In Some Parts of America, at Some Times in Our History . . . [Part 1]

Michael Stokes Paulsen

This is the story of events not so long ago, in a galaxy not so very far away.

Fifty years ago this summer and fall was the crisis of Little Rock. Governor Faubus invoked state authority and power to resist public school desegreation and the effect of Brown v. Board of Education in his state. The matter was resolved, finally, by President Eisenhower's decision to send in troops to assure integration. The Supreme Court, in its famous decision in Cooper v. Aaron (1958), held that state resistance to integration was not a legitimate basis for a district court's refusal to order desegregation remedies.

Part of the sorry history of that era, lingering well beyond the summer and fall of fifty years ago was the spread of the idea of the private segregated secondary school -- racially exclusive private schools -- as a way to circumvent the effects of Brown. The very idea is repulsive. It was a perversion of the noble idea of freedom of expressive association, used to justify a regime of private segregation and cynical (attempted) efforts to evade civil rights laws dating to the close of the Civil War.

It is, perhaps, of some comfort that such a situation is almost unimaginably hard to picture today. It seems awful to contemplate the notion that, in some parts of America, notably its southernmost region, a private school would establish as its official stated policy, seek to enforce by its practices, and fight to the death to maintain through litigation, in the teeth of federal civil rights law (42 USC section 1981), a racially exclusive private academy -- a secondary school where no one not of the favored race need apply.

Can one imagine what legal arguments possibly could be made to defend such a practice, were such an institution to operate today and be sued by a member of the excluded race who wished to apply for admission to the school in question? Today, of course, the legal issues would be regarded as straightforward and essentially long settled by judicial decisions made over the course of the last fifty years.

Section 1981, which forbids (among other things) discrimination on the basis of race in the making and enforcement of private contracts, is considered within the constitutional power of Congress, and reaches purely private conduct. Patterson v. McLean Credit Union (1989) (collecting prior authority). The statute has been applied specifically to the phenomenon of racist private academies, and found constitutional in such application, prevailing over pretextual claims of First Amendment immunity under the rubric of the freedom of expressive association to run a racially exclusive school to promote our-race-only practices. Runyon v. McCrary (1976). Even a good-faith claim of sincere religious practice (though one would question whether such faith is "good" in any sense other than being sincerely-held) would fail, rightly or wrongly, under reasonably well-settled law. Bob Jones University v. United States (1983); Employment Division v. Smith (1990). And, of course, any claim that a race-exclusive school might be immune from the law's strictures on the basis of promoting "diversity" in education would be laughed out of court, one would hope derisively. Not even Grutter v. Bollinger (2003) could be used to support such a claim. No school needs a "critical mass" of a 100% racially exclusive student body! See also Virginia v. United States (1996) (finding single-sex state post-secondary education unconstitutional and in violation of federal civil rights laws).

Still, what if such a private school, located in a remote and somewhat isolated outpost of America's southernmost regions and backed by a huge endowment and supporters who vehemently defended the school's policies of racial segregation in (private) education, existed? What if the school suddently found itself confronted with a courageous plaintiff challenging such brazenly racist practices? Could the school possibly endure the political consequences of maintaining, in this day and age, such racial practices? Or might it still be possible that local public opinion would be enough to sustain it? Could the school find a high-caliber, nationally-prominent attorney to defend its practices? (Brown, if I recall correctly, was argued, on the wrong side, by John W. Davis, one of the most prominent appellate practitioners of all time.) Even if it could find good lawyers to defend it, what arguments could the lawyers possibly employ, with a straight face, that might give the racist school a fighting chance? And would there be any reasonable possibility that the racially exclusive academy could find even one judge -- like the federal district judge in the Cooper v. Aaron Little Rock litigation -- so willing to bow to local public opinion or the perceived views of (certain) elites in his or her community, as to be willing to sustain the practices of the racially exclusive academy against the application of a qualified high-school applicant? Could one find a district judge that would find that the locality's distinctive "culture" or "unique history" or traditional ways of life provided such a special "context" that the nation's laws did not apply, or did not apply so as to prohibit racial discrimination? Could a court find a way to avoid the force of the legal principles set forth in the preceding paragraph?

Could such a situation happen today, in some parts of America?

As you might have guessed, the case I have in mind is not a hypothetical. It is entitled John Doe v. Kamehameha Schools. The Supreme Court, reportedly, conferenced on the petititon for certiorari in Doe v. Kamehameha yesterday (Thursday), after "re-listing" it several times.

The racially exclusive school won below, narrowly, in an en banc decision of the Ninth Circuit (8-7), which reversed the 2-1 panel decision for the student, which had reversed a district court judgment for the school. The racially exclusive private academy was represented in the Ninth Circuit, and is now represented before the U.S. Supreme Court, by Professor Kathleen Sullivan of Stanford Law School, one of the top constitutional scholars and advocates in the nation (and someone whose scholarship I respect greatly).

There is a bit more to the story, which I will save for a subsequent post. But there is nothing that should change the applicable principle.

A brief disclaimer and admission of bias: I was co-counsel, on a brief addressed to a remedial issue at the panel opinion stage, for John Doe, the courageous young man who sought to be admitted to this private school in the face of the most blatant and intense racial discrimination imaginable. (His anonymity is preserved in order to protect him from retaliation and possible violence.) Last summer, before the Ninth Circuit en banc argument, I hosted a moot court for John Doe's lead counsel, Mr. Eric Grant, consisting of a panel of constitutional and civil rights law professors at the University of Minnesota Law School.

John Doe has now graduated and is in college. But his claim for damages was not mooted by his graduation.

-- Michael Stokes Paulsen
Posted 9:34 AM by Michael Stokes Paulsen [link]