Professor Lia Epperson - "Educational Equality from Brown to Fisher—and Beyond"

Faculty Scholarship Highlight, May 2013


Professor Lia Epperson - "Educational Equality from Brown to Fisher—and Beyond"

 

Sometime in June, the U.S. Supreme Court will hand down its decision in Fisher v. University of Texas—the latest case to come before the Court raising the constitutionality of race-based affirmative action policies. And yet, although educational equality has been largely the bailiwick of the courts over the past half-century, Professor Lia Epperson’s work takes something of a different tack, looking at the many ways in which the law can help to realize the “promise” of the Court’s landmark 1954 decision in Brown v. Board of Education outside of the courtroom. Thus, as Epperson explains in “Legislating Inclusion,” her most recent article published in the Harvard Law and Policy Review, the Court’s existing jurisprudence already provides various ways for Congress, through its power under Section 5 of the Fourteenth Amendment to enforce the Equal Protection Clause, to achieve increased diversity with regard to educational opportunity even at the local level. Specifically, Epperson’s work argues for “(1) the use of statutory language mirroring integration language in the fair housing context; (2) data collection to support legislation and to provide information on successful models of racially integrated education; and (3) implementing such legislation through a principle of shared burden,” i.e., “combining flexibility and choice to maximize benefits and decrease burdens for all.” Even though there is still work to be done in realizing the promise of Brown, then, Epperson’s research and writing helps to explain how, going forward, we might increasingly look to the federal legislature, rather than the federal courts, to accomplish such vital goals.