Transcending Equality versus Adequacy
Weishart, Joshua E., Stanford Law Review
INTRODUCTION I. EQUALITY A. Equality of Opportunity 1. Nondiscrimination 2. Meritocracy 3. Equal life chances B. Rawlsian Equality of Opportunity C. Luck Egalitarianism D. Equality of Educational Opportunity 1. The historical and legal perspectives 2. The parental liberty objection II. ADEQUACY A. Democratic Equality B. "Sufficientarian Standard for Fair Educational Opportunity C. Educational Adequacy 1. Historical and legal perspectives 2. The fairness objection III. EQUALITY AND ADEQUACY A. Points of Convergence for Equality and Adequacy 1. Pluralism 2. Relativity 3. A positive thesis 4. Social equality B. Projecting an Equality and Adequacy Alliance 1. Adequately equal: equality of educational opportunity without "equal" life chances 2. Equally adequate: educational adequacy with a presumptive negative thesis 3. Adequacy, meritocracy, and luck egalitarian responsibility CONCLUSION
In the pursuit of educational justice, practice often outpaces theory. Educational equality and adequacy theories have been understood to impose different demands. As generally conceived by equality theorists, justice dictates that all children have equal educational opportunities. Adequacy theorists typically construe the demands of justice as requiring that all children have access to a certain threshold of educational opportunities. For decades, however, a number of courts have incorporated or invoked equality and adequacy in tandem, (1) even as a burgeoning literature has contrasted the two theories. (2) A few scholars perceived the convergence early on, (3) but the trend to embrace the theories as complementary is relatively recent. (4) Some commentators now propose theories that merge equality and adequacy toward "equity plus," (5) "'meaningful' educational opportunity," (6) or "comparability." (7) Even among staunch proponents of equality or adequacy, there is an emerging recognition that the theories are not entirely incompatible. (8)
Nevertheless, several equality and adequacy advocates remain entrenched, insisting that one theory should override or constrain the other. (9) And, although some courts have linked equality and adequacy, judges and legislatures continue to "struggle with a remedy" in part because the paradigms are elusive. (10) The concern that these concepts elude judicially discoverable and manageable standards further obfuscates the controversy and contributes to the growing reluctance of state courts to intervene when legislatures fail to fulfill their affirmative obligations to provide an adequate or equal education. (11) Hence, the decades-long equality versus adequacy debate lingers over seemingly irreconcilable conceptual differences and legal impracticalities.
My aim in this Article is to enumerate the points of convergence between equality and adequacy and to show that their residual conflicting tenets are unsustainable in practice. Equality and adequacy are not mutually exclusive; indeed, I contend that they are mutually reinforcing. To apprehend their symbiosis, we must delve deeper into each theory's philosophical foundations without losing sight of how the concepts are operationalized in law and policy. I suspect that part of the reason that the equality versus adequacy debate persists is that the practitioners, legal academics, and political philosophers who have engaged in it have done so within their respective disciplines. Although a few scholars have observed parallel themes and polemics, they have declined to confront them in depth. (12)
By pairing the philosophical and doctrinal analysis, however, we can perceive that equality and adequacy are reciprocal in theory, as they have been at times in practice. I negotiate this dual analysis by surveying the development of equality and adequacy as legal doctrines reflective of their philosophical heritages but constrained in their real-world application. …