Equal Educational Opportunity by the Numbers: The Warren Court's Empirical Legacy

Abstract:     
By drawing upon empirical social science evidence to inform a core tenet of the Court's understanding of equal education the Warren Court established one of its enduring - if under-appreciated - legacies: The increased empiricization of the equal educational opportunity doctrine. All three major subsequent legal efforts to restructure public schools and equalize educational opportunities among students - post-Brown school desegregation, finance, and choice litigation - evidence an increasingly empiricized equal educational opportunity doctrine. If my central claim is correct, it becomes important to consider the consequences of this development. I consider two in this Article and find both benefits and costs flowing from this trend. One important consequence involves how an empirical mooring informs the equal education doctrine, especially by narrowing the doctrine's construction and potentially privileging empirical over non-empirical perspectives as well as broader notions of justice and underlying constitutional values. A second consequence is institutional and sheds light on the Court's comparative abilities to deploy empirical social science. I conclude that while an empirical perspective on equal education adds important value, it should supplement and not supplant alternative perspectives and constitutional values.

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