The Structural Inadequacy of Public Schools for Stigmatized Minorities: The Need for Institutional Remedies

Abstract:     
This Article challenges the failure of courts and advocates considering remedies in school cases to assess whether public schools, as currently constituted, are institutionally aligned with stigmatized minorities' particular educational needs. Numerous legal scholars have written about the longstanding failure of public schools to effectively educate racial minorities; but they have overlooked the relationship of public schools' institutional context to the educational consequences of racial stigma. This Article does so, claiming that because stigma attacks the very capacities enabling education, services must specifically account for stigma's noxious effects on racial minorities' educability. Stigma distinctively affects minorities' educational fortunes both categorically and individually. As a class, the challenge posed by stigma necessarily affects only the stigmatized; individually, children have different levels of access to resources contradicting stigma and also cope variably with stigma. Schools therefore need flexibility to respond not only to the unique class-wide harms engendered by stigma but also its specific manifestations in individual children.

Despite this need for flexibility, traditional public schools are highly bureaucratic and rule-bound, preempting the flexibility stigmatized minorities require. This disposition toward uniformity, moreover, is not coincidental but is central to political accountability, especially in urban districts disproportionately serving racial minorities. Finally, because they are minorities, relatively poor, and stigmatized, stigmatized minorities cannot politically realize bureaucratic rules consistently responsive to their educational needs.

This Article, in sum, contends that public schools are institutionally predisposed toward uniformity, and that this predisposition impedes the flexibility needed to address stigma's unique educational challenges. Courts, therefore, need to impose remedies, such as charter schools or private-school choice, that alter the institutional conditions governing public schools.

Keywords: stigma, education, remedies, institutional reform, inadequacy, public schools

JEL Classifications: K10

Accepted Paper Series