arguedthat Texas’s top tier approach to un-dergraduate admissions — the TopTen Percent tier — already achieveda “critical mass” of diverse perspec-tives in the classroom, and thereforethe additional consideration of racein the second tier admissions policywas unnecessary. The University ofTexas responded that the diversitygained from the Top Ten Percent tieris largely due to the school segrega-tion present in Texas public schooldistricts. By adding more varietywithin minority groups at the uni-versity — a goal that the Universityof Texas termed “diversity within di-versity” — the second tier of the uni-versity’s admissions approachsupplies an extra degree of hetero-geneity to the student body.

Both the district court and thecourt of appeals ruled that the Uni-versity of Texas’s two-tiered admis-sions approach fit within theconstitutional framework set up byBakke and Grutter. It thus did notviolate the equal protection clauseof the 14th Amendment. Fisher ap-pealed the lower courts’ rulings tothe Supreme Court, which ac-cepted review of the case.

Fisher v. University of TexasThe case was one of the most

highly anticipated decisions of theyear. Many legal experts expectedthe court to make a major ruling onaffirmative action. In a 7–1 opin-ion, however, the Supreme Courtdecided to remand the case backdown to the Fifth Circuit Court ofAppeals. But this seemingly anticli-mactic ruling did provide greaterdefinition to the legal state of affir-mative action in American collegesand universities.

The majority decision upheldGratz and Grutter in key respects.According to Justice AnthonyKennedy, who wrote the majorityopinion, the academic and profes-sional benefits that arise from a di-verse classroom are still consideredto be a compelling government in-terest. Additionally, racial prefer-ences are still constitutionallypermissible in limited contexts.

Justice Kennedy instructed pub-lic universities to consider race-neu-tral paths to a diverse educationalenvironment. Bakke had assertedthat race-conscious policies werepermissible only if they were able to“demonstrate that their methods ofusing race ‘fit’ a compelling state in-terest ‘with greater precision thanany alternative means.’ ” Accordingto the majority, a race-conscious ad-missions approach can only pass thestrict scrutiny test if it is “ ‘necessary’for a university to use race to achievethe educational benefits of diversity”and “no workable race-neutral alter-natives would produce the educa-tional benefits of diversity.”

The Supreme Court remandedthe Fisher case to the lower courtsbecause the lower courts had not

been stringent in their review. Thelower courts had deferred to theUniversity of Texas’ judgment that ithad made a good faith effort in nar-rowly tailoring its admissions crite-ria. But the majority in Fisherrejected this passive judicial ap-proach and argued that it is the dutyof federal courts, not institutions ofhigher education, to perform a strictscrutiny assessment: “Strict scrutinydoes not permit a court to accept aschool’s assertion that its admis-sions process uses race in a permis-sible way without a court givingclose analysis to the evidence ofhow the process works in practice.”It is up to federal courts to deter-mine whether racial preferences inthe particular university are “essen-tial to its educational mission.”

In their concurring opinions,Justice Scalia and Justice Thomaswent further than the majority onthe question of affirmative action.These justices believe that all racialpreferences in higher education ad-missions decisions are indefensibleunder the 14th Amendment.

Justice Ginsburg provided thelone dissent in Fisher. In her opin-ion, she asserted that the University

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The University of Texas admits all students in the top-10 percent of their high school graduat-ing class. It has a separate admissions process for those students not in the top-10 percent.

15GOVERNMENT

of Texas’s two-tiered admissions ap-proach followed the Grutter prece-dent and ought to be deemedconstitutionally appropriate.

Consequences of FisherIn many ways, the Fisher deci-

sion represents a judicially moder-ate opinion. Instead of attackingthe controversial topic of affirma-tive action head-on, the court optedfor an indirect approach, focusingon questions of judicial procedureand keeping the Bakke, Gratz, andGrutter precedents intact.

In fact, after hearing the court’sdecision, the University of Texas re-sponded, “Today’s ruling will haveno impact on admissions decisionswe have already made or any im-mediate impact on our holistic ad-missions policies.”

Although the University of Texasfeels comfortable with its current ad-missions policies, many legal schol-ars believe that the Fisher decisionwill make universities even moreleery about how they incorporateracial preferences into admissionsdecisions. Because Fisher directspublic universities to explore race-neutral options before embracingrace-conscious admissions policies,pressure will be placed on universi-ties to demonstrate clearly the needfor affirmative action programs.Fisher may deter universities fromusing race-conscious admissions cri-teria. Instead, pressured by conser-vative voters and legal groups aboutthe empirical justification for racialpreferences, universities likely maybegin emphasizing applicants’ so-cioeconomic status and family datain order to earn greater diversity inthe classroom.

Fisher tremendously affects fed-eral courts also. Lower courts willhave to be more meticulous whendeciding cases regarding affirmativeaction in higher education. Courtswill be required to subject publicuniversities’ admissions policies to

the strict scrutiny requirements.They will not be able to defer to auniversity’s assessment that its ownadmissions formula is necessary tothe achievement of a compelling in-terest and that the university imple-ments the formula using narrowlytailored means. Courts now mustdiscern the necessity of race-con-scious policies, case-by-case.

DISCUSSION AND WRITING1. What is affirmative action?

What is the purpose of affirma-tive action programs at publicuniversities? Do you think thisis a valuable purpose? Explain.

2. What constitutional problemsdo affirmative action programshave? What is the test thatcourts impose on these pro-grams? Do you think the testmakes sense? Explain.

3. Do you agree with the SupremeCourt’s decisions in Bakke,Gratz, and Grutter? Do youthink the decisions are consis-tent with each other? Explainyour answers.

4. Do you agree with JusticeO’Connor’s idea of “sunset pro-visions” for affirmative actionprograms? When do you thinka termination date should be, ifever? Explain your answers.

5. What did the Supreme Courtdecide in Fisher v. Texas?What would you have ruled ifyou were a justice on thecourt? Explain.

6. What alternatives to affirmativeaction do schools have toachieve greater diversity ontheir campuses?

TrusteesIn this activity, students will role play trustees of a public university

charged with setting, among other things, admissions policy for the uni-versity. The trustees will decide on the goal of admissions policy and ad-dress the question of affirmative action at the school.1. Form small groups. Each group is a board of trustees.2. Each group should do the following:

a. Discuss and answer this question: What should be the goal ofthe admissions policy at your university?

b. Look at each of the proposed policies on affirmative action anddiscuss the pros and cons of each.

c. Decide which policy your university should adopt. If none of thelisted policies are attractive, combine policies or create your own.

d. Be prepared to report on your decisions and the reasons for them.3. Each group should report its decisions and the class should

discuss them.

Proposed Policies on Affirmative Action 1. Top Ten Percent. Adopt a policy similar to Texas’ Top Ten Percent

Law (see article for details).2. Race or Ethnicity as a Plus Factor. Adopt an affirmative action

program similar to that of the University of Michigan Law School(see article for details).

3. Class-Based Affirmative Action. Give applicants a plus factor ifthey are from low-income families.

4. Grades and Test Scores Only. Base university admission on highschool grades and SAT scores only.

ACTIVITY

Civic Action ProjectA Free Web-Based Practicum for Teaching Government

Civic Action Project (CAP) is a free web-based curriculum to engage high schoolstudents in project-based learning. Students learn about public policy by choos-ing an issue and taking civic actions to try to make an impact.

Using web-based technology and civics-based instruction and activities, studentsexercise important 21st century skills in digital literacy, critical thinking, collab-oration, self-direction, and learning to be engaged and effective citizen in ademocracy.

Designed to support a U.S. government course, CAP is also used as a civic-basedservice-learning model, senior project, or club.

You and your students can now become part of CAP. The CAP web site provides:

Teachers: Lessons, assessment tools, and tons of resources to implement CAP.

Students: Discussion board, blog feature, online planners (to guide studentsthrough their projects), contests, and many tools and resources.

Aligned to Common Core | Blended Learning for Students | 21st Century Skills

Visit the CAP web site to request your free user account now:

www.crfcap.orgA Partnership of Constitutional Rights Foundation and The Annenberg Foundation with support from the S. D. Bechtel, Jr. Foundation.

For high school, middle school, and elementary school students nationwideSince the earliest days of the American republic, cartoonists have en-tertained us, drawn attention to the issues of the day, and provokeddiscussion. In short, cartoons contribute to our civic life. We invite stu-dents to create their own contribution to this great tradition and cel-ebrate Bill of Rights Day by entering the 5th Annual First AmendmentCartoon Contest!

The theme of this year's contest is"The right to freedom of expression in school"

Six winners will each receive $50*. In addition, up to five entrieswill receive honorable mentions, and all entries can receive acertificate of participation.

For contest rules and entry form, visit the Judges,Courts, and the Law web site at: www.courtsed.org

Entry Deadline: March 14, 2014

Sponsored by the Judicial Council of California-Administrative Office of theCourts, Constitutional Rights Foundation, and the California State PTA.

* Prize money is provided by Constitutional Rights Foundation and the Administration ofJustice Fund.

5th Annual First Amendment Cartoon Contest

4th Annual Cartoon Contest – Middle School Winner

Sources

Elizabeth I Cavendish, R. “Elizabeth I’s ‘Golden’ Speech.” History Today. vol. 51issue 11, 2001. · Doran, S. Queen Elizabeth I. NY: NYU Pr., 2003. · Dunn,J. Elizabeth and Mary: Cousins, Rivals, Queens. NY: Alfred A. Knopf,2004. · Greenblatt, S. “Elizabeth I.” Encyclopaedia Britannica. 2013. ·Haigh, C. Elizabeth I. 2nd ed. London: Longman, 1998. · Levin, C. TheReign of Elizabeth I. NY: Palgrave, 2002. · Richards, J. Elizabeth I. Lon-don: Routledge, 2012. · Starkey, D. Elizabeth: The Struggle for the Throne.NY: Harper Collins, 2001.

TubmanBordewich, F. Bound for Canaan: The Underground Railroad and the Warfor the Soul of America. NY: Amistad, 2005. · Clinton, C. Harriet Tub-man: The Road to Freedom. Boston: Little, Brown, 2004. · Edwards, O.“Harriet Tubman’s Amazing Grace.”Smithsonian. 9/2010. · “Harriet Tub-man.” Africans in America. PBS. URL: www.pbs.org · “Harriet TubmanBiography.” Bio.com. A&E Networks Television. URL: www.biogra-phy.com · Lowry, B. Harriet Tubman: Imagining a Life. NY: Doubleday,2007. · Still, W. The Underground Railroad. NY: Arno, 1968. · Tobin, J.et al. Hidden in Plain View: The Secret Story of Quilts and the Under-ground Railroad. NY: Doubleday, 1999. · Wellington, Darryl Lorenzo.“The Most Famous Abductor on the Underground Railroad.” ChristianScience Monitor. 1/20/2004.

FisherAboud, L. “Race-Based Affirmative Action in Higher Education: Has aDecade Made a Difference?” 4/1/2012. URL: http://ssrn.com/ab-stract=2149696 · Brodin, M., “The Fraudulent Case Against AffirmativeAction: The Untold Story Behind Fisher v. University of Texas.”7/29/2013. URL: http://ssrn.com/abstract=2309544 · Clowney, S.“Doing Affirmative Action.” Michigan Law Review First Impressions, Vol.111, 2013. · Davis, Kimberly. “Following Fisher: Higher Ed CommunityAssesses What’s Next for Affirmative Action in Wake of Supreme Court’sDecision to Send Fisher v. University of Texas at Austin Back to LowerCourt.” Diverse Issues in Higher Education. 7/18/2013. · ___. “The GreatRace Debate.” Diverse Issues in Higher Education. 4/26/2012. · FindLawSupreme Court Decisions: Fisher v. University of Texas (2013), Gratz v.Bollinger (2003), Grutter v. Bollinger (2003), Regents of the University ofCalifornia v. Bakke (1978). URL: www.findlaw.com · “Fisher v. Univer-sity of Texas at Austin.” SCOTUSblog. URL: http://www.scotusblog.com· “Fisher v. University of Texas at Austin.” A roundtable discussion. Van-derbilt Law Review. 7/2012. URL: www.vanderbiltlawreview.org ·Garfield, L, “The Inevitable Irrelevance of Affirmative Action Jurispru-dence.” 9/10/2012. URL: http://ssrn.com/abstract=2144238 · Goodwin,M. “The Death of Affirmative Action?” Wisconsin Law Review.6/24/2013. · Hu, Helen. “Debate over Affirmative Action in College Ad-missions Continues.” Diverse Issues in Higher Education. 10/25/2012. ·“In Narrow Ruling, Supreme Court Vacates Decision That UpheldRace-Conscious Admissions.” Chronicle of Higher Education. 6/24/2013.URL: http://chronicle.com · Kahlenberg, R. “The New Affirmative Ac-tion: Race-Neutral Policies and Programs for Achieving Racial Diversity.”University Business. 8/2013. · Kende, M. “Is Bakke Now a ‘Super-Prece-dent’ and Does It Matter? The U.S. Supreme Court’s Updated Constitu-tional Approach to Affirmative Action in Fisher.” 10/10/2013. URL:http://ssrn.com/abstract=2338679 · Kidder, W. “Misshaping the River:Proposition 209 and Lessons for the Fisher Case.” 39 J of College andUniversity Law 53. 2013. · “Regents of U.C. v. Bakke (1978): Is Affirma-tive Action Constitutional?” Landmarks: Historic Supreme Court Deci-sions. Constitutional Rights Foundation. 2007. · Thompson, J. et al.“Divisive Diversity at the University of Texas: An Opportunity for theSupreme Court to Overturn its Flawed Decision in Grutter.” 4/5/2011.URL: http://ssrn.com/abstract=1803475

Standards

Elizabeth I National High School World History Standard 27: Understands how European so-ciety experienced political, economic, and cultural transformations in an age ofglobal intercommunication between 1450 and 1750. (2) Understands causesand the major political, social, and economic consequences of the reli-gious wars in Europe in the 16th and 17th centuries, and the legacy ofthese wars in modern Europe.California History-Social Science Standard 7.9: Students analyze the historical devel-opments of the Reformation. (4) Identify and locate the European regions that re-mained Catholic and those that became Protestant and explain how the divisionaffected the distribution of religions in the New World.Common Core Standard SL.11–12.4: Present information, findings, and supporting ev-idence, conveying a clear and distinct perspective, such that listeners can follow theline of reasoning, alternative or opposing perspectives are addressed, and the organ-ization, development, substance, and style are appropriate to purpose, audience, anda range of formal and informal tasks.

Common Core Standard SL.11–12.1: Initiate and participate effectively in a range of col-laborative discussions . . . with diverse partners on grades 11–12 topics, texts, and is-sues, building on others’ ideas and expressing their own clearly and persuasively.

TubmanNational High School U.S. History Standard 12: Understands the sources andcharacter of cultural, religious, and social reform movements in the ante-bellum period. (1) Understands elements of slavery in both the North andSouth during the antebellum period (e.g., ... how African American lead-ers fought for rights).California History-Social Science Standard 8.9: Students analyze the early and steadyattempts to abolish slavery and to realize the ideals of the Declaration of Independ-ence. (1) Describe the leaders of the movement (e.g., ... John Brown and thearmed resistance, Harriet Tubman and the Underground Railroad ...).Common Core Standard SL.11–12.1: Initiate and participate effectively in a range ofcollaborative discussions . . . with diverse partners on grades 11–12 topics, texts, andissues, building on others’ ideas and expressing their own clearly and persuasively.

FisherNational High School Civics Standard 18: Understands the role and importanceof law in the American constitutional system and issues regarding the judicialprotection of individual rights. (2) Knows historical and contemporary prac-tices that illustrate the central place of the rule of law.National High School U.S. History Standard 31: Understands economic, social,and cultural developments in the contemporary United States. (5) Understandsmajor contemporary social issues and the groups involved.... California History-Social Science Standard 11.11: Students analyze the major so-cial problems and domestic policy issues in contemporary American society.

California History-Social Science Standard 12.5: Students summarize landmarkU.S. Supreme Court interpretations of the Constitution and its amendments. (1)Understand the changing interpretations of the Bill of Rights over time, includ-ing interpretations of ... the due process and equal-protection-of-the-law clausesof the Fourteenth Amendment. (4) Explain the controversies that have resultedover changing interpretations of civil rights, including those in ... Regents of theUniversity of California v. Bakke ...).Common Core Standard WHST.11–12.9: Draw evidence from informational textsto support analysis, reflection, and research.

Common Core Standard SL.11–12.4: Present information, findings, and supportingevidence, conveying a clear and distinct perspective, such that listeners can fol-low the line of reasoning, alternative or opposing perspectives are addressed,and the organization, development, substance, and style are appropriate to pur-pose, audience, and a range of formal and informal tasks.

Standards reprinted with permission: National Standards © 2000 McREL, Mid-con-tinent Research for Education and Learning, 2550 S. Parker Road, Ste. 500, Aurora,CO 80014, (303)337.0990. California Standards copyrighted by the California Dept. of Education, P.O. Box271, Sacramento, CA 95812.

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