TRANSCENDING EQUALITY VERSUS ADEQUACY
| By Weishart, Joshua E | |
| Proquest LLC |
A debate about whether all children are entitled to an "equal" or an "adequate" education has been waged at the forefront of school finance policy for decades. In an era of budget deficits and harsh cuts in public education, I submit that it is time to move on.
Equality of educational opportunity has been thought to require equal spending per pupil or spending adjusted to the needs of differently situated children. Adequacy has been understood to require a level of spending sufficient to satisfy some absolute, rather than relative, educational threshold. In practice, however, many courts interpreting their states' constitutional obligations have fused the equality and adequacy theories. Certain federal laws express principles of both doctrines. And gradually, more advocates and scholars have come to endorse hybrid equality-adequacy approaches. Still, the debate persists over seemingly intractable conceptual precepts and their political and legal ramifications.
Tracking the philosophical origins and evolution of equality and adequacy as legal doctrines, I explain the significance of their points of convergence and argue that the few points of divergence are untenable in practice. Equality of educational opportunity should not be interpreted as pursuing equal chances for educational achievement for all children, because that ideal is infeasible. Nor should educational adequacy be interpreted as completely indifferent to objectionable inequalities that can be feasibly curtailed. Properly conceived, equality and adequacy are not merely congruent but reciprocal. That is, children are owed an education that is adequately equal and equally adequate.
INTRODUCTION
In the pursuit of educational justice, practice often outpaces theory. Educa- tional equality and adequacy theories have been understood to impose different demands. As generally conceived by equality theorists, justice dictates that all children have equal educational opportunities. Adequacy theorists typically construe the demands of justice as requiring that all children have access to a certain threshold of educational opportunities. For decades, however, a number of courts have incorporated or invoked equality and adequacy in tandem,1 even as a burgeoning literature has contrasted the two theories.2 A few scholars per- ceived the convergence early on,3 but the trend to embrace the theories as com- plementary is relatively recent.4 Some commentators now propose theories that merge equality and adequacy toward "equity plus,"5 "'meaningful' educational opportunity,"6 or "comparability."7 Even among staunch proponents of equality or adequacy, there is an emerging recognition that the theories are not entirely incompatible.8
Nevertheless, several equality and adequacy advocates remain entrenched, insisting that one theory should override or constrain the other.9 And, although some courts have linked equality and adequacy, judges and legislatures contin- ue to "struggle with a remedy" in part because the paradigms are elusive.10 The concern that these concepts elude judicially discoverable and manageable standards further obfuscates the controversy and contributes to the growing re- luctance of state courts to intervene when legislatures fail to fulfill their affirm- ative obligations to provide an adequate or equal education.11 Hence, the decades-long equality versus adequacy debate lingers over seemingly irrecon- cilable conceptual differences and legal impracticalities.
My aim in this Article is to enumerate the points of convergence between equality and adequacy and to show that their residual conflicting tenets are un- sustainable in practice. Equality and adequacy are not mutually exclusive; in- deed, I contend that they are mutually reinforcing. To apprehend their symbio- sis, we must delve deeper into each theory's philosophical foundations without losing sight of how the concepts are operationalized in law and policy. I suspect that part of the reason that the equality versus adequacy debate persists is that the practitioners, legal academics, and political philosophers who have engaged in it have done so within their respective disciplines. Although a few scholars have observed parallel themes and polemics, they have declined to confront them in depth.12
By pairing the philosophical and doctrinal analysis, however, we can per- ceive that equality and adequacy are reciprocal in theory, as they have been at times in practice. I negotiate this dual analysis by surveying the development of equality and adequacy as legal doctrines reflective of their philosophical herit- ages but constrained in their real-world application.13
Part I thus begins on the equality side of the debate with a review of equali- ty of opportunity as the favored distributive principle of many contemporary egalitarians.
The evolution of equality of educational opportunity as it has been embod- ied in the law suggests that it is conceptually more ambitious than Rawlsian equality of opportunity but less demanding in practice than luck egalitarianism. Increasingly, scholars, advocates, and courts think the concept is best expressed through "vertical equity," a remedial school finance scheme that aims to miti- gate natural and social disadvantages by allocating greater resources to the neediest students.14 I assess a defense of this view by educational equality theo- rists
In Part II, I conduct a similar review of the adequacy theory, noting that it is philosophically consonant with the sufficiency doctrine. Sufficientarians sub- scribe to the notion that "what is important from the point of view of morality is not that everyone should have the same but that each should have enough."15
Adequacy has been considered the "dominant legal theory" since the influx of the "third wave" of school finance litigation; the first two waves were thought to surge predominantly toward equality.18 Yet the theory is assailed for its inherent ambiguity19 and, more fundamentally, for its indifference to ine- qualities above the threshold that can "exacerbate the positional advantage of some students from better off school districts over disadvantaged students from worse off school districts."20 I assess Anderson's and Satz's responses to this criticism, which I call the fairness objection.
Notwithstanding the philosophical and legal conduits of the equality- adequacy stalemate, I argue in Part III that the theories share at least four sig- nificant points of convergence. First, most theorists and practitioners grant that equality and adequacy should not be construed as absolute, a priori moral prin- ciples. Rather, they have been conceived and employed in ways that are con- sistent with value pluralism. Second, despite conventional wisdom juxtaposing equality as the archetypal relational concept and adequacy as inherently non- relative, adequacy's comparative qualities have been repeatedly demonstrated in its application. Third, egalitarians agree with a central tenet of adequacy- that absolute educational deprivation is morally wrong and that all children are entitled to a minimally adequate education. Fourth, sufficientarians agree with a central tenet held by many egalitarians-that public education should advance social equality.
As I explain, these four intersections pave a way to abandon equality's and adequacy's most extreme and problematic elements, which are exposed by the parental liberty and fairness objections. Specifically, the viability of the equali- ty theory is diminished insofar as the objective is to ensure equal chances for educational achievement for all children. The adequacy theory is conversely flawed in its indifference to objectionable inequalities in educational opportuni- ties above the guaranteed threshold. Some courts seem to appreciate these complementary defects, which explains why "'equity' cases tend to call for eq- uity up to a point," while "'adequacy' cases tend to be more tolerant of inequal- ities in resources but only up to a point."21
Amending these unsound premises not only resolves the most forceful ob- jections to equality and adequacy but also provides space to accommodate their respective normative appeals to fairness, responsibility, and a social basis for respect. The picture of educational justice that emerges, then, is one in which all children are owed an adequately equal and equally adequate education. The practical significance of that symbiosis is that policymakers are not conceptual- ly bound to either equality or adequacy. That conclusion has not been lost on a few courts that have geared education policy toward equality and adequacy- conceivably, a less vexing and more determinate standard. Transcending the debate in this manner affords advocates and lawmakers latitude to advance ed- ucational justice along the points where equality and adequacy intersect.
I. EQUALITY
The principle of equality of educational opportunity as we know it today in
Nevertheless, it is no coincidence that the arguments litigants make, the ra- tionales courts provide, and the language legislatures adopt frequently echo philosophical principles derived from logic and widely shared intuitions. Arm- chair theorizing may be a methodology unique to philosophy, but it tends to yield notions of fairness and morality that confirm and substantiate our precon- ceived and evolving judgments. Thus, we should reflect on the philosophical undercurrent that pervades our sense of educational justice.22
To that end, the starting point of contemporary egalitarianism is the propo- sition that everyone should be treated with "equal concern and respect."23 In- deed, "[n]early all agree with the principle that members of a political commu- nity should be treated as equals . . . . What they disagree about is what 'treatment as an equal' amounts to."24
Despite their disagreement over the proper object of equalization, egalitari- ans are virtually unanimous in their rejection of absolute equality of results (or outcomes)-the idea that everyone should realize the same economic and social conditions.25
Similarly, equality of educational opportunity does not insist that all chil- dren reach the same educational attainment.30 To be sure, equality advocates want to reduce disparities in educational outcomes (e.g., graduation rates and test scores), but even those who propose that legislatures and courts take an "outcomes-based approach" aim merely to improve educational outcomes overall, especially for disadvantaged children; they have no delusion that all children can or want to achieve the same outcomes.31 Rather, most educational equality theorists and egalitarians, as well as many Americans,32 think that eve- ryone should have a fair and equal chance-an equal opportunity-to achieve certain desired educational, economic, and social outcomes.
A. Equality of Opportunity
Endorsed by
1. Nondiscrimination
Equality of opportunity in its most austere form demands simply that "ca- reers . . . be open to talents."38 A product of the Enlightenment, the concept was originally directed at the aristocracy's practice of barring nonaristocrats from certain occupations or prestigious positions.39 It has since evolved to re- quire the elimination of formal barriers to public services, privileges, positions, and accommodations based on arbitrary factors such as race, gender, age, disa- bility, ethnicity, national origin, and sexual orientation-in other words, non- discrimination.40
Justifications for the nondiscrimination principle vary depending on what is perceived to be wrong with considering arbitrary factors.41 We might find it unfair because arbitrary factors are regarded as beyond people's control.42 Al- ternatively, we might justify nondiscrimination by focusing on the harm com- mitted when a person with arbitrary factor X is passed over or excluded due to the belief that all persons with X are somehow morally inferior. We might ob- ject to such discrimination because it projects moral superiority and preju- dice.43 Instead, we might ground our justification for nondiscrimination on the idea that consideration of arbitrary factors is irrational; thus, it would be irra- tional to deny a person a position on account of, say, race because that factor is irrelevant to how well he can perform in the position.44 Notwithstanding the differing justifications, nondiscrimination is firmly linked with equality of op- portunity.
2. Meritocracy
From "careers open to talents" we derive not only nondiscrimination but also the meritocracy view.45 If talent is the determinative factor, then the per- son with the most talent should obtain the open position. Some argue that a meritocratic system maximizes utility, producing many morally desirable out- comes for society.46 Others propose that meritocracy is grounded in desert, that past accomplishments should determine whether one is morally deserving of a position.47 Still others think meritocracy preserves respect for persons because talents and abilities are constitutive of personhood; when these qualities are dis- regarded, the person has been insulted and disrespected.48 Although much more can be said about each of these positions, I merely wish to point out that meri- tocracy is compatible with equality of opportunity.49
Together, nondiscrimination and meritocracy have been said to make the competition for careers procedurally fair.50 Rawls deems this "formal equality of opportunity,"51 which some contend is the most society can and should pur- sue.52 Rawls, however, argued that formal equality of opportunity is necessary but not sufficient.53 He echoed the egalitarian rallying cry for substantive equality of opportunity as a measure of distributive justice.
3. Equal life chances
The insufficiency of formal equality of opportunity is frequently illustrated by
Combining both conditions would be necessary to achieve what Rawls termed "fair equality of opportunity," such that "those who are at the same lev- el of talent and ability, and have the same willingness to use them, [will] have the same prospects of success regardless of their initial place in the social sys- tem, that is, irrespective of the income class into which they are born."57 Fair equality of opportunity demands, for example, that
if Smith and Jones have the same native talent, and Smith is born of wealthy, educated parents of a socially favored ethnicity and Jones is born of poor, un- educated parents of a socially disfavored ethnicity, then if they develop the same ambition to become scientists or
It is this notion of the equal "life prospects"59 or "equal life chances"60 that many believe completes the ideal of equality of opportunity.61
B. Rawlsian Equality of Opportunity
On Rawls's view, attempting to achieve equal life chances would require counteracting the effects of morally arbitrary social circumstances, primarily class.62 As relevant here, Rawls explained that to implement fair equality of opportunity it is essential that society guarantee "equal opportunities of educa- tion for all."63 That is, "the government tries to insure equal chances of educa- tion and culture for persons similarly endowed and motivated either by subsi- dizing private schools or by establishing a public school system."64 Either way, the education system "should be designed to even out class barriers."65
Rawls acknowledged, however, that fair equality of opportunity "can be only imperfectly carried out" because of the influence of family life on a child's prospects.66 Government can provide an education system, but it cannot possibly match the resources that wealthier parents can spend to improve their children's lives and education. And, even if such extra educational spending were prohibited, parental values and preferences "vary considerably from one family to another, differentially affecting children's life prospects in a signifi- cant way."67 As Rawls observed, "[e]ven the willingness to make an effort . . . is itself dependent upon happy family and social circumstances."68 Numerous studies substantiate the differential effects of family life on educational achievement.69 Therefore, even if government could establish formal equality of opportunity and "fair equality of opportunity underwritten by education for all,"70 it cannot assure truly equal life chances without "a systematic sacrifice in the autonomy of the family or a systematic achievement of [equality of re- sults]"71-and either option, most everyone agrees, is unacceptable.
A second difficulty with Rawls's fair equality of opportunity is that it is only concerned with the differential effects of social circumstances. But, un- doubtedly, differences in people's innate talents and abilities, or so-called natu- ral endowments, also affect their life chances. Moreover, as Rawls admitted, natural endowments are as "equally arbitrary," from a moral standpoint, as so- cial circumstances.72 Nevertheless, Rawls regarded natural endowments as a "common asset" that should be promoted to benefit society at large.73 So, ra- ther than fully embrace a "principle of redress" that seeks to eliminate or neu- tralize the effect of inequalities in natural endowments, Rawls advanced "the difference principle."74
Simply put, the difference principle holds that inequalities, particularly of wealth and income, must work to the "greatest benefit of the least advan- taged."75 That way, the winners of the natural lottery, those who are blessed with socially valued talents and abilities, can benefit "from their good fortune only on terms that improve the situation of those who have lost out."76 In prac- tice, implementing the difference principle might involve a progressive taxation scheme and redistribution to improve the welfare of the least advantaged mem- bers of society.77
Essentially, then, fair equality of opportunity is meant to counteract the ef- fects of social circumstances while the difference principle "mitigates the arbi- trary effects of [natural endowments]."78 The implications of Rawlsian equality of opportunity on education policy comes into focus when understanding the interplay between fair equality of opportunity and the difference principle. At least in his early writings, Rawls thought fair equality of opportunity should be "lexically prior" to the difference principle, meaning that fair equality of oppor- tunity must be satisfied before the difference principle.79 Translating this lexi- cal priority to the education context would mean that we should prefer a distri- bution that allocates resources so that equally motivated and talented children enjoy equal chances for educational achievement over a distribution that allo- cates resources in such a way as to benefit the worst-off children.
Beyond making provision for universal education, government must pro- vide certain children with educational resources to counteract the effects of ed- ucationally detrimental social circumstances so that educational achievement is solely a function of talent and effort. Once the demands of fair equality of op- portunity are fulfilled as much as possible, the difference principle regulates the distribution of educational resources.80 Because it is not a principle of redress, the difference principle does not "try to even out handicaps as if all were ex- pected to compete on a fair basis."81 Indeed, the difference principle could jus- tify providing more resources and "giving more attention to the better en- dowed"-provided that would "improve the long-term expectation of the [worst off]."82 Hence, Rawlsian equality of opportunity does not require "any compensatory education for the worst-off . . . individual" so long as those with similar talent and motivation have the same prospects for educational achieve- ment.83
In response to the professed shortcomings of Rawlsian equality of oppor- tunity, so-called luck egalitarians have proposed a view that doubles down on the notion of equal life chances yet esteems personal responsibility.
C. Luck Egalitarianism
In recent decades, luck egalitarianism has ascended within the ranks of po- litical philosophy.84 The theory emerged, in part, to co-opt criticism from con- servatives and libertarians that egalitarianism was hostile to capitalism, failed to hold people responsible for how well they live their lives, and sought to compensate the undeserving.85 Although luck egalitarians may differ in belief in significant respects,86 they generally share the conviction that inequality is permissible when it derives from people's voluntary choices but is unjust when it is the product of people's unchosen circumstances or luck.87
Luck egalitarians distinguish between "brute luck" and "option luck."88 Brute luck refers to an outcome (good or bad) that occurs independent of a per- son's choice-an outcome that is not reasonably avoidable.89 It is the luck traceable to circumstances that lie beyond a person's control, such as genetic inheritance (physical and some personality traits), natural endowments (innate talents and abilities), environment (class, schooling, family life, and geogra- phy), or unforeseen events (accidents and natural disasters). Luck egalitarians believe that the victims of bad brute luck deserve compensation, seizing on the egalitarian impulse that "it is a bad thing-unjust and unfair-for some to be worse off than others through no fault of their own."90
Option luck refers to an outcome (good or bad) to which a person deliber- ately chooses to expose herself.91 In other words, option luck "is a matter of how deliberate and calculated gambles turn out."92 Luck egalitarians think that people ought to bear all or some of the cost of the bad option luck for which they are responsible.93
Enriched by the choice-luck distinction, luck egalitarianism "[is] some- times regarded as offering a better interpretation of [equality of opportuni- ty]."94 Unlike Rawlsian equality of opportunity, luck egalitarianism holds that all forms of bad brute luck must be neutralized, not simply mitigated. The theo- ry "suggests that if we are to take the idea of equality of opportunity seriously, we need to neutralize as best we can not only the effects of social class but also the effects of the distribution of natural talents and (dis)abilities and other acci- dents of fortune."95
At the point at which social circumstances and natural endowments are neutralized, people's life prospects will be influenced only by their ambitions and choices.96 Inequalities resulting from option luck will then be acceptable as a product of individual choice and personal responsibility.97 Hence, "luck egalitarianism is attractive because it gives an account of what it means to level the playing field that goes further than other theories of equality of opportunity, but which at the same time aims to hold people accountable for how well their lives are going."98
Yet, for all of its perceived advantages, luck egalitarianism has as many de- tractors as disciples.99 I could devote the rest of this Article and others to the criticisms of luck egalitarianism, but I will mention only two that seem most relevant to the equality-adequacy debate because they do not apply with equal force to adequacy-based theories.
First, critics charge that the distinction between brute luck and option luck is tenuous because "people's voluntary choices are routinely influenced by un- chosen features of their personalities, temperaments, and the social contexts in which they find themselves."100 If our choices can be shaped by features that are largely a matter of brute luck, then is it appropriate to regard them as within our control? If Michael's parents are apathetic about his education or are unable to provide him the resources and conditions to cultivate any academic interests, then is it fair to hold Michael responsible for his lack of effort and ambition?
Some luck egalitarians think that people should indeed be held responsible for such factors because the brute-luck-option-luck "distinction tracks ordinary people's ethical experience. Ordinary people, in their ordinary lives, take con- sequential responsibility for their own personalities."101 Other luck egalitarians acknowledge that there are some preferences that are beyond our control and must therefore fall on the brute-luck side of the equation.102 But, of course, that view prompts a further inquiry: is it practical or even possible to separate pref- erences that are and are not influenced by external forces? Needless to say, am- biguities about the concept of choice deployed by luck egalitarians provoke deep metaphysical questions about free will and personal identity.103
Second, luck egalitarianism has been accused of betraying the egalitarian axiom of equal respect. Specifically, Anderson and others assert that luck egali- tarianism permits expressions of pity to be directed at the victims of bad brute luck who "lay claim to [compensation] in virtue of their inferiority to others, not in virtue of their equality to others."104 That is, luck egalitarianism is said to force the victim of bad brute luck "to look inward in deciding whether she has a legitimate claim on fellow citizens" and thereby view her bad brute luck as constitutive of her identity.105
There is some empirical support for the notion that many people attribute instances of bad brute luck-for example, poverty-to personal failings or de- fects.106 In the education context, studies have suggested that "pull-out" pro- grams, which target disadvantaged students for compensatory aid, stigmatize those students.107 Even when efforts are made to make it harder to distinguish students in that regard, stigmatization persists.108 Moreover, teacher expecta- tions of students marked as "educationally disadvantaged" are lower, and, per- haps consequently, so is student performance.109
Luck egalitarians have offered various responses to the equal-respect criti- cism, reiterating that their theories are motivated by equal concern and respect, not pity.110 Undoubtedly, luck egalitarians are committed to showing "recogni- tion respect" to the victims of bad brute luck, meaning that they "give proper weight to the fact that they are persons" worthy of equal life chances and self- respect.111 But perhaps Anderson and other critics worry that luck egalitarian- ism, as applied, deprives those with bad brute luck of "appraisal respect," ex- pressed to persons with manifested characteristics that make them deserving of positive appraisal.112
Although appraisal respect "is not owed to everyone, for it may or may not be merited,"113 the converse is surely true as well: the victims of bad brute luck do not deserve negative evaluations of personal features that they cannot con- trol. The danger is that negative assessments erode "attitudes which one can bear to oneself"-not only appraisal self-respect (i.e., self-esteem) but also recognition self-respect, that is, the self-valuation of "the rights and responsibil- ities of being a person."114
The Finnish comprehensive-school model suggests one possible solution to this dilemma: take the "special" out of special education by subjecting most students at one point or another to remedial educational services.115 As ex- plained in Part III, by incorporating vertical equity principles while maintaining high adequacy thresholds, this approach can resemble both equality and ade- quacy.
Before exploring that possibility, let us assess how the Rawlsian and luck egalitarian versions of equality of opportunity have been expressed in education law and policy in
D. Equality of Educational Opportunity
1. The historical and legal perspectives
Proponents of equality of educational opportunity tend to exalt the declara- tion in Brown v.
The Plessy Court basically regarded the Fourteenth Amendment's Equal Protection Clause as requiring nominal forms of political equality and formal equality of opportunity.118 In reality, of course, African Americans were denied basic rights of citizenship, "separate but equal" was inherently discriminatory, and virtually no one at the time considered African Americans better qualified than whites in any respect.119
It would take another half century for the Court to fully realize the hypocri- sy of the ideal of equality of opportunity to which Plessy gave lip service.120 Although the 1954 Brown decision declared that education "must be made available to all on equal terms," its holding legally invalidated only one aspect of discriminatory education policy-state-sanctioned racial segregation.121 Emboldened by Brown, however, "scholars and advocates began turning their attention" to another form of discrimination-"unequal school funding."122 Ini- tially, progress was made on the legislative front with the passage of the Ele- mentary and Secondary Education Act of 1965 (ESEA),123 and, specifically, Title I of the Act, which provided compensatory aid for low-income chil- dren.124 Even when properly allocated and spent, however, Title I assistance was insufficient to reduce vast disparities between wealthy and poor school dis- tricts funded primarily through local property taxes.125 Equality of educational opportunity activists thus began to seek remedies in the courts.
During what is commonly called the first wave of school finance litigation (late 1960s-1973), when funding schemes were challenged as violating the U.S. Constitution's Equal Protection Clause, the early reform theories sounded in formal equality of opportunity. Equality of educational opportunity meant simply nondiscrimination: students should not be discriminated against based on their school district's wealth.126 That legal theory gained traction when a few lower courts held that school finance schemes violated federal and/or state equal protection guarantees by discriminating "against the poor" in making "the quality of a child's education a function of the wealth of his parents and neigh- bors."127 But the theory derailed at the federal level when the
Eschewing Rodriguez's interpretations of the U.S. Constitution, plaintiffs resorted to the education clauses and equal protection provisions of their state constitutions.130 During this second wave (1973-1989), the focus was still for- mal equality of educational opportunity-"to achieve either horizontal equity among school districts, such that per-pupil revenues were roughly equalized by the state, or at least fiscal neutrality, such that the revenues available to a school district would not depend solely on the property wealth of the school dis- trict."131 And several state courts discerned the arbitrariness of allowing educa- tional opportunities to be dictated, in part, by the school district in which a stu- dent happened to reside.132 Although plaintiffs prevailed in only seven of the twenty-two second-wave decisions, they succeeded in obtaining greater per- pupil spending equity across districts in those states that had their school fi- nancing systems overturned.133 But, in some cases, the greater equity arguably came at a high cost-the leveling down of education spending overall.134
The third wave of school finance litigation (1989-present) was triggered by the
Even before the third wave, however, advocates and courts had recognized the limitations of formal equality of educational opportunity through horizontal equity or fiscal neutrality.141 Attempting to equalize funding across districts did not directly address the educational needs of disadvantaged students, who en- tered the schoolhouse door already on unequal footing. Hence, many of the same courts that demanded greater funding equity also acknowledged that the state could (and probably should) account for the different "costs associated with providing an equalized educational opportunity to . . . disadvantaged stu- dents."142 Paralleling the lessons from
Despite the apparent recognition that horizontal equity and fiscal neutrality are insufficient, the evolution to substantive equality of educational opportuni- ty-or "vertical equity," as it became known-has been gradual.147 In the 1960s, the "war on poverty"148 jumpstarted the effort with the ESEA and its subsequent amendments, which directed funding to low-income, disabled, and limited English proficient (LEP) students. The ESEA was followed by the Equal Educational Opportunities Act of 1974 (EEOA)149 and the Education for All Handicapped Children Act of 1975, later renamed the Individuals with Dis- abilities Education Act (IDEA).150 Those laws established rights for LEP stu- dents and children with disabilities to remedial educational resources. Signifi- cantly, the EEOA also codified the "policy of
Meanwhile, state courts in the early and mid-1980s were inclined to uphold school finance schemes and give deference to the legislative process.152 Never- theless, vertical equity regained momentum in the 1990s and early 2000s when the supreme courts of four states-
Encapsulating the contemporary egalitarian mandate for equal life chances, the
An equal opportunity for a proper education necessarily contemplates the playing field will be leveled so each child has an equal chance for educational success. Educational success must be defined as graduating from high school equipped for a role as a citizen, participant in the political system and com- petitor both intellectually and economically. . . .
Children with an impaired readiness to learn do not have the same equal opportunity for a quality education as do those children not impacted by per- sonal or social ills simply because they do not have the same starting point in learning. A legislatively created finance system which distributes dollars without regard for the need to level the playing field does not provide an equal opportunity for a quality education.157
More recently, the No Child Left Behind Act of 2001 (NCLB),158 which reauthorized the ESEA, was enacted "to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education."159 One of the NCLB's stated purposes is to close "the achievement gap between high- and low-performing children, especially the achievement gaps between minori- ty and nonminority students, and between disadvantaged children and their more advantaged peers."160
Accordingly, the ideal of equality of educational opportunity arising from these legislative and judicial incorporations of vertical equity principles is that
all students should have an equal chance to succeed, with actual observed suc- cess dependent on certain personal characteristics, such as motivation, desire, effort, and to some extent ability . . . [, and not] on circumstances outside the control of the child, such as the financial position of the family, geographic lo- cation, ethnic or racial identity, gender, and disability.163
Such a conception is in one sense more demanding than Rawlsian equality of opportunity. Recall that Rawls's fair equality of opportunity entails some degree of compensatory education to counteract the differential effects of une- qual social circumstances, particularly class barriers, so that those with the same level of talent and motivation face the same prospects. But it does not re- quire additional compensatory education to neutralize the unequal distribution of natural endowments; there is no obligation to ensure, for instance, that the less talented enjoy the same chances for success as the more talented. Rather, those blessed by nature are to profit from their natural endowments so long as the resulting inequalities work to the greatest benefit of the less talented. If that outcome can be achieved by providing additional educational opportunities to the more talented, then, in keeping with the difference principle, so be it.
By contrast, lawmakers construing equality of educational opportunity have apportioned additional resources to compensate directly for natural ine- qualities, without first assessing whether fair equality of opportunity obtains or whether the compensation accords with the difference principle.164 Conse- quently, their conception incorporates the principle of redress-"undeserved inequalities . . . of birth and natural endowment . . . are to be somehow com- pensated for"165-which Rawls did not fully endorse.
Although equality of educational opportunity as it has been conceived and applied is theoretically more ambitious than Rawlsian equality of opportunity, it is not quite the educational analogue of luck egalitarianism. Despite the rhet- oric that "all children" deserve "equal" chances for educational achievement, lawmakers have not sought to neutralize all forms of bad brute luck. In prac- tice, the objective has instead been to mitigate rather than neutralize the differ- ential effects of natural and social inequalities. Indeed, it might be too generous to suggest that mitigation is the actual goal given the relatively modest com- mitment of government resources to high-poverty school districts. Although public education is often the largest appropriation in state budgets, funding dis- parities between high- and low-poverty school districts persist,166 even in states in which courts have mandated full funding.167 Part of the problem is the grow- ing reluctance of state courts to continue to supervise school finance cases and consistently intervene in budgetary considerations thought properly reserved for the political branches, especially during times of economic downturn.168 Moreover, some of the courts that have invoked educational "equality" have meant "an equal opportunity to have an adequate education."169
At the federal level, the NCLB aims for all students to have an "equal . . . opportunity to obtain a high-quality education and reach, at a minimum, profi- ciency on challenging State academic achievement standards and state academ- ic assessments."170 Obtaining "a high-quality education" and reaching "profi- ciency" do not necessitate that all children have equal chances for educational achievement. Similarly, although the IDEA directs remedial resources to stu- dents with disabilities, it guarantees them only a "free appropriate public edu- cation"-not chances for educational success equal to that of their nondisabled 171 peers.
Still, I presume that the equality faithful are committed to the ideal implicit in some federal and state law, which can be satisfied only by neutralizing most, if not all, natural and social disadvantages to ensure, as much as possible, that all children have equal chances for educational achievement. That view is sub- ject to a number of philosophical and practical objections,172 but to juxtapose the equality and adequacy theories, I need review only one.
2. The parental liberty objection
It has long been understood that "complete equality of [educational] oppor- tunity can be reached only if all the divergent out-of-school influences van- ish."173 But, even if it were possible to eliminate the differential effects of so- cial circumstances and natural endowments on a child's chances for educational achievement, one influence would inevitably remain-the family. As previous- ly explained, the family's profound influence on a child's prospects convinced Rawls that fair equality of opportunity could not be fully achieved.
To illustrate, imagine Jessie and Stephen are identical twins who have roughly the same natural endowments but were adopted by different families at birth. Both were adopted by upper-middle-class parents and both attend aca- demically successful schools in the same district. However, Stephen's parents greatly value and encourage his education whereas Jessie's parents are less supportive. As a result, Stephen exerts more effort in school and graduates at the top of his class whereas Jessie receives average marks and graduates in the middle. Here, formal equality of opportunity and family autonomy obtain but substantive equality of opportunity does not because Stephen and Jessie do not enjoy the same chance for success. Equal life chances can be achieved only by (1) interfering with how Stephen and Jessie are raised, thus infringing on fami- ly autonomy, or (2) maintaining family autonomy but instituting a job lottery or guaranteeing equality of results in some other fashion, thus forgoing formal equality of opportunity.
Recognizing the limitations of educational equality, Brighouse and Swift offer an account "closely connected to Rawls's principle of fair equality of op- portunity."175 Their "meritocratic conception" maintains that equality of educa- tional opportunity is satisfied when a child's "prospects for educational achievement" depend only on her "talent and effort" and not on her "social class background."176 Like Rawls, Brighouse and Swift accept that their con- ception of educational equality is "bound to be inadequate."177 Nevertheless, they contend that just because it cannot be fully implemented "does not mean that it is false" and not worth pursuing.178 Rather, they propose that educational equality should be implemented "as far as possible without undermining other more important values" like family autonomy, which they generally refer to as parental liberty.179
Brighouse and Swift, nevertheless, reject the notion that educational equality must always yield to parental liberty. In their view, some educational equality measures that interfere with parental liberty could be justified, provid- ed the liberty interest is not one to which parents are entitled "as a matter of justice."180 Brighouse and Swift think that parents do have a right to develop intimate and loving relationships with their children, and this right would "al- low parents to spend a good deal of time with their children" and "share their values and enthusiasms with their children."181 These parental liberty interests should be safeguarded, they argue, even if they confer educational advantages on children. So, for example, reading bedtime stories to children is a "legiti- mate parental partiality" because it is conducive to intimate familial relation- ships as well as a child's emotional development.182 But Brighouse and Swift doubt that parents have a countervailing right to invest their resources to secure a competitive advantage for their children. They argue, for instance, that send- ing children to elite private schools, investing in trust funds, or interacting with children about "how best to develop [their] human capital" are not essential to establishing valuable family relationships, meeting a child's fundamental inter- ests, or satisfying parents' fiduciary responsibilities.183
To put it mildly, their argument is controversial. Perhaps the least radical implication of their view-abolishing private schools-is unconstitutional be- cause it "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."184 Thus, even assuming their theory of legitimate parental partiality is philosophically sound, many of its implications are simply unworkable or political nonstarters. And, as I noted at the outset, the theories with which I wish to engage here must be able to withstand feasibility constraints.
Brighouse and Swift, nevertheless, convincingly argue that parental liberty should not be treated as an absolute principle that admits of no exception. They have attempted to strike a balance between parental liberty and another prima facie principle, educational equality. As I explain in Part III, the idea that "con- flicting prima facie principles [should] be traded off in particular cases"185 is a point of convergence for the equality and adequacy theories. Having examined the normative and descriptive accounts of the former, equality of educational opportunity, let us undertake a similar analysis of the latter, educational ade- quacy.
II. ADEQUACY
The adequacy movement is a manifestation of the sufficiency doctrine. That doctrine can be understood as an expression of two theses, one positive and one negative. In short, "[t]he positive thesis stresses the importance of peo- ple living above a certain threshold, free from deprivation. The negative thesis denies the relevance of certain additional distributive requirements."186 Posi- tively, sufficientarians think that it is morally valuable for all people to live at or above a certain threshold, even if they disagree about where that threshold should be set. On their view, it is wrong for some people to live below the threshold not because other people live above it (i.e., because inequality in it- self is unjust) or because those below the threshold stand to benefit more than others (i.e., because the worst off should be given priority). Rather, sufficientarians think it is simply unjust for people to have to live in depriva- tion. Few take issue with that general sentiment.187
Sufficientarian critics do, however, reject the negative thesis, which serves as a further indictment of egalitarianism and prioritarianism. Negatively, sufficientarians deny the moral significance of any inequalities once everyone has secured enough. At that point, whatever inequalities remain are not morally offensive, and we have no reason to give priority to the least advantaged; what matters is that all have a sufficient level of advantage, not that the least advan- taged are as advantaged as possible. Though sufficientarianism has attracted several eminent theorists,188 I have chosen to feature
A. Democratic Equality
In her provocative essay, What Is the Point of Equality?, Anderson con- tends that the luck egalitarian preoccupation with compensating people for "undeserved bad luck-being born with poor native endowments, bad parents, and disagreeable personalities, suffering from accidents and illnesses, and so forth"-is misplaced.189 What troubles us about inequality is not so much the disparity in the distribution of goods, resources, or welfare but rather the "rela- tions between superior and inferior persons."190 That is, inequality is objection- able when the better off are able to subjugate the worst off politically and so- cially.
Echoing the positive thesis, Anderson believes egalitarians should aim to ensure that all persons (1) "have sufficient internal capacities and external re- sources to enjoy security against oppression-violence, domination, material deprivation, social exclusion, stigmatization, and the like" and (2) "have enough to function as an equal in society-to fulfill a respected role in the divi- sion of labor, participate in democratic discussion, appear in public without shame, and enjoy equal moral standing to make claims on others."191
Anderson explains that to sustain such relational equality, which she dubs "democratic equality," people must have the "capabilities" necessary to escape deprivation and maintain standing as equal citizens in a democratic society.192 Anderson adopts
Whereas Sen would put his faith in a democratic selection process to value and order the essential capabilities, Anderson thinks that we can independently identify at least some capabilities that are necessary for equal standing and re- spect.196 To function as a human being, for instance, Anderson suggests a per- son needs effective access to (1) "the means of sustaining [her] biological ex- istence," such as "food, shelter, clothing, [and] medical care," and (2) "the basic conditions of human agency."197 To stand as an equal citizen requires certain political rights-free speech, free association, voting, etc.-and effec- tive access to civil society, including the economy. This entails nondiscrimina- tion, access to public accommodations and the means of production, and the freedom to enter into contracts and other cooperative agreements.
Significantly, although all citizens are guaranteed access to civil society, citizens are not guaranteed full participation. Certain functionings of citizen- ship require an income, Anderson explains, and "[f]or those capable of working and with access to jobs, the actual achievement of these functionings is, in the normal case, conditional on participating in the productive system."198
Although there is much here to digest, I briefly introduce Anderson's dem- ocratic equality because it reflects a sufficientarian image of social justice and because it is helpful to understand how Anderson's defense of adequacy thresholds in education fits into the overall framework of her theory.
B. "Sufficientarian Standard for Fair Educational Opportunity"199
Effective access to education does not translate into "equal education."200 Anderson doubts that equal educational opportunities are necessary to realize the democratic equality that she esteems.201 Instead, there need only be "fair educational opportunities"-"a sufficientarian or adequacy standard" that ob- tains when "every student with the potential and interest . . . receive[s] a K-12 education sufficient to enable him or her to succeed at a college that prepares its students for postgraduate education."202 Specifically, "primary and middle schools" must prepare every student "to successfully complete a college pre- paratory high school curriculum," and high schools must offer such a curricu- lum.203 Anderson regards this as a "high but not unattainable" threshold that will equip students with the capabilities they need to access civil society and function as equal citizens.204
Anderson sets the threshold high-"education sufficient to qualify [stu- dents] for success at a four-year residential college"-because she regards a college education as essential to attaining "elite" status.205 For democratic equality to endure, "those who occupy positions of responsibility and leader- ship in society" must be socially integrated and responsive to "all sectors of so- ciety, not just themselves."206 So disadvantaged students must have effective access to the elite ranks, meaning "access within the realistic reach of students exercising substantial but not extraordinary effort and within the financial reach of their families."207
Just as important, the socially advantaged and disadvantaged must be edu- cated together. Such integration, Anderson contends, will cultivate (1) an "awareness of the interests and problems of people from all sectors," (2) "a dis- position to serve those interests," (3) the "technical knowledge of how to ad- vance these interests," and (4) "competence in respectful interaction with peo- ple from all sectors."208 But, of course, the implications of this view are quite dramatic-"comprehensive social integration of schools . . . requires disman- tling the laws and practices that currently enable advantaged communities to segregate themselves from the less advantaged."209
Perhaps because Anderson's adequacy threshold is so high, she has little trouble pledging to the negative thesis. In principle, she does not perceive any injustice in permitting "inequalities in educational access above the sufficiency threshold."210 Although Anderson proposes ways to circumvent racial and class segregation (e.g., recognizing the rights of children to cross municipal lines to attend public schools in other districts), she does not find it objectionable for parents or school districts to decide to spend more on their own children's edu- cation, provided the threshold is met for all children. A complaint registered by a student teetering at or just over the threshold to a student sailing high above the threshold is, on Anderson's view, motivated by envy.211 Moreover, to pre- vent expenditures above the threshold would level down "educational opportu- nities to the lowest common denominator in the name of equality."212 Leveling down thus compromises the degree to which education works as a private and public good, "a good to the person who has it, and a good to others," who, in turn, are able to serve more people "in demanding jobs and volunteer service positions."213 As observed in the next Subpart, many of the intuitions that rein- force Anderson's sufficientarian platform have resonated with courts that have instituted educational adequacy.
C. Educational Adequacy
1. Historical and legal perspectives
Few would be surprised by the revelation that the concept of educational adequacy predates the 1989
The language of these once-dormant education clauses vary. Some require simply a "free" or "liberal" school system; others demand an education that is "general," "uniform," "thorough," "efficient," or some permutation thereof; and still others are more particular, as in the case of
Yet adequacy did not become a full-fledged litigation strategy until some state courts started to resist formal equality of educational opportunity in the late 1970s and early 1980s.221 Around the same time, several comparative stud- ies-including A Nation at Risk: The Imperative for Educational Reform, a 1983 report by the
The federal government further incentivized states to welcome standards- based reform and accountability. In 1994,
On that front, education advocates had carried the standards-based reform momentum into state courts, contending that education clauses in state constitu- tions provided a basis for imposing standards that states had to establish and maintain for all students. A number of state courts agreed. Consistent with the sufficientarian positive thesis, those courts determined that their states have a duty to provide enough resources to every school district so that all stu- dents have access to a "substantive level of education . . . mandated by the state constitution."230 Some courts deferred, in whole or in part, to their state legisla- tures to specify the content of that constitutional duty.231 Other courts under- took the task of articulating educational adequacy by reference to broad qualita- tive standards (e.g., "adequate education" or "a sound basic education") or to "specific, though abstract, capacities and skills."232
Nevertheless, the common thread running through these decisions is an abiding concern for absolute educational deprivation.234 The adequacy lawsuit, like the equality lawsuit before it, is a response to persistent disparities in edu- cational achievement and the failings of public school systems.235 Moreover, despite different judicial approaches and considerable variation in the language of education clauses, there has been wide agreement among state courts at- tempting to define educational adequacy that public schools should equip their students with the capability to function as responsible citizens.236
In these two respects, educational adequacy tracks the twin aims of Ander- son's democratic equality-sufficient capability to (1) escape deprivation and (2) function as an equal citizen. Of course, no adequacy decision embraces An- derson's all-encompassing theory; courts are constrained by the facts of the cases before them and the language of the relevant education clauses. For in- stance, courts have not necessarily emphasized, in Anderson's terms, the signif- icance of social integration and effective access to elite status. But, in line with Anderson's fair educational opportunity standard, a considerable number of courts favoring adequacy have stressed the importance of preparing students to be competitive in higher education and/or in the job market.237 Moreover, sev- eral of these courts have recognized that education also contributes to chil- dren's self-respect and their ability to interact with others.238
Many of the courts that have considered adequacy a constitutional obliga- tion have also agreed that the relevant education clauses are not offended when local school districts or parents decide to offer opportunities above the state- mandated threshold or "a better-than-adequate education."239 In this regard, educational adequacy comports with the sufficientarian negative thesis-at least the version of that thesis touted by Anderson. It is this particular align- ment with the sufficiency doctrine that rouses the most forceful objection to educational adequacy. There are other notable criticisms of educational ade- quacy,240 but what I will call the fairness objection strikes at the heart of the current equality-adequacy conceptual divide.
2. The fairness objection
The central premise of the fairness objection is that education is, in part, a positional good. Particularly in the competition for selective-college admissions and high-quality jobs, the instrumental value of a person's education depends on the quantity and quality of education she has compared to others.241 That is, she will be competitive only if her educational attainment is equivalent to or greater than that of her peers.242
Certainly, education is not a purely positional good, because there is an in- trinsic value to being an educated person.243 Education can also be regarded as a public good to the extent it benefits society in terms of "higher political par- ticipation, greater income and productivity, and better health."244 So long as education confers competitive benefits, however, it would be difficult, if not impossible, "to disentangle the positional from the nonpositional aspects of ed- ucation in the distribution of educational resources."245 In terms of that distri- bution, the fairness objection to adequacy is simply this: "getting 'enough' will not give one a fair chance in competitions to which education is relevant, if others are getting more than enough."246 Equally troubling for adequacy critics is the prospect that those students who receive educational opportunities above the threshold will be able "to protect, enhance, and entrench their advantage" in 247 the competition.
In defense of adequacy, Satz questions the degree to which education is a positional good, noting that "admission to most colleges in
Anderson's answer to the fairness objection is for selective colleges and universities to engage in race- and class-based affirmative action.252 She pro- poses that college admissions committees "discount the positional advantages" of those students whose better-than-adequate education would add compara- tively little value to the makeup of the college class.253
Recall that, on Anderson's view, academic knowledge is but one type of knowledge that elites must have to be responsive to the interests and concerns of others. And "[a]cquiring the other types of knowledge requires that elites be drawn from all social groups and be educated together, in integrated settings that foster intergroup communication and cooperation on terms of equality."254 Hence, students receiving a better-than-adequate education should not be the admissions committee's automatic choice in a "head-to-head competition with sufficiently academically prepared students from disadvantaged social back- grounds."255 Rather, the admissions committee should "give substantial weight to the imperative of integration" so that there will be a "substantial representa- tion of disadvantaged groups" in the college class.256 Anderson concludes that such affirmative-action-type measures would resolve the fairness objection by "giving the less advantaged a positional good that counterbalances the position- al advantages the prosperous obtain from investing more resources in their children's academic preparation."257
Like Brighouse and Swift's response to the parental liberty objection (e.g., abolish private schools), Anderson's reply to the fairness objection (expand af- firmative action measures) is highly contentious and rests on shaky constitu- tional ground. Although Anderson does not believe that her "integrationist the- ory" is "impossible or unreasonably difficult for people to meet," she acknowledges the trend among legislatures, courts, and voters to curtail or eliminate affirmative action programs in higher education and impede integra- tion efforts in K-12 schools.258 Moreover, the impulse behind Anderson's inte- grationist theory-that elites should be constituted to "serve all sectors of so- ciety, not just themselves"259-seems to run afoul of the individualistic lean- ings of American culture and perhaps puts too much faith in the educated elite to serve the disadvantaged.260
Notwithstanding the political feasibility concerns, Anderson's response to the fairness objection is telling, suggesting that she is not fully committed to the negative thesis. Indeed, rather than being completely indifferent to educational inequalities above the adequacy threshold, Anderson proposes an integration imperative to "counterbalance" them.261 Satz shares Anderson's concern for educational inequalities above the threshold, recognizing that "large inequali- ties regarding who has a real opportunity for important goods above citizen- ship's threshold relegate some members of society to second-class citizenship, where they are denied effective access to positions of power and privilege in the society."262 Satz would avoid this disparate effect by making the adequacy threshold elastic, dependent on the educational resources "that others have and [on] what they can do with those resources."263
We will revisit Anderson's and Satz's responses to the fairness objection in Part III. For now, it is important to appreciate that the objection forces Ander- son and Satz to forsake the part of the sufficientarian negative thesis that denies the moral significance of inequalities above the threshold. Much like the con- cessions made by Brighouse and Swift to the parental liberty objection, Ander- son's and Satz's digression from the negative thesis in the face of the fairness objection splinters the equality-adequacy divide, creating the possibility that these theories can occupy the same conceptual terrain.
III. EQUALITY AND ADEQUACY
Thus far I have traced the philosophical pedigrees of equality and adequacy and observed how the theories have been reflected in the law. Ending the dis- cussion there would reinforce the traditional view that, although equality and adequacy attempt to remedy similar forms of educational injustice, they remain theoretically and practically incompatible. The emerging contemporary view, however, recognizes that the theories tend to overlap conceptually and that "the equality and adequacy cases borrow heavily from each others' doctrinal under- pinnings and normative rationales."264 I specify four such points of conver- gence, which I think demonstrate that the theories are not diametric opposites. Rather, as discussed further below, equality and adequacy can maintain a cohe- sive, symbiotic relationship.
A. Points of Convergence for Equality and Adequacy
Although there is ample literature contrasting equality and adequacy, there has been relatively little exploration of the confluence of the two theories. I ar- gue that equality and adequacy converge along four significant points: (1) edu- cational equality and adequacy theorists and practitioners embrace value plural- ism, acknowledging that neither equality nor adequacy is an a priori moral principle; (2) contrary to the conventional understanding, adequacy, like equali- ty, can be relational or comparative-in fact, its relativity has been apparent in its application; (3) educational egalitarians agree with the sufficientarian posi- tive thesis that it is wrong for children to be deprived of a minimally adequate education; and, likewise, (4) educational sufficientarians agree with many egal- itarians that public education should advance social equality.
1. Pluralism
Recall that contemporary egalitarians reject equality of results in favor of equality of opportunity because they recognize that strict equality extinguishes liberty, fosters irresponsibility, snubs diversity, and stifles productivity. Alt- hough equality is an important ideal, it is not worth sacrificing other values deemed necessary for a moral and progressive society.265 Similarly, the leading educational equality and adequacy theorists are pluralists.266 They do not re- gard either equality or adequacy as absolute principles that must be pursued at all costs. Rather, they acknowledge that there are other competing values that should factor into the demands of educational justice.
Brighouse and Swift, for instance, consider educational equality to be "a lesser value" than two other principles: (1) in the distribution of educational re- sources, priority ought to be given to the least advantaged children, and (2) "parents and children should be able to enjoy successful intimate relationships with one another."267 Similarly, Anderson and Satz think that educational ade- quacy must yield to the aims of democratic or civic equality. Some intervention is necessary, in their view, when inequalities above the adequacy threshold "ef- fectively bar[] a social subgroup of citizens from aspiring to more than suffi- cient wealth or better than sufficient jobs."268 Consequently, the equality and adequacy theories tolerate a certain degree of educational inequality in capitula- tion to some other principle (e.g., liberty or relational equality).
In adjudicating educational obligations, courts also weigh equality or ade- quacy against other values-individual freedoms, separation of powers, local control, and financial efficiencies.269 Indeed, even courts that have recognized education as a fundamental right consider other compelling state interests when they apply strict scrutiny.270 Therefore, in theory and in practice, equality and adequacy function as "prima facie" principles that can be counterbalanced or overridden by one another or by other moral principles "in particular cases."271
2. Relativity
"The fundamental conceptual difference between equality and [adequacy]," according to equality defenders
To their credit, Koski and Reich accurately observe that the version of ade- quacy that is consistent with the sufficientarian negative thesis is non- relational. Indeed, that seems to be the whole point of the negative thesis. But, as previously explained, the construal of adequacy endorsed by Satz and An- derson, its leading theorists, is not fully committed to the negative thesis. An- derson and Satz are concerned with large-scale inequalities above the threshold that undermine democratic equality. Thus, they seem to believe it is necessary at times to recalibrate the threshold to ensure that the students obtaining an ad- equate education are not subordinated to second-class citizenship and can func- tion as equal citizens with students obtaining a better-than-adequate education. Indeed, some courts have said as much, suggesting that "what
At bottom, the debate over adequacy's relativity is mostly academic at this point because, as
Accordingly, adequacy is construed more in line with the version advanced by Anderson and Satz than the one scrutinized by Koski and Reich. In practice, then, adequacy, like educational equality, has entailed relational or comparative elements.
3. A positive thesis
Sufficientarians do not monopolize the positive thesis. Many egalitarians, for instance, "accept Rawls's view that a just society will guarantee a social minimum and may even agree that any reasonable conception of justice will favor 'measures ensuring for all citizens adequate . . . means to make effective use of their freedoms.'"282 Self-professed "educational egalitarians" Brighouse and Swift also have little trouble accepting the positive thesis, arguing that "[e]veryone should receive an education sufficient for them to become effective and deliberative participants in the political process, to be able to be productive and self-confident members of the workforce, and to deal with those more ad- vantaged than they are as peers."283
Of course, courts, legislatures, and advocates wrestle with the contours of the positive thesis, particularly in determining what is "enough" education. Mere recognition that educational deprivation is wrong does not yield a deter- minate threshold or a judicially manageable standard. And, as previously ex- plained, the vague and often broadly worded education clauses in state constitu- tions offer little guidance to policymakers. Recall that Anderson thinks that part of the threshold can be derived objectively based on the capabilities believed necessary for people to function as equal citizens. Some courts, most notably the
Notwithstanding the persistent struggle to define the threshold, there seems to be widespread consensus that students are at least entitled to an adequate ed- ucation. And the consensus is largely due to near universal agreement with the positive thesis.
4. Social equality
Egalitarians do not monopolize the concern for social equality. Indeed, sufficientarians Anderson and Satz ostensibly believe that "the most urgent consideration of justice is to create egalitarian relationships among the mem- bers of the democratic community."285 Again, from Anderson's perspective, the trouble with inequality is the consequent relations between "superior" and "inferior" persons, not disparities in the distribution of goods or opportunities. Similarly, Satz's "equal-citizenship view targets inequality at salient and injuri- ous lines of social division that lead to disadvantage."286
Consistent with the social-equality platform, Anderson and Satz would as- sent to equality of opportunity's nondiscrimination principle, because prohibit- ing discrimination would eliminate one mechanism for social oppression.287 Their fidelity to nondiscrimination would perhaps also lead them to agree with several of the first- and second-wave school-finance decisions that found wealth discrimination in public school funding contravened equal protection guarantees in state constitutions. But neither Anderson nor Satz would approve of horizontal equity as the remedy for such discrimination.288 In fact, Anderson and Satz seem to endorse a prominent mechanism of fiscal neutrality known as "power equalization"-"an 'equal tax rates, equal spendable dollars' criterion of equity in public school finance, according to which communities should be entitled to draw funds from a common tax base in proportion to their willing- ness to tax themselves, with equal tax rates yielding equal tax revenues."289 Implicit in their endorsement of power equalization is the recognition that wealth discrimination undercuts the social equality agenda.290 Otherwise, they would regard even vast funding disparities between districts as immaterial, provided that all districts had enough funding to deliver an adequate education.
Anderson and Satz, of course, set their sights much higher than nondis- crimination. Both consider racial and class integration as an imperative of K-12 and higher education. On that score, Satz contends that adequacy actually holds an advantage because, from the adequacy perspective, "integration is a consti- tutive part of education for citizenship" whereas, from the equality of educa- tional opportunity viewpoint, integration is "instrumental to achieving more equal opportunities for poor children."291 But Brighouse and Swift observe that "there are also distinctively egalitarian reasons to argue for integration."292
For present purposes, it is unnecessary to judge who has the better argu- ment for integration. The point I want to make, put simply by Satz, is that "[a]dequacy for citizenship has egalitarian dimensions" in its concern for social equality.293 That concern "may also be a necessary element for achieving an equality-based right to education, thereby helping to bridge the gap between the adequacy and equality approaches."294
B. Projecting an
In this last Subpart, I want to entertain the notion that has garnered support in recent years-that "a fully satisfactory theory of justice in education should account for the importance of both adequacy and equality."295
1. Adequately equal: equality of educational opportunity without "equal" life chances
In his second inaugural address, President
are true to our creed when a little girl born into the bleakest poverty knows that she has the same chance to succeed as anybody else, because she is an American; she is free and she is equal, not just in the eyes of God, but also in our own.
Such rhetoric evoking equal life chances enjoys broad political appeal in
It seems to be an accepted but often deliberately ignored truth that equal chances for educational achievement among all children is impossible. As pre- viously discussed, that goal cannot be attained without completely neutralizing all of the differential effects of social circumstances (e.g., race, class, and gen- der) and natural endowments (innate talents and (dis)abilities) on every child's chances for educational achievement. We simply cannot marshal enough re- sources to make that happen. Indeed, for some children, the resources that they would need would be virtually insatiable.298 And, even if scarcity were not an issue and all social and natural factors could somehow be neutralized, equal chances for educational achievement still could not be realized without elimi- nating the influence of family life on a child's prospects through a "massive system of collectivized child-rearing" at the expense of parental liberty.299 Even then, as Brighouse points out, unavoidable differences in the operation of such state-run orphanages would produce unequal chances.300
Notably, Brighouse and Swift's "meritocratic conception" of equality of educational opportunity does not require that each child's chances for educa- tional achievement are equal to those of every other child. They realize that dif- ferences in, inter alia, the level of innate talent and motivation make that an im- practicable goal. So their conception tolerates "considerable inequality" in "educational achievement" among all children.301 But, among children with the same measure of talent and motivation, Brighouse and Swift think that the "children from less advantaged social backgrounds" should be brought "up to the point that their prospects for achievement are equal to those of children from more advantaged backgrounds."302
Given Brighouse and Swift's response to the parental liberty objection, I take it that they would admit that literally equal chances for educational achievement cannot be secured even among the similarly talented and motivat- ed. Rather, equality of educational opportunity "can only be approached and never fully reached."303 That assessment is unlikely to trouble Brighouse and Swift, who, as pluralists, believe that "equality is one value to be weighed against others."304 So, in their view, we should attempt to implement equal chances for educational achievement among the similarly talented and motivat- ed "as far as possible without undermining other more important values."305 However, the coupling of the belief on the one hand that equal chances for ed- ucational achievement should be a guiding moral principle with the recognition on the other hand that realization of that principle is infeasible seems to violate the maxim "ought implies can."306 That is, if we have a moral obligation to en- sure equal chances for educational achievement, then we should be able to bring that about.307
In response, Brighouse and Swift might suggest that equal chances for ed- ucational achievement is somewhat of a misnomer. What equality of educa- tional opportunity requires is not literally equal chances but approximately equal chances.308 If so, then equality of educational opportunity begins to look remarkably like high-threshold adequacy.309 To be sure, even high-threshold adequacy does not aim to approximate equal chances, but that seems to be the upshot of setting the threshold so high.
For instance, we could expect a considerable reduction of inequalities in educational achievement if the threshold were, as Anderson proposes, a K-12 education that will enable students to complete a four-year residential college curriculum designed to prepare them for success in pursuing a postgraduate or professional education.310 High thresholds can diminish positional advantages. They cannot eliminate them, but neither can a school system pursuing approx- imately equal chances. The question then "becomes one of degree of proximi- ty" to equal chances.311
Equality defenders nevertheless maintain that adequacy sends the wrong message to those receiving the threshold level of education:
We have provided an education that has enabled you to compete for these prized positions. Granted that you have certain disadvantages in competing and others have certain advantages, so we do not expect that you will succeed at the same rate as more favored populations. Nevertheless our duty to create a just society is met by an education that is good enough to enable you to com- pete even if this competition is unequal.312
But that message is no more harmful than the one equality of educational opportunity conveys by perpetuating the fiction that equal chances for educa- tional achievement is attainable. That theme "creates deep misunderstandings and . . . political tensions," for the promise of the American Dream often reso- nates not as an ideal but as reality.313 Hence, those "who fail are further stigma- tized because they presumably manifest-to winners more than to losers, to be sure-weakness of will or lack of talent."314
If neither adequacy nor equality alone expresses a fair or truthful idea, then perhaps their joint expression can. We say to the student,
You are entitled to an education that will provide a reasonably high chance of educational achievement in K-12 and postsecondary schooling. Inevitably, your chance of educational success may be somewhat greater or less than oth- ers. Nevertheless, when the achievement gap becomes so disproportionate that you and other students similarly situated cannot compete, then we will aug- ment your educational opportunities to put you and your peers on more equi- table footing.
Equality and adequacy expressed in this manner are consistent with a num- ber of court decisions that have recognized that "absolute equality or precisely equal advantages are not required and cannot be attained except in the most rel- ative sense."315 Rather, the state's obligation is to "provide an excellent educa- tion program for all K thru 12 students throughout the State and provide sub- stantially equal educational opportunities for those students."316
2. Equally adequate: educational adequacy with a presumptive negative thesis
As conceived by its leading theorists, educational adequacy partly cedes the sufficientarian negative thesis. Specifically, in response to the fairness ob- jection, Anderson and Satz acknowledge that, at a certain point, large-scale in- equalities in educational opportunities above the threshold do matter. For her part, Satz suggests that the mechanism for addressing large inequalities must be accounted for in the definition of adequacy itself.317 Furthermore, the "educa- tional gap between the least advantaged and the middle range" could be dimin- ished if "everyone [had] a reasonably high proportion of what others have" and if we were to "unbundle the high-stakes rewards from educational success"- rewards such as access to health care, a decent standard of living, and meaning- ful work.318 Recall that Anderson proposes class- and race-based affirmative action in higher education to counterbalance positional advantages obtained from inequalities above the threshold. In an earlier piece, Anderson submitted that "opportunities to compete . . . beyond the sufficiency threshold must be genuinely open to all"; that is, there must be "a fair chance at being successful in the competition."319
In practice, educational adequacy also does not exhibit an unwavering commitment to the negative thesis. Courts "generally do not seek to enforce some absolute notion of adequacy, where disparities in resources are ig- nored."320 Rather, courts tend to view adequacy as a "dynamic standard," rec- ognizing "that, at some point, [spending above the threshold] will create intol- erable disparities in opportunities."321 All this suggests that the negative thesis operates, both conceptually and practically, as a rebuttable presumption in ade- quacy cases. At the top of the distribution, inequalities above the threshold are presumptively valid unless they undermine the ability of students to function as equal citizens and compete for admission to higher education and high-quality jobs on comparable terms-that is, undermine democratic equality, however broadly or narrowly defined.
This is not to suggest that the negative thesis is a weak presumption that can always be rebutted. For instance, I suspect that Anderson and Satz would hold steadfast to the negative thesis in response to the more general argument that the thesis "fails to establish that when everyone has enough, it does not matter how unequally additional resources are distributed."322 Brighouse and Swift illustrate this alleged shortcoming:
Suppose that all children have an adequate education . . . and that there is some leeway such that even the least well-educated children are being educat- ed better than adequacy demands. Suppose, now, that a bounty of unexpected resources enters the system . . . . Wherever the resources are spent within the system, they will not undermine adequacy. How should they be distributed? The principle of adequacy makes no comment at all on this.323
Brighouse and Swift think that such indifference demonstrates adequacy's inadequacy because a sense of fairness should motivate us to direct "the new educational resources [to] those with lower than the median prospects."324 But as long as those with lower chances for educational achievement are still able to function as equal citizens and compete for admission to higher education and high-quality jobs, Anderson and Satz are unlikely to accept that fairness neces- sitates spending the additional resources on them. Anderson could observe that, on balance, the resources might be better spent on educating the elite, who will then be able to serve the interests and concerns of those with lower chances for educational achievement. Similarly, Satz might suggest that the new education- al resources be spent in a way that maximizes the development of human talent so that it will "redound to everyone's absolute advantage . . . . [by] increas[ing] the size of the social surplus."325
There is no urgency in deciding which of these arguments fares best be- cause the factual predicate of the disagreement-"[s]uppose that all children have an adequate education"-is unlikely to happen any time soon, if ever. Perhaps a more apt criticism is that adequacy supposes that "when not everyone can have enough, egalitarian considerations have no relevance."326 Once again, Brighouse and Swift illustrate the point, inviting us to imagine a scenario in which
many children do not receive an education that is adequate in
Brighouse and Swift think there are "reasons of justice" to choose Reform B over Reform A.328 Consistent with Rawls's difference principle, they believe that educational inequalities can be justified only "when they redound to the benefit of the less advantaged."329 Unlike Rawls, however, they do not regard the principle of fair equality of opportunity as lexically prior to the difference principle. So, on their prioritarian view, when faced with a choice between benefitting the worst off and promoting greater educational equality overall, the latter principle must yield.330 Likewise, for them, advancing the interests of the worst off should trump adequacy even if that adequacy has the effect of achiev- ing more social equality.
It may be safe to assume that, all things considered, Anderson and Satz would prefer Reform A over B.331 Nevertheless, Brighouse and Swift acknowledge that their hypothetical shows, at best, that adequacy cannot be "the sole principle of justice in the distribution of education" when not every- one can have an adequate education.332 As an initial matter, I suspect that An- derson and Satz are unwilling to concede that achieving adequacy is an impos- sible task.333 Moreover, the presumptive negative thesis would not preclude egalitarian considerations until all children have an adequate education. So there is no conceptual barrier to deploying egalitarian principles that facilitate adequacy.334 Indeed, in practice, educational adequacy has been conspicuously infused with vertical equity.335 For "if adequacy requires getting all students above a certain threshold, it will tend to focus disproportionate resources on students who are less able to profit from instruction if this is required to get them above the specified threshold."336
Accordingly, several adequacy-based court decisions have approved of vertical equity funding "to compensate for differences in regional costs and student needs that translate into higher costs to supply the same quality of edu- cation throughout the state."337 Moreover, courts and legislatures have import- ed vertical equity principles in utilizing the methods for "costing-out an ade- quate education."338 So, as Satz has pointed out, adequacy can import egalitarian considerations that "explain why some inequalities require greater remedial attention than others-namely, those inequalities that affect the pro- spects of the least well off."339
3. Adequacy, meritocracy, and luck egalitarian responsibility
It would seem that adequacy can accommodate two of the three principles associated with equality of opportunity-nondiscrimination and equal life chances (as high thresholds achieving approximately equal chances and vertical equity). Regarding the third, meritocracy, Anderson contends that a meritocrat- ic conception of equality of opportunity "cannot guide us in the allocation of K-12 educational opportunities, where both the talent and motivation of those seeking education, and the structure of educational opportunities, are endoge- nous to the decision being made."340 Satz agrees, explaining that meritocracy: (1) "cannot tell us what the structure of educational opportunities should be, since that structure will itself help determine who comes to have merit"; (2) "would not offer a sufficient education with respect to either children with little inborn talent or those children who early on make poor choices"; and (3) "seems overly moralistic," especially when it means "withhold[ing] educational opportunities from a young child who fails to work hard or is less talented than his peers."341
Anderson's and Satz's points are well taken; in response, Brighouse and Swift admit that their "meritocratic principle" cannot be "the sole principle of educational justice."342 Nevertheless, adequacy "does not rule out a restricted form of meritocracy in which educational resources above the level that is ade- quate for citizenship are distributed in proportion to children's demonstrated intellectual ability and willingness to learn."343 In other words, although meri- tocracy should not be the distributive principle employed to determine the threshold or to allocate educational resources to enable children to reach the threshold, it could shape opportunities for those children achieving above the threshold.
Conceivably, Anderson could embrace this restricted meritocracy as a way to introduce the additional opportunities that she thinks are needed above the threshold to help diminish positional advantages. And, if children from advan- taged and disadvantaged backgrounds must utilize such effective opportunities together, it could advance her integration imperative as well. A full comple- ment of effective opportunities might also facilitate the affirmative action pro- grams Anderson envisions in higher education. Children from disadvantaged social backgrounds would not earn admission based merely on their adequate education and their disadvantaged status; they could earn a spot by benefiting from the effective opportunities above the threshold. This would present an out- let for fostering the type of appraisal respect that luck egalitarian critics worry would otherwise be denied to children who are often the target of compensatory services.
Incentivizing effective opportunities could also cultivate responsibility and respect for choice. Consistent with luck egalitarianism, inequalities above the threshold that are the product of such option luck would not be unjust.344 Of course, children cannot be held fully responsible because they are not com- pletely developed moral agents.345 Moreover, the objection that luck egalitari- anism overstates the brute versus option luck distinction has relevance here. If a child's choice to make use of an effective opportunity (option luck) is influ- enced by preferences over which she has no control (brute luck), then in what sense should we hold her responsible for that choice? So there is some concep- tual baggage that comes with luck egalitarian responsibility that cannot be fully addressed here.346 But we do not need to untangle all of these complexities to see a link between adequacy and meritocracy, at least above the threshold.
CONCLUSION
It is time to transcend the equality versus adequacy debate in favor of an earnest discussion about the proper balance of equality and adequacy. There may always be intransigent equality and adequacy theorists unwilling to for- sake the equal-chances ideal or a robust negative thesis. But, while that debate has served its purpose, I suspect it is not of much benefit anymore to the advo- cates and policymakers who must confront the unremitting, living, and breath- ing tragedies of public education in this country.347 And "[f]inding a legal and philosophical solution to the problem of educational inequality will be a much more complex undertaking than a stark either-or-dichotomy between pursuing adequacy or equality suggests."348 Moreover, as Anderson has recently noted, there is "no urgency in settling the equality versus adequacy dispute" for all time because "any feasible and normatively acceptable policies for making progress toward either goal are liable to largely coincide in the foreseeable fu- ture."349
Fortunately, many courts and practitioners seem to have already recognized that "there does not appear to be a significant difference between the equity and adequacy approaches to school finance reform," at least as those theories are applied in our nonideal world.350 Indeed, "[a] comparison of the results in equality and adequacy states does not establish the superiority of one approach over the other."351 Quite the opposite-"the largest group, in terms of sheer numbers of successful plaintiffs, has used a hybrid approach."352
This equality-adequacy symbiosis is by no means the solution to all of our educational failures. It does, however, provide a conceptual framework upon which to construct educational opportunities in a principled manner. Although it sets appropriate parameters, it can potentially liberate lawmakers otherwise deadlocked in conflicts over failing schemes of pure equality or adequacy. Fa- tigued state courts, which continue to struggle with formulating remedies in school finance cases, might particularly welcome the latitude to fashion their relief towards equally adequate and adequately equal educational opportunities responsive to the facts and competing values and interests presented in specific cases.
1.
2. For general discussions of the equality-adequacy debate, see
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13. In philosophy parlance, I employ a "nonideal" methodology that analyzes princi- ples against feasibility constraints to determine whether they are likely to be effective given the injustices of our imperfect world and assuming less than full compliance.
14. Underwood, supra note 3, at 495 ("These two forms of inequality, innate and envi- ronmental, bring forth the need for vertical equity-the rationale for treating individuals dif- ferently in an attempt to mitigate these inequalities." (citation omitted)).
15.
16.
17. Satz, supra note 8, at 425.
18. Ryan & Saunders, supra note 4, at 466 & n.19, 467 (citing
19.
20. Darby & Levy, supra note 2, at 368.
21. Ryan, supra note 7, at 1251.
22. Obviously, there are philosophies, such as libertarianism, that do not regard educa- tion as an individual right or duty of the state and tend to see "educational justice" in a much different light. I do not mean to dismiss these viewpoints entirely by omitting them from this discussion. Rather, because equality and adequacy are the focus of this Article, and those theories have been understood and applied in ways that presuppose the state's obligation to provide education to all children, I have confined my analysis to philosophies that entail a great deal of public intervention.
23.
24.
25.
26. See JAMES S. FISHKIN, JUSTICE, EQUAL OPPORTUNITY, AND THE FAMILY 132 (1983).
27. See LLOYD L. WEINREB, NATURAL LAW AND JUSTICE 177 (1987).
28. See PAUL H. RUBIN, DARWINIAN POLITICS: THE EVOLUTIONARY ORIGIN OF FREEDOM 28 (2002).
29. See DOUGLAS RAE ET AL., EQUALITIES 64 (1981);
30.
31.
32. See
33. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,
34. See, e.g., Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (2012); Fair Housing Act, 42 U.S.C. §§ 3601-3619 (2011); Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (2011); Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 28 and 42 U.S.C.).
35.
36.
37.
38. Strauss, supra note 29, at 52. For a well-known explication of Napoleon's maxim la carrière ouverte aux talents, see
39.
40. Id.; see also
41. For a description of the various justifications, see
42.
43. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 153-59 (1980);
45. See DAVID MILLER, PRINCIPLES OF SOCIAL JUSTICE 177 (1999); RAWLS, supra note 38, at 106 (citing
46. See, e.g.,
47. See, e.g.,
48.
49. See RICHARD T. LONGORIA, MERITOCRACY AND AMERICANS' VIEWS ON DISTRIBUTIVE JUSTICE 4 (2009).
50. See MASON, supra note 37, at 38.
51. RAWLS, supra note 38, at 72 (emphasis added).
52.
53. RAWLS, supra note 38, at 72-73.
54.
55. Although Williams's example is fictional, some would argue it parallels conditions in many modern democracies that have public and private educational systems. See HARRY BRIGHOUSE, JUSTICE 48-49 (2004) ("So, for example, someone who is talented and well born will be well rewarded, which will enable him to buy for his less talented child an expensive education which will enable him to do better than an equally talented but less well-born child . . . ."). See generally YOUNG, supra note 45 (satirizing a meritocracy the rules of which are established by dominant elites to retain their privilege while convincing the winners and the losers that they deserve their fate despite the inequities inherent in the merit criteria).
56.
57. RAWLS, supra note 38, at 73 (emphasis added).
58.
59. See RAWLS, supra note 38, at 301.
60. FISHKIN, supra note 26, at 32-35;
61.
62. RAWLS, supra note 38, at 73. Rawls did not include other social contingencies such as race and gender because his "ideal" theory of justice operated in a "well-ordered society under favorable conditions" where "gender and race would not specify relevant points of view." See JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT §§ 18.5-.6, at 65-66 (
63. RAWLS, supra note 38, at 73.
64. Id. at 275.
65. Id. at 73. Rawls does not say exactly how education is to level class barriers.
66. Id. at 74.
67.
68. RAWLS, supra note 38, at 74.
<p>69. See, e.g., JAMES S. COLEMAN ET AL., U.S. DEP'T OF HEALTH, EDUC. & WELFARE, EQUALITY OF EDUCATIONAL OPPORTUNITY (1966);
70. RAWLS, supra note 38, at 87.
71. FISHKIN, supra note 26, at 51.
72. RAWLS, supra note 38, at 75.
73. Id. at 101.
74. Id. at 100-01. Rawls does not reject the principle of redress. Indeed, it is implicit in his theory of justice:
[T]he difference principle gives some weight to the considerations singled out by the princi- ple of redress . . . [, which] holds that in order to treat all persons equally, to provide genuine equality of opportunity, society must give more attention to those with fewer native assets and to those born into the less favorable social positions.
Id. at 100. Rawls suggests that a principle of redress could be effectuated by providing more educational resources to "the less rather than the more intelligent, at least over a certain time of life, say the earlier years of school." Id. at 101. Nevertheless, for Rawls, the principle of redress is subordinate to the difference principle.
75. RAWLS, supra note 38, at 83.
76. Id. at 101.
77. See id. at 275-78; RAWLS, supra note 62, at 161 ("The difference principle might, then, roughly be satisfied by raising and lowering this minimum and adjusting the constant marginal rate of taxation.").
78. RAWLS, supra note 38, at 74 (emphasis added); see also MASON, supra note 37, at 87 ("The principle of fair equality of opportunity aims to counteract the effects of differences in people's social circumstances on their access to advantage, whereas the difference princi- ple is intended to counteract the effects of differences in natural endowments on access to advantage.").
79. RAWLS, supra note 38, at 89, 302-03. Rawls later expressed uncertainty about the lexical priority. See RAWLS, supra note 62, at 163 n.44 ("Some think that the lexical priori- ty . . . is too strong . . . . At present I do not know what is best here and simply register my uncertainty.").
80.
81. RAWLS, supra note 38, at 101.
82. Id. Nevertheless, in deciding how to direct resources for education, Rawls cautions that the "value of education should not be assessed solely in terms of economic efficiency and social welfare," but also in terms of its role "in enabling a person to enjoy the culture of his society and to take part in its affairs" and, in so doing, to build a social basis for self- respect. Id.
83.
84.
85. Anderson, supra note 16, at 290-91;
86.
87. 1 ENCYCLOPEDIA OF POLITICAL THEORY 453-54 (Mark Bevir ed., 2010); Scheffler, supra note 84, at 5.
88. Dworkin originally formulated the brute-luck-option-luck distinction. See DWORKIN, SOVEREIGN VIRTUE, supra note 23, at 73-77; Dworkin, What is Equality?, supra note 86, at 293-98. Several theorists have since offered modifications to the distinction. See, e.g., Lippert-Rasmussen, supra note 25, at 551-57;
89.
90.
91.
92. DWORKIN, SOVEREIGN VIRTUE, supra note 23, at 73.
93. Compare id. at 74, 287 (arguing that government has no obligation to compensate those who suffer bad option luck), with MARC FLEURBAEY, FAIRNESS, RESPONSIBILITY AND WELFARE 153 (2008) (contending that justice requires compensation for those who are left very badly off by their option luck).
94. Mason, supra note 37, at 760.
95.
96. Or, as Dworkin put it, the distribution of resources over time among individuals must be "ambition-sensitive" and not unfairly "endowment-sensitive." See DWORKIN, SOVEREIGN VIRTUE, supra note 23, at 89, 108.
97. Equality of results is not desired.
98. 1 ENCYCLOPEDIA OF POLITICAL THEORY, supra note 87, at 454; see also
99. Zofia Stemplowska, Luck Egalitarianism, in THE ROUTLEDGE COMPANION TO SOCIAL AND POLITICAL PHILOSOPHY 389, 393 (
100. Scheffler, supra note 84, at 18.
101. DWORKIN, SOVEREIGN VIRTUE, supra note 23, at 289-90.
102. See, e.g.,
103. See SAMUEL SCHEFFLER, EQUALITY AND TRADITION: QUESTIONS OF VALUE IN MORAL AND POLITICAL THEORY 217-19 (2010) (claiming that the conception of choice em- ployed by luck egalitarians depends on a libertarian understanding of choice and offering an alternative metaphysical view of choice); Marc Fleurbaey, Egalitarian Opportunities, 20 LAW &
104. Anderson, supra note 16, at 306; cf.
105. Scheffler, supra note 84, at 18, 21; see also
106. See, e.g.,
107.
108.
109. Id. at 150; see
110. See TAN, supra note 98, at 129 ("The [luck egalitarian] guarantee to all persons of their legitimate entitlement is a mark of equal respect, not disrespect or contempt.");
111.
112. See id. at 38-39.
113. Id. at 45.
114. See id. at 47; see also
115.
116.
117.
118.
119.
120. For a discussion of the development of the ideal of equality of educational oppor- tunity before Brown, see
121. For several years following Brown, the
122.
123. Pub. L. No. 89-10, 79 Stat. 27 (codified as amended in scattered sections of 20 U.S.C.).
124. See 20 U.S.C. §§ 7301-7372 (2012). The stated intent of Title I was to "provide fi- nancial assistance . . . to local educational agencies serving areas with concentrations of children from low-income families to expand and improve their educational programs by various means . . . which contribute particularly to meeting the . . . needs of educationally deprived children." Elementary and Secondary Education Act of 1965, sec. 201, § 239, 79 Stat. 27, 27.
125.
126.
127. Serrano v. Priest (Serrano I), 487 P.2d 1241, 1244 (Cal. 1971); see
128.
129. Id. at 49-51 (quoting Wright v.
130. For a collection of state education clauses and equal protection provisions, see
131. Koski & Hahnel, supra note 122, at 47; see Ryan & Saunders, supra note 4, at 466. Under the fiscal neutrality approach, developed by
132.
133.
134.
135. Rose v.
136. KY. CONST. § 183.
137. Rose, 790 S.W.2d at 212.
138. See Helena Elementary Sch. Dist. No. 1 v. State, 769 P.2d 684, 690 (Mont. 1989); Edgewood I, 777 S.W.2d 391, 396 (Tex. 1989).
139.
140. Ryan & Saunders, supra note 4, at 467, 468 & n.35 (citing cases utilizing the equality-of-educational-opportunity approach into the third movement).
141.
142. Edgewood I, 777 S.W.2d at 398; see Serrano II, 557 P.2d 929, 939 (Cal. 1976) ("[A]n equal expenditure level per pupil in every district is not educationally sound or desir- able because of differing educational needs . . . ."); Horton v. Meskill, 376 A.2d 359, 376 (Conn. 1977) ("Logically, the state may recognize differences in educational costs based on relevant economic and educational factors and on course offerings of special interest in di- verse communities. None of the basic alternative plans to equalize the ability of various towns to finance education requires that all towns spend the same amount for the education of each pupil."); Washakie Cnty. Sch. Dist. No. One v. Herschler, 606 P.2d 310, 336 (Wyo. 1980) ("We hold that exact or absolute equality is not required. There must be allowance for variances in individuals, groups and local conditions."); see also Robinson v. Cahill, 303 A.2d 273, 297-98 (N.J. 1973) ("Although we have dealt with the constitutional problem in terms of dollar input per pupil, we should not be understood to mean that the State may not recognize differences in area costs, or a need for additional dollar input to equip classes of disadvantaged children for the educational opportunity.").
143. Serrano I, 487 P.2d 1241, 1255-56 (Cal. 1971); see also id. at 1257 ("Unequal ed- ucation . . . leads to unequal job opportunities, disparate income, and handicapped ability to participate in the social, cultural, and political activity of our society." (quoting S.F. Unified Sch. Dist. v. Johnson, 479 P.2d 669, 676 (Cal. 1971)) (internal quotation marks omitted)); cf. DuPree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90, 93 (Ark. 1983) ("Education becomes the essential prerequisite that allows our citizens to be able to appreciate, claim and effectively realize their established rights."); Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1979) ("[A] thorough and efficient system of schools . . . develops, as best the state of education exper- tise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreation and citizenship, and does so economically.").
144.
145. Seattle Sch. Dist. No. 1, 585 P.2d at 94.
146. Leandro v. State, 488 S.E.2d 249, 263 (N.C. 1997) (Orr, J., dissenting in part and concurring in part); see also Brigham v. State, 692 A.2d 384, 397 (Vt. 1997) (concluding that
147. See ROBERT BERNE &
148. See Annual Message to
149. Pub. L. No. 93-380, 88 Stat. 514 (codified as amended at 20 U.S.C. §§ 1228, 1701- 1758 (2012)).
150. Pub. L. No. 94-142, 89 Stat. 773 (codified as amended in scattered sections of 20 U.S.C.).
151. 20 U.S.C. § 1701(a) (2012) (emphasis added). When the EEOA legislation was in- troduced in 1972, President
152.
153.
154. Abbott v. Burke (Abbott II), 575 A.2d 359, 408 (N.J. 1990). As foreseen in the Ab- bott II decision,
For informative discussions of the unique challenges facing rural poor students, see
155. Abbott v. Burke (Abbott IV), 693 A.2d 417, 431 (N.J. 1997).
156. Montoy v. State, 102 P.3d 1160, 1164 (Kan. 2005) ("[T]he district court found that the financing formula was not based upon actual costs to educate children but was instead based on former spending levels and political compromise. This failure to do any cost analy- sis distorted the low enrollment, special education, vocational, bilingual education, and the at-risk student weighting factors. . . . [T]here is substantial competent evidence to support the district court's findings . . . .").
157. Campbell Cnty. Sch. Dist. v. State, 907 P.2d 1238, 1278-79 (Wyo. 1995) (citation omitted); see also Hoke Cnty. Bd. of Educ. v. State, 599 S.E.2d 365, 397 (N.C. 2004) ("The world economy and technological advances of the twenty-first century mandate the necessity that the State step forward, boldly and decisively, to see that all children, without regard to their socio-economic circumstances, have an educational opportunity and experience that not only meet the constitutional mandates . . . but fulfill the dreams and aspirations of the found- ers of our state and nation. Assuring that our children are afforded the chance to become contributing, constructive members of society is paramount. Whether the State meets this challenge remains to be determined.").
158. Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified as amended in scattered sec- tions of 20 U.S.C.).
159. 20 U.S.C. § 6301 (2012) (emphasis added).
160. Id. § 6301(3).
161. Id. § 6301(5).
162. Id. § 6311(b)(2)(C)(v)(II).
163.
164.
165. See RAWLS, supra note 38, at 100.
166.
167.
168. See RYAN, supra note 7, at 155 (concluding that, because state legislatures are loath to increase funding or redistribute it, "courts would have to be quite aggressive and re- main actively engaged in school funding litigation, over a long period of time, if interested in truly equalizing access to funding" but recognizing that "[f]ew courts have shown such zeal or commitment");
169. Rose v.
170. 20 U.S.C. § 6301 (2012) (footnote omitted).
171. Id. § 1400(d)(1)(A) (emphasis added); see id. §§ 1400(d)(1)(B), 1401(9), 1412(a)(1) (defining and elaborating the standard for a "free appropriate education"); Bd. of Educ. v. Rowley,
172. See, e.g., Peter Enrich, Leaving Equality Behind: New Directions in School Fi- nance Reform, 48 VAND. L. REV. 101, 143-66 (1995) (critiquing equality on grounds of "simplicity," "normativity," and "textual conflicts").
173.
174. FISHKIN, supra note 26, at 4-6.
<p>175. Brighouse & Swift, supra note 9, at 448.
176. Id. at 447. Such a "conception of educational equality requires that the government concentrate extra resources on children from less advantaged social backgrounds to compen- sate for their background disadvantage, up to the point that their prospects for achievement are equal to those of children from more advantaged backgrounds." Id. at 459.
177. Brighouse & Swift, supra note 8, at 118.
178. Id.
179. Brighouse & Swift, supra note 9, at 449-50.
180. Id. at 456-57.
181. Id. at 457.
182.
183. Id. at 58.
184. Pierce v. Soc'y of Sisters,
185. FISHKIN, supra note 26, at 192.
186.
187. Id. at 299 ("[I]t is increasingly difficult to find views that do not accept some ver- sion of the positive thesis . . . . Few deny that the elimination of certain types of deprivation, such as hunger, disease, and ignorance, are very weighty political requirements.").
188. See, e.g.,
189. Anderson, supra note 16, at 288.
190. Id. at 312.
191. Anderson, supra note 9, at 620 (emphasis added); see also
192.
193. Compare
194. SEN, supra note 193, at 39.
195.
196. Compare SEN, supra note 193, at 44 ("There is no escape from the problem of evaluation in selecting a class of functionings . . . ."), with Anderson, supra note 16, at 316 (arguing that "[r]eflection on the negative and positive aims of egalitarianism helps" identify the goods "that are of special egalitarian concern").
197. Anderson, supra note 16, at 317. Anderson here provides only a partial listing of capabilities. Consistent with Sen, Anderson thinks we arrive at a more complete listing through the collective will of citizens, specifically through democratic legislation. See id. at 332 ("[W]here the concepts of equal standing and respect don't yield a determinate answer to how capabilities should be ranked, the ranking may legitimately be left up to democratic legislation.").
198. Id. at 321. Anderson envisions a "system of cooperative production" in which peo- ple regard every product of the economy as jointly produced by everyone working together. Everyone's productive contribution is dependent on what everyone else is doing. Each worker, even one in a low-wage position, is essential to the system. See id. at 321-26.
199. Anderson, supra note 9, at 614.
200. Id. at 615.
201.
202. Anderson, supra note 9, at 597-98.
203. Id. at 615.
204. Id.
205. Id. at 614.
206. Id. at 596.
207. Id. at 614-15.
208. Id. at 596.
209. Id. at 619.
210. Id. at 615; cf. Anderson, supra note 16, at 326 ("Once all citizens enjoy a decent set of freedoms, sufficient for functioning as an equal in society, income inequalities beyond that point do not seem so troubling in themselves . . . . The stronger the barriers against commodifying social status, political influence, and the like, the more acceptable are signifi- cant income inequalities." (citing
211. Anderson, supra note 201, at 105 ("The objection conceives of the development of others' talents as an injury to oneself."); see also Anderson, supra note 16, at 307.
212. Anderson, supra note 9, at 615.
213. Id.
214.
215.
216.
217. Umpstead, supra note 216, at 289-90.
218. Id. at 290-91.
219. Id. at 287, 290 (defining "a court decision [as] an adequacy case if (1) the plaintiffs argued a state duty to provide an adequate education under the education clause of the state constitution, (2) the court agreed that there was a duty, and (3) the court found a possible or actual violation of that duty").
220. Briffault, supra note 1, at 26 (citing Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71, 102 (Wash. 1978); Pauley v. Kelley, 255 S.E.2d 859, 878 (W. Va. 1979)).
221.
222.
223. Id.
224. Id. at 147, 150; see also
225.
226. Id. at 1228.
227.
228.
229.
230. Umpstead, supra note 216, at 297. But see
231. Bauries, supra note 11, at 742 ("Courts in eleven states . . . [have] found a consti- tutional violation . . . [but] abstained from the remediation of the identified constitutional infirmity, leaving it up to the legislative body . . . to construct a remedy.").
232. Koski & Reich, supra note 2, at 562-63.
233. Rose v.
234.
235.
236.
237. See Opinion of the Justices, 624 So. 2d 107, 166 (Ala. 1993) (defining adequate educational opportunities as, inter alia, "sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts . . . in academics or in the job market");
238. See Opinion of the Justices, 624 So. 2d at 166 (interpreting the state constitution to require, among other enumerated requirements for "adequate educational opportunities," "sufficient support and guidance so that every student feels a sense of self-worth and ability to achieve, and so that every student is encouraged to live up to his or her full human poten- tial"); Umpstead, supra note 216, at 307 & n.163, 308 & nn.164-66 (citing Pinto, 662 So. 2d at 896; Rose, 790 S.W.2d at 212; McDuffy, 615 N.E.2d at 554; Claremont II, 703 A.2d at 1359; Abbott II, 575 A.2d at 397; Leandro, 488 S.E.2d at 255; Seattle Sch. Dist. No. 1, 585 P.2d at 94; Pauley, 255 S.E.2d at 877).
239. Umpstead, supra note 216, at 298, 299 & n.85 (citing Rose, 790 S.W.2d at 211-12; Claremont II, 703 A.2d at 1360; Leandro, 488 S.E.2d at 256; DeRolph, 677 N.E.2d at 746); see also Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806, 815 (Ariz. 1994) ("Disparities caused by local control do not run afoul of the state constitution because there is nothing in art. XI that would prohibit a school district or a county from deciding for itself that it wants an educational system that is even better than the general and uniform system created by the state.").
240. See generally Koski & Reich, supra note 2; Moore, supra note 19; Tang, supra note 134.
241.
242. As Koski and Reich observe, there is some evidence to support the positional na- ture of education.
243. Koski & Reich, supra note 2, at 598-99; see also Brighouse & Swift, supra note 241, at 482 ("The educated person has a world of culture, complexity, and enjoyment opened to her, engaging in which is valuable in ways that are not competitive.").
244. Koski & Reich, supra note 2, at 598.
245. Brighouse & Swift, supra note 241, at 483.
246. Brighouse & Swift, supra note 9, at 462; see also
247. Koski & Reich, supra note 2, at 611.
248. Satz, supra note 8, at 437.
249. Id.; see also Liu, supra note 227, at 347 n.67 (contending that the fairness objec- tion "has its bite primarily at the upper end of the educational distribution, where the posi- tional features of education are most apparent").
250. Satz, supra note 8, at 438.251. Id.
252.
253. Anderson, supra note 9, at 616.
254. Id.
255. Id.
256. Id. at 617-18.
257. Id. at 618.
258. ANDERSON, supra note 252, at 189-90; see Fisher v. Univ. of Tex. at
259. Anderson, supra note 9, at 596.
260.
261. Anderson, supra note 9, at 618.
262. Satz, supra note 8, at 434.
263. Id.
264. Reynolds, supra note 167, at 750 n.9.
265.
266. See, e.g.,
267. Brighouse & Swift, supra note 8, at 120.
268. Anderson, supra note 201, at 106; see also Satz, supra note 8, at 434 ("[A]n edu- cation system that precludes the children of poorer families from competing in the same market and society as their wealthier peers cannot be adequate.").
269. See, e.g.,
270. See, e.g., Opinion of the Justices, 624 So. 2d 107, 159 (Ala. 1993) ("Because edu- cation is a fundamental right under the
271. Cf. FISHKIN, supra note 26, at 192-93. Fishkin concludes that "a defensible liberal- ism" is one that recognizes that the trilemma-of formal equality of opportunity (nondis- crimination and meritocracy), substantive equality of opportunity (equal life chances), and the autonomy of the family-requires balancing of these prima facie principles "in particular cases as they present themselves." Id. at 192-93. Although this does not provide a "single vision of social justice," Fishkin argues that it "may be the most honest response to the true difficulties of distributive justice." Id. at 193.
272. Koski & Reich, supra note 2, at 589.
273. Id.
274. See id.
275. See, e.g., Liu, supra note 227, at 347.
276. See GUTMANN, supra note 188, at 136 ("[I]nequalities in the distribution of educa- tional goods can be justified if, but only if, they do not deprive any child of the ability to par- ticipate effectively in the democratic process . . . .");
277. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 732 (Tex. 1995).
278. Ryan, supra note 7, at 1239 ("The basic idea is simple: to determine whether one child is receiving a sufficient education, you have to know what others are learning.").
279. Id. at 1232 (citing Rose v.
280. Ryan, supra note 7, at 1233.
281. Id. at 1237-38, 1241 ("Clearly, one's ability to compete for employment or admis- sion to higher education requires comparable educational opportunities at the elementary and secondary level."); see also Briffault, supra note 1, at 28 ("Adequacy defined in terms of competitiveness necessarily has a comparative and egalitarian component.").
282. Casal, supra note 186, at 299 (quoting
283. Brighouse & Swift, supra note 9, at 462; see
284.
285. Giesinger, supra note 246, at 51; see also Anderson, supra note 201, at 106 ("Democratic equality is egalitarian in its conception of just relationships among citizens, but sufficientarian in its conception of justice in the distribution of resources and opportuni- ties.").
286.
287.
Sufficientarians, of course, can offer nonegalitarian reasons for opposing discrimina- tion. See supra note 44. Frankfurt, for instance, believes that discrimination is wrong be- cause it entails failing to treat persons with respect by failing to consider them based only on the characteristics and circumstances that are relevant to the position or circumstance in question.
288.
289. Anderson, supra note 9, at 618 n.41 (citing COONS ET AL., supra note 131); see al- so Satz, supra note 8, at 439. Coons, Clune, and Sugarman were the first to outline the dis- trict-power-equalizing scheme for implementing fiscal neutrality. See COONS ET AL., supra note 131, at 202. Coons and Sugarman later expanded on the concept, proposing "family power equalizing," which bases tuition for school vouchers on a family's ability to pay. See JOHN E. COONS &
290.
291. Satz, supra note 8, at 436.
292. Brighouse & Swift, supra note 8, at 122. For instance, they suggest that integration would benefit disadvantaged children by giving them access to the greater educational re- sources demanded by the parents of more advantaged children. Id.
293. Satz, supra note 8, at 435.
294. Darby & Levy, supra note 2, at 370.
295. Id. at 369; see also Brighouse & Swift, supra note 8, at 118 ("[A]dequacy . . . is not . . . the only principle of justice in education . . . . [T]here is a place for a principle of ed- ucational equality in a fully specified conception of justice in education.").
296. Inaugural Address, 2013 DAILY COMP. PRES. DOC. 32, at 2 (
297. Koski & Reich, supra note 2, at 608, 611.
298.
299. See FISHKIN, supra note 26, at 64-65. Alternatively, we could forgo formal equali- ty of opportunity (nondiscrimination and meritocracy) in favor of some mechanism for achieving equality of results.
300. See BRIGHOUSE, supra note 55, at 55-56.
301. Brighouse & Swift, supra note 9, at 448.
302. Id. at 459 (emphasis added).
303. Coleman, supra note 173, at 22.
304. Brighouse & Swift, supra note 8, at 118.
305. Brighouse & Swift, supra note 9, at 449 (emphasis added).
306. See IMMANUEL KANT, CRITIQUE OF PRACTICAL REASON (1788), reprinted in PRACTICAL PHILOSOPHY 133, 163-64 (
307. Brighouse and Swift might take exception to my assumption that they would re- gard equal chances for educational achievement among the similarly talented and motivated as impossible. Elsewhere, Brighouse has suggested that we could achieve equal educational opportunity by "either handicap[ping] the advantaged or compensat[ing] the disadvantaged with much greater attention and resources, sufficiently to equalize their prospects."
308.
309.
310.
311.
312. Strike, supra note 283, at 486; see also Koski & Reich, supra note 2, at 606 ("Equality is better than adequacy in that unequal schooling can create stigma, insult an in- dividual's self-worth, and undermine the social bases of self-respect."); Reich, supra note 310, at 57 ("There is something objectionable about the use of formal public institutions, such as public schools, to deliver resources over and above the level of sufficiency. . . . [By endorsing adequacy], the state confers its imprimatur on the advantage, and this can consti- tute a dignitary harm to individuals.").
313.
314. Id. at 161; see also KAUS, supra note 210, at 37 (contending that a strict adherence to meritocracy against a supposed backdrop of equal opportunity encourages distinctions between the successful and unsuccessful, such that the successful can not only boast of their success but also claim they are more valuable).
315. Horton v. Meskill, 376 A.2d 359, 376 (Conn. 1977); see also Bd. of Educ. v. Row- ley,
316. Tenn. Small Sch. Sys. v. McWherter, 894 S.W.2d 734, 738 (Tenn. 1995); see Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 500 (Ark. 2002) ("It is the State's re- sponsibility, first and foremost, to develop forthwith what constitutes an adequate educa- tion . . . . It is, next, the State's responsibility to assess, evaluate, and monitor . . . the entire spectrum of public education across the state to determine whether equal educational oppor- tunity for an adequate education is being substantially afforded to . . . school children. It is, finally, the State's responsibility to know how state revenues are being spent and whether true equality in opportunity is being achieved. Equality of educational opportunity must in- clude as basic components substantially equal curricula, substantially equal facilities, and substantially equal equipment for obtaining an adequate education.").
317. Satz, supra note 8, at 434 ("[A]n education system that precludes the children of poorer families from competing in the same market and society as their wealthier peers can- not be adequate.").
318. Satz, supra note 286, at 165.
319. Anderson, supra note 201, at 106.
320. Ryan, supra note 7, at 1237.
321. See id.
322. Casal, supra note 186, at 307.
323. Brighouse & Swift, supra note 8, at 125.
324. Id.
325.
326. Casal, supra note 186, at 307.
327. Brighouse & Swift, supra note 8, at 125.
328. Id. at 125-26.
329. Brighouse & Swift, supra note 9, at 455.
330. See id. at 451. This has led some to question "how a theory that subordinates the meritocratic principle to the principle of concern for the worst off is distinct from a concep- tion that gives up the meritocratic principle completely." Giesinger, supra note 246, at 46; see also
331. Notably, however, Anderson claims that her sufficientarian conception of fair edu- cational opportunity advances the difference principle, albeit "to different ends" than Rawls. Anderson, supra note 9, at 621. Moreover, Satz is willing to entertain the possibility that "there are indeed considerations concerning the lives of the worst off that can trump the val- ue of fair equality of opportunity." Satz, supra note 286, at 164.
332. Brighouse & Swift, supra note 8, at 125-26.
333.
334.
335.
336. Strike, supra note 283, at 476; see Black, supra note 4, at 1373 ("[I]t may be the case that adequacy is impossible without certain levels of equity. So long as gross disparities are permitted to exist between schools, the schools on the lower end will always have to compete against other schools for vital resources, such as teachers, principals, and adminis- trators, and struggle to attract racially and socioeconomically diverse student populations, which have significant effects on the overall achievement of a school and its individual stu- dents." (citation omitted)); Ryan & Saunders, supra note 4, at 469 ("The line between ade- quacy and equity becomes especially hazy when a court acknowledges that underprivileged children may need more resources to succeed than other children."); Satz, supra note 8, at 435 ("Many of [adequacy's] practical implications are likely to be similar to those endorsed by vertical equality of opportunity theorists."); see also TAN, supra note 98, at 10 ("To be sure, sufficiency and equality are not independent of each other, and in fact in practice they are often closely related. It is possible that the meeting of some sufficiency criteria entails distribution toward greater equality in order to meet the needs of those falling short of the benchmark. In this way sufficiency can lead to a commitment to equality.").
337. Umpstead, supra note 216, at 298; see Briffault, supra note 1, at 38 (describing this version of adequacy as "equity plus," which focuses "on the need for school financing systems to provide more than equal funding to certain groups of schoolchildren, particularly the urban poor, in order for those children to receive a truly adequate education" (internal quotation marks omitted)); see also
338. Koski, supra note 284, at 21-23; see
339. Satz, supra note 8, at 436.
340. Anderson, supra note 201, at 101.
341. Satz, supra note 8, at 428-29.
342. Brighouse & Swift, supra note 8, at 118-19.
343. GUTMANN, supra note 188, at 134.
344.
345.
346. I would add only that any meritocracy-driven distribution of effective opportuni- ties above the threshold should account for children's relative, rather than absolute, effort level. See ROEMER, supra note 40, at 13-23. And, although children are not fully responsible moral agents, they can learn about being responsible by having their choices respected.
347.
348. Darby & Levy, supra note 2, at 371.
349.
350. Briffault, supra note 1, at 47 ("[C]ourts [have] converge[d] on a common set of goals, including greater state definition of educational requirements; state adoption of per- formance standards; state monitoring of and accountability for local educational outcomes; requirements that states cost out the price of an adequate education and then ensure provision of the necessary funds; partial equalization of financing, aimed more at bringing up the bot- tom than holding down the top; and a special concern with the needs of educationally at-risk students or the poorest districts.").
351. Reynolds, supra note 167, at 750; see also
352. Jensen, supra note 3, at 27; see also
Joshua E. Weishart*
* Visiting Assistant Professor,
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