When equality leaves everyone worse off: the problem of leveling down in equality law.

• Author: Brake, Deborah L.

INTRODUCTION I. THE TREATMENT OF LEVELING DOWN BY THE COURTS A. Palmer v. Thompson Revisited: Formal Equality and Discriminatory Intent B. Doctrinal Discomfort with Leveling Down C. Seeds of Constraint 1. The Significance of the Benefit 2. Remedial Principles Favoring Extension of Benefits 3. External Limits Fixing the Level of Treatment for One Class 4. Leveling Down as a Cover for Continuing Discrimination D. Room for Further Development of Equality-Based Limits II. A MORE CRITICAL PERSPECTIVE ON LEVELING DOWN AND EQUALITY A. Equality as Equal Concern B. An Expressive Meaning Approach to Leveling Down III. APPLYING AN EXPRESSIVE MEANING APPROACH A. Three Examples Where Leveling Down Conflicts with Equality Law B. Three Examples Where It May Not IV. ADVANCING THE DEBATE OVER EQUALITY'S NORMATIVE VALUE A. Equality's Critics and the Leveling Down Objection B. The Treatment of Leveling Down by Equality's Defenders C. How Attention to Social Context and Expressive Meaning Would Enrich the Debate CONCLUSION INTRODUCTION

In the canon of equal protection, it is seemingly well-settled that inequality may be remedied either by leveling up and improving the treatment of the disadvantaged class, or by leveling down and bringing the group that is better off down to the level of those worse off. (1) The presumptive permissibility of leveling down is viewed as an inherent feature of equality rights and is not limited to equal protection; it applies in the statutory context as well, so long as not expressly prohibited. (2) The acceptability of leveling down in response to inequality is even invoked to question whether equality has any normative appeal at all, since it may serve as the vehicle for producing an outcome which, by utilitarian standards, may seem inefficient and undesirable. (3) As one of the leading constitutional law texts puts it:

Even if we could give substantive content to the equality requirement, it is not clear why it has any normative appeal. Although the demands of the equal protection clause can be satisfied by extending the contested benefit to a broader group, the government need not respond in this fashion. It may also fully satisfy the demand of equality by denying both groups the contested benefit. (4) Utility aside, the leveling down problem casts doubt on whether conventional equality jurisprudence serves the interests of those whom it supposedly protects. (5) The permissibility of leveling down confronts persons disadvantaged by inequality with a double bind: challenge the inequality and risk worsening the situation for others instead of improving one's own situation, or continue to endure unlawful discrimination. (6) This Article argues that there is a way out of this double bind: to recognize that leveling down is not always consistent with the meaning of equality as reflected in U.S. discrimination law.

The current approach to leveling down rests on two contestable understandings. First, leveling down implicitly relies on a principle of equal treatment as the exclusive meaning of equality without taking into account alternative understandings that would render leveling down problematic in certain settings. Second, leveling down proceeds from an abstracted and objectified analysis of equality that ignores the lived experience of inequality and implicitly privileges the perspective of those doing the abstracting. Current analysis of leveling down treats equality as if it were about balancing faceless pieces of clay on a scale with the single goal of arriving at equal weights in either direction. As much critical scholarship has shown, that kind of abstracted analysis often incorporates privileged norms that obscure the full extent of injuries to subordinated persons. (7) By injecting the lived experience of inequality back into the equation, leveling down is revealed as a questionable strategy that is sometimes used to preserve dominance contrary to the values of equality.

As an example of how leveling down can thwart rather than secure equality, the lesser known case of Cazares v. Barber adds a human dimension to the problem. (8) Elisa Cazares became pregnant when she was fifteen-years-old and a student at the Tohono O'Odham High School on the Tohono O'Odham Nation reservation in western Arizona. (9) Cazares, a member of the Papago Indian Tribe, was ranked first in her sophomore class, served as a leader in student government, and actively participated in a number of student activities. (10) When the school obtained a charter in 1989 entitling it to induct members into the National Honor Society (NHS), Cazares had every reason to expect that she would be included. (11) The school's selection committee, however, found Cazares unworthy of membership because she was "pregnant, unmarried, and not living with the father of her future child." (12) Cazares sued in federal district court, challenging her exclusion as a violation of both Title IX and equal protection. (13) The district court found that the school had discriminated against Cazares on the basis of sex in violation of her rights under both Title IX and the Fifth Amendment, and entered an injunction ordering that she be included in the school's induction ceremony. (14) The victory, however, proved to be hollow: the school responded by cancelling the ceremony and terminating its participation in the NHS. (15)

Whether the school district complied with the equality guarantees of Title IX and the Fifth Amendment turns on one's conception of equality and the values that it protects. This, in turn, depends on one's prior commitments and aspirations for equality law. (16) If legal guarantees of equality require only formal equality, satisfied by eliminating differential treatment, then the school district's actions are difficult to challenge. If equality law includes a richer kind of equality principle that recognizes injuries other than tangible differences in treatment, however, then the cancellation of the induction ceremony not only failed to secure equality, but placed it farther out of reach. Although all of the students were treated the same with respect to the denial of NHS participation, Elisa Cazares was left no better off, and quite possibly worse off, for having won her sex discrimination case. The cancellation may have been even more stigmatizing to Cazares than her initial exclusion--the school deemed her so unworthy of membership in the organization that it preferred to cancel the NHS completely rather than to include her as an honoree. Further, it positioned her as the scapegoat responsible for disappointing the expectations of the students who otherwise would have been inducted into the NHS.

The current understanding of leveling down's compatibility with equality norms may be traced to Palmer v. Thompson, (17) one of the earlier and more prominent cases in which this tactic was successfully employed. Specifically, Palmer arose out of an equal protection challenge by African American residents of Jackson, Mississippi, to the city's operation of racially segregated recreational facilities. (18) Of the city's five publicly operated swimming pools, four had been restricted to whites only, leaving just one open to African Americans. (19) Three African American residents of Jackson obtained a declaratory judgment affirming their right under the Equal Protection Clause to the desegregated use of the city's public recreational facilities. (20) However, rather than integrate the pools, the city decided to end its role in providing public pools to city residents by closing the four pools that it owned and relinquishing its lease on the fifth. (21) The pool closures prompted a second lawsuit by Jackson's African American residents that challenged the closures as another equal protection violation. The district court, the Fifth Circuit, and finally the U.S. Supreme Court all upheld the city's action as a legitimate response to the equal protection violation caused by the prior segregation. (22)

Although the rationale for upholding leveling down responses has shifted somewhat since Palmer, the underlying premise--that equality law has little or nothing to say about leveling down as a response to inequality--has remained largely unchallenged. More than three decades after Palmer, leveling down the treatment of the favored group continues to be a viable strategy for thwarting equality claims. In addition to Cazares, recent examples of actual or threatened leveling down responses include the following:

* In a Title IX challenge to inequality in men's and women's intercollegiate athletics, Brown University proposed to remedy the Title IX violation by cutting the number of opportunities available to male athletes until they reached parity with the lower number of opportunities for female athletes. (23))

* After losing an equal protection challenge to its males-only admissions policy, the Virginia Military Institute (VMI) threatened to become private and conducted a study of the feasibility of discontinuing its status as a public institution. This option was explored as a way to remedy the equal protection violation by eliminating VMI as a public institution altogether instead of admitting women. (24)

* In response to successful litigation challenging inequality in public school funding under the New Jersey Constitution, former Governor Christine Whitman proposed a plan to level down spending in wealthier school districts to reach equality with poorer districts. (25)

* Several school districts charged with discriminating against gay and lesbian student groups in violation of the federal Equal Access Act have responded by banning, or threatening to ban, all extracurricular student clubs. (26)

* In late March of 2004, in response to uncertainty generated by legal challenges from gay and lesbian couples to a law limiting marriage to a man and a woman, Benton County, Oregon suspended marriage licenses to all couples. (27) County...