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"Board Member Report,"

by John Charles Boger September/October 2000 issue of Poverty & Race

Unlike many of my friends on the PRRAC Board, my primary institutional affiliation since 1990 has been neither with a civil rights organization (such as the NAACP Legal Defense & Educational Fund, Inc., where I spent 12 happy years in active litigation and legislative advocacy from 1978-1990), nor with an anti-poverty or social justice organization, but instead with a university—specifically, the School of Law of the University of North Carolina at Chapel Hill. My change from a life devoted to active litigation of civil rights cases to one devoted to teaching and scholarship, though rewarding, has been marked by important differences in pace and impact.

Obviously, the social separation between the courtroom and the classroom is wide. While teaching brings frequent opportunities to think about issues of racial injustice and economic inequality, the real world impact of most academic efforts is typically quite indirect, and tangible consequences, when they come at all, often take decades to flower. Active litigation brings direct, searing contact not only with what is worst in our society—cruelty and indifference, economic, political and social oppression—but also with what is best—the courageous human beings who struggle to endure and overcome injustice, and dedicated activists who join their struggle. Law schools sit at a considerable social distance from the front lines of change.

Yet in partial compensation, teaching permits the gift of sustained contact with bright, energetic young people, many of whom are on the brink of choosing where to commit their considerable intellectual and personal talents. The daily opportunity to question and challenge such students is remarkably rewarding, and occasional glimmers of real world impact appear, as when I recently read of a statewide award bestowed on a worthy former student, now a dedicated advocate for health care for the poor, or receive some email from students now in Legal Services programs or civil rights groups. I don’t have to persuade myself that their activities proceed directly from our classroom experiences to cherish the belief that our debates about issues of race and poverty may have contributed to the overall vision that now animates them in their present work.

The other way that academic personnel can occasionally have impact, of course, is through their research and writing. My recent academic work has focused on a disturbing series of decisions that emanate from the Fourth Circuit Court of Appeals. That federal appellate court, which hears legal appeals from Maryland, Virginia, West Virginia, North Carolina and South Carolina, has become notorious as one of the most conservative circuits in the nation. (Moreover, despite presiding over the largest percentage of African Americans of any federal circuit in the nation and regularly hearing many crucial issues involving justice and civil rights, the Fourth Circuit has remained all Anglo, all white; it has never has ever had a single African American, Asian-American or Latino judge). The three cases on which my recent research and writing have focused were all rendered in the autumn of 1999. In each case, school districts were forbidden to use race or ethnicity, even as one among several factors, in making student assignments to elementary and secondary schools, even if the school boards believed that the resulting student diversity was educationally valuable, even if they were supported by the local community, and even if every other course would otherwise lead to increased racial segregation and ethnic isolation. See Tuttle v. Arlington County School Board, 195 F.3d 698 ( 4th Cir. 1999); Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4th Cir. 1999); see also Capacchione v. Charlotte-Mecklenburg Schools, 57 F.Supp. 2d 228 (W.D.N.C. 1999), appeal pending, 211 F.3d 853 (4th Cir. 2000).

The Circuit’s rationale looks to a body of affirmative action decisions rendered by the Supreme Court during the past decade in other affirmative action contexts. In a series of cases challenging various “zero sum” choices in government contracting, government set-aside programs and public employment decisions (where any decision to award a benefit to one party necessarily denies that benefit to other claimants), a five-person Supreme Court majority—despite heavy criticism by scholars and the dissents of four Justices—has struck down most express uses of race or ethnicity in making such decisions. What is new about the recent Fourth Circuit decisions is their uncritical extension of this “colorblind” rationale beyond the “zero sum” choices of past cases into a new realm — public elementary and secondary schools — where theoretically, there are no winners or losers, since all children are guaranteed a public education. Of course, some students and parents are always disappointed by particular student assignments, but the law of no state has ever recognized a right of parents to demand particular student placements for their children. Hence, school boards have consequently had great freedom to assign children to different schools for any of a variety of valid pedagogical, administrative or social reasons, including attainment of a racially and ethnically diverse student body.

The new Fourth Circuit decisions prohibit such longstanding and widespread practices. They clearly forbid modest efforts, for example, to assure that the populations of magnet schools mirror the demographics of the larger school district, as well as efforts to ensure that student transfer policies consider the racial implication of any individual student transfer requests. More broadly, these cases appear to threaten any use of race in assigning students, and possibly teachers, administrators and staff as well. Because of the widespread pattern of residential segregation by race in many school districts, implementation of these new decisions threatens the rapid de facto resegregation of school districts throughout the Fourth Circuit — a disastrous, judicially-mandated policy that would roll back nearly 50 years of hard-won progress since Brown v. Board of Education in 1954.

My research suggests, furthermore, that these new “colorblind” decisions run directly contrary to assumptions clearly voiced by the Supreme Court in half a dozen leading cases over the past 30 years, including Swann v. Charlotte-Mecklenburg Board of Education in 1971 and the Bakke decision in 1978. Moreover, nothing in the Supreme Court’s recent affirmative action jurisprudence necessarily requires the steps the Fourth Circuit has taken; and Justice O’Connor, in particular, has repeatedly cautioned lower federal courts not to assume that race is an impermissible consideration in every governmental context. I’ve written at some length to lament the Fourth Circuit’s holding, identify its analytical deficiencies, suggest that its decisions will work profound educational and social harm, and invoke possible reversal in a some friendlier judicial forum (if any exist). See “Willful Colorblindness: The New Racial Piety and the Resegregation of the Public Schools,” 79 North Carolina Law Review (forthcoming).

On another educational front, I have participated as one of a team of lawyers acting amici curiae to represent a class of Limited English Proficient (“LEP”) children who have sought to be heard in North Carolina’s ongoing school finance reform lawsuit, Leandro v. State of North Carolina. The plaintiffs in Leandro won a decision from the state’s Supreme Court in 1997 that recognized every child’s right under the state constitution to a “sound basic education.” The case was remanded for clarification of what might constitute a violation of that right, and how a court might measure any such deprivation. The plaintiffs included a number of poor county school districts in North Carolina that find themselves unable to raise sufficient money through local property taxes to meet the educational needs of their students. They contend that some additional state revenues, or the redirection of school funds that presently flow toward wealthier school districts, is necessary to provide the “sound basic education” mandated by Leandro. In our amicus curiae brief, we contend that LEP children — many of them the children of recent Latino and Asian immigrants —are not receiving any meaningful education because of the limitations of North Carolina’s educational programs for language minorities and the inadequate levels of both state and local funding. Resolution of that lawsuit is likely several years away. (Indeed, Leandro’s slow journey through the judicial system — with its fits and starts, appeals and remands, all so characteristic of other notable school finance lawsuits in California, Kentucky, New Jersey, Texas and elsewhere — suggests that my earlier distinction between the swift pace and impact of litigation on the one hand, and the imperceptible changes wrought by teaching and scholarship on the other, may be far less dramatic than I implied.)

Apart from these educational ventures, I have found myself drawn into a worthy social scientific effort to determine whether North Carolina’s present system of capital sentencing is racially biased. As many readers know, nearly 30 social scientific studies have been carried out during the past 25 years in many death penalty states, most notably by Professor David Baldus in research that became the foundation of the McCleskey v. Kemp case in the state of Georgia. Most of these studies have found serious patterns of racial bias, especially when considering the homicide victim (where cases involving white victims are often four or five times more likely to receive a capital sentence than other cases). North Carolina’s capital sentencing system has been the object of study on several prior occasions since the 1940s, but none of the prior studies can speak meaningfully to death sentencing practices in the past decade.

However, thanks to a generous donation from a local Episcopalian congregation in Chapel Hill, and to other funds from the Common Sense Foundation of Raleigh, North Carolina — a recent PRRAC grant recipient — a study to address recent capital sentencing experience in the Tarheel State is presently under way. This new burst of energy in North Carolina parallels the rising tide of concern over possible death penalty injustice that has manifest itself in many states — a profound shift in the public mood that has prompted a credible, ongoing campaign, supported by the American Bar Association, and already implemented in one state by the Governor of Illinois, to declare a national death penalty moratorium until further study of possible injustices can be conducted. Although the nation’s federal and state courts remain closed to most such appeals, the doors of the state legislatures and governors’ offices have cracked open a bit, and there is real receptivity to consideration of these appeals, especially about possible racial biases, that we have not seen in North Carolina in a generation. The North Carolina project expects some preliminary results study by early spring of 2001.

John Charles Boger is PRRAC's Board Chair, and Dean of the Univ. N. Carolina School of Law.

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