Abstract
This Article discusses the relationship between federal equal protection doctrine and the states' experiment with deregulated education-in particular, charter schools whose student bodies are identifiable 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 inevitably so. Reconciling state policy and federal constitutional law requires, 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 historically or culturally meaningful notions of racial ordering or sex-based stereotypes. Thus, legislatures might give attention to the justificatory rhetoric of diversity or the idea of students at-risk of academic 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 heightened scrutiny, or that heightened scrutiny requires finding such schools unconstitutional. 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 federalism and education, which should be understood as consistent with state legislators' purpose in deregulating schools-encouraging innovative approaches to learning through participatory democracy.
Highlights
The value of experimentation in education is one of the most widely accepted principles among philosophers of education and educational theorists
Most of the relevant precedents reveal a philosophical gap between states’ efforts at racial balance and what the Court believes the Constitution requires of districts that previously intentionally discriminated against African Americans
In order to illustrate the strengths of a pragmatic approach to constitutional review of deregulated education, let us assume that a federal court is hearing an equal protection challenge to two charter schools
Summary
The value of experimentation in education is one of the most widely accepted principles among philosophers of education and educational theorists. These conventions are based, in part, on the unique nature and purposes of deregulated education which, I believe, entitle some of these institutions to a unique, “quasipublic” legal status.[25] Supreme Court decisions on federalism and education, which dictate the presumptive constitutionality of state legislatures’ decisions regarding public education except under narrowly circumscribed circumstances, weigh in favor of according some of these schools a quasi-public status.[26] my suggestions are based on historical observations and social theory that support the concept of pragmatism in law.[27] A more pragmatic mode of equal protection analysis would accommodate the quasi-public status that I propose It would be more responsive than the conventional jurisprudence to the sociological circumstances that result in the establishment of status-identifiable charter schools.
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