Does the “affirmative duty” to desegregate, which the Supreme Court found in the public elementary and secondary school cases, extend to higher education systems? If so, what is to be the status of historically black colleges and universities (HBCUs)? The focal point of this book is the case, United States v. Fordice (1992), in which the Court first addressed this issue. Prior higher-education desegregation cases had dealt with the rights of individual blacks to attend previously all-white state institutions. The author of this valuable volume, Albert Samuels, notes that “the Fordice ruling probably raised more questions than it answered” (p. 3). This book is an erudite exploration of some of these unanswered questions.

A major theme is how the “cultural icon” (p. 12), Brown (1954), with its incorporation of the atomistic, Lockean individualism of the American Creed, ignores, or at least obscures, the uniqueness of the black experience in America. If the values of the American Creed apply in the post-Brown era, are HBCUs important, or constitutional? Samuels argues that “if Brown is interpreted as prohibiting the state from constraining the educational choices of blacks, one can reconcile black insistence on equal access to traditionally white institutions with the desire to maintain and strengthen black universities” (p. 7). If, however, “separate educational institutions are inherently unequal,” HBCUs are constitutionally suspect. Ultimately, is it segregation per se or the state's mandating of segregation that is the target of Brown? In more theoretical terms, “can the apparent contradiction between the ideal of a ‘color-blind society’ and ‘race-conscious’ politics be reconciled under the umbrella of Lockean individualism?” (p. 10).

Furthermore, the American Creed incorporates a distrust of federal government action, and this distrust “has historically not served African Americans very well” (p. 8). Thus, even if federal judges or justices were to look beyond the precedents set in the elementary and secondary cases to fashion a remedy, they would confront a philosophical opposition to federal judicial “intrusion” into the politics of higher education.

Samuels also shows how the NAACP's litigation strategy incorporates, consciously, the values of Lockean individualism, which ultimately leads it to be an instrument for calling into question the existence of HBCUs. Exacerbating this problem is the sequence of attacking segregation in graduate and professional schools to lay the groundwork for Brown, which required highlighting the shortcomings of the HBCUs and opposing remedies that would have invested in, and presumably improved the quality of, these institutions. Ironically, then, the NAACP Legal Defense Fund (LDF), having argued that the HBCUs are inferior institutions in its path to Brown, becomes part of the problem in using the courts to address this issue. Eventually, the LDF winds up on the opposite side of the issue from the National Association for Equal Educational Opportunity in Higher Education (NAFEO)—an association of the presidents of black public and private colleges.

Black nationalists provide an alternative perspective by borrowing some core concepts from the Lockean tradition and combining them with the idea of black exceptionalism to allow for blacks to choose to attend majority black institutions of higher education. Brown, according to this view, addresses compulsory racial segregation (presumably in institutions with mandatory attendance laws), rather than voluntary choices (regarding attendance in institutions where attendance is not mandatory).

For readers who are most interested in the case and how the Supreme Court deals with it, two chapters are devoted to the development, context, and specifics of the Fordice case in Mississippi and in the context of presidential politics, as well as the opinion itself. The Court's “answer” in Fordice makes the infamous Brown II (1955) ukase for “all deliberate speed” seem to be the model of clarity and guidance. The Court ruled that the state of Mississippi had not met its constitutional responsibilities by enacting nondiscriminatory admission and hiring policies in its colleges and universities. Compliance with the Constitution requires elimination of policies traceable to the segregated system that continue to have segregative effects to the extent practical and to the extent that the elimination of such policies is consistent with sound educational principles. No further clarification of how much elimination is practical or which educational principles are “sound” is proffered. The state is told what is not enough, but not what else to do. As was the case after Brown II, lower courts, lacking clear guidance, reacted in different ways.

Samuels concludes his book with an argument about the “limitations of the American Creed” and an Afterword about higher education politics in Mississippi. Painting with a broad historical brush, he reviews the American Creed while specifically considering the position of blacks, noting the lack of reasoned development behind either the conclusion that “separate is inherently unequal” or the black/liberal positions on the role of the state. This leads to a consideration of the bluntness of law and courts as instruments for achieving goals, perhaps especially educational equality. Many will find points with which to quibble or even debate vigorously, but there is no shortage of ideas in the conclusion of this work.

The University Press of Kansas is well known for producing quality books in which the stories of Supreme Court cases are told and the constitutional issues and judicial politics are elucidated. Is Separate Unequal? is not so easy to categorize; it accomplishes these tasks—and more. The reader will also find critiques of the American Creed, the liberal perspective on desegregation, the utility of law as an instrument of social change, and the ability to generalize from Brown into other policy arenas. There are also important lessons about black politics, particularly interest group politics, and higher education politics (particularly in Mississippi). In short, Samuels has produced a valuable, broad-ranging volume that deserves a broad readership. Readers with a wide variety of interests will find something of value here.