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Dianne Piché, June Zeitlin, Sakira Cook, Max Marchitello

excerpted from: Dianne Piché, June Zeitlin, Sakira Cook, Max Marchitello, Remedying Disparate Impact in Education, 38-FALL Human Rights 15 (Fall, 2011)


In 1954, Brown v. Board of Education of Topeka (347 U.S. 483) launched a revolution that changed the world. The Supreme Court decision not only outlawed school segregation, it also inspired an era of civil and human rights progress for all Americans. A unanimous Court in Brown described the importance of education in terms that are as relevant now as they were nearly six decades ago:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

Yet our nation continues to be plagued by conditions of inequality and deprivation in schools the minority poor are required by law to attend. Today, the dream of Brown--equal educational opportunity for all American children--remains a dream deferred.

Though many Americans may consider ensuring quality education for all children to be an insurmountable challenge, this is not the case. In this article, the authors pose some alternative ways of thinking about and enforcing the right to education through the dual and related lenses of the disparate impact theory of liability under Title VI of the Civil Rights Act of 1964 and international human rights law. Applying an international human rights framework to promote an affirmative right to education, together with bolder enforcement of civil rights laws that address disparate impact, will shift the discussion from educational inputs to educational outcomes. Using international treaties as a legal underpinning emphasizes the need for government to eliminate discrimination and specifically provide access to quality education for all children--the vision and promise of Brown.