BROWN-NAGIN IN FINAL READ 01/31/01 8:31 AM TOWARD A PRAGMATIC UNDERSTANDING OF STATUS-CONSCIOUSNESS: THE CASE OF DEREGULATED EDUCATION TOMIKO BROWN-NAGIN† ABSTRACT This Article discusses the relationship between federal equal pro- tection doctrine and the states’ experiment with deregulated educa- tion—in particular, charter schools whose student bodies are identifi- able on the basis of status. I argue that the states’ experiment with deregulated education and the Supreme Court’s understanding of the limitations imposed by the federal Equal Protection Clause on status- conscious state action are substantially in conflict, though not inevita- bly so. Reconciling state policy and federal constitutional law re- quires, first, that state legislatures draft laws that are consistent with the Court’s skepticism of explicitly status-conscious state action, and its ambivalence toward state action that addresses social problems of status-identifiable groups in ways that do not raise the specter of his- torically or culturally meaningful notions of racial ordering or sex- based stereotypes. Thus, legislatures might give attention to the justifi- catory rhetoric of diversity or the idea of students “at-risk” of aca- demic failure rather than incorporating concepts like racial balance or sex-segregation in enabling legislation.
Second, the federal courts should adopt a more pragmatic mode of equal protection analysis in considering claims against deregulated schools, rather than presuming that status-identifiable charter schools should be subjected to height- ened scrutiny, or that heightened scrutiny requires finding such Copyright © 2000 by Tomiko Brown-Nagin. Golieb Fellow, New York University School of Law, and Ph. candidate in History, Duke University., Yale Law School; M., Furman Uni- versity. The writing of this article was supported by Harvard Law School, under the auspices of the Charles Hamilton Houston Fellowship, which the author held during the academic year 2000.
The author expresses gratitude to the following people for support during the Houston fellowship year and for comments on prior drafts of this article: David Barron, Kristi Bowman, William Chafe, Owen Fiss, Gerald Frug, Lani Guinier, Morton Horwitz, Duncan Kennedy, Randall Kennedy, Daniel Losen, Frank Michaelman, Martha Minow, Daniel Nagin, Jeremy Paul, Reva Siegel, and John Simon. 753 BROWN-NAGIN IN FINAL READ 01/31/01 8:31 AM 754 DUKE LAW JOURNAL [Vol. A more pragmatic mode of constitutional analysis is justified by the public and private features of deregulated schools, which, I propose, entitle some schools to be considered “quasi-public.” It is also justified by the Court’s precedent on feder- alism and education, which should be understood as consistent with state legislators’ purpose in deregulating schools—encouraging inno- vative approaches to learning through participatory democracy. TABLE OF CONTENTS Introduction.
Characteristic Elements of Deregulated Education. The Legislative Purpose of Charter School Statutes. Essential Components of Charter School Legislation. Diversity in Educational Programming.
Increased Accountability for Academic Achievement. A Consideration of the Equal Protection Issues Raised by the Deregulation of Education. The General Equal Protection Problems Created by the Deregulation of Education. Racial Balance Mandates.
Practical Effects of Racial Balance Provisions. The Substantive Legal Problem with Racial Balance Provisions. Single-Sex Education. The Theory and Practice of Single-Sex Education.
The Conception of Equality Dominant in Precedent on Single-Sex Education and Racially Identifiable Single-Sex Schools. Reconciling Federal Precedent and State Authority to Deregulate Schools. A Second Look at Federalism. Limits Imposed by Federalism on the Ability of Federal Courts to Intervene in the States’ Experiment with Deregulated Education.
The Substantive Meaning of Federalism in Education- Related Cases .842 BROWN-NAGIN IN FINAL READ 01/31/01 8:31 AM 2000] UNDERSTANDING STATUS-CONSCIOUSNESS 755 2. Participatory Democracy: A Historical Rationale for a Second Look at Federalism. Anticipated Criticisms of the Democracy Argument. The Significance of the Quasi-Public Status of Charter Schools.
The Quasi-Public Analogy. Determining Whether the Quasi-Public Designation Is Appropriate. Delimiting the Scope of the States’ Experiment with Quasi-Public Schools Through the Pragmatic Interpretation of Standards. Level of Scrutiny.
Schools Under Court Order. The Diversity Rationale. The Significance of Predominantly White and All- Male Charter Schools. Drafting and Substantive Problems in Status- Conscious Admissions Provisions.
North Carolina’s Racial Balance Mandate. New York’s Single-Sex Provision. The Significance of Statutory Vagueness. Improving the Drafting and Conception of Enabling Legislation.
The Merits of Greater Specificity. Constructive Vagueness Through “At-Risk” Statuses.885 INTRODUCTION The value of experimentation in education is one of the most widely accepted principles among philosophers of education and edu- cational theorists. The American philosopher John Dewey expressed best the idea shared by intellectuals of disparate ideological perspec- tives that the central aims of education are fostered by the broad- BROWN-NAGIN IN FINAL READ 01/31/01 8:31 AM 756 DUKE LAW JOURNAL [Vol. 50:753 1 mindedness and flexibility implicit in experimentation.
Scholars have considered experimentation in education valuable because they have concluded that changing social conditions often necessitate changes in perspective about appropriate educational methodologies, curricula 2 content, and other aspects of educational policy. Which is to say, the most revered philosophers have found it foolish to suppose that an in- telligent theory of education and sound educational policies can be achieved by blindly following tradition. The idea that received wisdom may work at cross-purposes with educational reform has been especially common in recent years, when the public educational system habitually has been perceived as being 3 in a state of crisis. In the 1990s this sense of crisis has given rise to an alternative schools movement, which includes advocates of deregu- 4 lated educational institutions known as “charter” schools.
The char- ter schools movement is predicated upon the theory that schools freed of most of the regulatory constraints normally applicable to public schools can stimulate academic excellence in ways that tradi- tional neighborhood schools cannot.5 Although some of the most prominent advocates of alternative 6 schooling programs such as school choice are politically conservative, 1. For an overview of the evolution of philosophies of education and their relationship to changing social conditions, see ANDREW FEFFER, THE CHICAGO PRAGMATISTS AND AMERICAN PROGRESSIVISM 118-28 (1993) (discussing the experimentation characteristic of Dewey’s educational philosophy); HOWARD A. CRAVER, PHILOSOPHICAL FOUNDATIONS OF EDUCATION xvi-xvii, 134-39 (5th ed. See OZMON & CRAVER, supra note 1, at xvi-xvii; see also Ralph Waldo Emerson, An Oration Delivered Before the Literary Societies of Dartmouth (July 24, 1838), in EMERSON AT DARTMOUTH 19 (1956) (“[We] grind and grind in the mill of a truism, and nothing comes out but what was put in.
But the moment [we] desert the tradition for a spontaneous thought, then poetry, wit, hope, virtue, learning, anecdote, all flock to [our] aid., THE SCHOOLS WE NEED AND WHY WE DON’T HAVE THEM 1- 4 (1996) (stating that K-12 education in the United States “is among the least effective in the developed world”); NATIONAL COMM’N ON EXCELLENCE IN EDUC., A NATION AT RISK: THE IMPERATIVE FOR EDUCATIONAL REFORM 5-6 (1983) (arguing that American society has “lost sight of the basic purposes of schooling”). Throughout this Article, I use the terminologies “charter schools” and “deregulated schools” interchangeably. See Peter Applebome, Some Educators See Experimental Hybrids as Country’s Best Hope for Public Schools, N. 12, 1994, at B7; Rene Sanchez, Embracing New Schools of Thought: States Charter Independent Institutions to Improve Education, WASH.
See Richard Lee Colvin, School Vouchers Passing Milwaukee Test, L. 26, 1996, at A1 (stating that most school choice supporters are conservative Republicans); see also JOHN E. MOE, POLITICS, MARKETS, AND AMERICA’S SCHOOLS 11-12, 206 (1990) (describing the support for school choice by Ronald Reagan and George Bush, while BROWN-NAGIN IN FINAL READ 01/31/01 8:31 AM 2000] UNDERSTANDING STATUS-CONSCIOUSNESS 757 people across the ideological spectrum have voiced strong support for the charter schools movement.7 With bipartisan support, the Minne- sota legislature approved the first charter school enabling legislation 8 in 1991; since then, thirty-six other states located in all areas of the country, including California, Florida, Massachusetts, New York, and Wisconsin, as well as the District of Columbia, have enacted legisla- 9 tion authorizing the creation of charter schools; all have done so with 10 backing from both political parties. Presently, more than two thou- sand charter schools are in operation across the nation.11 Because charter school legislation provides for the public fi- nancing of schools whose deregulated status imbues them with many 12 features of private companies, it implicates in complex ways many areas of federal and state law, including our civil rights laws.13 This noting that Democratic constituencies, such as teachers’ unions and education associations, gen- erally are opposed to choice); PETER W.
See JOE NATHAN, CHARTER SCHOOLS: CREATING HOPE AND OPPORTUNITY FOR AMERICAN EDUCATION 55-71 (1996); see also Charter Schools: Hearings Before the Subcomm. on Early Childhood, Youth, and Families of the House Comm. and the Workforce, 105th Cong. 105 (1997) [hereinafter Charter Schools Hearings] (statement of Gerald N.
Tirozzi, Assistant Secretary for Elementary & Secondary Education) (noting that President Clinton and the United States Secretary of Education both “strongly support” charter schools); BRYAN C. HASSEL, THE CHARTER SCHOOL CHALLENGE 2-3, 22, 25-27 (1999) (describing bipartisan sup- port for charter schools); Peter Applebome, With New Deal Fervor, Clinton Pushes Education Plan, N.064 (1991); Penny Roberts, Charter School Plan Dangles the Carrot of Reform, CHI.40 (1999) (same); see also Center for Education Reform, Charter School Highlights and Statistics, at http://www.com/pubs/chglance.htm (last modified Aug. See HASSELL, supra note 7, at 2-3, 22, 25-27; NATHAN, supra note 7, at xiv-xv, 12; Claudia Willis, A Class of Their Own, TIME, Oct. See Center for Education Reform, supra note 9.
See infra Part I. In the few years since charter school enabling legislation initially was passed, these laws have given rise to claims sounding in tort and contract, and predicated on federal and state con- stitutional law, Title VI of the Civil Rights Act, 42 U. § 2000d (1994), and the Individuals with Disabilities Education Act, 20 U. Board of Special Sch.
2d 866, BROWN-NAGIN IN FINAL READ 01/31/01 8:31 AM 758 DUKE LAW JOURNAL [Vol. 50:753 Article considers the federal equal protection consequences of char- ter schools that are identifiable on the basis of status, or in terms of sex and/or race. A charter school may be identifiable as such for one of two reasons: because it is designed to appeal to certain students, or because certain groups of students are clustered geographically in 14 close proximity to a school site. Actual and prospective status- identifiable charter schools are being subjected to political and legal challenges in many areas of the country, thus making an analysis of their constitutionality timely and appropriate.15 Opposition to racially identifiable or single-sex charter schools is based on the claim that a profound tension exists between such schools and the constitutional mandate of equal protection of the laws.
Opponents subscribe to the view that the movement of educa- tion reform efforts from the federal courts to state and local authori- 16 ties is an unhealthy development resulting from the Burger Court’s 872-85 (W. 1998) (finding that charter school enabling legislation that authorized class meetings in religious buildings did not impermissibly advance religion in violation of the First Amendment); Board of Educ. 1999) (holding that the allocation of authority between state and local educational authorities did not violate the state constitution); Council of Orgs. 1997) (rejecting a claim that the Public School Academies Act, commonly known as the charter schools act, was unconstitutional either because the Act authorizes the use of public funds for nonpublic schools or because it divests the state board of education of its duty to supervise public education); In re Grant of Charter Sch.
1999) (rejecting a claim that the charter school enabling law vio- lated the state constitutional right to “thorough and efficient” education or equal protection); Jersey City Educ. City of Jersey City, 720 A. 1998) (finding that the city’s use of proceeds from the sale of municipal bonds to construct a fa- cility that would be leased in part to a charter school would not violate a state statute prohibit- ing the construction of charter school facilities with public funds); Beaufort County Bd. Lighthouse Charter Sch.