Rhetorical Questions Concerning Justice and Equality in Educational Opportunities

Abstract

What role does equality play in a conception of justice? The principle of equality begs the question of which people affected by a law should have equal status or rights. Even if a regime presumes that all persons are naturally entitled to equal protection of the laws, important judgments about which cases should be treated alike still cannot be resolved without legal, moral, or political standards independent of equality.

As American courts reach such judgments based on standards other than equality, the language of equality becomes useful only as a rhetorical device. The rhetoric of equality can be manipulated to cloud judicial decisions which are actually based on independent values. Phatic appeals to equality are particularly evident in the Supreme Court's significant decisions addressing race-conscious and gender-conscious educational programs. In all of its meaningful opinions regarding race-conscious and gender-conscious educational programs, the Supreme Court appeals to the rhetoric of equality. That rhetoric may appear compelling, but it is as vacuous as the equality principle on which it is based. The rhetoric of equality typically masks substantive, political, or moral judgments unrelated to equality itself.

The Supreme Court's decisions in the arena of education may well be based on substantive judgments about the importance of educational opportunity. Although the Court thus far has rejected the existence of a fundamental constitutional right to educational opportunity, it nonetheless seems to have quietly recognized the substantive value of educational opportunity in its equal protection decisions.

Keywords: racial discrimination, equality and justice, rhetoric of equality, educational opportunity, equal protection

JEL Classification: I21, I28, J71