The New School Finance Litigation: Acknowledging That Race Discrimination in Public Education Is More Than Just a Tort

Article excerpt

In Brown v. Board of Education, the Supreme Court suggested justice demands that states treat public education as a communal resource to be distributed "on equal terms" with respect to race.' Indeed, the Court's famous phrase-"[s]eparate educational facilities are inherently unequal"--could imply that misdistribution of that essential resource should entitle plaintiffs to a judicial remedy even in the absence of proof of misconduct by school officials. The Brown Court's holding is consistent with the Aristotelian conception of distributive justice, which provides that resources must be allocated among the members of a political community so that "[e]quality for the people involved will be the same as for the things involved."3 That moral theory does not require the use of blind quotas, but rather mandates that the allocation of shared resources be justifiable by fixed and important criteria. The Supreme Court's flirtation with distributive justice approaches in education discrimination cases was very short lived, however. Since IMAGE FORMULA4

Brown, the Court has applied corrective justice-which requires proof of wrongful conduct rather than evidence of unjustified disparate harm to trigger a right to a remedy-in all similar cases. Aristotle's classic definition of corrective justice requires that "when one is wounded and the other wounds him ... the judge tries to restore the [profit and] loss to a position of equality, by subtraction from [the offender's] profit."5 Unfortunately, the Court's corrective approach to education discrimination cases has neither brought about racially integrated public schools nor resulted in equal distribution of educational resources by race.6

This Article contends that the Supreme Court's initial distributive approach to adjudicating claims of education discrimination is more appropriate to resolving those cases than the corrective course the Court has employed since Brown. The two theories of justice supply different procedural rules for producing just outcomes-they have no substantive content. Aristotle did not specify what constitutes wrongful conduct or unjustified disparate harm-nor did he explain when it is appropriate to use one form of justice or the other. To determine which procedural approach is more likely to result in a substantively just outcome in any given case, one must consider what empirical circumstances the procedure will be used to evaluate. Distributive justice best suits education discrimination cases because the experience of discrimination, and the far-ranging and long-lasting equality harms that result from it, simply cannot be addressed within the framework of corrective justice. This is especially true of discrimination on the basis of race and in the allocation of community resources, like public education, which are necessary to ensure full and equal membership in a democratic political community. Although distributive education discrimination suits cannot be successfully litigated under the federal Constitution as it is currently interpreted, the implementing regulations of Title VI of the Civil Rights Act of 1964, which embody a distributive approach, provide a legal basis for distributive relief.8 IMAGE FORMULA6

At a time in United States history when there is still a significant racial gap in standardized test scores,9 the remedies in many desegregation cases have been exhausted,10 affirmative action programs in educational institutions are under attack," and programs for non-English speaking K-12 stuIMAGE FORMULA8

dents and remedial programs for college students are being scaled back or eliminated,12 it is particularly important to explore distributive approaches to ensure that students of color have a chance for equal public education. Title VI implementing regulation education discrimination cases offer a new and promising way to pursue that goal. …