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The Moral Development of Jurisprudence

-- By MarenHulden - 26 Feb 2010

Introduction

Brown v. Board of Education is revered as a triumph for civil rights both as a rejection of the implied racism of Plessy’s “separate but equal doctrine” and as judicial guarantee of equal educational opportunities for children regardless of race. Recently, the promises of Brown have floundered: the court now rejects race-based classifications that attempt to desegregate and promote academic achievement. Meanwhile, students nation-wide remain segregated based on race, both in the schools they attend and in their academic achievement. Still, no one (not even Robert Bork) will actually admit that Brown was incorrectly decided. School desegregation jurisprudence and policy is thus left in confusion: what is the role for the courts in ensuring the kind of access to educational opportunity that Brown promoted?

Lawrence Kohlberg, an educational moral psychologist, identified six progressive stages of moral development. Applying Kohlberg’s stages of moral development to the decision in Brown helps to clarify the jurisprudence problem in Brown, explain the demise of the decision’s impact, and suggest an appropriate way for courts to handle issues of race and education in the future.

Kohlberg’s Stages of Moral Development

Lawrence Kohlberg identified six stages of moral development that reflect the reasoning and values that people use to make moral decisions.

The Six Stages

At stages 1 and 2 people make decisions to avoid punishment (Stage 1), or in order ensure they have the resources they need (Stage 2). At stages 3 and 4 people make decisions to conform to social expectations (Stage 3), or to respect the order and authority of institutions (Stage 4). At stages 5 and 6 people make decisions for the sake of common good and out of respect for a social contract (Stage 5), or based on moral principles (Stage 6).

The Six Stages and Legal Systems

Kohlberg applies these stages to legal systems. He argues that the founders of the U.S. Constitution based it on the values of Stage 5 (Ibid, 237). This is evident in common judicial jurisprudence used by U.S. courts. Modes of argument such as stare decisis, Constitutional doctrine, textualism, originalism, or public policy implications, reflect either respect for a social contract, or an attempt to do what is best for the community.

The Six Stages Conflated in Court Decisions

Difficulty arises when courts face questions that can’t be adequately addressed by these values. The death penalty is such a question. Kohlberg describes how the Court addressed this question in Furman v. Georgia, 408 U.S. 238 (1972). There, the Court invalidated states’ inconsistent application of the death penalty. The plural decision had no common rationale: three justices voted against the death penalty laws on the basis of their arbitrary application, while Justices Marshall and Brennan argued that the death penalty violated the 8th amendment and denied basic human dignity. Kohlberg argues that the first three decisions operated at Stage 5; they rejected the death penalty only because it did not meet the procedural rights that people expect under the Constitution (Kohlberg, 244). In contrast, Justices Marshall and Brennan’s decisions reflect Stage 6 moral reasoning; they found the death penalty to inherently insult common human dignity on moral grounds, not procedural rights (Ibid, 245). This conflation of Stage 5 and 6 reasoning allowed the court to re-validate state death penalty laws once they met the procedural rights standards demanded by the Stage 5 reasoning of first three justices, ignoring the morality arguments of Justices Marshall and Brennan.

Moral Stages and Brown v. Board of Education

Brown v. Board of Education Conflated Stages 5 and 6

This conflation of Stage 5 and 6 reasoning can also be found in the Court’s decision in Brown. While Brown unequivocally invalidated racial segregation of public schools, the reasoning was not so clear. Warren’s opinion presents two possible reasons for the holding: that policies based in ideas racial inferiority deny equal protection, and that segregated schools deny black children the opportunity for an excellent education. The first theory reflects Stage 6 morality because it inherently rejects race-based policies when they are rooted in ideas of racial inferiority. The second theory reflects Stage 5 morality because it appeals to the idea of education as a right and seeks equality because of its beneficial effects for the community. The Court used both theories in the school desegregation cases following Brown. The first theory resulted in decisions centering around the distinction between de jure and de facto segregation, relying on a racist intent to differentiate between acceptable and unacceptable instances of segregation (Keyes). The second theory led to decisions that gave deference to school districts to enact policies that would improve access to education for black students, even if relying on some race-based classification (Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)).

Unfortunate Consequences of Stage 6 Reasoning After Brown

Ultimately, the Court chose the first theory, and began to reject school desegregation plains intended to equalize education opportunities when they used race-based classifications (Milikin, Parents Involved). The court also extended this rejection of race-based classifications to the use of affirmative action at colleges and universities. These decisions prevent schools and districts from implementing policies that would make access to educational opportunities more equal between white and minority students.

Conclusion

Unlike the death penalty, education is not a human dignity issue. Education is a policy issue: it requires using different strategies to achieve set of desired outcomes. Relying on the universal moral values of Stage 6 lead to the absurd outcome of prohibiting such strategies whenever they rely on race-based classifications. Instead, courts should use Stage 5 common good and social contract reasoning when evaluating education policy cases. Such reasoning should result in deference to school policies that, even if using race classifications, are designed to and result in beneficial educational outcomes.

Kohlberg, Lawrence. The Philosophy of Moral Development: Moral Stages and the Idea of Justice. New York: Harper and Row Publishers, 1981.

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