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Why Did Public School?s Broadcast Obama?s Speech?

By Jack M. Balkin

Yesterday on the Freakonomics blog, I asked readers "Did Your Kids? School Broadcast Obama?s Speech?"

It seems that many, many public schools across the nation broadcast the speech. So here are some legal questions for Balkinization readers:

1. Did some of the public schools decide to broadcast Obama's speech in part because of his race?
2. If yes, would this race-contingent government decision, as a formal matter, trigger strict scrutiny under the Equal Protection clause?
and
3. If triggered, would the broadcasting decision survive both prongs of the strict scrutiny analysis?

I think the answer is "yes" to all three questions.

Question 1: As a factual matter, it is probable that some schools which had not broadcast past inauguration speeches, choose to broadcast this speech because Obama is the first African-American president. Some probably choose to broadcast it for other reasons: the national crisis, his extraordinary gifts as a speaker, etc. But some administrators candidly spoke that they wanted their students to see this historic event of the first black person taking the oath of office.

Question 2: I'm pretty sure that as a formal matter, any race-continingent government decision, as a formal matter, triggers strict scrutiny. One might argue that a government classification (first-time black presidents) is so specialized somehow avoids Equal Protection analysis. But I'm on record suggesting that another one-off government decision tailored to a specific individual that happened at the other end of the mall should have triggered strict scrutiny. On Easter Sunday, 1939 Marian Anderson was invited by the National Park Service to sing at the Lincoln Memorial in part because of her race. As I wrote in the LA Times:


On Easter morning, 59 years ago, Marian Anderson walked to a microphone at the Lincoln Memorial and began to sing "My Country, 'Tis of Thee." Anderson was contralto with a voice that conductor Arturo Toscanini said "came once in hundred years." But a few months earlier, the Daughters of the American revolution had refused to rent the only large concert hall in Washington to Anderson because she was black. First Lady Eleanor Roosevelt was so outraged at the DAR's action that she not only resigned from the organization, but also prompted the National Park Service to invite Anderson to sing.
More than 75,000 came to hear Anderson that day. Millions listened on radio. Beyond the concert's artistic and emotional impact, the event came to be seen as the first strategic victory of the modern civil-rights movement. Decades later, when Martin Luther King Jr. chose to speak at the Lincoln Memorial, the memory of the crowds at Anderson's concert must have served as a guide. Giving Anderson access to the memorial seemed an appropriate way to make up for the DAR's hateful discrimination.
But, strikingly, a majority of federal appellate judges have interpreted the constitution in a way that would make Anderson's invitation unlawful. Put simply, there is now a dominant view that the government can use racial preferences to remedy only the government's own discrimination. Thus, for example, the Third Circuit Court recently held that, "under the Constitution public employer's remedial affirmative-action initiatives are valid only if crafted to remedy its own past or present discrimination."
Even the Clinton administration, which seeks to "mend, not end" affirmative action, has accepted the premise that racial preferences can only be used to remedy government discrimination. A recent Justice Department guideline states:"Affirmative action in federal procurement is not a means to make up for opportunities minority-owned firms may have lost in the private sector."
But the whole purpose of Anderson's invitation was to make up for the opportunities she lost in the private sector. The federal government at that time did not normally open the Lincoln Memorial for public concerts. The invitation to Anderson was a race-conscious preference, a form of affirmative action, to remedy the DAR's private discrimination.

Question 3. I think the Anderson invitation was constitutional as a narrowly tailored response to private discrimination. The choice of public schools to broadcast Obama's speech (when they do not broadcast other inaugural speeches) helps to illuminate the contours of the strict scrutiny test. What exactly is the "compelling government interest" (and why is broadcasting the speech in public schools "narrowly tailored" to further that interest)? One possibility is that the choice to broadcast the speech is justified as part of a remedy to our nation's long history of discrimination. Letting public school students see the historic event is a way of documenting our remedial progress. This is a case where the revolution will be televized.

Full post as published by Balkinization on January 22, 2009 (boomark / email).