In America there has been a special tension, indeed a tragic tension not resolved, between the ideals of equality of opportunity and individualism and the reality of black slavery and its aftermath

Dixon, Robert G., Jr.

English

Washington University St. Louis: Open Scholarship

Washington University Law Review Volume 1979 Issue 1 Symposium: The Quest for Equality 1979 Foreword: Equality, the Elusive Value Robert G. Dixon Jr. Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Jurisprudence Commons Recommended Citation Robert G. Dixon Jr., Foreword: Equality, the Elusive Value, 1979 WASH. U. L. Q. 005 (1979). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1979/iss1/4 This Symposium is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. FOREWORDEQUALITY, THE ELUSIVE VALUEROBERT G. DIXON, JR.*Of all the visitors to our shores, the gifted Frenchman, de Toc-queville, would best understand the theme of Washington University's"Quest for Equality" series. In his Democracy in America, penned al-most 150 years ago,' he proclaimed that democratic communities have.,a natural taste for freedom. . they will seek it, cherish it, and viewany privation of it with regret. But for equality, their passion is ardent,insatiable, incessant, invincible." 2 And de Tocqueville would under-stand the term "quest." He may not have comprehended that it is eas-ier to develop a psychological sense of what he observed as the-'equality of condition,"3 yielding a species of camaraderie across classlines, than to "accomplish" equality or even define its relation to effort,gain, reward, and obligation. But he did see a century before Myrdal4the qualifying dilemma of race; and if he understandably failed to fore-see all of its unfolding complexity, he did note its intensity-even hy-pothesizing the possibility of race war in the South.5In more timeless perspective, of the three great recurring themes inWestern legal and political philosophy-liberty, justice, and equal-ity-the equality concept, as I have noted elsewhere,6 always has beenthe most complex. People are obviously unequal in talent and charac-ter- conditions and opportunities are infinitely varied; and all societiesseem naturally to develop into a structure of position and preferment.People look upward seeking equality, downward claiming privilege.* Daniel Noyes Kirby Professor of Law, Washington University. A.B., 1943, Ph.D., 1947,Syracuse University; J.D., 1956, George Washington University. Assistant Attorney General in,harge of the Office of Legal Counsel, United States Department of Justice, 1973-74.1. A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA (P. Bradley ed. 1945).2. 2 id. at 97.3. 1 id. at 3.4. A. MYRDAL, TOWARDS EQUALITY (1971).5. 1 A. DE TOCQUEVILLE, supra note 1, at 391-92.6. Dixon, The Supreme Court and EqualiQ': Legislative Classifications, Desegregation, andRe'erse Discrimination, 62 CORNELL L. REV. 494, 494 (1977) (book manuscript in preparation).Washington University Open Scholarship6 -- WASHINGTON UNIVERSITY LAW QUARTERLYEquality is our most elusive value, with a varied background in naturallaw, Christian theology, and democratic theory. A certain modicum ofequality is a precondition of a free society, yet in most philosophicthought since Aristotle it has not been an absolute. Aristotle wrappedequality into his concept of distributive justice, transmuting equalityinto a concern for treating persons alike only insofar as they share likequalities, rather than imposing equality of result on all.7In America there has been a special tension, indeed a tragic tensionnot resolved, between the ideals of equality of opportunity and individ-ualism and the reality of black slavery and its aftermath. The "Questfor Equality" in our constitutional order, although not exclusively con-cerned with racial matters, is heavily influenced by issues of discrimi-nation and corrective action. In pursuit of the traditional ideal ofequality of opportunity, and of the newer claims for an equality of re-sults, detailed court orders often dominate such fields as school deseg-regation, employment, welfare administration, and even the politicalprocess itself.'In school desegregation, for example, the important events follow theinitial substantive ruling of unconstitutionality, and in these eventscourts stay deeply involved. As courts cast about for equitable solu-tions, the complex remedy may overshadow the seemingly simple sub-stantive right that provided the basis for judicial entre.Despite some ambiguous phrases in Brown v. Board of Education,'the orthodox desegregation theory holds that the Constitution forbidsofficial acts of racial segregation but does not confer a substantive rightto racial balance in all schools. Yet courts temporarily order integra-tive busing as a means of dismantling an officially segregated system.The distinction between these two concepts becomes blurred as the ini-tially required proof of school board wrongdoing becomes more subtle,7. ARISTOTLE, Ethica Nicomachea, in 9 THE WORKS OF ARISTOTLE 1131-32 (W. Ross ed.1925).8. All of these, except legislative representation, have been included in the symposium. Fora preview of one developing issue, the interaction of constitutional considerations with the VotingRights Act, 42 U.S.C. §§ 1971, 1973 to 1973bb-4 (1976), see Note, Group Representation andRace.Conscious Apportionment: The Roles of States and the Federal Courts, 91 HARV. L. REV. 1847(1978). See also R. DIXON, DEMOCRATIC REPRESENTATION: REAPPORTIONMENT IN LAW ANDPOLITIcs 7-22, 456-99, 503-27 (1968); Casper, Apportionment and the Right to Vote: Standards ofJudicial Scrutiny, 1973 SUP. CT. REV. I.9. Compare "[s]eparate educational facilities are inherently unequal," 347 U.S. 483, 495(1954), with "[s]uch an opportunity, where the state has undertaken to provide it, is a right whichmust be made available to all on equal terms," id. at 493.[Vol. 1979:5https://openscholarship.wustl.edu/law_lawreview/vol1979/iss1/4FOREWORDi.e., as culpability becomes based not upon overt segregation laws, butnp-in board policies concerning the location of new schools and thearrangement of attendance lines. To correct these more subtle forms ofNcgregation, remedial busing orders remain in force indefinitely.By 1978 it appeared that some lower courts viewed racial imbalanceper se as a substantive wrong, or at least as nearly conclusive proof of aconstitutional violation on the part of school officials.' 0 On this issuesharp conflict emerged between the lower federal courts and theSupreme Court." If the Supreme Court some day should view racialimbalance in schools, however caused, as a constitutional violation,then to what extent would America have embraced a kind of "ethnicproportionality" principle without explicit debate, and how broadly inour society would the principle apply?The newest conflict in constitutional equality values, illustrated bythe Bakke' 2 and Weber 3 cases, is individual rights versus group rights.In Bakke, by means of a cryptic judgment unsupported by any major-ity opinion, the Court seemed to frown on achieving group preferencein professional school admissions through use of an overt double stan-dard for blacks and some other selected minorities. But it left quitemurky the extent to which some ethnic considerations might validly beused in allocating scarce resources where such considerations are rele-vant to the purpose or function of an institution.It is understandable that major interindividual and intergroup ten-sions should be associated with litigation under the "equal protectionof the laws" concept because "equality" is the most amorphous of ourconstitutional principles, and some facets of its meaning are in internalconflict. How broad should be the presumption that all men are cre-10. E.g, Armstrong v. Brennan, 539 F.2d 625 (7th Cir. 1976), vacatedper curiam, 433 U.S.677, remanded, 566 F.2d 1175 (7th Cir. 1977); United States v. Texas Educ. Agency, 532 F.2d 3805th Cir. 1976); United States v. School Dist. of Omaha, 521 F.2d 530 (8th Cir.), cert. denied, 423U.S. 946 (1975); Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974).11. Compare the Supreme Court's insistence on proof of intentional segregative acts of,Chool authorities and consequent segregative effects, Dayton Bd. of Educ. v. Brinkman, 433 U.S.-V)6 (1977); Austin Independent School Dist. v. United States, 429 U.S. 990 (1976), with the SixthCriuit's response to Dayton in Brinkman v. Gilligan, 583 F.2d 243 (6th Cir. 1978), which contin-uzd to infer systemwide school board discrimination from racial imbalance and policies affectingo'nly certain grades and schools. The Supreme Court again granted review. Dayton Bd. of Educ.Brinkman, cert. granted, 47 U.S.L.W. 3451 (U.S. Jan. 9, 1979) (No. 78-627).12. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).13 Weber v. Kaiser Aluminum & Chem. Corp.. 563 F.2d 216 (5th Cir. 1977), cert. granted49 S Ct 720 11978) (No. 78-435)Number 11Washington University Open Scholarship8 WASHINGTON UNIVERSITY LAW QUARTERLYated "equal"? Is the principle satisfied by abolishing privileges of sta-tus based on class? Should the approach be even more individualizedby adding restrictions on inherited wealth to equalize starting points?Under the latter approach, would it follow that extra benefits should beprovided for the slow starter? What then of subsequent inequalitiesdue to extra effort and ability? When should a person (or group) beviewed as "on his (or its) own"? What is the impact on incentives of asystem of equalization? Some of these quite different meanings ofequality are implied in such phrases as "equality of opportunity" or"equality of results," but never very clearly.In our legal and constitutional order, particularly as we have devisedremedies for racial discrimination (or racial "nonproportionality" ef-fected by a multiplicity of causes), the "equal protection of the laws"concept frequently operates as an "allocational right." It arouses ani-mosity in those disfavored by the allocations. With limited resources,any change in favor of one person or group harms the beneficiaries ofthe preceding allocation. The harm to the individual is the samewhether the status quo ante was "natural" or governmentallysupported.Put in terms of modern social science, "equality" is a zero-sum gamewhenever resources are finite and insufficient to meet demands. Oneperson's gain is another person's loss. This factor does not operate withfull force in elementary and secondary public school desegregation be-cause no one is totally deprived of an education. The impact of pupilreassignment is instead on location and quality of education. The zero-sum factor does operate unavoidably in affirmative action programsthat feature race preference in college admissions, employment, andsome housing programs. The Bakke decision, even if limited, and thepending Weber decision may have a major impact on the federal civilrights legislation and executive orders that form the foundation formost of our affirmative action programs.Evolving concepts of equality, in addition to posing difficult choicesin allocation and in completion of desegregation, have stimulated aprolonged drive for a new substantive constitutional amendment, thesex-focused "equal rights" amendment (ERA). Because the status ofwomen appears to be in the process of being substantially equalized infederal programs under the aegis of the equal protection principle, theadditional substantive impact of ERA is quite uncertain. One notewor-thy feature, perhaps an accidental result of outdated drafting, is that[Vol. 1979:5https://openscholarship.wustl.edu/law_lawreview/vol1979/iss1/4FOREWORDunlike our past constitutional guarantees the Equal Rights Amendmentis not phrased explicitly in terms of "personal rights."The fifth and fourteenth amendments both specifically protect "anyperson" 4 against denial of due process or equal protection at the handsof the federal or state governments. The ERA, in contrast, states that"equality of rights," whatever that term may come to mean, shall notbe abridged by the federal or state governments on account of sex.Even under the specific "any person" language of the fifth and four-teenth amendments, arguments have been made to subordinate per-sonal rights to group rights, ie., to devise goals or quotas in variousactivities to bring about more nearly proportionate representation ofvarious groups. Cases like Bakke 5 and Weber,6 in which plaintiffsargue that their personal rights have been overridden to help membersof certain groups,sharply raise the issue in constitutional terms underthe fifth and fourteenth amendments and in statutory terms under Ti-tles VI,' 7 VII,'8 and IX 19 of the Civil Rights Act of 1964 as amended.Hence, a question perhaps more important than many of those raisedin the highly emotional disputes over ERA may be ERA's relationshipto, and impact on, the emerging personal rights-group rights conflict inAmerican constitutional law. Specifically, would it be easier or harderto justify an overt sexual preference hiring quota under the ERA (per-haps based on a theory of compensating women for past restrictions ofopportunity) than under the equal protection principles in the fifth andfourteenth amendments?Also on the equality frontier are novel theories for creating someconstitutional constraints on governmental choices, or governmentalnonaction, in the fields of welfare and basic services. The conceptualproblem centers on the feasibility of creating some intermediate affirm-ative obligations for government without sliding into the explosive con-cept of rights that must be supported.Under the impact of modern developments in the quest for equality,two aged topics take on fresh meaning. One is the question of the con-tinuing importance of the traditional public-private spheres dichotomy14. U.S. CONST. amends. V & XIV, § 1.15. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).16. Weber v. Kaiser Aluminum & Chem. Corp., 563 F.2d 216 (5th Cir. 1977), cert. granted,99 S. Ct. 720 (1978) (No. 78-435).17. 42 U.S.C. §§ 2000d to 2000d-4 (1976).18. 42 U.S.C. §§ 2000e to 2000e-17 (1976).19, 42 U.S.C. § 2000h-2 (1976)Number 1]Washington University Open Scholarship10 WASHINGTON UNIVERSITY LAW QUARTERLYwhen equality values collide with individuality and privacy. In consti-tutional parlance the question is whether there still must be a showingof "state action" before the Constitution can be invoked against thechallenged practice. The other topic concerns the proper role of thecourts, participating primarily through constitutional review, in sharingthe travail of society and the quest for a better order.Traditionally, judicial review has taken the form of negating statutesand executive acts that transcend the authorized power of governmentor that impinge on personal guarantees. Examples include the invali-dation of New Deal legislation in the 1930's and the expanding scopeof first amendment limitations on governmental power. Under modemjudicial review, largely founded on the "equal protection of the laws"principle, however, a court judgment does not so much terminate a pro-gram adopted by the political branches as begin a period of substitute"administration by judges." Courts restructure the offending institu-tion's program and sometimes restructure government itself. Wellknown examples include school desegregation, management of stateprisons and hospitals, and legislative redistricting.This development raises troublesome jurisprudential questions con-cerning the adequacy of the courts' information base, the clarity of gui-dance from the constitutional text, the tension between judicial powerand popular control of government, and the ability of judges to take onthe tasks of program administration and governmental reorganization.Truly, the "equal protection of the laws" principle, which JusticeHolmes characterized fifty years ago as the "last resort of constitutionalargument,"2" has emerged as the most dynamic-and perhaps the mostunruly--constitutional principle.20. Buck v. Bell, 274 U.S. 200, 208 (1927),[Vol. 1979:5https://openscholarship.wustl.edu/law_lawreview/vol1979/iss1/4

Foreword: Equality, the Elusive Value

https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2494&context=law_lawreview

Foreword: Equality, the Elusive Value

Abstract

Similar works

Full text

Available Versions

Washington University St. Louis: Open Scholarship