Transcending equality versus adequacy.

AuthorWeishart, Joshua E.
PositionIntroduction through I. Equality, p. 477-512 - Author abstract

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 INTRODUCTION

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. (13)

Part I thus begins on the equality side of the debate with a review of equality of opportunity as the favored distributive principle of many contemporary egalitarians. John Rawls pioneered a substantive "fair equality of opportunity" theory, which entails, among other things, a universal education system devised to counteract the differential effects of children's social circumstances (e.g., class and race), so that their educational achievement is solely a function of innate talent and effort. Rivaling Rawlsian equality of opportunity, luck egalitarianism demands the neutralization of all unchosen social and natural circumstances (i.e., luck), so that educational achievement is solely a function of individual choice.

The evolution of equality of educational opportunity as it has been embodied in the law suggests that it is conceptually more ambitious than Rawlsian equality of opportunity but less demanding in practice than luck egalitarianism. Increasingly, scholars, advocates, and courts think the concept is best expressed through "vertical equity," a remedial school finance scheme that aims to mitigate natural and social disadvantages by allocating greater resources to the neediest students. (14) I assess a defense of this view by educational equality theorists Harry Brighouse and Adam Swift against the potentially fatal parental liberty objection--the argument that equality of educational opportunity cannot be realized without unduly infringing on the liberty of parents.

In Part II, I conduct a similar review of the adequacy theory, noting that it is philosophically consonant with the sufficiency doctrine. Sufficientarians subscribe to the notion that "what is important from the point of view of morality is not that everyone should have the same but that each should have enough," (15) Elizabeth Anderson's "democratic equality" is perhaps the most comprehensive account of sufficiency as a distributive principle, demanding that all children have a sufficient level of capabilities to function as equal citizens. (16) Also concerned with "civic equality," Debra Satz joins Anderson in advocating for an adequacy threshold in education. (17)

Adequacy has been considered the "dominant legal theory" since the influx of the "third wave" of school finance litigation; the first two waves were thought to surge predominantly toward equality. (18) Yet the theory is assailed for its inherent ambiguity (19) and, more fundamentally, for its indifference to inequalities above the threshold that can "exacerbate the positional advantage of some students from better off school districts over disadvantaged students from worse off school districts." (20) I assess Anderson's and Satz's responses to this criticism, which I call the fairness objection.

Notwithstanding the philosophical and legal conduits of the equality-adequacy stalemate, I argue in Part III that the theories share at least four significant points of convergence. First, most theorists and practitioners grant that equality and adequacy should not be construed as absolute, a priori moral principles. Rather, they have been conceived and employed in ways that are consistent with value pluralism. Second, despite conventional wisdom juxtaposing equality as the archetypal relational concept and adequacy as inherently nonrelative, adequacy's comparative qualities have been repeatedly demonstrated in its application. Third, egalitarians agree with a central tenet of adequacy--that absolute educational deprivation is morally wrong and that all children are entitled to a minimally adequate education. Fourth, sufficientarians agree with a central tenet held by many egalitarians--that public education should advance social equality.

As I explain, these four intersections pave a way to abandon equality's and adequacy's most extreme and problematic elements, which are exposed by the parental liberty and fairness objections. Specifically, the viability of the equality theory is diminished insofar as the objective is to ensure equal chances for educational achievement for all children. The adequacy theory is conversely flawed in its indifference to objectionable inequalities in educational opportunities above the guaranteed threshold. Some courts seem to appreciate these complementary defects, which explains why "'equity' cases tend to call for equity up to a point," while "'adequacy' cases tend to be more tolerant of inequalities in resources but only up to a point." (21)

Amending these unsound premises not only resolves the most forceful objections to equality and adequacy but also provides space to accommodate their respective normative appeals to fairness, responsibility, and a social basis for respect. The picture of educational justice that emerges, then, is one in which all children are owed an adequately equal and equally adequate education. The practical significance of that symbiosis is that policymakers are not conceptually bound to either equality or adequacy. That conclusion has not been lost on a few courts that have geared education policy toward equality and adequacy--conceivably, a less vexing and more determinate standard. Transcending the debate in this manner affords advocates and lawmakers latitude to advance educational justice along the points where equality and adequacy intersect.

  1. EQUALITY

The principle of equality of educational opportunity as we know it today in the United States is the product of many variables--economic development, cultural shifts, demographic changes, and social movements--that provoked remedial legislation and pathbreaking lawsuits. Along the way, equality advocates have sought justice through tangible and meaningful reforms, such as ending racial segregation, securing more money for poor school districts, and establishing procedural and substantive educational rights for children with disabilities. To be sure, those advocates did not consult Rawls for their litigation strategies, legislatures did not assess whether their education budgets comported with the aims of luck...

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