Equal Protection and Expressive Harm: Meeting the Injury Requirement in Brown v. Board of Education

Abstract

Under modern standing doctrine, a plaintiff must show an “injury in fact” that is fairly traceable to the defendant’s conduct and is likely to be redressed by a decision in the plaintiff’s favor. Despite its linguistic simplicity, the injury-in-fact requirement has raised more questions than it has answered. Consistent with its debut in Data Processing v. Camp as a mechanism for lowering the standing threshold, injury-in-fact was initially stretched to cover a broad spectrum of injuries, including aesthetic and psychological harms. In a subsequent effort to reign in justiciability, the Supreme Court poured limiting content into the injury test. A string of new terms such as “palpable,” “distinct,” and “particularized” anticipated a narrower scope of potential plaintiffs. In this paper, I will examine the Supreme Court’s decision in Brown v. Board of Education in light of the modern injury requirement. In order to distill the injury in Brown as it might be understood today, I will examine two cases that involve equal protection analysis and standing, namely, City of Los Angeles v. Lyons, and Allen v. Wright. In Lyons and Allen, the Court deemed racial profiling and tax exempt status for racially discriminatory private schools to be insufficient bases for injury. Drawing on these decisions, I will argue that the harm underlying structural reform in Brown does not meet today’s restricted injury test, which bars inherently boundless stigmatic harms.