Thursday, August 1, 2013

Kamina Pinder on Racial Equity through Structural Injunctions

I just came across a new article by Kamina Aliya Pinder that synthesizes the past uses of structural injunctions in education reform and responds to the reluctance of many courts to intervene in education battles.  Cribbing from her introduction, the article

examines the use and potential of the structural injunction in cases that implicate issues of education access, adequacy, and achievement in the paradoxical “post-racial” era. Originating in school desegregation cases, this powerful judicial remedy compelled public institutions to address constitutional wrongs through systematic reform. The structural injunction played an essential role in desegregation at the federal level and, albeit not typically referred to as “structural injunction” at the state level, an equally important remedial role in state school finance litigation. Yet, fears of judicial overstepping and pursuit of race-neutral remedies have greatly curtailed its use.


The enforcement of the No Child Left Behind Amendment to the Elementary and Secondary Act of 1965 (NCLB) and Title VI of the Civil Rights Act of 1964 (Title VI) may bring back the structural injunction as a viable judicial remedy in cases involving educational access and achievement.  This Article portends, through analysis of the structural injunction, that recent developments in federal education law and policy are reminiscent of the perfect storm of inter-branch cooperation that was so essential to the desegregation of public schools.

Part I introduces the role of the structural injunction in public law litigation and traces its remedial role as it addressed educational disparities in the federal and state judiciary. Beginning with its origin in the language of Brown v. Board of Education, the structural injunction was critical to school desegregation. Yet the structural injunction alone was not enough to shoulder the massive undertaking of reversing the firm entrenchment of segregated schools--particularly in the South. This section outlines the federal legislation and strong executive enforcement that lent potency to structural relief in school desegregation cases, it describes the impact of structural injunctions in school finance cases that implicate education clauses in state constitutions, and it concludes with a discussion of how the current stagnant state of structural injunctive relief resulted from fears of judicial activism and overreach.

Part II analyzes the central role that race plays in the NCLB and Title VI. Recently, the executive branch has endorsed the legislative recognition of the relationship between race and educational disparity in two ways. The U.S. Department of Education has acknowledged race as a priority by pledging to aggressively enforce provisions of the NCLB and Title VI to address the disparate racial impact of educational inequities, and by issuing guidance to navigate Supreme Court decisions that prohibit consideration of race in educational equity schemes.

Finally, Part III asserts that the legislative and executive forces that once empowered structural injunctive relief in school reform are again at work and should mitigate the concerns of judicial overreach that once derailed the momentum of early structural injunctive relief. Indeed, courts are now uniquely poised to complete the shift toward addressing racial disparity through educational reform.

Reconciling Race-Neutral Strategies as Race-Conscious Objectives: The Potential Resurgence of the Structural Injunction in Education Litigation, 9 Stan. J. Civ. Rts & Civ. Liberties 247 (June 2013).


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