"The great equalizer": Making sense of the supreme court's equal protection jurisprudence in american public education and beyond

Georgetown Law Journal

Volumn 97, Issue 3, 2009, Pages 917-944

  Scutari, Matthew ^a  

^a Georgetown Law ^*  (Guyana)

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EID: 64949178046     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (203)

1. JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS 4 (1991).
2. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2746 (2007).
3. Id. at 2759-61.
4. Brown v. Bd. of Educ, 347 U.S. 483 (1954).
5. Parents Involved, 127 S. Ct. at 2767 (internal citation omitted).
6. Brown, 347 U.S. at 495.
7. Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 547 (1982).
8. Id. at 542.
9. Id.
10. See, e.g., Erwin Chemerinsky, In Defense of Equality: A Reply to Professor Westen, 81 MICH. L. REV. 575 (1983);
11. Kent Greenwalt, How Empty Is the Idea of Equality?, 83 COLUM. L. REV. 1167 (1983);
12. Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983);
13. CHRISTOPHER J. PETERS, Slouching Towards Equality, 84 IOWA L. REV. 801 (1999);
14. Joshua Samoff, Equality as Uncertainty, 84 IOWA L. REV. 377 (1999);
15. Kenneth W. Simons, The Logic of Egalitarian Norms, 80 B.U. L. REV. 693 (2000).
16. Chemerinsky, supra note 10, at 575 n.6.
17. Id. at 576.
18. Karst, supra note 10, at 249-50.
19. See, e.g., Chemerinsky, supra note 10;
20. Greenwalt, supra note 10;
21. Karst, supra note 10;
22. Simons, supra note 10.
23. See Westen, supra note 7, at 542.
24. Karst, supra note 10, at 247.
25. Westen, supra note 7, at 547.
26. SUZANNE PHARR, HOMOPHOBIA: A WEAPON OF SEXISM 53-64 (Chardon Press 1997) (1988).
27. Brown v. Bd. of Educ, 347 U.S. 483, 489-90 (1954). The Court noted that the passage of the amendment was controversial, and that public education as the Court knew it in 1954 did not yet exist when the Reconstruction Amendments were ratified.
28. Id.
29. Id. at 492, 495.
30. Id. at 494.
31. Id. at 495.
32. ERIKA FRANKENBERG ET AL., THE CIVIL RIGHTS PROJECT, HARVARD UNIV., A MULTIRACIAL SOCIETY WITH SEGREGATED SCHOOLS: ARE WE LOSING THE DREAM? 28 (2003).
33. Id. at 30.
34. See id.
35. See Taunya Lovell Banks, Trampling Whose Rights? Democratic Majority Rule and Racial Minorities: A Response to Chin and Wagner, 43 HARV. C.R.-C.L. L. REV. 127, 159 (2008).
36. FRANKENBERG ET AL., supra note 23, at 35. Students were classified as "poor" or "near poor" based on whether they received free or reduced lunch at school.
37. Id. at 35 n.96.
38. Id. at 35.
39. See Charles R. Lawrence HI, Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy), 114 YALE L.J. 1353, 1359 (2005) [hereinafter Lawrence, Forbidden Conversations].
40. See Margaret C. Wang & John A. Kovach, Bridging the Achievement Gap in Urban Schools: Reducing Educational Segregation and Advancing Resilience-Promoting Strategies, in CLOSING THE ACHIEVEMENT GAP: A VISION FOR CHANGING BELIEFS AND PRACTICES 13 (1996).
41. See Banks, supra note 26, at 159.
42. See id.; Pedro A. Noguera, The Trouble with Black Boys: The Role and Influence of Environmental and Cultural Factors on the Academic Performance of African American Males, 38 URB. EDUC. 431, 436(2003).
43. See generally Jean Anyon, Social Class and the Hidden Curriculum of Work, 162 J. EDUC. 67 (1980).
44. See John C. Powell, Living and Learning: Linking Housing and Education, 80 MINN. L. REV. 749, 752(1996).
45. See Lawrence, Forbidden Conversations, supra note 29, at 1358 ("In the years immediately following Brown v. Board of Education, we spoke of de facto segregation with the understanding that despite the absence of legal injury there was still an injury in fact,⋯ an injury caused by our private acts, a moral injury for which we were personally and collectively responsible.").
46. See Milliken v. Bradley, 418 U.S. 717, 752-53 (1974).
47. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2759-61 (2007) (finding no de jure segregation and holding use of racial tiebreakers in student assignment plans not narrowly tailored where race can be the sole factor determining a student's assignment to a particular school).
48. Lawrence, Forbidden Conversations, supra note 29, at 1358.
49. See James E. Ryan, Voluntary Integration: Asking the Right Questions, 67 OHIO ST. L.J. 327, 337 (2006).
50. Brief in Opposition to Writ of Certiorari at 2, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (No. 05-908).
51. See Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 424-25 (1960).
52. See id ("[T]he movement for segregation was an integral part of the movement to maintain and further 'white supremacy ⋯'.").
53. The Supreme Court has maintained a legal distinction between de jure and de facto segregation. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 116 (1995) (Thomas, J., concurring) (finding no constitutional violation in predominantly black school system because there was no evidence of intentional state-imposed segregation and finding that "[t]he continuing 'racial isolation' of schools after de jure segregation has ended may well reflect voluntary housing choices or other private decisions"); Pasadena City Bd. of Educ. v. Spangle, 427 U.S. 424, 435-36 (1976) (attributing the racial segregation of the city's schools to "a normal pattern of human migration" by which "people randomly mov[ed] into, out of, and around" the school district). But see Milliken v. Bradley, 418 U.S. 717, 761 (1974) (Douglas, J., dissenting) ("[T]here is so far as the school cases go no constitutional difference between de facto and de jure segregation. ⋯").
54. See Lawrence, Forbidden Conversations, supra note 29, at 1377;
55. see also Charles R. Lawrence JU, "One More River To Cross"-Recognizing the Real Injury in Brown: A Prerequisite to Shaping New Remedies, in SHADES OF BROWN: NEW PERSPECTIVES ON SCHOOL DESEGREGATION 49, 53 (Derrick Bell ed., 1980) ("Because segregation's purpose and function is to define or classify blacks as inferior, the injury that it inflicts is systemic rather than particular.") [hereinafter Lawrence, "One More River To Cross"].
56. Lawrence, "One More River To Cross," supra note 44, at 53.
57. Id. at 50 ("[T]he institution qf segregation is organic and self-perpetuating. Once established it will not be eliminated by mere removal of public sanction but must be affirmatively destroyed." (emphasis in original)).
58. The state may, of course, consider race in crafting remedial measures where there is evidence of past discrimination by the state entity in question. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 300 (1978).
59. See Alan David Freedman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1052-53 (1978). This conception of equality is related to what Freedman calls the "victim, or 'condition,' conception of racial discrimination," which "suggests that the problem [of racial discrimination] will not be solved until the conditions associated with it have been eliminated. To remedy the condition of racial discrimination would demand affirmative efforts to change the condition."
60. Id. at 1053.
61. Westen, supra note 7, at 547.
62. 50.Id
63. See id.
64. See id. at 560.
65. Id. at 544.
66. Id.
67. Consider, for example, laws that require people to pass a test in order to obtain a driver's license. Those who pass the test receive a driver's license, while those who fail do not. In terms of equality, this could be stated as the rule "all people who pass the test receive a driver's license." Descriptively, this rule includes only those people who pass the test; those who do not are treated differently for purposes of the rule's prescriptive component. Such differential treatment does not violate the equality principle, however, because the rule descriptively establishes that people who fail the test are not "like" those who pass the test for the purpose of driver's license distribution.
68. See Westen, supra note 7, at 544-45.
69. Id. at 545.
70. Lawrence, Forbidden Conversations, supra note 29, at 1382.
71. Ian F. Haney López, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985, 987 (2007).
72. The anticlassification principle is often articulated in a way that purports to establish a descriptive standard that includes all people. For example, it has been argued that strict scrutiny should be applied whenever burdens or benefits are distributed on the basis of race because such decisions should not be based on immutable traits. But many laws not subject to heightened scrutiny distribute burdens and benefits on the basis of immutable traits other than race. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (rejecting application of heightened scrutiny to the mentally retarded);
73. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) (rejecting application of heightened scrutiny to the elderly).
74. See Westen, supra note 7, at 576-92.
75. Id. at 580.
76. Id. at 582.
77. See id. at 583. For example, Justice Thomas's assertion that "there is a moral [and] constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race," Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240-41 (1995) (Thomas, J., concurring in part and concurring in the judgment), erroneously assumes that invidious racial classifications and remedial racial classifications can be evaluated in all cases based on the same moral or legal criteria.
78. See Westen, supra note 7, at 581-84.
79. See Westen, supra note 7, at 584-85.
80. See id. at 587. Justice Kennedy seems to have implicitly recognized this problem with equality analysis in his opinion for the Court in Lawrence v. Texas, which held that a Texas law criminalizing private sexual acts between consenting adults of the same sex violated the Due Process Clause. 539 U.S. 558, 578-79 (2003). Kennedy expressed concern that, were the Court to hold the statute unconstitutional under the Equal Protection Clause, "some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants."
81. Id. at 575.
82. See Westin, supra note 7, at 589-90.
83. Freedman, supra note 48, at 1074 (emphasis added).
84. Id at 1075.
85. PHARR, supra note 18, at 53-64.
86. Id. at 53-56. The oppressed group is also denied any prior claim to inclusion in the denned norm, and its history is distorted.
87. Id. at 56-59. The group is stereotyped, isolated, and rendered invisible.
88. Id. at 58-61. Finally, oppression is maintained by internalized oppression and horizontal hostility among members of the oppressed group.
89. Id. at 60-61.
90. Id. at 62-64.
91. Id. at 61-64.
92. See discussion supra sections II. A. & II.B.
93. See PHARR, supra note 18, at 53.
94. HORACE MANN, END POVERTY THROUGH EDUCATION (1848), reprinted in HORACE MANN ON THE CRISIS IN EDUCATION 124 (Louis Filler ed, 1965).
95. Freedman, supra note 48, at 1059.
96. See Darren Lenard Hutchinson, "Unexplainable on Grounds Other than Race": The Inversion of Privilege and Subordination in Equal Protection Jurisprudence, 2003 U. III. L. REV. 615, 638-39 (2003).
97. Id. at 638.
98. See discussion supra sections II. A. & U.B.
99. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
100. Id. at 276-78.
101. Id. at 289-90. Justice Powell refused to enjoin all use of race in admissions decisions, however, finding that race could be used in an admissions program that did not "insulate the individual from comparison with all other candidates for the available seats."
102. Id. at 317.
103. Id. at 327 (Brennan, J., concurring in the judgment in part and dissenting in part).
104. Id. at 357 (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)).
105. Id. at 361.
106. Id. at 361-62 (emphases added).
107. See supra section JJ..B.
108. See Westen, supra note 7, at 582-83.
109. See id. at 587; supra note 65 and accompanying text.
110. See discussion supra section U.C.
111. Bakke, 438 U.S. at 327.
112. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).
113. Metro Broad., Inc. v. FCC, 497 U.S. 547, 564-65 (1990).
114. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
115. Id. at 226-27.
116. Id. at 230.
117. Id. at 227.
118. Wygant v. Bd. of Educ., 476 U.S. 267, 280 n.6 (1986).
119. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307, 311-13 (1978).
120. Id. at 307.
121. Id.
122. Wygant, 476 U.S. at 276.
123. Id. (emphasis in original).
124. Westen, supra note 7, at 583 (emphases in original).
125. Bakke, 438 U.S. at 311-13.
126. Id. at 312. Of course, the right being vindicated by the diversity rationale-that of academic freedom-belongs to the university, not to any particular individual or group. Thus, when based on a compelling interest in diversity, the Court's equal protection analysis has, in a sense, nothing to do with equality at all.
127. Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
128. Id. at 312-17.
129. Id. at 330.
130. Id. (internal citations omitted).
131. Id. at 330-31 (quoting Plyler v. Doe, 457 U.S. 202, 221 (1982)).
132. See discussion supra section H.C.
133. PHARR, supra note 18, at 62.
134. Id. at 63.
135. Grutter, 539 U.S. at 332.
136. Brown v. Bd. of Educ, 347 U.S. 483, 495 (1954).
137. Grutter, 539 U.S. at 333 (quoting Shaw v. Hunt, 517 U.S. 899, 908 (1996)).
138. Id.
139. See Hutchinson, supra note 78, at 640.
140. Grutter, 539 U.S. at 326 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995)).
141. Id. at 336-37.
142. Cf. PHARR, supra note 18, at 64.
143. See Westen, supra note 7, at 582; text accompanying supra note 69.
144. See Hutchinson, supra note 78, at 638-39.
145. Id. at 639 (emphasis added).
146. See, e.g., Missouri v. Jenkins, 515 U.S. 70 (1995);
147. Milliken v. Bradley, 418 U.S. 717 (1974);
148. Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973);
149. Swann v. Charlotte-Mecklenburg Bd. of Educ, 402 U.S. 1 (1971);
150. Green v. County Sch. Bd. of New Kent County, 391 U.S. 430 (1968).
151. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003);
152. Gratz v. Bollinger, 539 U.S. 244 (2003);
153. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
154. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007).
155. Id.
156. Id. at 2746, 2759-61.
157. See id. at 2789, 2791-93 (Kennedy, J., concurring in part and concurring in the judgment).
158. See id. at 2757-59, 2767-68 (plurality opinion).
159. See supra section II.B. For a related discussion of Westen's writings in the context of Parents Involved, see Michael J. Kaufman, PICS in Focus: A Majority of the Supreme Court Reaffirms the Constitutionality of Race-Conscious School Integration Strategies, 35 HASTINGS CONST. L.Q. 1, 35-38 (2007).
160. Westen, supra note 7, at 579.
161. See discussion supra Part IU.
162. Parents Involved, 127 S. Ct. at 2757 (internal quotation marks and citations omitted).
163. Id. at 2752 ("We have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that 'the Constitution is not violated by racial imbalance in the schools, without more.'" (quoting Miliken v. Bradley, 433 U.S. 267, 280 n.14 (1977)).
164. See supra Part I.
165. Brief for Respondents at 6, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (No. 05-908).
166. See Parents Involved, 127 S. Ct. at 2803-05 (Breyer, J., dissenting).
167. Id. at 2805.
168. Id. at 2806.
169. Brief for Respondents, supra note 140, at 33 (emphasis added).
170. Id. at 1 (explaining that while over 75% of the Seattle district's non-white students live in the southern half of the city, 67% of the district's white students live in the city's northern half).
171. Id. at 39.
172. Id. at 33.
173. See generally id.
174. Id. at 18.
175. Id. at 24.
176. Id. at 27 (emphasis added);
177. see also id. at 28 (explaining that through school integration, the Board sought to '"open opportunity networks in areas of higher education and employment' for minority students in particular" (internal citation omitted)).
178. Id. at 46 n.38 (internal citations omitted).
179. See id; see also Transcript of Oral Argument at 34, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (No. 05-908) (Michael F. Madden on behalf of Respondent) ("[T]here's no material differences between those ⋯ popular schools.⋯").
180. See Petitioner's Brief at 3-5, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (No. 05-908).
181. Id. at 4.
182. Id at 33.
183. See discussion supra Part HI.
184. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2788, 2791-92 (2007) (Kennedy, J., concurring in part and concurring in the judgment).
185. Id at 2797.
186. Id. at 2795-96 (internal citations omitted).
187. Id. at 2797-98 (Stevens, J., dissenting) (internal citations omitted).
188. See generally id.
189. Id. at 18.
190. Id. at 24.
191. Id. at 27 (emphasis added);
192. see also id. at 28 (explaining that through school integration, the Board sought to '"open opportunity networks in areas of higher education and employment' for minority students in particular" (internal citation omitted)).
193. Id. at 46 n.38 (internal citations omitted).
194. See id;
195. see also Transcript of Oral Argument at 34, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (No. 05-908) (Michael F. Madden on behalf of Respondent) ("[T]here's no material differences between those ⋯ popular schools").
196. See Petitioner's Brief at 3-5, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (No. 05-908).
197. Id. at 4.
198. Id at 33.
199. See discussion supra Part III.
200. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,127 S. Ct. 2738, 2788, 2791-92 (2007) (Kennedy, J., concurring in part and concurring in the judgment).
201. Id at 2797.
202. Id. at 2795-96 (internal citations omitted).
203. Id. at 2797-98 (Stevens, J., dissenting) (internal citations omitted).