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Hastings Constitutional Law Quarterly

Abstract

This Article challenges the failure of courts and advocates considering remedies in school cases to assess whether public schools, as currently constituted, are institutionally aligned with stigmatized minorities' particular educational needs. Numerous legal scholars have written about the longstanding failure of public schools to effectively educate racial minorities, but they have overlooked the relationship of public schools' institutional context to the educational consequences of racial stigma. This Article does so, claiming, first, that stigma attacks the capacities enabling effective education, and that educational services therefore must specifically account for stigma's noxious effects on racial minorities' educability. Stigma, I contend, uniquely impedes minorities' education both collectively and individually. As a group, the challenge posed by stigma necessarily affects only the stigmatized; and individually, children have different levels of access to resources contradicting stigma and also cope variably with stigma. To address these consequences, schools need the flexibility to respond not only to the unique class-wide harms engendered by stigma but also its particular manifestations in individual children.

Despite this need for flexibility, traditional public schools are highly bureaucratic and rule-bound, preempting the flexibility stigmatized minorities require. This disposition toward uniformity, in addition, is not coincidental but is central to political accountability, especially in urban districts disproportionately serving racial minorities. Moreover, because stigmatized minorities are minorities, relatively poor, and stigmatized, they cannot politically achieve bureaucratic rules consistently responsive to their educational needs.

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