EQUAL LIBERTY IN PROPORTION.

Author:Weishart, Joshua E.
 
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TABLE OF CONTENTS INTRODUCTION 218 I. EQUAL LIBERTY UNDER THE RIGHT TO EDUCATION 223 A. Liberty-Conducive "Equality of Educational Opportunity" 224 B. Equality-Enhancing Liberty Through "Educational Adequacy 231 II. FROM ONE MEANS-ENDS REVIEW TO ANOTHER 241 A. The Collapse of Tiered Means-Ends Review 242 B. The Rise of Ends-to-Fit Review 259 III. A JUDICIAL CRISIS OF CONFIDENCE: TO WHAT END? 266 A."Output-Based" Review 271 B. "A Jurisprudence of Consequences" 272 C. "The Dialogic Approach" 273 D. "Policy-Directive Remedial Orders" 274 E. "The Education Duty" 275 F. "Proactive Intervention" 277 IV. DIRECT-PROPORTIONALITY REVIEW 278 A. "All Things in Proportion" 280 B. How Would It Work? 285 C. Objections and Responses 293 1. "The Mask of Objectivity" and Indeterminancy 293 2. Justiciability 296 3. Nothing New Here 298 CONCLUSION 299 INTRODUCTION

Chief Justice John Roberts is not feeling the "synergy" between equal protection and due process conveyed in Obergefell v. Hodges. (1) The Chief Justice "quite frankly" finds such talk "difficult to follow." (2) He is not alone. Even among those who agree with the judgment, there is a sense of wonder as to how exactly these two doctrines are supposed to coincide. (3) As Roberts observed, Justice Anthony Kennedy seemed averse to the "means-ends methodology" built into the tiers of scrutiny--that is, the "usual framework," the "casebook doctrine." (4) Echoing themes from his opinions in Lawrence v. Texas (5) and United States v. Windsor, (6) Kennedy instead posited that equal protection and due process were somehow "instructive as to the meaning and reach of the other" such that either one might "capture the essence of the right in a more accurate and comprehensive way, even as [both] may converge in the identification and definition of the right." (7) To which an exasperated Justice Antonin Scalia replied in dissent, "Huh?" and "What say?" (8)

In fairness, trying to fuse equal protection and due process is a tall order. Wrapped in this doctrinal riddle is an ancient, Aristotelian enigma: how to reconcile equality and liberty. (9) Renewed in modern times by the works of John Rawls and Ronald Dworkin, the reconciliation of equality and liberty has been a hallmark endeavor of contemporary liberalism. (10) For those envisioning a "liberal constitutionalism," the project of balancing these demands has been no less important. (11) The only consensus to have emerged, however, is the recognition that the two principles can be mutually exclusive or reinforcing, depending on one's conception of equality and liberty. (12) Regardless of how they are conceived, there is no question that both belong in our constitutional order--they literally share the same space in the Fourteenth Amendment. (13) The question is do they belong together in the same case and controversy, and if so, how? Obergefell punctuated the point, made repeatedly in prior precedent but seldom relied on, that equal protection and due process can be employed together in the same case to resolve certain claims. (14) A substantial body of scholarship has also endorsed the synergy or synthesis of equal protection and due process. (15) Validated by Obergefell, scholars continue to contemplate hybrid equality-liberty claims evolving into claims for "equal dignity" or "antisubordination." (16)

But while the legal theory is ascendant, it is incomplete--the second part of the question of how to apply equal protection and due process together goes unanswered. (17) The standard of review remains undetermined, and perhaps that is the way the current chief architect, Justice Kennedy, wants it. (18) But for those who look to the law for a modicum of predictability, objectivity, or uniformity, it is disconcerting. (19) In fact, this very problem has persisted for decades in state courts, which were among the first courts to contemplate the interrelation of equality and liberty interests, yet have likewise struggled with the doctrine and the applicable standard of review. (20)

Over the past five decades, the highest courts in nearly every state have decided constitutional challenges to school finance systems. (21) Initially, plaintiffs asserted equal protection guarantees to demand more equitable funding across school districts. (22) In lockstep with federal doctrine, the early court decisions followed the traditional means-ends methodology for equal protection claims, employing the tiers of scrutiny (strict, intermediate, and rational basis). (23) Later, plaintiffs also invoked the education clauses in state constitutions to support their assertion that states had a positive, affirmative duty to ensure children access to a level of funding sufficient to meet qualitative educational thresholds. (24) With this shift in focus from equity to "adequacy," several courts quietly abandoned the tiers of scrutiny altogether or ceased to actually apply them, paying only lip service to their guidance. (25) Instead, many of these courts now, without bothering to specify a standard, couch their analysis in the form of a bare bones means-ends review. (26)

On further examination, however, the means are hardly ever scrutinized. In yet another departure from federal convention, these state courts have perceived deference to the legislative means as more in line with separation of powers--a concern courts have been especially sensitive to in adjudicating the right to education. (27) Consequently, courts are more inclined simply to determine whether the state has achieved "the constitutionally prescribed end"--that is, equity and adequacy (as fonts of equality and liberty). (28) Alternatively, courts assess the "reasonableness" of the fit between the means and ends, (29) that is, whether the legislative means are at least "reasonably calculated" to meet the ends. (30)

All told, the lesson from state court jurisprudence of the right to education is that a traditional means-ends review is ill-suited to the task of adjudicating equal liberty claims when the right implicated imposes affirmative obligations on the state to protect the right-holder from discernable harms. (31) Although the emergent ends-to-fit review might better accommodate positive rights enforcement, it does not provide a principled method for reconciling equality and liberty interests (returning to that age-old dilemma). (32) Indeed, state courts almost always conduct disjointed analyses of equity and adequacy in different portions of the same opinion or in entirely separate opinions. (33) This failure to mutually enforce equity and adequacy impedes progress in addressing educational disparities and furthers doubts about the justiciability of the right to education. (34)

All of this uncertainty pervades against a backdrop of the federal government abandoning its role in education policy making with the recent passage of the Every Student Succeeds Act (ESSA). (35) So much then will continue to depend on state court adjudication of education rights.

At last, the reservation of state courts to analyze equity and adequacy together reflects a more profound ambivalence toward the project of balancing equality and liberty. Rather than continue to ignore this doubt or mask it with the type of opaque language in Obergefell, (36) it is time to stop laboring under the misapprehension that equality and liberty must realize constitutional equilibrium. Even when balance cannot (or should not) be achieved, equality and liberty can maintain a positive, directly proportional relationship. Translated into the right to education context, this entails a two-part inquiry: (1) whether the state's actions improve both equity and adequacy in tandem, and (2) whether the margin between equity and adequacy remains proportional so as to protect children from the harms of educational disparities.

The first inquiry provides a mechanism for assessing the mutually reinforcing, upward trajectory of equity and adequacy. It is meant to enforce the notion, well-established in precedent, that all children of different needs should have access to a high-quality education and enjoy approximately equal chances for educational success. The second inquiry assessing the space between equity and adequacy is, in turn, meant to enforce the ultimate vision of equal liberty--one in which all children are endowed with the capabilities to function as equal citizens and to compete favorably for admission to higher education and high-quality jobs. This direct-proportionality review is at once more and less deferential to legislative prerogatives but delineates the judiciary's indispensable role in mutually enforcing children's equality and liberty interests.

For similar equal liberty claims in other contexts, direct-proportionality review could also facilitate a synergy between equal protection and due process that even Chief Justice Roberts could follow.

  1. EQUAL LIBERTY UNDER THE RIGHT TO EDUCATION

    Before Lawrence, Windsor, and Obergefell, courts construing state constitutional rights to education unwittingly developed a prototype equal liberty claim. According to this revisionist account of the three "waves" of school finance litigation, state courts first conceived of equality and liberty as mutually exclusive concepts but eventually demonstrated their potential as mutually reinforcing demands, inhering in the right to education. (37) In the process, courts cast aside stale versions of equality (treating all children identically) and liberty (respecting negative freedoms from state interference with education). In their place, courts have begun to operationalize a more robust, integral equal liberty that demands treating differently situated children as equals according to their needs, so as to cultivate, through state action, children's positive freedoms to become equal citizens.

    1. Liberty-Conducive "Equality of Educational Opportunity"

      Brown v. Board of Education declared that "the opportunity of an education... is...

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