On casebooks and canons or why Bob Jones University will never be part of the constitutional law canon.

• Author: Devins, Neal

Here is a hard sell: making a plausible--let alone convincing--case that Bob Jones University v. United States(1) is one of the canons of constitutional law. As a matter of constitutional doctrine, Bob Jones was never that important to begin with and now seems destined to fade into oblivion. Indeed, the Court's principal holding (that racist private schools are not entitled to federal tax breaks) was a question of statutory construction. The case's constitutional holding (that there is no religious liberty exemption for a school which prohibits interracial dating as a matter of religious conviction) occupies less than two pages in the U.S. Reports and, more important, broke no new ground in free exercise decisionmaking. And if that is not enough, the case seems irrelevant today. The Supreme Court no longer cites it and academics no longer write about it.(2)

More than anything, Bob Jones seems a story about politics, not law.(3) By announcing, in January 1982, that racist schools were legally entitled to tax breaks, the Reagan administration spent much of the next year trying to shake the impression that it too was racist. But it could not. Its efforts to justify its interpretation of the tax code--even if legally correct--were politically unconvincing. After all, Ronald Reagan's 1980 campaign targeted evangelical voters, in part, by attacking the Carter IRS for proposing too strict nondiscrimination enforcement standards, standards that Reagan dubbed a "vendetta" against church-affiliated private schools.

Making matters worse, civil rights interests--who successfully battled the Nixon administration in establishing the nondiscrimination requirement--saw the Reagan announcement as little more than overt racism. Particularly upsetting to the civil rights community was the willingness of the administration to disavow the nondiscrimination requirement just months after its lawyers had told the Supreme Court that Bob Jones University should lose its tax exempt status.(4) Consequently, when (in the midst of this fiasco) Reagan Attorney General William Francis Smith told a Congressional committee that the "`President doesn't have a discriminatory bone in his body,' the hearing room full of civil-rights activists erupted into laughter."(5) Pragmatists within the administration too saw the policy reversal as a catastrophic blunder--blaming this "mess" on lawyers who could not see "the human and perceptual side of this."(6) When the Supreme Court decided Bob Jones, in May 1983, the administration gladly accepted defeat, thankful that this political debacle had come to an end.

That casebook editors do not treat Bob Jones as canonical is understandable. What most people (including law professors) find interesting about Bob Jones does not have much to do with precedent-based legal arguments, theories of judicial interpretation, and the like. But the very fact that Bob Jones has no place in the canon of constitutional law casebooks speaks as much to the limitations of the "case and academic commentary" format of these books as it does to Bob Jones' apparent lack of canonicity. Bob Jones, for example, might be part of the canon if casebook editors paid attention to the myriad ways that politics affects the content and reach of Court decisionmaking. And Bob Jones might be part of the canon if casebook editors saw statutes implicating constitutional values as part of the canon of constitutional law. Finally, if casebook editors did not try to cubbyhole cases into one or another doctrinal category (religious liberty, equal protection, standing, separation of powers), Bob Jones' relevance to cases which are undisputably canonical (Brown v. Board of Education, for example) would be underscored, not ignored.

What follows is an argument for including Bob Jones University v. United States in the constitutional law canon and an explanation as to why casebook authors are unlikely to heed my advice.

Law students need to understand that law, especially constitutional law, is anything but a "closed, independent system having nothing to do with economic, political, social, or philosophical science."(7) For example, most landmark Supreme Court decisions cannot be understood without paying attention to the politics surrounding them. Bob Jones University is a classic example of this law-politics mix. Politics helps explain both the Court's decision to hear the case and its substantive ruling. In hearing the case, the Court played fast and loose with the Article III demand that there be a...