Lu, “Fundamental National Public Policy” and Critical Race Theory in a Delicate Democracy
Calls to defund critical race theory aim to freeze civil rights progress where it stood decades ago with the formal prohibition of intentional race discrimination in federally funded programs. In the notorious case of Bob Jones University v. United States, 461 U.S. 574 (1983), the U.S. Supreme Court confronted the federal tax exemption for public charities and ruled that the Internal Revenue Service (IRS) properly withheld tax-exempt status from otherwise qualifying private religious schools that denied admission to students based on race. In particular, the Bob Jones Court recognized the “fundamental national public policy” against racial segregation as a compelling government interest outweighing any burden on private schools’ religious exercise. However, the Court left unresolved vital questions of how (or indeed, whether) to allocate public resources affirmatively to foster diversity, equity, inclusion, or accessibility in democratic society.
This Article examines the lessons of Bob Jones for civil rights advocates as informed by critical race theories that have developed amid a federal-court retreat from enforcement of antidiscrimination norms. It also explores the case’s symbolic value for conservatives motivated to prevent its expansion, even as the Bob Jones Court narrowly constrained its own decision’s impact by refusing to engage a number of crucial substantive questions: namely, the role of pluralism in enforcing civil rights against First Amendment claims, the viability of race-conscious remedies for racial discrimination, and the visibility of economic justice in civil rights claims. This Article ultimately concludes that the legal reorientation critical race theorists have helmed in the wake of Bob Jones remains crucial for identifying and challenging ongoing power disparities in and through every level of democratic government and society.
Lloyd Mayer