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.