By Gordon Hull
The legal doctrine of substantive equality – roughly, that one look at not just the presence of stipulated, formal equality, but that one incorporate outcomes as relevant to whether or not equality has been reached – strikes me as a biopolitical concept, whereas its more formal counterpart is more juridical. Consider the right to abortion: a formal declaration that a woman has the right to terminate a pregnancy prior to fetal viability exists whenever laws do not prohibit the termination. Recent state laws that ban all abortions after a gestational age of 20 weeks run afoul of that right, because a fetus at 20 gestational weeks is not viable. On the other hand, if the right is substantive, then it matters whether women can actually take advantage of the right. State laws that require spousal consent, for example, were declared by the Court in Planned Parenthood v. Casey to place an “undue burden” on the exercise of that right. That’s a decision based on substantive equality, and it treats women not (just) as juridical subjects possessing abstract rights, but as agents in the world trying to achieve the outcomes that such rights are (presumably) designed to allow. Current rounds of state restrictions on abortion, such as forced transvaginal ultrasounds (on the pretext of ensuring the woman is “fully informed”) or the demand that clinics look like hospitals (for the “safety of women”) seem designed to limit the substantive right to abortion, while preserving it formally. All of that is a rough-and-ready way of putting the distinction, and there may very well be any number of equality claims in particular where the substantive version doesn’t sound particularly biopolitical. That’s ok – in what follows, I want to look at education, and to propose that claims of substantive equality, even biopolitically-oriented ones, can differ dramatically in what they claim and how they claim it.
One of the notable features of Brown v. Board of Education is its reliance on social science evidence indicating the psychological harm of segregation to black children (this is the famous “footnote 11,” which cited a number of recent studies). In his reflections on Brown, Robert L. Carter, one of the attorneys who argued the case, noted that “we assumed … that educational equality in its strict educational connotations – with its emphasis on the quality of education – was the same as educational quality in its constitutional dimensions” and notes that, in a series of earlier cases, “we turned to expert testimony for the first time,” and supported the argument with two kinds of claims: by “measuring the physical facilities of the proposed black law schools against the existing university holdings and by taking into account the adverse psychological detriment that we contended segregation inflicted on blacks – all of which resulted in a denial of equal education” (Bell, ed., Shades of Brown, p. 22). The three cases prior to Brown were Sweatt v. Painter, McLaurin v. Oklahoma, and Sipurel v. Oklahoma. Let’s take them in reverse chronological order.
In Sweatt v. Painter, the Supreme Court found that the University of Texas failed to provide (substantive) equality to Sweatt, who had been directed to attend law school not at the main Austin campus, but in a separate law school for black students. The Court found the separate school wanting by any reasonable standard:
“Whether the University of Texas Law School is compared with the original or the new law school for Negroes, we cannot find substantial equality in the educational opportunities offered white and Negro law students by the State. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close.”
The Court thus concluded that the policy violated Plessy v. Ferguson’s “separate but equal” doctrine, and struck it down.
In McLaurin v. Oklahoma, the state admitted McLaurin to its doctoral program in education, but then consigned him to segregated treatment within that program. Initially, this meant that “he was required to sit apart at a designated desk in an anteroom adjoining the classroom; to sit at a designated desk on the mezzanine floor of the library, but not to use the desks in the regular reading room; and to sit at a designated table and to eat at a different time from the other students in the school cafeteria.” During litigation, the state revised its policy: “For some time, the section of the classroom in which appellant sat was surrounded by a rail on which there was a sign stating, "Reserved For Colored," but these have been removed. He is now assigned to a seat in the classroom in a row specified for colored students; he is assigned to a table in the library on the main floor; and he is permitted to eat at the same time in the cafeteria as other students, although here again he is assigned to a special table”
The Court finds that these restrictions impair McLaurin’s education in a constitutionally impermissible manner, noting the implications for the bios:
“The result is that appellant is handicapped in his pursuit of effective graduate instruction. Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession. Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant's case represents, perhaps, the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. State-imposed restrictions which produce such inequalities cannot be sustained.”
Finally, in Sipuel, the plaintiff had been denied admission to the Oklahoma law school. No facility for black students existed in the state, and so she petitioned for a writ of mandamus that would force the state to admit her. This was denied; on appeal, the Oklahoma Supreme Court issued what can only be described as a contorted defense of this state of affairs, arguing (as far as I can tell – the argument really is tortured) that Sipuel should have gone to the black school and demanded a legal education, rather than suing the state for failing to provide a legal education, because how could the state know that there were black students who wanted a legal education in Oklahoma unless one applied? (this would have been a more creditable claim if the Court also did not repeatedly cite the state’s willingness to pay the cost for black students to attend law schools out of state, noting that many did). In other words, she should have applied to a non-existent program rather than one that was legally required to reject her. The Supreme Court cut through the applesauce:
“The petitioner is entitled to secure legal education afforded by a state institution. To this time, it has been denied her although during the same period many white applicants have been afforded legal education by the State. The State must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group.”
One noteworthy feature of these precedent cases (aside from the fact that they fit within the framework of Plessy) is that they are all substantive equality cases – the fact that someone could receive a “legal education” or a “graduate education” did not mean that Constitutional guarantees of equality had been met, unless you could also claim with a straight face that the education offered was equivalent. However, none of them prior to Brown actually credited the social-science argument Carter refers to. In other words, the Foucauldian point I want to make, is that part of what changes in the era around Brown is the kind of evidence that might persuade the court. That is, the “truth” of the harm of segregation is partly determined by the shift from a more juridical form of biopolitical evidence to a more biopolitical one (no, I don’t have a better way of putting it).
The relationship between juridical and biopower is complicated; I’ve tried to make sense of aspects of it like the national security state’s avoidance of juridical power, of the way that male supremacy morphs from a juridical to a biopolitical concept, and of a distinction between public-health and individually-oriented versions of biopower. Following Foucault’s lead on the importance of the social sciences to the development of biopower – even in the Courts (see, for example, his scathing discussion of psychiatric testimony in Abnormal) – I have defended the centrality of statistics in particular to its development. It seems that here is evidence that the view needs nuancing: prior to Brown, the Court was willing to entertain evidence about a biopolitical topic like education, but not by using what has become the standard way of validating biopolitical claims: the social science article.
Critical Legal scholars after Brown have worried that the use of social science evidence in Brown created part of the problems in achieving integration. For example, Charles Lawrence proposes that the focus on the psychological harms made it impossible to assert that segregation existed as an aspect of white supremacy, designed to stigmatize and subordinate black children. The very invidiousness of discrimination thus disappeared (in Bell, ed., Shades, 51-2). Sara Lightfoot suggests that the research behind Brown and its progeny treats schooling as a proxy for education, which occludes the role of communities and (especially) families in the educational process. The occlusion of families allows educators to construct an adversarial relationship between themselves and minority families based on the stereotype that black families are culturally deficient. The research is also limited in that it uses testing as a proxy for educational attainment, and “and these might not be the most significant of meaningful variables to be looking at as we try to interpret the effects of desegregation on children in school” (in Shades, 7). Finally, it became impossible to address residential segregation as a constitutive part of school desegregation because all the focus stayed on the classroom. This matters because the Brown decision provoked white flight and reactive efforts to circumvent the possibility of school integration by means of residential segregation. Such residential segregation – a problem in both the north and the south – arguably has a greater influence on student achievement than school segregation. And, when legally-mandated segregation disappeared, Courts generally did not hold districts responsible for de facto housing segregation.
There is a sense in which these claims all revolve around a single point: the Brown decision wasn’t biopolitical enough, because it didn’t cognize the various exogenous factors that made the education of minority children substantively unequal to that received by white children. The court’s willingness to fashion equitable relief was thus constrained at the outset. But, paradoxically, it seems that the problem was in the kind of evidence adduced – and the evidence adduced is absolutely standard in biopolitical policy-making. Was the solution better social science evidence? Lightfoot presses that point. Or, would it have been better to drop the social science altogether, and argue that the state needed to provide substantively equal facilities to black students: in accord with Plessy, but preserving the examples of excellent all-black schools, of which there were many. Derrick Bell – both in his contributions to Shades and in Silent Covenants – comes to this view. The important thing seems to me to be the coexistence of two very different kinds of biopolitical claim.
Why did the Court suddenly, in Brown, hear the psychological evidence? Here of course I can only speculate, but one obvious possibility (and one that satisfies both Foucault’s injunction to “step to the side” of institutions when analyzing them, and Bell’s “interest convergence hypothesis”) is that the changing international scene – in particular, the emergence of the Cold War and propaganda battles with the Soviets – made it necessary to declare that “separate is inherently unequal.” Once you say that, then a substantive equality claim that presupposes Plessy’s “separate but equal” doctrine makes no sense, and so the kind of evidence required changes.