When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law

Beginning of article

INTRODUCTION
I. THE TREATMENT OF LEVELING DOWN BY THE COURTS
   A. Palmer v. Thompson Revisited: Formal Equality and
      Discriminatory Intent
   B. Doctrinal Discomfort with Leveling Down
   C. Seeds of Constraint
      1. The Significance of the Benefit
      2. Remedial Principles Favoring Extension of Benefits
      3. External Limits Fixing the Level of Treatment
         for One Class
      4. Leveling Down as a Cover for
         Continuing Discrimination
   D. Room for Further Development of
      Equality-Based Limits
II. A MORE CRITICAL PERSPECTIVE ON LEVELING DOWN
    AND EQUALITY
    A. Equality as Equal Concern
    B. An Expressive Meaning Approach to Leveling Down
III. APPLYING AN EXPRESSIVE MEANING APPROACH
    A. Three Examples Where Leveling Down Conflicts with
       Equality Law
    B. Three Examples Where It May Not
IV. ADVANCING THE DEBATE OVER
    EQUALITY'S NORMATIVE VALUE
    A. Equality's Critics and the Leveling Down Objection
    B. The Treatment of Leveling Down by
       Equality's Defenders
    C. How Attention to Social Context and
       Expressive Meaning Would Enrich the Debate
CONCLUSION

INTRODUCTION

In the canon of equal protection, it is seemingly well-settled that inequality may be remedied either by leveling up and improving the treatment of the disadvantaged class, or by leveling down and bringing the group that is better off down to the level of those worse off. (1) The presumptive permissibility of leveling down is viewed as an inherent feature of equality rights and is not limited to equal protection; it applies in the statutory context as well, so long as not expressly prohibited. (2) The acceptability of leveling down in response to inequality is even invoked to question whether equality has any normative appeal at all, since it may serve as the vehicle for producing an outcome which, by utilitarian standards, may seem inefficient and undesirable. (3) As one of the leading constitutional law texts puts it:

   Even if we could give substantive content to the equality
   requirement, it is not clear why it has any normative appeal.
   Although the demands of the equal protection clause can be
   satisfied by extending the contested benefit to a broader group,
   the government need not respond in this fashion. It may also
   fully satisfy the demand of equality by denying both groups the
   contested benefit. (4)

Utility aside, the leveling down problem casts doubt on whether conventional equality jurisprudence serves the interests of those whom it supposedly protects. (5) The permissibility of leveling down confronts persons disadvantaged by inequality with a double bind: challenge the inequality and risk worsening the situation for others instead of improving one's own situation, or continue to endure unlawful discrimination. (6) This Article argues that there is a way out of this double bind: to recognize that leveling down is not always consistent with the meaning of equality as reflected in U.S. discrimination law.

The current approach to leveling down rests on two contestable understandings. First, leveling down implicitly relies on a principle of equal treatment as the exclusive meaning of equality without taking into account alternative understandings that would render leveling down problematic in certain settings. Second, leveling down proceeds from an abstracted and objectified analysis of equality that ignores the lived experience of inequality and implicitly privileges the perspective of those doing the abstracting. Current analysis of leveling down treats equality as if it were about balancing faceless pieces of clay on a scale with the single goal of arriving at equal weights in either direction. As much critical scholarship has shown, that kind of abstracted analysis often incorporates privileged norms that obscure the full extent of injuries to subordinated persons. (7) By injecting the lived experience of inequality back into the equation, leveling down is revealed as a questionable strategy that is sometimes used to preserve dominance contrary to the values of equality.

As an example of how leveling down can thwart rather than secure equality, the lesser known case of Cazares v. Barber adds a human dimension to the problem. (8) Elisa Cazares became pregnant when she was fifteen-years-old and a student at the Tohono O'Odham High School on the Tohono O'Odham Nation reservation in western Arizona. (9) Cazares, a member of the Papago Indian Tribe, was ranked first in her sophomore class, served as a leader in student government, and actively participated in a number of student activities. (10) When the school obtained a charter in 1989 entitling it to induct members into the National Honor Society (NHS), Cazares had every reason to expect that she would be included. (11) The school's selection committee, however, found Cazares unworthy of membership because she was "pregnant, unmarried, and not living with the father of her future child." (12) Cazares sued in federal district court, challenging her exclusion as a violation of both Title IX and equal protection. (13) The district court found that the school had discriminated against Cazares on the basis of sex in violation of her rights under both Title IX and the Fifth Amendment, and entered an injunction ordering that she be included in the school's induction ceremony. (14) The victory, however, proved to be hollow: the school responded by cancelling the ceremony and terminating its participation in the NHS. (15)

Whether the school district complied with the equality guarantees of Title IX and the Fifth Amendment turns on one's conception of equality and the values that it protects. This, in turn, depends on one's prior commitments and aspirations for equality law. (16) If legal guarantees of equality require only formal equality, satisfied by eliminating differential treatment, then the school district's actions are difficult to challenge. If equality law includes a richer kind of equality principle that recognizes injuries other than tangible differences in treatment, however, then the cancellation of the induction ceremony not only failed to secure equality, but placed it farther out of reach. Although all of the students were treated the same with respect to the denial of NHS participation, Elisa Cazares was left no better off, and quite possibly worse off, for having won her sex discrimination case. The cancellation may have been even more stigmatizing to Cazares than her initial exclusion--the school deemed her so unworthy of membership in the organization that it preferred to cancel the NHS completely rather than to include her as an honoree. Further, it positioned her as the scapegoat responsible for disappointing the expectations of the students who otherwise would have been inducted into the NHS.

The current understanding of leveling down's compatibility with equality norms may be traced to Palmer v. Thompson, (17) one of the earlier and more prominent cases in which this tactic was successfully employed. Specifically, Palmer arose out of an equal protection challenge by African American residents of Jackson, Mississippi, to the city's operation of racially segregated recreational facilities. (18) Of the city's five publicly operated swimming pools, four had been restricted to whites only, leaving just one open to African Americans. (19) Three African American residents of Jackson obtained a declaratory judgment affirming their right under the Equal Protection Clause to the desegregated use of the city's public recreational facilities. (20) However, rather than integrate the pools, the city decided to end its role in providing public pools to city residents by closing the four pools that it owned and relinquishing its lease on the fifth. (21) The pool closures prompted a second lawsuit by Jackson's African American residents that challenged the closures as another equal protection violation. The district court, the Fifth Circuit, and finally the U.S. Supreme Court all upheld the city's action as a legitimate response to the equal protection violation caused by the prior segregation. (22)

Although the rationale for upholding leveling down responses has shifted somewhat since Palmer, the underlying premise--that equality law has little or nothing to say about leveling down as a response to inequality--has remained largely unchallenged. More than three decades after Palmer, leveling down the treatment of the favored group continues to be a viable strategy for thwarting equality claims. In addition to Cazares, recent examples of actual or threatened leveling down responses include the following:

* In a Title IX challenge to inequality in men's and women's intercollegiate athletics, Brown University proposed to remedy the Title IX violation by cutting the number of opportunities available to male athletes until they reached parity with the lower number of opportunities for female athletes. (23))

* After losing an equal protection challenge to its males-only admissions policy, the Virginia Military Institute (VMI) threatened to become private and conducted a study of the feasibility of discontinuing its status as a public institution. This option was explored as a way to remedy the equal protection violation by eliminating VMI as a public institution altogether instead of admitting women. (24)

* In response to successful litigation challenging inequality in public school funding under the New Jersey Constitution, former Governor Christine Whitman proposed a plan to level down spending in wealthier school districts to reach equality with poorer districts. (25)

* Several school districts charged with discriminating against gay and lesbian student groups in violation of the federal Equal Access Act have responded by banning, or threatening to ban, all extracurricular student clubs. (26)

* In late March of 2004, in response to uncertainty generated by legal challenges from gay and lesbian couples to a law limiting marriage to a man and a woman, Benton County, Oregon suspended marriage licenses to all couples. (27) County officials had announced earlier that they would begin issuing marriage licenses to same-sex couples, following the footsteps of another Oregon county, but changed course in response to a lawsuit contending that such actions would violate the state's marriage law. (28)

These cases differ in many respects, but they share one important feature: the assumption that leveling down would remedy the unlawful inequality was largely uncontested. Even when it is not raised overtly, the presumptively available option of leveling down hangs over potential discrimination claims like a dark cloud, undermining the effectiveness of equality rights, and even deterring individuals from bringing such claims in the first place. (29) In addition to its power to thwart specific challenges to inequality, the uncritical acceptance of leveling down functions to undermine popular support for equality law, as is evident in the recent controversy over whether Title IX should be abandoned or diluted based on the perception that it has resulted in the leveling down of men's athletic opportunities. (30)

Despite its pervasiveness, the problem of leveling down in equality law has received scant attention in legal scholarship. Issues of how to define discrimination and close the gap between law and widespread inequality have taken precedence for many scholars writing in related areas. Leveling down as a remedy to inequality takes center stage in practice only after the inequality in question has been recognized as actionable. With few exceptions over the past two decades, the trend in the courts has been to narrow the types of bias and discrimination within the reach of both statutory and constitutional equality law. (31) Those who challenge inequality often encounter insurmountable hurdles at the liability stage in proving unlawful discrimination. Consequently, questions of how to remedy discrimination arise less frequently in legal scholarship than concerns about the limited scope of legally recognized discrimination.

Yet, beliefs about leveling down as an acceptable remedy to inequality influence prevailing understandings of the meaning of equality as guaranteed in law. (32) The conventional understanding of leveling down bolsters and reinforces a selective and overly narrow conception of equality, masking interpretive choices and contributing to the view that equality itself is misguided in law and in theory. For example, in the one area of legal scholarship that has paid significant attention to leveling down, the concept is invoked to undermine the normative appeal of equality rights altogether. In a recently rekindled debate, critics and defenders of equality argue about whether the permissibility of leveling down indicts equality as a principle of justice. (33) Both the critics and defenders assume a greater degree of flexibility in permitting leveling down than is necessary. A more contextual analysis of the case law and real world examples of leveling down demonstrates that there is room for further development of equality-based limits.

This Article contends that courts and commentators have assumed too readily that leveling down is an acceptable, if unfortunate, response to discrimination, and that the flexibility of equality law in this respect has been significantly overstated. Part I examines current doctrine and mines existing precedent for possible limitations. A survey of the case law shows that there is more room for contesting the validity of leveling down than is generally acknowledged. Although lower courts typically follow Palmer's approach, Supreme Court precedent does not foreclose a more critical analysis of leveling down and its relationship to equality. Indeed, the Court has shown some discomfort with leveling down and has struggled to articulate limits to this remedy. (34) Although the Court has not yet done so, there is room to further develop equality-based limits on leveling down.

Part II seeks to develop a more complete understanding of leveling down and its relationship to equality law. It begins by exploring the content of equality law and arguing that the fundamental principle of equality requires equal concern, a broader principle than mere equal treatment. An equal concern principle must be sensitive to inequality in social relations and must reject actions that devalue and exclude persons from equal membership in a shared community. Recent scholarly work on both the significance of expressive harms and the reproduction of status inequality and social stratification helps explain why some leveling down actions may violate a principle of equal concern. Insights from this literature also undermine the faith that the political process will adequately check leveling down because the majority will not unnecessarily deny itself benefits. Understanding the significance of status in intergroup relations exposes the political process as an insufficient check on leveling down when it functions as a strategy for preserving social inequality.

Part III applies this framework to examine particular examples of leveling down and how they fare under an equal concern principle. This section first examines the three cases of Palmer, Cazares, and the Virginia Military Institute's threat to privatize, and explains why the leveling down in each case should be viewed as a violation of equality law. It then explores three types of cases where leveling down may fit comfortably with an equal concern principle: (1) where the injury from the discrimination is a formal equality injury that may be remedied by the end of differential treatment; (2) where some leveling down is necessary to set a sustainable baseline consistent with equal concern; and (3) where the benefit at issue is so distorted by privilege that equal concern requires the relinquishment, rather than the extension, of unjust privilege. As these examples show, any analysis that does justice to equality law must attend to the facts and socio-historic context of the cases and must remain sensitive to the social meaning expressed by leveling down.

Finally, Part IV contrasts this Article's approach to leveling down with that taken by those scholars who have written about leveling down in the debate over equality. Critics of equality raise the permissibility of leveling down as part of their indictment of equality's normative appeal. Defenders of equality respond by arguing that leveling down is not so problematic as to warrant the rejection of equality rights. In my view, neither side in this debate explores the relationship between leveling down and equality law adequately. The existing discourse on equality's value and the leveling down objection reflects an overly abstracted view of equality and insufficient attention to the relational injuries of inequality that leveling down may exacerbate. Both sides too readily assume leveling down's consistency with equality rights. A more nuanced understanding of leveling down would enrich the debate over equality's value.

I. THE TREATMENT OF LEVELING DOWN BY THE COURTS

Courts have not foreclosed the possibility that leveling down might conflict with equality law so much as they have not considered the issue thoroughly. For the most part, lower courts continue to take their lead from Palmer with little or no discussion. Palmer's acceptance of the pool closure set the tone for future cases by viewing differential treatment as the touchstone of discrimination. Although Palmer's reasoning was expressly disclaimed in later Supreme Court precedent, (35) the discriminatory intent standard that replaced it has not functioned, and is not likely to function in the future, as a meaningful limit on leveling down. Still, there is some precedent that supports setting limits on leveling down as a response to inequality in certain circumstances. None of the limits to date have been fully developed or adequately tethered to a basis in equality law, but their very articulation by courts suggests some doctrinal discomfort with the presumptive acceptability of leveling down remedies. The bottom line of this trek through the case law is that the prospects for regarding leveling down more critically are not as bleak as generally supposed, even if they require additional theoretical work.

A. Palmer v. Thompson Revisited: Formal Equality and Discriminatory Intent

The Court's resolution of the equal protection issue in Palmer v. Thompson, (36) and its treatment of Palmer in later decisions, provides a starting point for understanding the prevailing judicial approach to leveling down. In Palmer, Justice Black's opinion for the majority began with the rather obvious statement that nothing in the Constitution places "an affirmative duty on a State to begin to operate or to continue to operate swimming pools." (37) Framing the issue in terms of equal access to swimming pools, Justice Black viewed the decision to close the pools as one that did not provide white residents with any benefit or service that was denied to black residents. (38) The Court then turned to the doctrinal question of what role a defendant's intent plays in an equal protection analysis. Significantly, the Court decided Palmer five years before its decision in Washington v. Davis, which rejected a discriminatory effects standard and required proof of discriminatory intent to obtain heightened scrutiny of facially neutral practices under the Equal Protection Clause. (39) In Palmer, however, a majority of the Court took the opposite position and proclaimed the irrelevance of the Jackson city council's motives to the equal protection analysis. (40) Justice Black's opinion then waded through a series of prior Supreme Court decisions that might be thought to conflict with this pronouncement, recasting them as cases in which the seemingly neutral denial of a benefit was really a facade for ongoing discriminatory treatment. (41) The Court then distinguished Palmer from the prior precedent, highlighting it as a case where the differential treatment ended fully with the pool closures. (42)

The dissenters in Palmer disagreed with the Court about the role of intent in an equal protection analysis, and found the city's actions to have been motivated by a discriminatory purpose. Justice White, joined by Justices Brennan and Marshall, concluded that "[c]losing the pools without a colorable nondiscriminatory reason was every bit as much an official endorsement of the notion that Negroes are not equal to whites" as official segregation. (43) Justice White began his discussion of the case by providing a detailed history of Jackson city officials' intransigent resistance to racial integration and their avowed determination to resist desegregation of the city's public facilities. (44) To Justice White, the pool closures did not remedy the harm of segregation, and may have exacerbated it. (45) As he put it, "the closed pools stand as mute reminders to the community of the official view of Negro inferiority." (46)

Five years later, Justice White's view of the significance of motive in an equal protection analysis prevailed in Washington v. Davis. (47) The Court's revised stance in Davis appeased the most prominent criticism of Palmer at the time: that an actor's discriminatory intent should invalidate an otherwise legitimate state action under the Equal Protection Clause. (48) After Davis, Palmer's critics could take comfort in the belief that, however problematic the result in Palmer, equal protection doctrine would henceforth ensure the absence of discriminatory intent behind a leveling down response. Under current doctrine, the presence of a discriminatory motive may provide a basis for challenging an otherwise acceptable leveling down response. (49)

The intent standard, however, has turned out to be not much of a limit on leveling down. The difficulty with focusing on the motive behind a leveling down response was foretold by Justice Blackmun's concurrence in Palmer. Justice Blackmun agreed with the dissenters that an impermissible motive could give rise to an equal protection violation, and joined with the majority on this point five years later in Washington v. Davis. Yet, he found Palmer to be a "'hard' case" in which "there is much to be said on each side." (50) Siding with the majority, he cited several factors that impressed him, including the fact that the city had not shut down its other recreational facilities under the threat of integration and his lack of conviction that the pool closures were "an official expression of inferiority toward black citizens," as Justice White and the other dissenters contended. (51)

The problems associated with proving discrimination under an intent standard, and the reluctance of courts to attribute discriminatory motives to public and private actors, have been the subject of much scholarly criticism. (52) The difficulties identified in these well-founded critiques are no more daunting when the search for intent occurs at the leveling down phase of a case rather than at the point of determining an initial violation. (53) Under the prevailing version of the intent standard, it is extremely difficult to prove discriminatory motive where another legitimate explanation is possible. (54) As a decision to uniformly deny favorable treatment may always be explained in terms of conserving resources and rearranging societal priorities, it is exceedingly difficult to establish a discriminatory motive as the foundation for a leveling down response. Indeed, Justice Blackmun noted in Palmer that the pools had been running at a fiscal deficit, and he deferred to "the judgment of the city officials that these deficits would increase." (55) Thus, even though Washington v. Davis reversed the rationale relied on by the majority in Palmer, the Court's shift to an intent standard does not necessarily unsettle Palmer's result.

The Court's subsequent treatment of Palmer makes explicit the understanding that the use of an intent standard might not have changed the result in that case. Writing for the majority in Davis, Justice White stated that:

   The holding was that the city was not overtly or covertly
   operating segregated pools and was extending identical treatment
   to both whites and Negroes.... [T]he legitimate purposes of
   the ordinance--to preserve peace and avoid deficits--were not
   open to impeachment by evidence that the councilmen were
   actually motivated by racial considerations. (56)

In Justice White's revisionist account, Palmer stands for the principle that equal protection is satisfied when persons of all races are treated the same and proof of a discriminatory purpose is lacking. (57) Ironically, the intent standard that Justice White fought for in his dissent in Palmer turned out to be inadequate to capture even the discriminatory motive that he thought present in that very case. That Palmer plausibly can be explained as a case lacking proof of discriminatory intent shows just how anemic the intent standard is when applied to leveling down.

Equal protection cases post-Davis provide little reason for optimism that an intent standard, as applied by the Court, will provide a meaningful tool for policing leveling down responses to discrimination claims. In Village of Arlington Heights v. Metropolitan Housing Development Corp., (58) the Court expressly noted the difficulty of discerning a discriminatory motive, citing Palmer for support. (59) In City of Memphis v. Greene, (60) the Court continued to explain Palmer as a case that involved neither differential treatment nor a discriminatory motive, citing it to support its holding that Memphis could close a street connecting a black and white neighborhood, in the absence of evidence of a discriminatory purpose, because the closing did not confer any benefit on whites that was refused to blacks. (61)

The upshot is that the Court's adoption of a discriminatory intent standard in Davis does little to set meaningful limits on leveling down. As long as leveling down is uniform and ends differential treatment, it is likely to elude a discriminatory intent standard. Indeed, lower courts confronted with leveling down proposals typically assume that it is a permissible response to discrimination without any serious inquiry into intent. Two examples from more recent cases reflect this current approach.

In Cazares, the Ninth Circuit expressed displeasure with the school's response, but did not view it as inconsistent with the equality guaranteed by either Title IX or the Constitution. (62) After the district court ruled in favor of the plaintiff and the school cancelled the awards ceremony and terminated its participation in the NHS, the plaintiff sought attorney's fees under the Equal Justice Act, which authorizes fees for prevailing plaintiffs in civil rights cases against the government. (63) In the litigation over attorney's fees, both the district court and the Ninth Circuit cited the school's response in canceling the honor society as a discretionary factor that supported an award of fees in excess of the statutory cap. (64)

Although the treatment of the cancellation under the Equal Justice Act shows some discomfort with the leveling down remedy, the courts did not connect their concerns with any limits imposed by the underlying substantive law. Neither court questioned whether the school's response might violate the equality principle embodied in Title IX or the Constitution. Judge Kozinski, who dissented from the panel decision affirming the award of attorney's fees, was the most explicit on this point. He objected to the lower court's reliance on the cancellation to support a higher fee award, stating "[i]t doesn't matter, of course, why a party chooses one of two permissible ways of complying with a district court's order." (65) Neither the majority nor the district court offered any response to Judge Kozinski's point that cancellation was a valid remedial choice, presumably agreeing that neither Title IX nor the Equal Protection Clause prevented the school from canceling the ceremony, even though they disagreed with Judge Kozinski about whether the cancellation could support a higher award of fees under the fee shifting statute. (66) The bottom line is that the school's response was assumed to satisfy the requirements of equality without any inquiry by the court into the school district's intent in canceling its participation in the NHS.

Another case involving a Title IX claim, Cohen v. Brown University, (67) also treated a proposal to remedy discrimination by leveling down as compatible with equality law without any inquiry into discriminatory intent. In Cohen, female student-athletes challenged Brown University's (Brown) failure to provide male and female athletes with equal opportunities to play varsity sports. Although this case did not include an equal protection claim, Title IX also prohibits intentional discrimination and would have provided recourse for an adverse action motivated by a discriminatory intent. (68) Yet, the First Circuit gave Brown seemingly unlimited discretion to achieve equality by leveling down, without any inquiry into whether Brown's proposal was motivated by a discriminatory intent.

The leveling down issue came before the court after Brown had been found in violation of Title IX. Rather than impose its own remedy, the district court gave Brown the opportunity to come forward with a remedial plan emphasizing the law's remedial flexibility:

   Brown may achieve compliance with Title IX in a number of
   ways. It may eliminate its athletic program altogether, it may
   elevate or create the requisite number of women's positions, it
   may demote or eliminate the requisite number of men's positions,
   or it may implement a combination of these remedies. I
   leave it entirely to Brown's discretion to decide how it will
   balance its program to provide equal opportunities for its men
   and women athletes. (69)

At the same time, however, the district court sounded a note of skepticism as to whether Brown actually needed to eliminate men's opportunities in order to achieve compliance, as the university had claimed throughout the litigation:

   Defendants frequently raised the specter of being forced by
   financial constraints to eliminate men's athletic opportunities in
   order to achieve compliance under plaintiffs' interpretation of
   the law. I feel compelled to point out that an institution has
   much flexibility, even within a finite resource base.... Thus,
   defendants' plea that "[t]here is nothing further Brown can do
   except cut, cap or eliminate men's teams," ... is simply not true.
   Brown certainly retains the option to distribute its resources in
   a way that may slightly reduce the "standard of living" for its
   university-funded varsity sports in order to expand the
   participation opportunities for its women athletes and closer
   approach equal opportunity between its male and female athletes.
   Whether it will follow this course of action is, of course, well
   within its discretion. (70)

The district court's skepticism turned to disbelief when presented with Brown's plan for compliance. Rather than accept the district court's invitation to lower the standard of living for its high-status teams in order to make way for new playing opportunities for women, Brown proposed to cap existing men's teams, while recognizing several new junior varsity teams for women. In case the district court found these measures inadequate, which it did, (71) Brown proposed a back-up plan: eliminate men's athletic opportunities until their number reached parity with the lower number provided to women, with the end result that no new athletic opportunities would be added for women. (72)

The district court rejected this plan and chastised Brown for the proposal's draconian nature:

   In order to bring Brown into compliance ... under defendants'
   [plan], I would have to order Brown to cut enough men's teams
   to eradicate approximately 213 men's varsity positions. This
   extreme action is entirely unnecessary. The easy answer lies in
   ordering Brown to comply ... by upgrading the women's gymnastics,
   fencing, skiing, and water polo teams to university-funded
   varsity status.... This remedy would entail upgrading the
   positions of approximately 40 women. In order to finance the 40
   additional women's positions, Brown certainly will not have to
   eliminate as many as the 213 men's positions that would be cut
   under Brown's ... proposal. (73)

Although the district court did not explicitly find that Brown's remedial proposal violated Title IX, the court's explanation for its ruling came close by suggesting a perceived conflict between Brown's proposal and the purpose of Title IX:

   It is clearly in the best interests of both the male and the female
   athletes to have an increase in women's opportunities and a
   small decrease in men's opportunities, if necessary, rather than,
   as under Brown's plan, no increase in women's opportunities and
   a large decrease in men's opportunities. Expanding women's
   athletic opportunities in areas where there is proven ability and
   interest is the very purpose of Title IX and the simplest, least
   disruptive, route to Title IX compliance at Brown. (74)

Concluding that Brown had not made a good faith effort to comply, the district court imposed its own remedy, ordering Brown to add several new women's varsity teams. (75)

The First Circuit treated the leveling down issue very differently. (76) It did not share the district court's perception of any tension between Brown's plan and Title IX, and faulted the district court for imposing its own remedy rather than permitting Brown to level down the men's opportunities until they reached parity with the women's. (77) The First Circuit based its ruling in part on the view that the proposal fully satisfied the equality required by Title IX. (78) The First Circuit did not inquire into Brown's motives for its proposal to cut men's opportunities drastically, despite the district court's finding that its proposal was not warranted by fiscal necessity or by a good faith desire to achieve compliance without allocating new resources to athletics. (79) Brown ultimately chose not to cut men's sports and to comply instead by funding new varsity opportunities for women, despite the court's approval of the legality of its initial proposal. (80)

The judicial approaches in Cazares and Cohen reflect the prevailing assumption that leveling down satisfies equality law and a reluctance to look deeper. Although, in theory, the existence of a provable, discriminatory intent may undermine an otherwise valid and facially-neutral leveling down response, courts typically do not look past the surface of the uniform treatment itself. Even if they did, in light of the widely shared and forceful critique of the intent standard, (81) there is little reason to believe that they would find anything other than simple neutrality.

Perhaps part of the reason for the judicial complacency toward leveling down is the belief that it is self-limiting and subject to correction in the political process. Conventional wisdom suggests that the majority will not often choose to fix inequality by subjecting itself to more negative treatment. As Justice Jackson observed in his well-known concurrence in Railway Express Agency v. New York:

   [T]here is no more effective practical guaranty against arbitrary
   and unreasonable government than to require that the principles
   of law which officials would impose upon a minority must be
   imposed generally. Conversely, nothing opens the door to
   arbitrary action so effectively as to allow those officials to pick
   and choose only a few to whom they will apply legislation and
   thus to escape the political retribution that might be visited
   upon them if larger numbers were affected.... (82)

Although such confidence in the political process as a check turns out to be questionable when leveling down operates to serve the nonmaterial interests of the majority, (83) it may well provide some comfort to courts in reviewing these types of responses to inequality.

B. Doctrinal Discomfort with Leveling Down

Although the prevailing approach accepts leveling down as all that equality requires, this acceptance sits somewhat uncomfortably alongside a vague judicial dislike of leveling down remedies. As with much of our established legal doctrine, there are indications of instability and dissension underneath the surface. Some judges, such as the district court judge in Cohen, express discomfort with leveling down and seek ways to thwart it. Such an inclination is easy to understand if leveling down leaves some people worse off, and no one better off, in terms of access to benefits and resources. (84)

Just such a utilitarian concern may have motivated the Court in one very early equal protection case to reject the plaintiffs' claim where the only remedy sought would have taken away benefits from the advantaged class. In Cumming v. Richmond County Board of Education, (85) a case decided over fifty years before Brown v. Board of Education, (86) African American taxpayers sued Richmond County, Georgia, seeking an injunction to prevent the county from spending taxpayer funds to support a public high school for white students without providing one for African American students. (87) Justice Harlan, writing for the Court, dismissed the claim, objecting that:

   The substantial relief asked is an injunction that would either
   impair the efficiency of the high school provided for white
   children or compel the Board to close it. But if that were done,
   the result would only be to take from white children educational
   privileges enjoyed by them, without giving to colored children
   additional opportunities for the education furnished in high
   schools. The colored school children of the county would not be
   advanced in the matter of their education by a decree compelling
   the defendant Board to cease giving support to a high school for
   white children. (88)

Justice Harlan suggested that, assuming the plaintiffs could prove an equal protection violation, an assumption about which he expressed skepticism, (89) the case might have succeeded had the plaintiffs sought to force the county to spend money on education for African American students rather than seeking to forbid spending for the established high school. (90) Justice Harlan's discomfort with the posture of the case might be read, in part, to suggest the perspective that equality law should strive to improve the situation of the disadvantaged group rather than take away benefits from the favored group. (91)

In discussing Justice Harlan's reluctance to endorse a leveling down remedy in an equal protection action, I do not mean to endorse either his conclusion or his reasoning. Justice Harlan focused primarily on the implications of a leveling down remedy for the advantaged group and its impact on the ability of white students to attend high school in the county. He also observed that the remedy sought would not help African American children in the county, but he offered only a superficial analysis of this point, limited to the material withholding of educational resources. As elaborated below, a central consideration in evaluating leveling down should be whether it fully remedies all of the injuries, material and nonmaterial, to the persons disadvantaged by inequality. (92) Such an analysis should explore the expressive meaning of leveling down and the relational harms of inequality, from the perspective of the persons disadvantaged by the inequality, rather than engaging in a utilitarian calculus that factors in the well-being of the advantaged group and the costs of relinquishing inequality's privileges. Although flawed in its approach, Harlan's resolution of the case suggests an early recognition that equality law might be problematic if it allowed a leveling down response, and a possible openness to interpretations that limit such responses.

A more recent expression of the Court's ambivalence about leveling down is found in Cannon v. University of Chicago. (93) In Cannon, the Court ruled that Title IX contains an implied private right of action for persons injured by sex discrimination in federally funded education programs. (94) In support of this ruling, the Court cited the potential harshness of the express statutory remedy that would terminate federal funds to educational programs that engage in discrimination. (95) Justice Stevens, writing for the majority, observed that Title IX's purpose of providing individuals with effective protection against discrimination would not be well-served by holding the termination of funds to be the exclusive remedy. (96) As Justice Stevens explained, "it makes little sense to impose on an individual, whose only interest is in obtaining a benefit for herself, ... the burden of demonstrating that an institution's practices are so pervasively discriminatory that a complete cutoff of federal funding is appropriate." (97) This consideration counsels against leveling down remedies more generally. The implication is that a person who is harmed by discrimination and successfully prosecutes a discrimination claim should benefit from the suit and that persons should not be made worse off unnecessarily. (98)

Although outside the mainstream of judicial discourse, these cases suggest at least some degree of judicial distaste for leveling down remedies. They provide no guidance, however, as to when leveling down is illegitimate, nor do they go so far as to suggest that leveling down conflicts with the mandate of equality law. Rather, the concerns seem to reflect a preference for solutions that raise, rather than lower, the material well-being of persons for reasons external to equality norms.

C. Seeds of Constraint

As the undertone of dissatisfaction with leveling down suggests, there is room within the case law for exploring doctrinal limits on leveling down. Indeed, concerns about the desirability of an interpretation of equality that results in leveling down have spurred judicial efforts to search for rationales for rejecting leveling down remedies. As yet, however, these rationales tend to be incompletely theorized and, with one exception, grounded in values distinct from equality.

1. The Significance of the Benefit

One potential limiting principle floated by the Court draws the line based on the importance of the benefit at stake, as weighed from the perspective of the majority. Even if the dictates of equality may be satisfied by taking away recreational benefits like public swimming pools, perhaps equality requires something more when a more important interest is at stake. (99) Justice Black's opinion in Palmer suggested this as a potential limit by distinguishing the swimming pool closures in that case from prior cases involving school closures, which the Court did not permit as a remedy to unlawful segregation. (100) Among other distinctions, the Court noted the comparatively greater importance of education. (101) Contrasting the two contexts, Justice Black emphasized that the Court has previously described public education as "perhaps the most important function of state and local governments." (102) Justice Blackmun, concurring in Palmer, sounded a similar note in listing his reasons for upholding the pool closures. (103)

The entirety of the Court's opinion, however, suggests that this distinction was ultimately less important than the Court's perception of the state's continuing involvement in segregated education and its contrary perception with respect to the city's role in Palmer. (104) The dissenters in Palmer explicitly disagreed with the majority's suggestion that inequality with respect to a relatively insignificant benefit might legitimize inequality that would otherwise violate equal protection, and their view has carried the day. (105) …