When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law
Existing case law and legal scholarship assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or lowering the level of treatment for the favored group until their members fare as badly as the persons complaining of inequality. The term “leveling down” refers to the latter response. The 1971 case of Palmer v. Thompson provides the classic example of the typical judicial response to leveling down: the Supreme Court accepted the decision of Jackson, Mississippi, to close its swimming pools, rather than operate them on an integrated basis, as fully compliant with the demands of equal protection. More recent cases from a variety of settings demonstrate that leveling down remains a viable and accepted option for remedying inequality. This Article contends that courts and commentators alike have vastly overstated the flexibility of equality rights in accepting leveling down as a response to inequality. It proposes and applies a new framework that focuses on the expressive meaning of leveling down and its compatibility with the norm of equal concern. Applying this framework to real world cases and examples, it demonstrates that leveling down may function to preserve social hierarchies and exacerbate, not remedy, the injuries from the original discrimination. Once revealed as a strategy for preserving social stratification and the expressive meanings on which it rests, leveling down becomes more problematic under equality law. Finally, the Article demonstrates how the proposed analysis would enrich the debate over the normative appeal of equality rights, and contribute to a construction of equality law that is worth defending.
Deborah L. Brake. 2004. "When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law" ExpressO
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