Normative notions of fairness are shaped by—and reflected in—a nation’s legal system. The idea of equality is a bedrock element of the American legal and political systems; we strive for a meritocracy and affirm the obligation of government to treat similarly situated citizens equally. The ‘level playing field’ is a favorite metaphor.
Normative notions of fairness are shaped by—and reflected in—a nation’s legal system. The idea of equality is a bedrock element of the American legal and political systems; we strive for a meritocracy and affirm the obligation of government to treat similarly situated citizens equally. The ‘level playing field’ is a favorite metaphor.
Whether a playing field is truly level, of course, is often a contentious issue. This paper will analyze constitutional requirements of equal treatment against claims arising in the context of Affirmative Action and Charitable Choice, programs whose proponents claim that the field must ‘tilt’ if genuine equality is to be achieved. But if government must treat people differently—i.e., unequally—in order to achieve real equality, what are the implications for public policy, public management and the rule of law? Indeed, how are we to define equality, so that we will “know it when we see it” (to appropriate Justice Powell’s famous approach to obscenity)?
Justice, Fairness & Difference
Politically, the level playing field has been invoked as a necessary condition of democracy, a “convenient metaphor for saying that a democracy, defined anywhere along the spectrum, presupposes the absence of a wide disparity in the participatory capabilities of the citizenry.”[1] Political equality has been said to be present when “the decision rule for determining outcomes at the decisive stage must take into account, and take equally into account, the expressed preferences of each member of the demos as to the outcome.”[2] (This construct, of course, begs the question of equal access to membership, among other things.)
Philosophers have gone beyond such narrow rules of political participation in describing the role of equality in a just society. Aristotle defined as a fundamental attribute of justice the principle that equals should be equally treated, largely begging the questions “who are equals?” and “what constitutes equal treatment?” John Rawls proposes that we construct our legal and political system behind a veil of ignorance: if we do not know beforehand what our personal attributes or social station will be, the theory goes, we will be more likely to construct a system that is fair to all, even where it may be unequal.[3] Amartya Sen argues that, no matter how many rights individuals may have, if material conditions are such that those individuals cannot freely choose their ends—if they are so afflicted by disease or constrained by custom or poverty that they are not truly free to choose their own goals—they are neither free nor equal.[4]
Virtually all political philosophies exalt equality as an ideal, but as Ian Hacking has wryly noted, there is a wide variety of working definitions of the term.[5] Libertarians want equality of rights, or equality before the law. Egalitarians want equality of results in varying formulations.[6] Free market advocates want equal access to markets. Americans speak often of “equality of opportunity” a term often defined as the opportunity to compete on….what else? a level playing field.
And so we come full circle, having consistently avoided the crucial question, “equality of what?”
Unless we are able to define the “what,” we will be similarly unable to decide what sorts of differences require recognition if genuine equality is to be achieved. Even if we are talking simply about equal rights before the law, using the narrowest possible construction of that term, a fair and equal system must take note of and allow for differences between children and adults, competent and incompetent persons, motorists and pedestrians, and so forth. All but the most doctrinaire egalitarians will allow for differences in need resulting from a variety of factors including behavior and effort. In other countries, as Will Kymlicka has noted,[7] it is “increasingly accepted that some forms of cultural difference can only be accommodated through special legal or constitutional measures, above and beyond the common rights of citizenship.” These systems recognize that applying the same rules to everyone is not necessarily to treat everyone as equals.
Further complicating the issue of difference, and the importance we should assign to it in our effort to define equality, is the significance of labels, or framing. In the introduction to Making All the Difference, Martha Minow tells the story of animal behaviorist Harold Herzog, Jr., who works in a laboratory funded by the Department of Agriculture at the University of Tennessee, and who must obtain approval for any experiment on the 15,000 or so mice they use each year, to ensure humane treatment. Yet the concern over mouse welfare does not extend to those that escape and are subsequently labeled “pests,” nor to field mice that might get into the building. Those mice are routinely captured and destroyed. Similarly, other mice are used as food for other experimental animals, and likewise fall outside the rules governing appropriate treatment. Finally, and ironically, when a pet mouse owned by Herzog’s son died, the family gave “Willie” a funeral complete with tombstone. The moral of the story, as both Herzog and Minow note, is that our sense of what is ethical behavior depends heavily upon the labels we assign and the language with which we describe the situation and categories before us.[8] Anyone doubting the accuracy of this observation, or its relevance to issues of equality, need only look to contemporary political disputes over gay rights or reproductive choice. When the gay community demands equality, the Christian Right responds that what they really want is “special rights.” When some women talk about “the right to choose” as an element of religious equality, others respond by equating choice with murder, and by labeling pro-choice advocates “baby killers.” Americans believe in equality; we don’t believe in “special rights.” We believe in personal autonomy and respect for different religious beliefs; we don’t condone baby-killing. He who frames the issue wins the debate. Unfortunately, the competition to be the first to label, to be the side that successfully frames the issue, usually generates more heat than light.
In the United States, discussions of equality generally (although certainly not always) begin with discussion of the role of government and the meaning and application of the Equal Protection Clause of the 14th Amendment, passage of which, as Akhil Reed Amar has persuasively argued, profoundly changed the way in which America defines its Constitutional principles, including principles of equality.[9]
Fourteenth Amendment Equality
The Fourteenth Amendment prohibited states from denying to persons within their respective jurisdictions “the equal protection of the laws.” The pertinent language reads
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[10]
The language is straightforward, and Congressional debate surrounding passage as well as subsequent arguments for and against ratification proceeded on the assumption that the Amendment would obligate the states to “incorporate” the Bill of Rights—that is, would impose upon the states the same limitations that the original Bill of Rights had imposed upon the federal government.[11] Nevertheless, the Amendment, and particularly its Equal Protection Clause, was subsequently interpreted by the Supreme Court much more narrowly. The “fundamental rights” protected by the Bill of Rights were applied to the states very slowly and over a period of many years.[12] Even after the Equal Protection Clause was so applied, early notions of equal protection accommodated treatment that was “separate but equal.” Not until Brown v. Board of Education in 1954 did the Supreme Court conclude that separate was inherently unequal.[13]
The equality protected by the 14th Amendment is not the equality proposed by political philosophers: rather, the Amendment is consistent with the Founders belief that liberty is essentially defined in the negative, as freedom from state constraints on our beliefs and behaviors. Equality in that sense is limited to our right to be treated equally by government. Equal protection analysis thus begins with an inquiry whether there has been state action, without which there is no violation of the 14th Amendment.[14]
Once it has been determined that state action is present, the Courts apply an elaborate, ‘tiered’ analysis that hinges upon the nature of the classification involved and the precision with which the government action has been focused. As Randall Kelso has explained,
“The first inquiry is what governmental interests support a statute’s constitutionality. Depending upon the standard of review, the governmental interests must be legitimate or permissible; important, substantial, or significant; or compelling or overriding. Of course, the governmental interest may be impermissible or illegitimate, and thus not support the statute under any standard of review.”[15]
Subsequent inquiries focus upon the methods employed to advance those governmental ends. If the government’s interest is “legitimate” or “permissible,” the law must be rationally related to its object (the “rational basis” test); if the interest is “important, substantial or significant,” there must be a more substantial nexus, or connection, between the means and the end (“intermediate scrutiny”). And if the governmental interest is “compelling,” a direct relationship must be demonstrated (“strict scrutiny”) Where scrutiny is heightened (either intermediate or strict) a final level of analysis focuses upon whether the law in question has been narrowly tailored to achieve its ends—whether it avoids imposing a burden greater than necessary to the achievement of the desired ends.
Most challenges to equal protection are decided under the “rational basis” test, and it is an unusual law that fails to pass muster under that standard, which is highly deferential to the state.[16] However, certain classifications have been determined to be inherently suspect, and to require closer examination by the courts. Race, national origin and alienage will trigger strict scrutiny, as will laws burdening the exercise of a fundamental right. The categories requiring strict scrutiny are those where members of the group being categorized share an immutable characteristic, have historically suffered pervasive discrimination, and where efforts to vindicate their rights in the political arena are unlikely to succeed. Categories that will be examined under “heightened,” but not strict, scrutiny include gender and legitimacy. (The latter seems quaint in these days of celebrity unwed motherhood. When one considers that illegitimacy will trigger heightened scrutiny while the Court has thus far been unwilling to accord even quasi-suspect status to sexual orientation, it would seem past time to revisit the “tiers” of current Equal Protection doctrine.)
As the above, extremely cursory overview of equal protection analysis makes clear, the courts have fashioned a highly technical template to determine whether there has been a violation of the 14th Amendment, and there is substantial scholarship suggesting that it has not hesitated to manipulate that template in service of political or ideological ends.[17] It is certainly the case that equal protection jurisprudence has evolved without benefit of any overarching, generally accepted theory of equality, negative or positive. It should not come as a surprise, therefore, that equal protection case law is anything but coherent, nor that political constituencies unschooled in the arcane language of legal analysis view much of it as unfair and decidedly unequal. Because the stability of a society depends in large measure upon the extent to which the members of that society feel that they are being treated justly, this popular resentment is no small matter. If the rules promulgated by the state are believed by large segments of the citizenry to differ substantially from their internalized norms of fair play and equal treatment, the consequences for legal legitimacy and voluntary compliance can be quite negative.
The disparity between popular understanding of equality and its legal/constitutional definition takes on added urgency as government becomes a more pervasive element of the everyday experiences of its citizens. In a society where the operations of the state reach increasingly into areas that were previously entirely private,[18] the way in which that state conducts its business, the ways in which it uses its power to shape law and provide for the common welfare, become critical elements in the formation of a society and the degree to which that society values or devalues particular notions of equality.
Neutrality and Equality
It is impossible to understand the political passions aroused by Affirmative Action, Charitable Choice or any other government action that specifically recognizes difference in order to achieve equality without first understanding the importance Americans attach to state neutrality. As I have written elsewhere,[19] the one thing most Americans will agree upon (at least publicly) is that our goal is the establishment of a society in which skin color, gender and the like are officially irrelevant…Most of us really do want a society where people are judged by their actions, their talents, and “the content of their characters,” where the same, neutral rules apply to everyone in equal measure. If one believes that it is profoundly immoral to disadvantage someone on the basis of race, gender, sexual orientation or other aspects of one’s fundamental identity, it seems morally and intellectually inconsistent to award advantage on that same basis. Furthermore, programs that single out particular groups for protection or other special treatment raise the specter of misuse of government power: how do we ensure that such programs are based upon a desire to remedy demonstrable inequalities, and not on considerations of political or other advantage? If government can “bend the rules” for one group, what is to keep it from advantaging others who are less deserving? How shall we define desert for such purposes?
Of course, the legal discourse over “neutrality” runs into many of the same problems as are encountered in discussions of equality. If African-Americans have been enslaved, stigmatized and segregated over the past three hundred years, how “neutral” is a system that removes the legal barriers but does nothing to remedy the personal and structural effects of those experiences?
Because official neutrality, like equality, is highly valued if rarely defined, it is often argued that the application of special rules to certain groups is really in furtherance of a more general neutrality. Alan Brownstein[20] points out that proponents of Charitable Choice use “neutrality theory” to justify a form of affirmative action for faith-based organizations.
“The goal of neutrality theory, according to Esbeck,[21] is to ‘maximize [ ] religious liberty.’ That objective is best accomplished by the minimization of the government’s influence over personal choices concerning religious beliefs and practices. The goal is realized when government is neutral as to the religious choices of its citizens. Thus, whether pondering the constitutionality of exemptions from regulatory burdens or as to equal treatment as to benefit programs, in both situations the integrating principle is neutralizing the impact of government action on personal religious choices.
Neutrality theory implements this integration by ‘distinguishing between burdens and benefits.’ Under its operational rules, minimization of government influence is achieved by ‘(1) allowing religious providers equal access to [state] benefits, and (2) allowing them separate relief from regulatory burdens.’ (emphasis supplied)
In other words, Esbeck defines “neutrality” in this context as special dispensation from rules of otherwise general application—as “tilting” the level playing field. As Professor Brownstein notes, however, “granting an exemption from a general law confers substantial material benefits” much as if a particular religious group were to be excused from payment of an onerous, but generally applicable, tax.[22] Comparing such an approach to the neutrality theory underpinning Free Speech principles, Brownstein argues that by providing special regulatory exemptions for proponents of a religious point of view, but not for proponents of other, secular viewpoints, programs like Charitable Choice may distort the marketplace of ideas and so run afoul of the First Amendment.
Affirmative Action and Charitable Choice
Disputes over the nature of fundamental fairness and genuine equality have figured prominently in political debate and litigation over affirmative action programs. One element of that debate centers upon the appropriate level of analysis; that is, to what extent should courts take note of the history of black Americans as a group, and to what extent should judicial remedies address discrimination against discrete, identifiable individuals? The American legal system is uncomfortable with the claims of so-called “identity politics.” Unlike the legal systems in countries described by Kymlicka, ours has historically been a law focused on individual rights and responsibilities, and Americans are profoundly uncomfortable when individual merit and behavior are not the primary focus of legal analysis.
“The official American vision of equality has been one of a society in which group identity is legally irrelevant, where individual conduct is the only proper concern of government, and individual merit the only determinant of reward in the workplace. In such a system, individuals are rewarded or punished based upon their behavior and performance. Race, religion, sex and similar markers of group affiliation are unrelated to one’s legal or employment status, despite how meaningful those affiliations my be to the individual. The civil rights movement spoke so powerfully to the nation’s conscience because the treatment of minorities was blatantly inconsistent with our stated commitment to equality and fundamental fairness.[23]
Both the original 1964 Civil Rights Act, and subsequent affirmative action programs begin with the recognition that injustices done to black Americans as a group have harmed individual members of that group in ways Courts can neither quantify nor fully identify, and that individualized remedies are inadequate to correct. If institutionalized racism has distorted the operation of economic and educational systems and diminished access and opportunities available to most African-Americans, the simple cessation of discrimination, without more, would leave most black Americans without the means to enter fully into American life. In order to achieve genuine equality, in order to overcome the burdens of past discrimination, affirmative action programs were based upon the belief that achievement of ultimate equality required government to “tilt” the playing field.
The extent of the “tilt,” the degree to which group identity (or gender, although the application of affirmative action to gender has been less contentious) should be a factor in employment or education decisions, has been the subject of considerable litigation, and court opinions have tended to be closely divided. Indeed, as Ashutosh Bhagwat[24] has noted, three of the most significant affirmative action cases, Regents of the University of California v.Bakke[25], Fullilove v. Klutznick,[26] and Wygand v. Jackson Board of Education,[27] were decided by pluralities; the Supreme Court could not even muster a majority opinion.
In Adarand Constructors v. Pena, the Rhenquist court held that all race-conscious programs, state or federal, discriminatory or benign, are subject to strict scrutiny, thus clarifying an area of doctrinal uncertainty about when strict scrutiny was required. As Bhagwat observes, however,
“[A]n examination of recent decisions by the federal courts of appeals reveals widespread disagreement and confusion regarding the constitutionality of race-conscious official action. Despite facial unanimity regarding the applicable standard of review, courts differ widely in how they implement the strict scrutiny standard. In particular, there is an explicit and widening division among the courts of appeals regarding the kinds of governmental objectives that are sufficiently ‘compelling’ to justify race-based actions that disfavor the majority race, a division the Supreme Court has studiously avoided resolving.”[28]
In Hopwood v. Texas,[29]the Fifth Circuit decided that diversity of the student body at a State University’s law school was not sufficiently compelling to justify an admissions policy that gave preferential treatment to African-American and Hispanic applicants. The court held that in the absence of a history of discrimination by the school that would justify remedial measures, the program could not survive constitutional scrutiny. Similarly, the District of Columbia Circuit struck down FCC regulations intended to foster diversity in programming, declining to find any compelling government interest in promoting broadcast diversity.[30] On the other hand, the Seventh Circuit has upheld preferential hiring of black officers to staff a boot camp in which the young offenders were predominantly African-American, accepting the state’s argument that the presence of black staff was essential to the program’s success, and thus met the standard of compelling state interest.[31] And the Ninth Circuit has upheld an admissions process for an elementary-level University laboratory school that made race and ethnicity a part of the admissions decision, agreeing with the University that research goals required a representative student body, and that the interest in safeguarding those goals was sufficiently compelling for purposes of Equal Protection Analysis[32]. There are numerous other cases in which circuit and district courts have had to determine whether a given interest was sufficiently “compelling” to meet the constitutional standard under the facts of the case. Such determinations are necessarily ad hoc, and the equal protection jurisprudence that results demonstrates—if demonstration were needed—the inherent difficulty of using a technical legal formula as a proxy for equality.
Affirmative action programs geared to racial and gender disparities are not the only administrative or legislative efforts intended to address prior discrimination. In 1996, Section 104 of the Personal Responsibility and Work Opportunity Act, dubbed “Charitable Choice,” addressed a perceived government bias against contracting with religious social service providers. Proponents of greater involvement by grass-roots religious providers in the complex network of governmental social supports argued that Section 104 was necessary in order to “level the playing field,” although religious providers like Catholic Charities, Lutheran Social Services, Jewish Family & Children’s Services and the Salvation Army had long histories of partnering with government.[33] Supporters of the legislation argued that confusion over the application of First Amendment Establishment Clause doctrine had caused government officials to disfavor religious bidders in some cases, and to impose burdensome requirements on those with whom they did do business, in others. Advocates of greater “faith-based” participation in welfare programs encouraged states to reach out to such organizations and encourage their participation. Some states, like Massachusetts, took the position that their playing field was already level, and did little to specifically “implement” Charitable Choice; others, like Indiana, instituted extensive (and relatively expensive) programs designed to acquaint small religious providers with opportunities for government collaborations. These efforts to include faith-based organizations, or FBOs, have raised many of the same questions as traditional affirmative action programs.
Perhaps the thorniest of these issues involves application of bid qualifications: shall the same criteria be applied to FBOs as are applied to secular providers? In an article published last year in Commentary, for example, Les Lenkowsky argued for “elimination of arbitrary rules that allow, for example, the use of professional therapy but not pastoral counseling.”[34] As with affirmative action, equal treatment is in the eye of the beholder: if the state insists that a responsive bidder employ licensed social workers, or credentialed drug therapists, does the requirement discriminate against FBOs whose programs use pastors rather than social workers or trained counselors? On the other hand, if the state does relax certification requirements for FBOs, does that amount to an unconstitutional preference for religious providers? What is the difference between “equal treatment” and “special rights”?[35] Similarly, provisions of Sec. 104 that allowed FBOs to discriminate on the basis of religion in employment have been widely attacked, by secular and religious organizations alike, as a special accommodation unwarranted by public policy. Defenders of the provision respond that a failure to recognize and accommodate the religious nature of FBOs would amount to a special burden on faith, and would be discriminatory.
Conclusion
Lost in the arguments about fair play and equal treatment are cautionary notes sounded by social science researchers, who warn that competition between groups is more polarizing than competition between individuals.
“Taking more for one’s group seems to be more legitimate than taking more for oneself, even though one benefits in both cases. Implicit in the act of allocating to one’s group is the justification that other people will benefit; there exists the possibility that taking more for one’s group may reflect the individual’s genuine concern with the welfare of fellow group members and not just greedy behavior…The problem arises when one’s opponent in the negotiation is also representing his/her group.”[36]
Whatever one’s position on the merits of Affirmative Action or Charitable Choice, the controversy each has aroused is indisputable. No matter what rules the courts ultimately impose, some will feel betrayed—and unequal. Further restrict or eliminate Affirmative Action, and those who have borne the brunt of America’s racist history will say that they do not have equal access to the playing field. Confirm those same programs, and others will complain that special efforts to redress past injuries that benefit an entire group are too broad, and inherently unequal. Tell religious organizations they must meet the same standards as secular service providers, and they will argue that such a position fails to take into account their essential nature, and is discriminatory. Make special rules for such organizations, and their secular competitors will protest that the playing field has been unfairly tilted. Where you stand, as the saying goes, depends on where you sit.
What are the implications for government legitimacy and the rule of law, if significant constituencies experience government programs as biased or unfair? Several come to mind:
· Democratic deliberation becomes problematic. We have already seen how proponents and opponents of Affirmative Action and Charitable Choice “talk past each other.” In a very real sense, they are inhabitants of different realities. But democracies require common ground in order to function, and some agreement on the nature of equality would seem to be a precondition for finding that common ground.
· Compromise becomes difficult, if not impossible. If different people see different realities, how can we formulate policies that both will see as fair and equal?
· Social stability is in jeopardy. If government is to be seen as legitimate, it must live up to its own principles. In America, equality is a—perhaps the—foundational precept. When a significant segment of our society believes that it is being marginalized, devalued, or treated in a discriminatory manner, there is a real potential for social upheaval.
Eventually, if America manages to eradicate the vestiges of slavery and segregation, we will no longer need affirmative action. Even ardent proponents of Charitable Choice have suggested that the replacement of direct contracts with vouchers that would allow program recipients to choose their own social service provider might ease both the First Amendment and fairness issues. But our need to define the nature of equality and equal treatment, to sketch the landscape of the truly level playing field, will remain—a daunting but essential task of liberal democracy.