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.

Of course, there wasn't any actual intellectual support for the proposition that a developmental process within the individual repeats the historical development of social institutions. Ontogeny recapitulates phylogeny? Biological stages of development are at least objectively "there," while the historical periodization of any "Kohlbergian" view of social development poses no end of insoluble problems.

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.

But of all this would be exactly the same argument if it called "Stage 5" "blue" and "Stage 6" "yellow." The labels applied to the positions don't explain anything, they merely editorialize. The account also overlooks the importance of the descriptive character of the Eighth Amendment arguments. Brennan and Marshall cannot rest on a timeless certainty that the death penalty is wrong, as it is obvious that no such consensus has existed in the past. They must rest on an "evolving standard of decency" which changes what constitutes "cruel and unusual punishment," and for this purpose Marshall concludes that the American people have decided that capital punishment is intolerable. Faced in Gregg with the plain fact that large parts of the United States, on the contrary, were enthusiastic enough about capital punishment to reenact new statutes after Furman, Marshall is compelled to retreat to the position that the American people wouldn't want to tolerate capital punishment if they really knew what it was. Is that stage 5.5 thinking, or is it perhaps stage 4.78 thinking? Or maybe the thinking of judges is slightly more complicated than the thinking of children?

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.

I don't see where in the decision in Brown this is made an independent basis for constitutional scrutiny, and I don't see how it could be. At a minimum, you should show how this is anchored in the Court's language.

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.

That's not a constitutional theory because there isn't any federal right to an education for the Court to enforce, and equality is required not on utilitarian grounds, but as a direct command of Section 1 of the Fourteenth Amendment (modulo the fancy footwork needed to find equal protection in the Fifth Amendment so as to decide Bolling v. Sharpe the same way).

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)).

No, the question of appropriate remediation is a separate question, with an entirely separate doctrinal history. You don't say anything about Brown II, giving the impression that the cases concerned with remedy must somehow derive their law from the language of Brown I. What the Chancellor may do to remedy a situation in which equal protection has been so long denied as to establish basic social institutions on an unequal basis is an immense topic, which, not surprisingly, was relentlessly politicized in the period from the first term of Dwight Eisenhower to the second term of Richard Nixon. The Supreme Court jurisprudence is a small part of the dialogue we might have had.

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.

Two cases 35 years apart are naturally not the products of the same thing, let alone of too close an adherence to the constitutional theory of not the result of Brown I, however. Millikin v. Bradley asks how remedies may be arranged across governmental boundaries, which is an essentially political rather than legal question, valuable because—however insubstantial the issues concerning the remedial jurisdiction of the Chancellor—the real political consequences of such remedial orders were to energize a backlash. There, and in Washington v. Davis, a Supreme Court with four Nixon appointees on it followed the election returns. Parents Involved v. Seattle School Board, after another generation, raises a 21st century question: does Equal Protection require a school board that has never been shown to have engaged in purposeful governmental discrimination to meet the compelling-interest test for racially-conscious school assignments intended to maintain or achieve racial diversity in the schools?

This is not a Brown problem, not only because there is no de jure segregation in Seattle School Board 1's past. It is also not a Brown problem because it transpires in a multi-racial society, in which the dynamics of non-racialism also involve the equal protection interests of people whose concerns the Fourteenth Amendment was not historically bound to, as it was to the interests of the freedmen, but whose rights it must just a forcefully protect.

Having said all of which, it would be also correct to say, as Justice Stevens essentially did, that this is a not-Brown problem being solved by a Court which wants to use it to dismantle Brown. Employing four and a half votes for the very most that less than five can be made to do, the Chief Justice effectively declares the period of remediation for white supremacy in the schools over, and holds that all attempts to establish diversity as a bulwark against future discrimination must show either past governmental discrimination or some compelling interest other than preventing future discrimination (a holding from which Justice Kennedy awkwardly withholds the fifth vote, declaring—as Justice O'Connor was wont to do when the going got tough—that everything must be narrowly tailored to meet with his approval on eventual Supreme Court review).

You can show, if you think about it, how this outcome provides the Republican Party with a version of the advantage it derived in the 20th century from Milliken v. Bradley. That would require recognizing the role of class in the politics of the multi-racial US, a country in its last half-century of white majority, with an aristocracy more dominant in its ownership than at any time in the history of the republic.

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.

As I've suggested above, I think Kohlberg is a nuisance rather than a help. Understanding the Supreme Court in its actual context is a more useful exercise than trying to understand the Supreme Court in the fanciful context of what it would be like if it were an eight-year-old, instead of the powerful political institution that it is. The Court is not getting the wrong results because it has the wrong theory: it is a realist institution choosing the theory that produces the desired consequences.

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