Leveling Down Gender Equality

30 Pages Posted: 25 Apr 2018 Last revised: 6 May 2018

Tracy A. Thomas

University of Akron School of Law

Date Written: April 6, 2018

Abstract

The U.S. Supreme Court in Sessions v. Morales-Santana (2017) revived its decades old jurisprudence of "leveling down" -- that is, curing an equal protection violation by denying the requested benefit to all rather than extending the benefit to the excluded class. This article challenges that continuation of the conventional acceptance of leveling down or the "mean remedy" and the assumption that leveling down is an equally legitimate remedial option as leveling up for gender discrimination. Instead, it argues for the adoption of an alternative remedial calculus of a strong presumption of leveling up remedies, overcome only rarely by limited equitable considerations. Such a presumption better effectuates the substantive right of gender equality as well as the correlative due process right to a meaningful remedy.

Keywords: constitution, equal protection, gender, immigration, remedies

Suggested Citation

Thomas, Tracy A., Leveling Down Gender Equality (April 6, 2018). Harvard Journal of Law and Gender, Vol. 42, 2018. Available at SSRN: https://ssrn.com/abstract=3157987 or http://dx.doi.org/10.2139/ssrn.3157987

Tracy A. Thomas (Contact Author)

University of Akron School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States
330-972-6617 (Phone)
330-258-2343 (Fax)

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