When the Supreme Court ordered the City of Birmingham to desegregate its schools in 1954, it failed to consider the long range implications of its mandate. School districts across the country responded to the Court’s order by adopting race-preference school assignment plans, created to designate the particular public elementary or secondary school a student should attend. Now that these plans have successfully achieved their goals of desegregating classrooms, the question has become whether the continuation of the very programs that helped achieve those goals remain legal? In other words, as Justice Ginsburg recently said in arguments before the Supreme Court, could it now be that "what’s constitutionally required one day gets constitutionally prohibited the next day?"
Under the Court's current strict scrutiny test, the Court can only uphold race-preference programs if they meet one of two stated compelling governmental interests; remedying present effects of past discrimination or achieving "viewpoint diversity" in a classroom of higher education. This article argues that if the school desegregation plans fail to satisfy either of the Court's two stated compelling interest tests the Court should consider evaluating the programs under a new third compelling interest. Given the Court’s commitment to enforcing social justice, the article proposes that the Court should find a compelling governmental interest in upholding a race-preference plan in instances where abolishing the plan would threaten a return to the de facto segregation the plan originally sought to cure.
Part I of this article will define the historical evolution of the strict scrutiny test and the Court's willingness to allow the context of a particular race-preference issue to drive the definition of a compelling governmental interest. Part II of this article will consider appellate court responses to the applicability of the Court's two articulated compelling governmental interests particularly in cases considering challenges to race-preference student assignment plans. Finally, Part III will argue that the Court must create a new compelling governmental interest for evaluation of race-preference student assignment plans, since invalidation of these school board plans would cause a return to the social conditions that originally necessitated their creation.
Leslie Yalof Garfield, Adding Colors to the Chameleon: Why the Supreme Court Should Have Adopted A New Compelling Governmental Interest Test for Race-Preference Student Assignment Plans, 56 U. Kan. L. Rev. 277 (2008), http://digitalcommons.pace.edu/lawfaculty/301/.