Many people take for granted that the antidiscrimination principle and an equality norm are one and the same. In fact, there are significant differences that should not be overlooked. Education law offers unique insights into the distinctions because school desegregation cases both concretized demands to be free of discrimination and cultivated aspirations to be equal. In the years since 1954, when the U.S. Supreme Court declared that racially separate schools are inherently unequal in Brown v. Board of Education, the antidiscrimination principle has evolved into a requirement that the government be colorblind; that is, public officials must refrain from all consideration of race in their decision-making. A colorblindness requirement can have perverse consequences for equality. Most notably, local school districts today cannot weigh race in making student assignments to promote voluntary integration. Faced with constraints like these, reformers have sought to capitalize on an antidiscrimination principle without sacrificing their goals for equality. For example, federal civil rights statutes designed to protect children with disabilities and English language learners mandate meaningful access to the curriculum as well as protection from discrimination. In school finance litigation, advocates have moved even further away from an antidiscrimination focus. They have demanded recognition of a right to education, an interest that acknowledges every child’s right to flourish. New strategies that push beyond the antidiscrimination principle to promote equal educational opportunity have not been uniformly successful, but they can deepen our understanding of a fair and inclusive educational system.
Some pennies are more equal than others: Inequitable school facilities investment in San Antonio, Texas