1979] Rites of Passage 795 cally on such suppositions is not to abide by the constitutional standard hypothetically formulated and popularized. Rather, it is to act on a flat, per se rule, albeit of a rather limited kind, that "no law requiring racially separate schools is constitutional." But this, of course, our more sensitive, less dogmatic, and more judicious standard of constitutional review forbids-although, in fact, it is exactly what the Supreme Court did in virtually all of the postBrown per curiam decisions invalidating "separate-but-equal" laws. Our commitment to the flexible standard requires that we consider the matter further. If the standard required that a very substantial public purpose appear on the face of the law itself, we concluded in the first instance that this law would have failed because the statute in question contained no such recitation. Yet, if that standard of judicial review were already well established and popularized at the time, we may expect that legislatures, advised of it, would explicitly state their purpose. Suppose, then, that this had been done. Is the law now constitutional, or is it unconstitutional? The question cannot be answered, of course, until we turn to see what the legislature said. Suppose, then, that the statute had required racially separated schools and had further provided that this requirement was enacted "in order to perpetuate white supremacy and to degrade black people"-the purpose many declare was, in fact, at the root of all such laws." In that event, of course the law will fail. Indeed, the Justices in the majority in Plessy v. Ferguson declared that had such a purpose been established in that case, that law too would have failed: “every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class."" And they rejected the attack on the law in question as being insufficient because it rested on “the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority," rather than in proof that such a stigma was intended." But given the established and popularized constitutional "standard" such legislation must meet-a well-connected substan " E.g., Black, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960). " Plessy v. Ferguson, 163 U.S. 537, 550 (1896) (emphasis added). " Id. at 551 (emphasis added). See also Black, supra note 66; Cahn, Jurisprudence, 1955 Annual Survey of American Law, 31 N.Y.U.L. Rev. 182 (1956); Cahn, Jurisprudence, 1954 Annual Survey of American Law, 30 N.Y.U.L. Rɛv. 150, 153-54, 157-68 (1955); Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. PA. L. Rev. 1, 24-31 (1959). 794 The University of Chicago Law Review [46:775 question presented above, what would the Court's decision have been in our hypothetical Plessy v. Ferguson school case? Two approaches are possible. The first would interpret the Civil War amendments as requiring that laws using race lines not only be well connected to substantial (or even "compelling") public purposes, but that such purposes themselves be "articulated" on the face of the law in question." Unless the legislature providing for racially separate schools declared such a purpose, then, the law must, a fortiori, be held invalid. But if, on the other hand, an articulated purpose is not required, then we are not yet in a position to determine whether the law using a race line overcomes the rebuttable presumption of unconstitutionality. Assuming that such a law must indeed be well connected to some very substantial public purpose, albeit the purpose need not be stated on the face of the law, it remains to be seen whether those called upon to explain the law will carry their burden of justification in court. If, but only if, the particular race line can be shown by them to be well connected with a very substantial public purpose is it to be sustained. Under either view-that the law must on its face articulate the compelling public good it serves, or that those with the burden of justifying it must demonstrate its well-fitted connection with such an imperative public good-we may suspect that we already know the outcome of Plessy v. Ferguson: namely, that the law will most certainly be held invalid. But this conclusion may be incorrect; we must have supposed that no compelling public good can be well connected with such a law. Alternatively, we must have supposed that even if such a public purpose could (as an exercise in theory or imagination) be so connected, nevertheless it was not in fact connected with that law. Neither is necessarily correct. To act categori Van Alstyne, supra note 9, at 292-94, and Controversy: More on the Bakke Decision, supra note 9, at 57-59. "It is not quite clear from some suggesting this test whether the suitably justifying purpose(s) must be "articulated" on the face of the law, or whether a subsequent, credible "articulation" in court will do; for the moment, it is evidently the latter. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 361-62 (1978) (Brennan, White, Marshall & Blackmun, JJ., concurring in the judgment in part and dissenting in part); Hampton v. Mow Sun Wong, 426 U.S. 88, 103 (1976) ("When the Federal Government asserts an overriding national interest as justification for a discriminatory rule which would violate the Equal Protection Clause if adopted by a State, due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve that interest."). See also Califano v. Goldfarb, 430 U.S. 199, 223 n.9 (1977) (Stevens, J., concurring in the judgment); Craig v. Boren, 429 U.S. 190, 199 n.7 (1976). For a discussion of why this should influence the standard of judicial review, see Christie, A Model of Judicial Review of Legislation, 48 S. CAL. L. REV. 1306 (1975). 796 The University of Chicago Law Review [46:775 tial public good articulated on the face of the law-it is unrealistic to suppose that the legislature enacting this law would have so declared itself, regardless of its actual motives. At least it is safe to suppose that no other legislature, observing the fate of this legislature's bill, would repeat the original error. Suppose, then, the face of the law articulated the very different purpose that fully equal but racially separated schools were to be established "in order to assure a historically disadvantaged racial minority an equal opportunity to develop educational curricula and programs more responsive to their needs, free from domination in schools in which their children might otherwise be overwhelmed by a racial majority." The "public good" is surely impressive, the expression of social contrition is moving, and the linkage between the compelling purpose of this law and the means chosen to advance it seems suitably tight. Is the law now to be upheld? Presumably it is, unless one suspects that the recitation is a fraud-that the recitation is for the benefit of anchoring its constitutionality, while the law is actually meant to perpetuate white supremacy. One may suppose that if there is fraud here, it will easily be penetrated. But that assumption is remarkably cavalier. The Supreme Court has utilized "purpose" as one prop in its "test" in its administration of the religious establishment clause of the first amendment”—and since the inauguration of that test virtually no law has been held invalid for failure to meet the "purpose" part of the Court's own chosen test." Even when few have doubted that the legislation in question was the product of sectarian self-interest, which the reigning "test" declares to be an improper purpose under the first amendment, recitations emphasizing other effects"permitted" effects-have been taken as virtually conclusive in meeting the ostensible constitutional command that such laws "U.S. CONST. amend. I. The "test" was enunciated in School Dist. v. Schempp, 374 U.S. 203, 222 (1963) (“[W]hat are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.") (emphasis added). For an illustrative "application," see Board of Educ. v. Allen, 392 U.S. 236 (1968). See also id. at 254-66 (Douglas, J., dissenting); Note, Sectarian Books, the Supreme Court and the Establishment Clause, 79 YALE L.J. 111 (1969). Note also how the "purpose" part of the test was not applied in Lemon v. Kurtzman, 403 U.S. 602 (1971), and how mere legislative declaration of "purpose" effectively insulated statutes from meaningful review as to this part of the test in Wolman v. Walter, 433 U.S. 229 (1977); Roemer v. Board of Pub. Works, 426 U.S. 736 (1976); Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 766 (1973); Tilton v. Richardson, 403 U.S. 672 (1971). See generally P. KURLAND, RELIGION AND THE Law of Church and State AND THE SUPREME Court (1962). "See discussion and cases cited note 69 supra. 1979] Rites of Passage 797 have secular objectives as well as primary nonreligious effects. There is no reason to expect a different result here. In the previous section of this article, we noted that under the constitutional standard that seems to have emerged during the past quarter century," a law will not be sustained under any of the following three circumstances: (a) if it overtly utilizes race as an index for determining civil rights; (b) if it expressly encourages others to do so; or (c) if it tends to produce either of these effects and if the expectation of that tendency can be shown to account for the law's enactment even when the law, on its face, says nothing whatever about race. This judicial resolve to remove the race line from our public life has been the most credible and admirable position for the Court steadfastly to maintain, so far as we are under a Constitution and so far as that Constitution is what the judges say it is. But under the more flexible "test"-which allows allocation by race when certain criteria are met-to strike down a statute it is not enough to show that the law itself explicitly treats the rights of one person differently from those of any other by making race itself a sufficient reason for that difference. Rather, one must also "decide," even in every case arising in each of the above categories, two additional matters: (1) what kinds of public purposes are sufficiently compelling to justify explicitly treating some people less well than others on racial grounds; and (2) who is to say (and on what basis) that a law, which on its face is nominally very well connected with a sufficient public purpose, making its purposive racial discrimination "justifiable" under (1), was indeed enacted solely to promote that objective rather than to enact some baser interest with which it is equally well connected? This is not, I think, a constitutional standard at all. It is, rather, a sieve a sieve that encourages renewed race-based laws, racial discrimination, racial competition, racial spoils systems, and mere judicial sport. It is Plessy v. Ferguson all over again, in new and modish dress. In the revised Plessy case we have just been considering-facially rationalizing racially segregated schools for contrite, moral, and “minority-favoring" purposes-we have not yet "See text and notes at notes 24-56 supra. 798 The University of Chicago Law Review [46:775 noticed anything about the geographic, demographic, or political context in which the law appeared. Are such considerations germane, or are they to be ignored? Most plainly they must be treated as highly germane," for otherwise our "test" becomes a farce and some atrocious uses of the race line will be sustained by our courts—as I suppose we would agree would be the case if the school segregation statute, with its pious accompanying recitation, were the product of an all-white southern state legislature circa 1900. But as a different possibility, suppose that the law were not one from a state legislature at all, but rather one promulgated by a city board of education—in a predominantly black school district with a majority of the school board members themselves black? Is this, too, to make some difference? What difference shall it be?"3 If it could be shown that the purpose was not as declared, but was rather to “degrade” black people, the statute must fall. Suppose, however, that it was a product of some of each purpose, so that some members of the state legislature supported it in fact and in good faith on the very grounds recited in the law, while others were pleased to go along because they simply wanted to separate black children from white children. Or, suppose that the "purpose" was nothing more sublime than the preoccupation of each legislator to retain his own elected position by voting for whatever measure seems most pleasing to the largest or most influential bloc of his constituents, some of whom, both black and white, favor this law (albeit not necessarily for identical reasons), some of whom oppose it (albeit for differing reasons as well). All of these questions will recur, of course, even if it is not constitutionally required that the "substantial" or "compelling" public interest allegedly served by such race-line laws be recited on the face of the laws themselves. Indeed, assuming no such additional requirement, we may expect such recitations to appear anyway, insofar as they may be regarded by the Court as prima facie evidence of the law's actual purpose." All this, and much more, awaits the Supreme Court once it leaves the lesson of the "great decisions" of the past twenty years and, indeed, the lesson not just of "contemporary" history, but of our whole history. " Cf. Ely, supra note 11, at 723 (arguing that majority discrimination against itself is per se legitimate). But see Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, supra note 11, at 19-26. "For one view, see Bell, Waiting on the Promise of Brown, 39 LAW & CONTEMP. PROB. 341, 360-63 (1975). " Exactly as did happen once this type of test was publicized for the first amendment's establishment clause. See cases cited note 69 supra. |