Fall 1983 – Issue 30 - Stanford Lawyer - Stanford University

@.oarcA 4l!141~THE CONSTITUTION, RACE, AND THE SCHOOLS:CON LAW FACULTY AGREE TO DISAGREEThe School's constitutional lawfacwty was featured during theBoard of Visitors meeting in a panelchaired by Dean Ely. He and fourcolleagues - Professors Paul Brest,William Cohen, Thomas Grey, andGerald Gunther- discussed the caseofJohnson v. Chicago Board ofEducation,604 R2d 504 (C.A. 7, 1979), involvinga plan whereby the schoolboard, reacting to a study of historicalpatterns of "white flight,"decreed that once the non-white studentpercentage at a given highschool exceeded 60 percent, a lotterywould be held, and the non-whitestudents thus selected would bebussed to white or integrated highschools on the North Side. TheSeventh Circuit upheld the plan.Obviously the case is an excruciatinglydifficwt one, in that it involveddistinguishing among peopleon the basis of their race, and infact-albeit in an apparent attemptto serve the wtimate cause of racialintegration - excluding studentsfrom certain schools because theyare members of racial minorities.The panel agreed that the case was amind- and heart-twister, and that theSeventh Circuit's opinion, byadoptingthe apparent attitude that it didnot present difficwt constitutionalissues, hardly did justice to itscomplexity.At that point the panel's agreementbroke down, however, and indeed- given the various asymmetricalcombinations of rationale andresult presented by the five panelists- many in the audience beganto feel that they were listening to theverbal equivalent of a game of "cat'scradle."Dean ElyDean Ely led off, and after sketchingthe facts and outlining the relevantlegal tests, suggested that althoughhe found the situation difficwt andfraught with danger, he would beinclined - at least without furtherknowledge of the Chicago scene - touphold the plan.The reason courts have historicallytreated as "suspect" under theFourteenth Amendment laws thatdiscriminate on the basis of race, hesuggested, is that they have rightlypresumed, unless the surroundingcircumstances provided a rebuttal,that such laws were motivated byracial prejudice. The boilerplatelegal requirements of a "compellingstate interest" and a "close fit" betweenthe compelling interest andthe racial classification involved, hesuggested, are best understood thus,as means of checking the bona fidesof government claims that there existsa benign explanation for theracial classification in issue. (Theassignment of black undercoverpolice officers to duty in Harlem wasone example cited.)He suggested that this sort ofrebuttal seemed available inJohnson,and that although an explicitly racialline was used, the overall purposeseems rather clearly to have been topromote racial integration by avoidingthe sort of "white flight" thatexperience had shown was likely toensue when the 60 percent "tippingpoint" had been reached. To construethe Fourteenth Amendment asbarring such a law, he argued-thusalmost certainly ensuring that theschools in question would soon endup 100 percenfracially segregatedwouldbe to lose the constitutionalforest in the trees.Professor BrestProfessor Brest began by addressingthe reasons for the "suspect classification"test. He agreed with DeanEly that the test responds to the suspicionthat racial classifications aremotivated by prejudice, but thoughtthat it is also designed to protectblacks against the harm, inswt, orstigma of being branded inferior towhites or not fit to associate withthem. He thought that the schoolboard's policy in Johnson implicatedboth of these concerns: the policywas as consistent with the motivationto protect white children fromattending school with "too many"blacks as it was with the professedbenign motive, and members of theblack community might well perceiveit as a racial slur.In any event, to meet the demandingstandards of the suspectclassification test, the school boardmust demonstrate that there wereno alternative approaches to desegregatingthe schools that did notrequire using racial quotas, and thisit had not done.40Stanford Lawyer Fall 1983