Equal Educational Opportunity by the Numbers: The Warren Court's Empirical Legacy

I. IntroductionTo Chief Justice Earl Warren, footnote eleven in the Brown v. Board of Educatior1 opinion was little more than a mere afterthought.2 Chief Justice Warren's perspective on this issue remains remarkable for many reasons, not the least of which include his role in the opinion, as well as the larger context surrounding the case. Chief Justice Warren's status as the chief architect of the Brown opinion, through which the Court directly shaped the equal educational opportunity doctrine and confronted an issue possessing profound individual and social consequences, is well documented by historians.3 By drawing upon empirical social science evidence to inform a core tenet of the Court's understanding of equal education, the Warren Court established one of its enduring - if under-appreciated - legacies: the increased empiricization of the equal educational opportunity doctrine.Evolving understandings about American education's "Holy Grail" - equal educational opportunity - have prompted three major reform initiatives designed to restructure American public schools and better equalize opportunities among students: school desegregation, finance, and choice. All three initiatives advance our understanding of and commitment to equal educational opportunity, yet simultaneously are backwards to Brown by incorporating empirical social science evidence. School desegregation litigation since Brown has relied heavily on empirical evidence, much of it assessing possible relations between a school's racial composition and student achievement. Similarly, school finance litigation has relied on empirical evidence to establish a link between school funding and student performance. Finally, the emerging push for increased school choice, notably litigation regarding vouchers, possesses a critical empirical dimension that focuses on possible relations between school choice and student achievement and explores the implications that choice policies pose for public schools. The palpable influence of empirical social science on interpretations of equal education links the Brown opinion with all three successive education reform efforts.Because one simply cannot know with certainty how equal education would have evolved absent footnote eleven in the Brown opinion, I am mindful that my thesis rests on an untestable proposition. In light of this limitation, the scope of my central claim warrants careful clarification and demarcation. I do not assert that Brown launched the equal education doctrine into a trajectory that it otherwise would not have achieved. Such an assertion is more expansive than comfort permits. Rather, my more modest claim is that the Brown opinion influenced, perhaps steepened or accelerated, a tendency increased empiricization - already present. However, given the enormity of Brown in particular and equal education in general, even this claim meaningfully contributes to an important Warren Court legacy.Although Chief justice Warren famously remarked that footnote eleven "was only a note, after all,"4 I argue that his assessment of footnote eleven and its contribution to the larger Warren Court legacy badly misses the mark. If my central claim is correct, it then becomes important to consider the consequences of an increasingly empiricized equal educational opportunity doctrine and how those consequences shape the Warren Court legacy. I consider two of these consequences in this Article and, not surprisingly, find costs and benefits associated with each.One consequence involves how an empirical mooring informs our understanding of what equal education means. One immediate benefit is that by resorting to social science evidence as support for the proposition that state-enforced segregation constitutionally harms black schoolchildren, the Court made subsequent school desegregation litigation easier by effectively removing the need to prove individualized harm. On the other hand, by casting equal education in empirical terms, the Court simultaneously narrowed the doctrine, diluted the influence of broader notions of justice, and risked privileging social science evidence over background constitutional values. …