Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.
I refer to this dynamic as a “civil rights catch-22.” To concretize this phenomenon and its effects, I explore recent right-to-education lawsuits featuring low-income students of color. The cases reveal how doctrine can drive plaintiffs to portray themselves and their communities through a lens of poverty and illiteracy. Even if strategic from a litigation perspective, the proliferation of such narratives can entrench disparities across educational domains.
For decades, critical race theorists have revealed how the law “constructs” race. This Article builds on that canon but shifts the lens to litigation itself. For those committed to meaningful racial reform, better understanding this dynamic is essential—particularly given the emancipatory role that civil rights litigation is understood to fulfill.
Introduction
In May 2020, self-identified African-American and Latino students from some of Detroit’s worst public schools obtained a landmark settlement in Gary B. v. Whitmer.1 The outcome warranted celebration. For school-financing litigants, wins have been elusive since the Supreme Court rejected a constitutional right to education half a century ago.2 One would be forgiven, therefore, for lauding Gary B. as a long-awaited pathway to equality for the students, their community, and education advocates beyond.
In this Article, I caution against such a unitary reading. On the one hand, Gary B. was a historic win. Following decades of disinvestment and mismanagement of Detroit’s public schools,3 the students deserved nothing less than a full vindication of their right to education. At the same time, Gary B. and lawsuits like it pose an often-unseen threat to near- and long-term projects of racial justice.4 School-financing lawsuits—even when they succeed—can calcify behavioral and structural forces that drive inequality across educational domains.
This perverse outcome results from what I term a “civil rights catch-22,” which proceeds as follows.5 First, certain civil rights doctrines incentivize, if not require, plaintiffs to foreground individual or group-based deficits.6 Rational plaintiffs and their attorneys respond in kind—often through statistics and anecdotes that highlight community underachievement, vulnerability, and plight.7 In effect, plaintiffs craft legal stories that tend to track—and thereby activate and reinforce—pernicious racial stereotypes and dominant narratives about racial inequality.8 In other words, the very narratives that anchor and propel civil rights lawsuits can threaten near- and long-term projects of antiracist reform.9
Gary B. offers an illustrative example. Among other claims, the Gary B. plaintiffs argued that Michigan had violated their constitutional right to education.10 To prevail, the plaintiffs had to prove that they were deprived of a “minimally adequate education.”11 Cognizant of this high burden,12 the Detroit students alleged that their state had denied them access to “foundational literacy”—that is, the basic ability to read and write.13 To amplify this core theory, the plaintiffs marshalled a litany of statistics documenting their community’s academic impoverishment and underachievement—in absolute terms and relative to whiter and wealthier communities.14
The plaintiffs, in short, framed themselves and their community through a narrative of poverty and illiteracy. This portrayal reflects what others have termed a “deficit frame”—that is, storytelling that foregrounds and emphasizes what a group lacks (or is perceived to lack).15 Often, as in Gary B., deficit frames track salient racial stereotypes and related narratives about racial inequality.
Given doctrinal demands, presenting an image of poor and uneducated Black and brown students makes sense. But deficit framing is not attributable to legal burdens alone. The narrative that travels through Gary B. also reflects a trend among many on the Left to discursively center racial inequality and racialized vulnerabilities.16 This push arises, in part, from the common instinct that “bombarding the public with images and statistics documenting the plight of minorities will motivate people to fight inequality.”17
Yet herein surfaces the danger—that is, the catch of our catch-22.18 Rather than galvanize support for remedial policies, deficit framing risks doing just the opposite.19 As social psychologists Rebecca Hetey and Jennifer Eberhardt recently explained, “[E]xposure to extreme racial disparities may make the public less, not more, responsive to attempts to lessen the severity of policies that help maintain those disparities—even when people agree that such policies are too punitive.”20 In other words, rather than pave a road to antiracist reform, deficit frames can calcify the conditions that drive disparities and necessitate litigation in the first place.21
The concept of a civil rights catch-22 builds on scholarship that implicates civil rights litigation within broader processes of racial formation.22 For decades, critical race theorists have illuminated the co-constitutive relationship between law and race; each is responsible, in part, for constructing the other.23 Existing scholarship often identifies Supreme Court jurisprudence and positive law as the primary vehicles through which the law “constructs” race.24 Here, I turn the lens to civil rights litigation and the narratives deployed therein.25 Doing so illuminates an underexamined and underappreciated litigation risk: the potential for litigants to employ narratives that reinforce racial biases and related theories of inequality—and, thereby, legitimate and fortify the status quo litigants seek to change.26
In Part I, to lay an analytical and empirical foundation, I introduce the concept of framing and explore alternative ways litigants could frame racial inequality—what I term “racial inequality frames.” In Part II, I draw on emerging social science that suggests frames that emphasize perceived minority deficits can stifle projects of racial reform. In Part III, to concretize the catch-22, I bridge the social science to recent school-financing litigation. These cases illustrate how legal doctrine can incentivize plaintiffs to employ deficit frames and related narratives that track and reinforce anti-Black biases. In Part IV, to chart a path forward, I explore how plaintiffs might mitigate the dangers deficit frames present. To do so, I explore how litigants in a recent right-to-education lawsuit flipped a common script by juxtaposing student assets against institutional deficiencies.
Before proceeding, two points deserve emphasis. First, I am not suggesting that deficit frames and their concomitant risks counsel against civil rights litigation. Stakeholders on the ground are far better positioned to identify potent sites of resistance to racialized power and hierarchy. At times, that resistance will include litigation. Nonetheless, litigants, their attorneys, and their allies should recognize that well-intended and legally strategic narratives can bear unintended consequences.
Second, I am not advocating for a “colorblind” or “post-racial” discourse that elides the stratifying and subordinating power of race, racism, and racial power. Avoiding racism and its centrality within American society is unlikely to lessen its force or facilitate its undoing. Moreover, the question is not whether to talk about race and racial inequality. Rather, the question is how to do so. Deficit frames comprise one form of racial discourse. My call, accordingly, is to mind the social science and employ communication practices best positioned to disrupt dominant racial narratives and galvanize support for antiracist reform.
I. Framing Inequality
A. Framing Basics
Plaintiffs are storytellers.27 Effective storytelling requires thoughtful framing—a concept that captures how a speaker communicates, organizes, and packages information.28 Framing can be understood as a process of selection and salience.29 Selection concerns the facts, values, and metaphors a communicator highlights and foregrounds—as well as those minimized or left unsaid.30 Selection leads to salience. Once highlighted, a “piece of information [becomes] more noticeable, meaningful, or memorable.”31 As a result, alternative frames can “radically” alter how an audience perceives “[t]he character, causes, and consequences of” a given subject, policy, or phenomenon.32
One can disaggregate framing into choices that concern (a) the presentation of facts and (b) the use of narrative. Here, I refer to these framing elements as fact framing and narrative framing.33
Fact framing, as I use the term, captures whether and how a communicator presents information about a topic.34 Imagine a reporter tasked with a story on teenagers and truancy. The reporter might choose to include attendance statistics. This decision does not dictate how she presents the data. The reporter could present daily attendance in the affirmative (e.g., eighty-five percent present) or the negative (e.g., fifteen percent absent). The options depict the same empirical reality, but each employs a distinct valence. The negative valence highlights truancy; the positive valence highlights attendance.
Even if seemingly minor, these subtle shifts matter.35 Attributes presented through a positive valence (e.g., eighty-five percent attendance) tend to elicit a more favorable evaluation than those presented through a negative valence (e.g., fifteen percent absence).36 A set of studies involving athletic and academic performance is illustrative.37 In both studies, participants received information about an athlete’s or student’s prior performance.38 Participants in the positive condition were told the percentage of shots made or questions answered correctly.39 Participants in the negative condition were told the percentage of shots missed or questions answered incorrectly.40
The framing choices mattered. Participants in the positive conditions rated the prior academic and basketball performance more favorably than did those in the negative conditions.41 To explain these effects, the studies’ coauthors theorized that “positive labels tend to evoke positive associations while negative labels tend to evoke negative associations.”42
Narrative framing, in contrast, captures a communicator’s use of narratives to describe a given issue or topic.43 Narratives comprise generalizable and recognizable stories that explain and rationalize the world around us.44 Through repeated use, certain narratives attain dominance within our cultural fabric and public discourse.45 These dominant narratives, in turn, propagate and calcify “meanings about social issues [that] circulate and become part of the public’s everyday and dominant understandings of those issues.”46 Once a narrative becomes ingrained within public discourse—that is, once it becomes dominant—it functions as a conceptual filter that influences how the public perceives and interprets related topics or phenomena. Dominant narratives, in short, are often unseen and yet affect “how [people] understand the world around them.”47
Psychological anthropologist Nat Kendall-Taylor describes this phenomenon with respect to adolescence:
[I]f we are exposed over and over again to messages replete with the idea that adolescents are dangerous risk takers who must be protected from themselves, we develop deep and solid associations between “young people” and “risk and danger.” Over time and with repetition, these associations strengthen to the point that when we see or hear about an adolescent, we feel uncomfortable or threatened.48
We can return to our hypothetical reporter. In the United States, we often view adolescence through a negative frame that portrays “young people as dangerous threats and adolescence as an unfortunate time of life.”49 Given its dominance, this narrative is positioned to shape how readers interpret and respond to the reporter’s story even if the narrative is not explicitly invoked. The reporter is not, however, beholden to this narrative. She could, for example, embrace a more positive frame that characterizes youth as “a time of opportunity when lifelong skills and relationships are built and passions spark and ignite.”50
These choices matter. As Kendall-Taylor explains, the narratives we employ inform “how we see and think about young people,” and, accordingly, “how we as a society choose to support them and their development.”51 When negative frames dominate, we are more likely to attribute adolescence as the cause of teens’ behavior and identify paternalistic interventions as a sensible response.52 If, instead, we view adolescence and teenagers through a prism of not-yet-realized opportunity and potential, we may instead see “[s]caffolded support, agency, and empowerment” as key ingredients to a healthy and productive youth.53 Moreover, rather than viewing teenagers as a problem to be fixed, we might instead ask how we can design institutions to best support them.54 In short, the way we portray adolescence influences how “we understand and choose to support young people.”55
These lessons translate to other settings—including conversations about race and racial inequality. To illuminate how, I now turn to the focus of this Article: racial inequality frames.
B. Competing Racial Inequality Frames
Many on the front lines of racial justice feel a palpable urgency to foreground race and racial inequality within public discourse.56 This desire is understandable and holds strategic appeal.
To begin, it counters appeals to “post-racialism” and “colorblindness,” racial ideologies that enjoy cultural and doctrinal prominence.57 Colorblindness and post-racialism reduce race to an otherwise irrelevant physical attribute and relegate racism (for the most part) to an ignoble past.58 In so doing, these racial frames invite the conclusion that contemporary inequities are due to minority deficits (e.g., cultural pathologies) or the aberrant bad actor (e.g., “bad apple” cops). In other words, post-racialism and colorblindness comprise racial frames that legitimate the status quo.
Recent calls to foreground race and racism within public discourse, in turn, represent a response to these narratives. But beyond countering the logics of post-racialism and colorblindness, many advocates believe that increasing public awareness of racial inequality is a prerequisite to antiracist reform. Consider the following hypothetical.
Imagine a coalition of law students and community stakeholders want to repeal a state law responsible for heightened incarceration rates in their state. Further assume that the law has disproportionately impacted Black and Latinx communities. How should the coalition proceed? Conventional wisdom might call for a public-awareness campaign that draws attention to accelerating incarceration rates and their disparate impact.59
The thinking proceeds as follows: First, without exposing racial disparities, we lack critical information about the law’s impact necessary to devise effective remedies.60 Second, many assume that if only (white) voters knew about a policy’s racially disparate impact, they would realize its unfairness and support reform.
Makes sense? Not so fast. As noted above, emerging research suggests that rather than motivate public support for reform (particularly among whites), exposure to extreme racial disparities can entrench support for the policies that drive inequality.61 The social science, in short, cautions that well-intended racial discourse can trigger backlash that calcifies and obscures the forces that drive disparities.
For many, the risk of backlash begs the following question: If exposure to evidence of racial inequality can harden support for regressive policies, do we strike racial disparities from our public discourse?62 For multiple reasons, the answer is a resounding no. To begin, erasing race and racism from our national conversations reproduces many of the problems inherent in colorblindness and post-racialism. Moreover, as I detail below, the question is not whether to discuss racial inequality, but rather how to discuss racial inequality.63 To reframe, one question confronting racial justice advocates is: How should we frame racial inequality?64
To guide this inquiry, I offer a provisional framework to conceptualize competing racial inequality frames (racial frames). This framework—depicted in the graphic below—distinguishes between racial frames as a function of their respective: (1) valence and (2) causal theory of inequality.65 I focus on these framing elements for two principal reasons. First, frames falling in our bottom left quadrant—that is, frames with a negative valence and internal theories of inequality—are most likely to stifle progressive racial reform. Second, leading voices on the Right and the Left often employ frames with these precise elements.
The vertical axis, titled “Valence,” captures whether a racial frame presents a group in a negative or positive light. On one end of the spectrum (visually, the bottom) lie “deficit frames”—that is, narratives that emphasize a group’s perceived shortcomings, vulnerabilities, or plight. On the other end of the spectrum (visually, the top) lie “asset frames.” As the name suggests, asset frames emphasize positive attributes—such as a group’s resilience, achievements, or potential.
Deficit frames and asset frames risk flattening a group’s heterogeneity, dynamism, and complexity; the flattening just occurs in opposing directions. In practice, deficit frames are far more common within public discourse.66 One might expect this from the Right, which has mobilized at-times-violent rhetoric that reduces communities of color to racialized caricatures.67 But the Right is far from alone. The mainstream media, for example, has long portrayed racial minorities through distorted, demeaning, and dehumanizing imagery.68 A recent apology from The Kansas City Star is illustrative: “Reporters were frequently sickened by what they found—decades of coverage that depicted Black Kansas Citians as criminals living in a crime-laden world. They felt shame at what was missing: the achievements, aspirations and milestones of an entire population routinely overlooked, as if Black people were invisible.”69
Deficit frames also pervade academia. “Mismatch theory” offers a conspicuous example. The theory posits that race-conscious university admissions harm Black students by placing them at institutions above their academic pedigree.70 One could characterize mismatch as a double deficit frame; the theory deploys empirical “evidence”71 of racial achievement gaps to buttress an explicit narrative of Black intellectual inferiority.72
Mismatch theory has enjoyed notable traction within legal and lay discourse.73 This traction derives, in part, from mismatch’s convergence with dominant narratives that attribute racial achievement gaps to minority deficits.74 Mismatch theory, in other words, “implicitly relies on longstanding ‘reasonable doubt’ about black intellectual competence and capacity.”75 But mismatch theory does more than benefit from pervasive stereotypes and narratives; it also reinforces them.76 To this end, Professor Devon Carbado and colleagues have observed that “the theory of mismatch is another way of writing intellectual deficiency and inability into race—and more specifically, blackness.”77 The theory, in turn, naturalizes the association between affirmative action and “preferential treatment,” and it masks the race and class advantages (enjoyed by wealthy white students) that affirmative action is often designed to combat.78
Given the foregoing, it is no surprise that mismatch theory has received considerable critique from scholars on the Left. What might be a surprise, therefore, is the degree to which mismatch theory shares conceptual pillars with racial frames common to the Left.79 Consider traditional liberal defenses of affirmative action. For decades, a core of affirmative-action advocates has justified such policies as “racial preferences” necessary to promote racial diversity on campus.80 This “preference framing,” consistent with mismatch, implies that race-conscious admissions benefit less-deserving Black applicants at the expense of their “more qualified” white counterparts. In other words, even though the ultimate position vis-à-vis affirmative action varies, scholars on the Left and Right often talk about affirmative action in terms that presume minority deficits.
Similar framing elements often accompany education-reform campaigns. Such projects, designed to uplift communities of color, tend to moor racial performance gaps to narratives of underachievement and plight.81 As I discuss in greater detail below,82 these frames track, and are prone to activate and reinforce, dominant narratives of “damaged” Black and brown students defined by their “shortcomings” and “insurmountable” obstacles.83
Moving to the horizontal axis of our racial inequality frames, the relevant inquiry concerns the frame’s causal theory of inequality. Causal theories tend to fall into one of two categories: internal explanations and external explanations.84
Internal explanations attribute disparities to individual or group-based traits. Examples include theories that attribute Black overincarceration to criminal predisposition, or Black academic underperformance to cultural deviance. As these examples reflect, internal theories tend to blame individuals and groups for the negative outcomes they endure.
External explanations, in contrast, attribute inequality to situational or environmental factors. Examples include theories that attribute Black overincarceration to policies and practices that increase Black precarity to state violence, or Black underperformance to hostile learning environments.85
Internal and external theories of inequality travel through public discourse. Nonetheless, internal theories of inequality tend to enjoy outsized influence over the public’s perception of racial disparities. And often, internal causal theories trade on perceived group-based deficits. In other words, and as depicted below, the weight of public discourse tends to fall into the bottom left quadrant—where deficit frames and internal theories of inequality meet.
This convergence makes sense. Many of the racial stereotypes that animate deficit frames also fuel internal theories of inequality. Moreover, the overlay creates a potential feedback loop: internal theories of inequality invite deficit frames (and vice versa), which in turn reify the stereotypes that anchor internal theories of inequality. To better appreciate this dynamic, I now turn to emerging social science that surfaces the dangers of deficit framing.
II. Deficit Frame Dangers86
Deficit frames flatten the inherent depth, complexity, and heterogeneity of any group. In the context of racial inequality, this flattening risks more than projecting an incomplete picture; it risks projecting an incomplete picture that tracks and reifies socially salient stereotypes. Two troubling consequences follow: (1) a backlash problem and (2) a misdiagnosis problem. As to the former, exposure to deficit frames can—particularly among whites—fortify support for regressive policies that drive existing inequality. As to the latter, deficit frames can activate and reinforce internal causal theories of inequality—theories that, in effect, blame subordinated groups for their subordinate status. Policy prescriptions, in turn, tend to privilege interventions designed to fix “damaged” individuals or communities. This focus, in turn, inoculates environmental forces—that often drive inequality—from meaningful critique.87
A. A Cautionary Tale: Backlash and Misdiagnosis
Racial justice campaigns often emphasize racial disparities. I understand the appeal. Many assume that their neighbors would support progressive reform if only they understood our laws’, practices’, and policies’ racially disparate impacts.88
The trouble is, two recent studies from Professors Rebecca Hetey and Jennifer Eberhardt offer a sobering tale.89 Rather than galvanize support for reform, exposing whites “to a world with extreme racial stratification increase[d] their support for the policies that help to maintain that stratification.”90
In their first study, Hetey and Eberhart tested whether exposure to racial disparities in California’s prison population would influence support for the state’s three-strikes law.91 The study proceeded as follows. First, participants viewed a forty-second video in which eighty actual mug shots flashed across the screen.92 The researchers created two conditions to portray racial disparities as more or less severe.93 In the “less-Black” condition, 25% of the mug shots were Black inmates.94 In the “more-Black” condition, 45% of the mug shots were Black inmates.95
After viewing the video, participants were informed about California’s three-strikes law and an open petition to amend it. Participants were then asked to rate the three-strikes law on a scale of one (not punitive enough) to seven (too punitive). Last, after the study putatively ended, participants were invited to sign the petition.96
Under conventional wisdom, support for reform would be highest in the more-Black condition—which exposed participants to more extreme racial disparities.97 The opposite occurred. Whereas over half of participants in the less-Black condition signed the petition, that number dropped to less than 28% in the more-Black condition.98 This effect remained regardless of views on the law’s punitiveness.99 In other words, as the racial disparity increased, participants were less willing to change a law even when they saw it as overly harsh.100
In a companion study, Hetey and Eberhardt explored whether exposure to more severe racial disparities would increase New Yorkers’ support for the city’s stop-and-frisk policy.101 As in the California study, participants received demographic information about New York’s inmate population. In the less-Black condition, participants read that the state’s prison population was 40.3% Black.102 In the more-Black condition, participants read that the prison population was 60.3% Black.103 All participants learned that a judge had recently found the stop-and-frisk policy to be unconstitutional, and that the city was appealing her decision.104 Participants then answered a series of questions about the stop-and-frisk policy and crime more broadly.105
To conclude the study, participants were informed of several petitions to end the controversial policy. Participants were shown a sample petition and asked the following question: “If you had been approached by someone and asked to sign a petition like the one you just read, would you have signed it?”106 Participants could answer “yes” or “no,” at which point the activity ended.107
As in the first study, exposure to greater disparities decreased support for reform. Whereas 33% of participants in the less-Black condition would have signed the petition, this number declined to 12% in the more-Black condition.108 This effect was significant and remained regardless of how punitive participants viewed the stop-and-frisk policy.109
Before addressing the mechanisms driving this behavior, one related data point is instructive.110 In 2007, political scientists Mark Peffley and Jon Hurwitz explored whether exposure to racial disparities would affect support for the death penalty.111 To investigate, the researchers divided a group of white Americans into three groups.112 Participants in the first group, the baseline condition, were asked to rate their support for the death penalty without receiving any additional information.113 Participants in the second group, the racial condition, were asked the same question but were also told that the death penalty was unfair because “most of the people who are executed are African Americans.”114 Those in the third group, the innocent condition, were again asked the same question but instead told that the “[death] penalty is unfair because too many innocent people are being executed.”115
Consistent with Hetey and Eberhardt’s findings, support for the death penalty increased when white participants learned about its racially disparate impact.116 Whereas 65% of those in the baseline condition supported the death penalty, that number increased to 77% in the racial condition.117 Notably, exposure to the racial disparity also increased the strength of support for the death penalty. Whereas 36% of whites strongly favored the death penalty in the baseline condition, this number jumped to 52% in the racial condition.118
Hetey and Eberhardt recognize the apparent dilemma: “Perhaps motivating the public to work toward an equal society requires something more than the evidence of inequality itself.”119 The studies, in short, reveal the potential perverse consequences that can flow from exposure to severe racial disparities—particularly among whites. That said, the foregoing research should not be read as counseling against any discussion of racial inequality. Rather, it surfaces that how we talk about race can matter as much as whether we talk about race. One key variable, to which I now turn, concerns how racial frames interact with latent biases and dominant narratives of racial inequality.
B. The Source of Backlash
Participants in the foregoing studies were exposed to racial disparities but received no information about the cause of those disparities. The data’s import, in turn, lay in the eyes of the beholder. For many participants, the disparities appear to have triggered anti-Black stereotypes and internal causal theories of crime. In other words, even though the evidence of inequality was unaccompanied by additional information, it did not enter a conceptual void. Rather, it arose against a backdrop of latent racial narratives that attribute Black overrepresentation in prison and death row to individual shortcomings and cultural deficiencies.120
Consider the New York study. Relative to participants in the less-Black condition, those in the more-Black condition exhibited greater concern about crime.121 That heightened concern, in turn, decreased support for the petition to end stop-and-frisk.122 Recall that the only information that differed across conditions was the demographic composition of New York’s prison population. Fear of crime—and support for a controversial policy—increased when participants believed New York’s incarcerated population was blacker.
To explain this effect, Hetey and Eberhardt invoke the phenomenon of racial priming.123 Priming refers to the cognitive process in which exposure to racial cues—including stereotypic stimuli124—activates stereotypes about that group.125 Often, priming occurs automatically and beyond our conscious awareness.126 Once activated, this cognitive process “increases the likelihood that the knowledge contained in the stereotype will be used in subsequent judgments.”127 In other words, when an individual encounters racial cues that activate racial stereotypes, those stereotypes tend to influence what the individual notices and how they interpret subsequently encountered information.128
Given the tight conceptual nexus between blackness and criminality,129 priming helps to explain why a blacker prison population increased fears of crime.130 Specifically, “[e]vidence of racial disparities in the criminal justice system” is likely to “trigger[] the stereotype that Blacks are criminals and criminals are Black.”131 In the abstract, one would expect the stereotype—now primed—to influence how participants understand and respond to information about racial inequality. In practice, this script appears to have transpired: exposure to extreme racial disparities (in a criminal context) activated pervasive anti-Black stereotypes and associated narratives that attribute mass incarceration to internal factors—e.g., a predisposition to criminality.132
To visualize this dynamic, we can translate the “more-Black” and “less-Black” conditions onto our racial inequality quadrants. Both conditions constitute what I have termed thin deficit frames—that is, racial discourse that emphasizes empirical evidence of inequality but lacks an explicit causal theory. Here, that evidence is limited to a single data point: prison population demographics. Both conditions highlighted the overrepresentation (to differing degrees) of Black inmates. Accordingly, both fall on the deficits side of our vertical axis—with the “more-Black” condition falling farther down the line.
Neither condition included an express theory of causation. Participant behavior, however, revealed that exposure to more extreme racial disparities rendered more salient the association between blackness and criminality—and by extension, internal causal theories of Black criminality. This dynamic is depicted below. And, as the foregoing scholarship cautions, the more a racial frame emphasizes deficits and internal causal theories, the more likely backlash follows.
Peffley and Hurwitz observed a similar relationship between exposure to empirical evidence of inequality, causal theories, and support for progressive reform.133 Specifically, white participants were more likely to support the death penalty if they attributed crime to internal factors such as “criminal disposition[].”134 This effect only arose, however, in the race condition—where participants were told that the death penalty is unfair because “most of the people who are executed are African Americans.”135 Even in this condition, causal theories of Black overincarceration appeared to inform support (or lack thereof) for the death penalty. As participants embraced more external causal theories, their support for the death penalty waned.136
This effect suggests that a single statement linking race and the death penalty could activate latent anti-Black stereotypes and dominant narratives about Black criminality.137 The effect was significant. Whereas only twenty-eight percent of participants with external theories of crime strongly favored the death penalty, that number jumped to sixty-four percent for participants with internal theories of crime.138
The link between stereotypes and causal theories of crime tracks decades of research on stereotyping. Stereotypes are more than a set of discrete (and often contestable) descriptors.139 The constellation of stereotypes about a given category cohere to construct a “group essence” through which all group members are viewed.140 Thus, when we perceive someone to be a member of a racial outgroup, “characteristics that are associated with the . . . group as a whole can be inductively applied to this person.”141
Social psychologists Galen Bodenhausen and Andrew Todd explain that “the hallmark of stereotyping is the tendency to regard group members as fundamentally interchangeable and equivalent in terms of their basic characteristics, which are simply the characteristics that have come to be associated with the group as a whole.”142 Group members, in effect, are rendered interchangeable and reduced to stereotypical traits. As a result, stereotypes can inform how we view members of racialized groups even when an individual’s actual circumstances or characteristics deviate from the relevant stereotype.143
Relatedly, stereotypes undergird causal theories that explain the relationship between various traits associated with a group.144 On this point, Bodenhausen and Todd explain that “a group may be thought of as economically disadvantaged and poorly educated because its members are lazy or lacking in intelligence.”145 In other words, stereotypes describe groups and explain the relationship between perceived group traits and a group’s relative status within society.146 Often, racial stereotypes rationalize the status quo by conceptually undergirding internal causal theories of inequality. This dynamic, in turn, can influence attitudes toward competing policy proposals. This also tracks the dynamic we saw at play in the Hetey and Eberhardt studies. When participants encountered extreme racial disparities, those disparities appear to have activated latent anti-Black stereotypes—including causal theories that explain and rationalize the disparities themselves. And support for a status quo responsible for those disparities—at least among whites—grew.
The studies reveal how exposure to racial inequality can provoke immediate attitudinal and behavioral responses. This tight temporal nexus between exposure and behavior is unlikely to reflect, precisely, how racial frames embedded in litigation influence public perception and behavior. Still, the studies reveal two critical insights that translate to civil rights litigation. First, latent racial biases influence how the public interprets and responds to evidence of racial inequality. Second, deficit frames can activate and entrench those same biases.147 Accordingly, even in the absence of immediate backlash, exposure to racial frames that emphasize minority deficits can calcify a set of racial meanings that tend to legitimize existing inequality—including racialized expectations about who will succeed, who is a threat, and who belongs.148
2. Alternative Explanations (Also Implicate Racial Biases)
Some might wonder whether factors other than latent racial stereotypes better explain the backlash outlined above. To address this question, I explore multiple alternative theories below. This review reveals that even alternative theories implicate the racial priming and stereotyping phenomena discussed above.
To begin, white backlash could be the product of racial prejudice—whether it be explicit anti-Black animus or racially selective indifference.149 Assuming the latter—a more benign form of prejudice—the theory proceeds as follows: if a punitive policy has negative consequences, but Blacks bear the brunt of that burden, whites will be more comfortable with the status quo and less motivated toward reform (than they would be if the burden fell evenly across all groups or disproportionately on whites).150
A selective-indifference theory has intuitive appeal. There are myriad examples in which a person’s support for a policy turns on the policy’s perceived effect on a salient in-group.151 This translates to contexts in which regressive policies disparately burden communities of color. Still, selective indifference feels insufficient to explain enhanced support for policies that participants viewed as punitive. Support for reform would have placed, at most, a marginal burden on the participants (e.g., signing a petition). In other words, why not take such a minimal step—even if the benefit accrues to a racial out-group?
One explanation is that participants viewed the status quo as detrimental to Blacks and beneficial to whites. In other words, beyond indifference to out-group suffering, participants perceived an in-group benefit. The benefit, presumably, is less crime and more safety. Ultimately, this cost-benefit analysis trades on the racial stereotypes discussed above.152 Specifically, the logic that whites benefit relies on the presumption that Blacks are overincarcerated because they are predisposed to crime—that is, because they are perceived as threats to whites.
Further, consider the “ultimate attribution error”153—a well-studied cognitive bias that leads humans to “view negative attributes of outgroups as stable, fixed, and dispositional.”154 With in-groups, in contrast, negative attributes “are viewed as malleable, contingent, and a result of environment or bad luck.”155 In the presence of positive attributes, the reverse occurs.156
It is easy to see how the ultimate attribution error aligns with and amplifies racial stereotypes and internal theories of racial inequality.157 Foreshadowing the next Part of this Article, consider racial discourse that highlights the underrepresentation and underperformance of Black and brown students in historically white institutions. For racial out-groups, the ultimate attribution error invites a causal theory that attributes negative outcomes to student deficiencies. And, importantly, this heuristic does not exist in a cultural void. To the contrary, it operates against a backdrop defined by racialized presumptions concerning intelligence and academic competence.158 In other words, the ultimate attribution error can further propel the feedback loop between deficit frames, racial stereotypes, and internal theories of inequality—a recursive process likely to harden support for institutional arrangements that produce racially disparate academic outcomes.159
As I detail below, school-financing litigants risk fueling this precise dynamic. Particularly in the context of federal litigation, doctrine incentivizes plaintiffs to mobilize deficit frames that emphasize academic underachievement within communities of color. This legal storytelling, albeit responsive to doctrine, can trigger and reproduce stereotype-laden narratives that (a) describe Black and brown students as academically inferior; (b) attribute racial achievement gaps to the presumptive academic inferiority of Black and brown students; and (c) prescribe remedies designed to “fix” presumptively deficient students rather than remedy pervasive institutional deficiencies.
III. The Catch-22
As noted above, the civil rights catch-22 proceeds as follows: First, certain legal doctrines incentivize (if not require) plaintiffs to emphasize community deficits. Second, rational plaintiffs and their lawyers respond in kind. In so doing, plaintiffs tend to deploy legal narratives that track, and are thereby likely to activate and reinforce, racial frames that legitimize the status quo. Accordingly, even when plaintiffs prevail, the litigation can hinder short- and long-term reform efforts. To concretize this dynamic, I now turn to federal school-financing doctrine.
A. Doctrine Demands Deficits
In the United States, a student’s access to educational resources is often inseparable from race and class.160 For communities burdened by unequal or inadequate school funding, litigation offers one tool for reform.161 Such lawsuits often take one of two forms: equity challenges and adequacy challenges.162 Neither offers reliable avenues for relief—particularly for claims arising under federal law.163
In equity cases, often brought under the Fourteenth Amendment’s Equal Protection Clause, plaintiffs challenge unequal resource allocation—e.g., per-pupil spending.164 Even when funding disparities have a racially disparate impact, those disparities are largely immune from constitutional scrutiny.165 Rather, prevailing doctrine often requires plaintiffs to prove discriminatory intent—a near-impossible standard to meet.166
Adequacy challenges, rather than comparing funding across districts, focus on the substantive quality (or lack thereof) of education within a school or district.167 Such cases, often tethered to the Fourteenth Amendment’s Due Process Clause, trade on the theory that the Constitution obligates each state to ensure “some meaningful level of education is offered in the schools.”168 Adequacy challenges suffered a major setback in San Antonio Independent School District v. Rodriguez,169 a seminal school-financing case in which Mexican-American students argued that Texas’s school-financing scheme deprived them of a right to education.170 A five-Justice majority rejected the claim that the Constitution guarantees a general right to education.171
As others have detailed, this holding effectively “foreclosed federal challenges to long-standing educational opportunity gaps.”172 Nonetheless, recent federal litigation has revealed that Rodriguez might not have closed the door on federal adequacy challenges.173 In Gary B., for example, the plaintiffs marshalled language from Rodriguez and subsequent Supreme Court decisions to argue that the Constitution guarantees “some identifiable quantum of education”174—even if it does not guarantee a general right to education.
This includes Papasan v. Allain,175 in which the Supreme Court explained that “[a]s Rodriguez and Plyler indicate, this Court has not yet definitively settled the questions whether a minimally adequate education is a fundamental right and whether a statute alleged to discriminatorily infringe that right should be accorded heightened equal protection review.”176 In other words, even absent a “broad, general right to education,”177 the Constitution may still obligate states to provide a minimum standard of education.178
Whether such an obligation exists remains unanswered, in part, because no plaintiff has alleged facts sufficient to establish that they were denied “a minimally adequate education”179—at least not facts sufficient to persuade five sitting Justices. In Rodriguez, for example, the Court acknowledged that Texas’s funding scheme produced severe disparities across the state’s poorest and richest districts.180 Nonetheless, the majority emphasized that neither those disparities nor other alleged facts established that Texas had deprived the students a basic minimum education:
[W]e have no indication that the present levels of educational expenditures in Texas provide an education that falls short. . . . [I]n the present case . . . no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.181
The Papasan plaintiffs—who included school officials and children from twenty-three Mississippi counties—met a similar fate. Among other claims, the plaintiffs argued that they were “denied the economic benefits of public school lands granted by” the federal government to Mississippi over a century prior.182 This claim was predicated in part on funding disparities that flowed from the state’s conduct vis-à-vis the subject lands. According to the plaintiffs, absent court intervention, their children would “continue to receive a substandard education.”183 As in Rodriguez, the Supreme Court majority concluded that the plaintiffs failed to allege facts sufficient to prove that Mississippi had denied them a minimally adequate education:
The petitioners do not allege that schoolchildren in the Chickasaw Counties are not taught to read or write; they do not allege that they receive no instruction on even the educational basics; they allege no actual facts in support of their assertion that they have been deprived of a minimally adequate education.184
In so doing, Papasan reaffirmed Rodriguez’s central holding and left open the possibility that the Constitution guarantees a minimally adequate education. This possibility offers a pinhole-sized opening for adequacy challenges today. Still, the burden is hard to overstate. A plaintiff must first establish, as a matter of law, that the Fourteenth Amendment guarantees a basic minimum education.185 Then, the plaintiff must marshal enough evidence to establish that she has, in fact, been “deprived of a minimally adequate education”186—a burden no prior plaintiff has met.
For the rational litigant (and her attorney), this backdrop cautions against a complaint that suggests even a pretense of education. A party would not want to lose because educational conditions were bad, but not so bad that a fact finder could conclude that constitutional baselines were met.187 To avoid such a fate, strategic plaintiffs might portray their community through a prism of poverty and illiteracy—a landscape void of academic possibility. In other words, and drawing on the racial inequality quadrants introduced above,188 legal doctrine incentivizes plaintiffs to employ deficit frames.
This script has played out across multiple recent lawsuits, two of which I discuss below. The narratives animating these lawsuits are far from identical. But they converge in two key respects. First, they seek to navigate the pinhole left open following Rodriguez. Second, to meet this high evidentiary burden, the plaintiffs employ metaphors, statistics, and anecdotes to portray poor, illiterate students of color incapable of becoming full citizens.189 As a result, this well-intended litigation engages in racial storytelling that reifies pernicious biases about the intellectual inferiority of Black and brown students.190
B. The Deficit Frame Cases
Before exploring the deficit frame cases, two preliminary comments are warranted.
First, my goal is to surface unintended consequences that can flow from well-meaning lawsuits and the narratives they employ. I am neither denying nor suggesting anyone ignore the disturbing conditions and inequities that trigger cases like Gary B.191Robinson, supra note 161, at 1656 (“More than fifty years and a host of educational reform efforts have passed since Brown v. Board of Education, and yet children in poor and disproportionately minority communities still receive vastly unequal educational opportunities.”); Wilson, supra note 165, at 647–48 (“[S]chools that are segregated by race are also typically segregated by poverty as well. . . . [A] significant number of students who attend predominantly poor and minority schools receive lesser access to adequate educational resources and have lower academic achievement than their white and more affluent peers.”); Thomas Kleven, Federalizing Public Education, 55 Vill. L. Rev. 369, 394 (2010) (“[P]ublic education in the United States is significantly segregated along class and race lines.”). Nor am I suggesting we can realize a more equitable educational landscape without naming and centering the forces that produce and sustain racial (and class-based) inequities.192 But even accepting that racial reform requires that we193 talk about racial inequality does not answer how we talk about racial inequality. That question—how to talk about racial inequality—is my focus herein.194
Second, school-financing doctrine impedes educational equality on multiple levels. In this Article, I focus on the link between doctrine and deficit frames—that is, how legal doctrine incentivizes plaintiffs and their attorneys to employ racial frames prone to calcify conditions that produce inequality. But school-financing doctrine is also responsible, in part, for the conditions that necessitate school-financing litigation in the first place.195 As others have detailed, the Supreme Court has (a) legally immunized de facto segregation;196 (b) limited a municipality’s power to mitigate the negative effects of segregation;197 and (c) privileged the principle of “localism.”198 In essence, the Supreme Court has constitutionalized unequal access to education.199 And in so doing, the Court has commodified whiteness itself.200
I now turn to Detroit, the site of Gary B. v. Whitmer and a city long impacted by this jurisprudential backdrop.
1. Gary B. v. Whitmer
Gary B. v. Whitmer targeted some of Detroit’s most underresourced public schools. In a moment, I turn to the plaintiffs’ case. But to contextualize the litigation, it is helpful to understand how decades of structural (including legal) and behavioral forces created the conditions that underlay this lawsuit.201
Like many American cities, Detroit experienced staggering demographic shifts through much of the twentieth century. Relevant causes range from economic restructuring to white flight (among other forms of white resistance to desegregation).202 Between 1950 and 1990, Detroit’s white population fell by 86%, while its Black residents rose from 16% to 76% of the city’s population.203 In the decade following the 1968 Fair Housing Act, Detroit lost 74% of its white students.204 And between 1980 and 1995, the percentage of white students in Detroit public schools further declined from 14% to 6.2%.205 Many of the resulting racially homogenous (read: white) suburbs and suburban school districts continue to this day.206
In short, Detroit in 2022 is inseparable from the anti-Black bias and white flight that defined much of the last half century.207 The city’s overall population decline, alongside the loss of white residents (and their tax dollars) to the suburbs, drained Detroit’s tax base and the public resources it supports—including public education.208 This exodus has not ceased. Over the past twenty years, a confluence of local forces has exacerbated Detroit’s budgetary challenges and management failures.209
This history—albeit abbreviated—leads to Gary B. v. Whitmer, a 2016 lawsuit that featured Black and Latinx students from “several of Detroit’s worst-performing public schools.”210 Among other claims, the students alleged that Michigan violated their constitutional right to a basic minimum education.211 More specifically, the plaintiffs alleged that “not even the pretense of education [took] place” in their “slum-like” schools—and as a result, they were denied “a chance at foundational literacy.”212 Drawing on facts and narratives that emphasized racial achievement gaps, deteriorating academic facilities, and widespread community disinvestment, the plaintiffs portrayed themselves and their community through a lens of poverty and illiteracy.213 Translated to our racial inequality frames, the dominant racial discourse that surrounded Gary B. falls into our bottom-left quadrant.
This deficit framing came to define lay and legal perceptions of the case.214 The Sixth Circuit, for example, foregrounded the plaintiffs’ “core” claim “that the conditions in their schools are so bad—due to the absence of qualified teachers, crumbling facilities, and insufficient materials—that those schools fail to provide access to literacy.”215 Beyond formal court documents, this illiteracy/poverty framing extended to the litigants’ more public-facing communications.216 This included the plaintiffs’ website, which bore the title “Right to Literacy Detroit.”217 Beyond this broad framing, the homepage included a drawing of three Black children alongside the prominent text: “GARY B. v. SNYDER is a civil rights lawsuit asserting that Michigan is denying Detroit students their fundamental right to LITERACY.”218
From a legal and moral standpoint, this narrative—a story highlighting the plight of illiterate students of color—holds intuitive appeal. It also proved effective as a litigation strategy. As noted above, the plaintiffs secured a substantial settlement.219 And even before the settlement, a Sixth Circuit panel had revived the plaintiffs’ adequacy claim.220
On the law, the panel held that the Constitution guarantees a basic minimum education and that foundational literacy is encompassed therein.221 Drawing on Rodriguez, the panel grounded this conclusion in the relationship between education and democracy. Specifically, the panel reasoned that “without the literacy provided by a basic minimum education, it is impossible to participate in our democracy.”222 In certain respects, this connection is just right. As Derek Black and others remind us, multiracial democracy requires equal access to public education and the ballot box.223 But the framing also carries risks. At its core, the message—from the litigants and the court—suggests that Detroit’s Black and brown students are destined to illiteracy, and thereby rendered unable to participate in, or contribute to, American society. This narrative, albeit marshalled to advance racial equality, echoes blatantly racist calls to restrict Black voting following the Civil War.224
Moving to the facts, the panel found that the students plausibly pled their adequacy claim.225 Given the plaintiffs’ allegations—and assuming a right to a minimum education—this conclusion would appear hard to avoid.226 The Gary B. plaintiffs offered a dire account of their “schools” and the conditions therein.227 Consider the following overview:
“Plaintiffs sit in classrooms where not even the pretense of education takes place, in schools that are functionally incapable of delivering access to literacy.” Because of this, Plaintiffs attend “schools in name only, characterized by slum-like conditions and lacking the most basic educational opportunities that children elsewhere in Michigan and throughout the nation take for granted. [T]hey wholly lack the capacity to deliver basic access to literacy, functionally delivering no education at all. The schools Plaintiffs attend, and attended, are not truly schools by any traditional definition or understanding of the role public schools play in affording access to literacy.”228
The plaintiffs also marshalled striking factual allegations. These included a litany of statistics that illustrated the inadequacy of the students’ education—in absolute and relative terms. The following allegations are illustrative:
- Across the plaintiffs’ schools, “proficiency rates . . . hover near zero in nearly all subject areas.”229
- In one of the plaintiffs’ elementary schools, “only 4.2% of students scored proficient or above on . . . Michigan’s 2015–16 English assessment test, compared with 46.0% of third-grade students statewide.”230
- Across the plaintiffs’ high schools, between 2% to 13% of eleventh-grade students were proficient in English, compared with nearly 50% of eleventh-grade students statewide.231
- Across their high schools, “every eleventh grader has 0% proficiency in at least Math, Science, or Social Studies.”232
- Between 0% to 4% of eleventh graders in the plaintiffs’ schools were proficient in Math, Science, and Social Studies, respectively,233 as compared to between 28% to 44% of students statewide.234
- At Osborn MST, only 1.9% of eleventh graders were proficient in English in the 2014–15 school year, as compared to 49% of students statewide.235
The plaintiffs thickened this statistical account by cataloging their schools’ “‘deplorable’ and ‘devastating’” conditions, which they disaggregated across three categories: (1) lack of qualified teachers;236 (2) a “dearth of instructional materials”;237 and (3) unsanitary and dangerous physical conditions.238
Overall, the plaintiffs’ claims are striking. They reveal an educational wasteland—likely unrecognizable to most Americans. Given this factual backdrop and doctrinal hurdles, why not mobilize a corresponding narrative that emphasizes racialized poverty and illiteracy?239 After all, the plaintiffs ultimately secured a legal victory and robust settlement. The danger, of course, is that even with a litigation win, this narrative could harden the very forces that produce such unequal and inadequate conditions in the first place.240 Even if tethered to a deeply troubling reality, this frame—that effectively defines Black and brown students as “illiterate,” impoverished, future wards of the state—tracks pernicious anti-Black stereotypes.241 In short, by promulgating this narrative, the litigation risks reifying those very stereotypes—which themselves presume and rationalize racial disparities across educational domains.242
In Part IV, I explore how the Gary B. plaintiffs could have reduced these risks without obscuring or otherwise eliding the educational injustice they endured. Before doing so, however, I turn to A.C. v. Raimondo, a separate adequacy challenge based in Rhode Island. Although distinct from Gary B., A.C. offers another example of doctrinal demands driving legal narratives that emphasize student deficits.
In 2018, a putative class of Rhode Island public school students sued their state for failing to provide a basic minimum education.243 As in Gary B., the A.C. plaintiffs targeted the narrow window left open by Rodriguez.244 Yet unlike the Gary B. plaintiffs, who alleged a lack of access to basic literacy, the A.C. plaintiffs argued that Rhode Island failed to provide a civics education necessary “to be capable citizens” able “to participate effectively” in a democracy.245
From this point of departure, the plaintiffs presented a story of incapable and unprepared students.246 Consider the complaint, which characterized the putative class as follows:
[T]he . . . defendants have failed to provide . . . students in the state of Rhode Island an education that is adequate to prepare them to function productively as civic participants capable of voting, serving on a jury, understanding economic, social and political systems sufficiently to make informed choices, and to participate effectively in civic activities.247
This passage captures the plaintiffs’ core theory: Rhode Island has deprived them of “the basic knowledge, skills, experiences, and values they need to function productively as civic participants . . . . and . . . ‘contribute . . . to the progress of our nation.’”248
This narrative transcends the plaintiffs’ briefing. It also animates their public communications—including the content and messaging on their website. As one example, during the trial, the website’s homepage expressed the same message conveyed by the above block quote.249 The website’s “About” page, in turn, adds texture to this narrative by foregrounding the following statement and quote (from a class member):
[The putative class is] being denied the opportunity for an adequate education to prepare them to be capable citizens.
“I have attended the public schools in Rhode Island for my entire life and have not been exposed to how to engage sufficiently in critical thinking or even the basics of how to participate in democratic institutions.”250
In essence, the plaintiffs characterize class members as the damaged byproducts of a dysfunctional educational system—a system that renders students unable to perform core functions in a constitutional democracy. To advance this narrative, the plaintiffs offer a series of factual allegations that detail the class members’ alleged plight—in absolute terms and relative to students from whiter and wealthier schools. The plaintiffs cite, for example, a lack of physical resources in their classrooms,251 a lack of quality teachers,252 and the general inadequacy of their curriculum.253
Much of the foregoing resembles Gary B. One notable departure is that race and racial inequality are less explicit in the A.C. plaintiffs’ narrative. In Gary B., the plaintiffs made racial inequality central to their legal claims.254 The A.C. plaintiffs, in contrast, deploy a narrative that renders race less salient to their story.255
This is not to say that race is absent from A.C. On the one hand, the plaintiffs define the class in race-neutral terms. At the same time, they situate Black and Latinx students as the face of the litigation—that is, the primary victims of Rhode Island’s educational shortcomings who graduate unable to “contribute . . . to the progress of our nation.”256
For example, even as the plaintiffs decry Rhode Island’s public education in universalist terms, they highlight the disproportionate impact on low-income Black and Latinx students.257 To buttress these general allegations, the plaintiffs cite several racial achievement gaps. The following examples are illustrative:
- “For the 2015–[2016] school year, only 24% of Latino students met 3rd grade expectations in reading, compared with 49% of white students, and 28% of Latino students met 3rd grade expectations in math, compared to 53% of white students.”258
- “[O]nly 22% of African American and Latino students and 23% of low-income students achieved proficient scores on [statewide English] exams, compared with 49% of White students.”259
- “For 2017, Rhode Island’s Latino students ranked 49th out of the 49 states for which data was available.”260
- The plaintiffs provide nationwide statistics on the “‘civic empowerment gap’ for many African-American and Latino students and for many students from low-income families.”261
- “[O]n the 2014 NAEP 8th Grade test in civics, while 32% of white eighth graders performed at or above the proficient level, only 9% of black students and 12% of Latino students did the same.”262
The plaintiffs also highlight the plight of English Language Learners (ELLs):
Many students in Rhode Island, and especially those attending schools in low-income areas, and many [ELLs], do not develop adequate basic verbal skills and do not develop critical analytic abilities because of the poor quality of basic instruction and of instruction in bi-lingual and English as a Second Language (ESL) instruction . . . .263
The plaintiffs add that ELLs “fail to properly develop their English language skills to a level necessary for them to read and converse in the English language and . . . vote with full knowledge of relevant political issues and . . . function effectively as civic participants.”264
Two aspects of the ELL framing deserve mention. First, although ELL is not formally a race-specific category (that is, it is not expressly limited to Latinxs), the category is not race-less. To begin, the plaintiffs note seventy-five percent of ELLs are Latinx.265 Moreover, English has long been conceptually tethered to whiteness and weaponized as a tool of racial subordination—particularly, though not solely, vis-à-vis Latinxs.266 In other words, the category ELL—whatever its formal definition—is likely understood in racial terms.
Second, the plaintiffs characterize English literacy as a prerequisite for civic participation and, by extension, position ELLs as unable to engage in core democratic functions. One could dispute the accuracy of this claim.267 But even if one accepts the claim’s descriptive accuracy, one could still critique the frame. Here, the plaintiffs suggest that ELLs are unable to participate effectively in American democracy because they lack English proficiency. In other words, the plaintiffs employ a standard deficit frame linked to an internal causal theory of inequality.
Consider an alternative frame. Rather than emphasize the ELLs’ lack of English proficiency, the plaintiffs could have highlighted systemic design flaws—e.g., ways that community governance renders sites of civic engagement inaccessible to non-English speakers.268 This alternative frame does not deny that English language skills matter. But it pivots from a narrative of perceived minority deficits to structural or institutional failures. As a result, this alternative framing is less likely to reinforce notions of racialized inferiority (associated with certain non-English languages) and more likely to invite structural remedies (that focus on reforming deficient systems, not remedying deficient individuals).
Given the availability of alternative frames, why did the plaintiffs hew toward a deficit frame and internal theory of inequality? One explanation is doctrine. As in Gary B., the A.C. plaintiffs had to prove that their state deprived them a basic minimum education. This legal hurdle, in turn, behooved the plaintiffs to trace civic engagement problems to student shortcomings (the consequence of an inadequate education), not a political ecosystem that excludes otherwise effective and essential civic participants.
Through their briefing, the plaintiffs reinforced this deficit frame by comparing the class members to “high-achieving” schools that provide “their students an education sufficient to prepare them for capable citizenship in accordance with the requirements of the Constitution.”269 In other words, the plaintiffs juxtaposed class members (who are framed as incapable citizens) with students from better-resourced schools (who are framed as capable citizens). As with the class profile, these comparisons are racially embodied, even if facially race neutral. The plaintiffs noted, for example, that one of the “high-achieving” schools is over ninety-five percent white.270
As I note throughout, I do not fault the plaintiffs for identifying and challenging sites of racial inequality. My concern, rather, is that the plaintiffs employ racial frames that risk reinforcing the social forces that create that inequality in the first place. Consider, for example, how the race-laden comparison of “good schools” and “bad schools” could entrench anti-Black bias. For many Americans, (a) the prototypical poor and undereducated student is Black; and (b) the prototypical Black student is poor and undereducated.271 This contrasts with (a) the prototypical middle-class and well-educated student, who is viewed as white; and (b) the prototypical white student, who is viewed as middle class and well educated. The plaintiffs’ own narrative tracks this story—but it further suggests that some (that is, white students) are capable citizens and others (that is, Black students) are not. In other words, by juxtaposing white wealth and privilege against Black and brown poverty and underachievement, the plaintiffs reinforce dominant racialized narratives about who has, and who lacks, academic competence—not to mention the capacity for self-governance.272
Notably, the plaintiffs’ narrative strays from their own data. For example, by emphasizing racial disparities, the plaintiffs obscure the large numbers of white Rhode Island students who underachieve—per plaintiffs’ own metrics.273 The plaintiffs, in turn, flatten Black and brown students to the educational shortcomings of some while decoupling academic underachievement and whiteness—even though significant numbers of Rhode Island’s white students academically underperform.274 In other words, the plaintiffs’ well-intended narrative betrays aspects of the data and reifies pervasive racialized presumptions about intellectual ability.275
Even if one accepts that deficit frames can produce unintended consequences, a key question emerges: In the ecosystem that is public discourse, could narratives arising out of civil rights litigation actually produce backlash, facilitate misdiagnoses, or otherwise compromise projects of racial justice? In other words, is there actual cause for concern? The short answer, to which I now turn, is yes.
C. Why It Matters: Race Making Through Racial Storytelling
Decades of research reveal the prevalence of racial biases and their influence over human judgment and decision-making.276 In recent years, lay and academic audiences have shown growing interest in the causal link between racial biases (implicit biases, in particular) and racial inequality. Comparably less attention has been paid to the source of racial biases. Below, I locate civil rights litigation as one potential source.
Broadly speaking, racial biases arise from direct and vicarious experiences with individuals from racial groups.277 Direct experiences involve “actual experiences with people of other races” that are unmediated “by a third party such as the mass media.”278 Vicarious experiences, in contrast, refer to “imagined experiences—both fictional and nonfictional—that are mediated through stories told by parents, teachers, friends, and increasingly by the electronic mass media.”279
The United States remains a hypersegregated society. As a result, most people in this country—whites in particular—lack meaningful direct contact with racial out-groups.280 This backdrop means vicarious experiences play an outsized role in forming, circulating, and entrenching racial biases.281 In practice, popular culture—a principal driver of vicarious experiences—comprises the primary medium through which most white Americans interact with, and “learn” about, communities of color.282 In other words, traditional mass media, local news, and social media constitute potent conduits of racial biases.283
It should be no surprise, therefore, that dominant cultural narratives—including racial stereotypes and theories of inequality—produce, and are produced by, the racialized content and imagery embedded across media platforms.284 Given the inextricable link that binds public discourse, racial biases, and contemporary inequities,285 activists on the Left have rightly criticized the mainstream media and political Right for trafficking in racialized caricatures.286 Yet, as outlined above,287 the Left also often employs reductive narratives. These include deficit frames that flatten group identity by foregrounding and emphasizing what a community is perceived to lack. The danger, as noted throughout, is that these racial frames—even if deployed in the name of equality—will entrench the same narratives deployed to legitimate inequality.
Yet, even if one accepts that deficit frames present this precise risk, one might still question the relative impact of deficit frames deployed in the context of civil rights litigation. This is an important question. Given the volume of racial discourse that populates popular culture, and the biases already embedded therein, is there reason to believe that deficit frames deployed in the context of litigation move the needle? And, even if they do, might the benefits outweigh the costs?
As for the latter question, the short answer is that litigation and strategic racial discourse need not exist as “either/or” propositions. This answer invites us to reframe the question: How can litigants avoid—or at least mitigate—deficit framing in the context of civil rights litigation? I explore this question in earnest in Part IV. But first, to conclude Part III, I offer three reasons why stakeholders ought to avoid deficit framing—even in civil rights litigation.
Even if precise measurements are elusive, civil rights litigation generates a small fraction of the racial discourse in our information ecosystem. One might, accordingly, presume that deficit frames deployed during litigation have little impact on existing racial biases and dominant theories of inequality. Even accepting the above, it can be easy to understate the impact of deficit framing.
Specifically, to effectively gauge impact, one must identify the proper counterfactual. To some, the choice might appear as follows: (a) civil rights litigation with deficit frames or (b) civil rights litigation without deficit frames (or, for that matter, no civil rights litigation).
This is not, however, the only possible counterfactual—nor, would I argue, the appropriate one. The question need not be whether to discuss racial inequality (or whether to engage in civil rights litigation). Rather, the question ought to be how to discuss racial inequality (or how to engage in civil rights litigation).
Having reframed the question, an alternative inquiry emerges as follows: (a) civil rights litigation with deficit frames or (b) civil rights litigation with asset frames (or another form of racial discourse that disrupts dominant racial narratives). The original formulation treats the potential impact of deficit framing as a matter of subtraction—that is, the effect of removing deficit frames from the status quo. Here, in contrast, impact turns on subtraction and addition—that is, replacing deficit frames with counterframes that challenge the status quo. Understood in this way, civil rights litigation transforms from a site of discursive risk (due to deficit frames) to a site of discursive resistance. That change, even if impossible to quantify, surely matters.
Another relevant variable is audience. We would not expect school-financing litigation, and the narratives emanating therefrom, to have an equal impact on all members of society. Just as high-volume television viewers are most affected by racial representations embedded in local news,288 individuals interested in school-financing litigation are likely most affected by this information source. This would include educators, a category I employ to capture teachers, administrators, and other relevant stakeholders. Yet, unlike most high-volume television viewers (who lack a direct ability to influence national or local policies), educators enjoy a unique ability to impact—for better or worse—racial equality across educational settings.289
To appreciate this dynamic, consider the following hypothetical. Imagine a prototypical historically white-serving university. The institution boasts a cohort of dedicated and well-meaning teachers, administrative staff, and senior leaders. Nonetheless, it experiences a period of intense student protest. Following a semester of unrest, the university appoints a committee with two mandates: (1) identify sites of racial inequality within the school and (2) prescribe responsive remedies.
Just as the committee gets underway, national attention turns to two high-profile school-financing lawsuits—which I will respectively call “Case A” and “Case B.” Half of the task force happens to follow Case A; the other half follows Case B. Among other similarities, both lawsuits include adequacy challenges and feature students of color from low-income communities. But the cases diverge in one key respect. Whereas the Case A plaintiffs employ a deficit frame that emphasizes student underachievement and plight, the Case B litigants employ an asset frame that portrays a resilient community of students who achieve more with less.
It is not difficult to see how the competing frames might shape how committee members view racial inequality at their own school. Moreover, the lawsuits do not exist in a cultural vacuum. To the contrary, they arise against a societal backdrop marked by pervasive racialized expectations regarding who belongs at, who is expected to succeed in, and who is presumptively unqualified to attend institutions of higher education.290 Case A tracks and reinforces these expectations. As a result, committee members who follow Case A are more likely to (a) expect that Black and brown students will be underrepresented in their university; (b) expect racial achievement gaps at the university; and (c) attribute any underrepresentation and/or achievement gaps to minority deficiencies (e.g., a perceived lack of training, preparation, or “merit”).291 From these conclusions, the committee members are more likely to view individual-level remedial programming (e.g., skills-based training) as the best way to reduce perceived achievement gaps.292
In contrast, consider how the other committee members approach their task. Informed by the racial frame that animated Case B, these committee members are less likely to embrace racial narratives that presume Black or brown academic incompetence.293 The alternative frame, in turn, can shift expectations about, and interpretations of, any observed racial disparities. Rather than attribute disparate outcomes to student shortcomings, committee members may be quicker to ask whether environmental forces—e.g., fraught measures of merit, disparate treatment, or institutional culture—lock out or unevenly burden otherwise talented and motivated students from negatively stereotyped racial groups.
My point is not that institutional deficiencies explain all racial gaps all the time. But all too often, educational institutions fail to consider how environmental forces often compromise the basic goal of an equal learning environment.294 Accordingly, when institutions presume student deficits and overlook institutional shortcomings, they invite a vicious feedback loop: (a) unequal learning environments produce, or exacerbate, achievement gaps that (b) reinforce racialized presumptions of belonging and competence, while (c) insulating the institution from meaningful critique.295
3. Litigation Shapes Social Meaning
There is at least one additional reason to take seriously the potential impact of deficit frames that arise in civil rights litigation. Civil rights lawyering can shape dominant “social meanings”296 that structure how individuals, institutions, and society understand the underlying project of racial justice. With respect to school-financing doctrine, one could argue that the Supreme Court has erected a doctrinal regime that pushes litigants—and, by extension, the broader public—to think about educational justice in terms of racial-minority deficits.
To appreciate this dynamic, it may help to explore other doctrinal sites within the Supreme Court’s education and equality jurisprudence. First, consider Regents of the University of California v. Bakke,297 in which Justice Powell constitutionally tethered affirmative action to student-body diversity.298 Prior to Bakke, affirmative action was widely viewed as a tool to remedy Jim Crow—that is, a necessary, if insufficient, tool to overcome the vestiges of legalized racial exclusion and subordination.299 Justice Powell’s Bakke opinion changed everything.
With limited exception,300 Justice Powell embraced student-body diversity as the sole interest that could justify race-conscious admissions.301 According to Professor Asad Rahim, this pivot “severed racial inclusion from the goal of remediation and the hope of equality.”302 The impact was swift, seismic, and enduring. Rahim explains that Powell’s turn to diversity “helped to fundamentally reshape our society’s understanding of the proper aims of affirmative action and, arguably, racial integration more generally.”303 The consequences transcend university admissions plans. From classrooms to boardrooms to presidential cabinets,304 “diversity” has become a hegemonic—if often nebulous—concept through which Americans approach and frame questions of racial equality and inclusion.305
Diversity, albeit perpetually underdefined, has become the dominant frame through which we think about racial inclusion.306 The consequences transcend semantics and terminology. When individuals or institutions view affirmative action through the lens of diversity, normative commitments can be reduced to a question of proportional representation. Lost, in turn, is a commitment to interrogate institutional arrangements that reproduce accumulated race and class privilege. Racial disparities, when present, are viewed as the unfortunate consequence of neutral market forces and selection processes that formally attend to race are maligned as “racial preferences.”307 In short, Justice Powell triggered a nationwide turn toward a conception of diversity that decouples race from racism—a conceptual shift that continues to constrain how we view affirmative action and antiracist projects more broadly.308
Bakke is not the only example of civil rights litigation leading to Supreme Court jurisprudence that shapes public discourse and institutional logics on a matter of racial equality. Another example is Brown v. Board of Education, which remains the Supreme Court’s most celebrated decision. This praise often elevates the Brown Court’s rejection of American apartheid. In certain respects, Brown deserves praise for denouncing Jim Crow—a system the Court had explicitly endorsed in Plessy v. Ferguson.
But, as others have cautioned, common celebration of Brown overlooks how the Supreme Court (a) misdiagnosed segregation as the source (as opposed to as symptom) of white supremacy and (b) reified racial hierarchy in the United States. As one example, Brown and its animating rationale identified integration as the proper remedy for the racial harm of segregation.309 In the abstract, this makes sense and hardly appears objectionable. But, in practice (and public imagination), calls for integration often carried a presumptive preference for whiteness (and white schools) over blackness (and Black schools).310 Moreover, the turn to integration came at the expense of alternative remedial visions—e.g., an emphasis on equal resources (for Black schools) over inclusion (in white schools).311
This logic bore material and symbolic consequences.312 To begin, the one-directional (that is, Black to white) current of integration, alongside anti-Black racism, decimated vibrant Black educational communities and educators.313 Moreover, by any measure, integration is a failed project. Notwithstanding a period of meaningful gains, schools are as segregated as ever, and race and class remain strong predictors of school quality.314
Symbolically, by embracing a one-directional model of desegregation, Brown reified the common-sense notion that white schools (and white teachers and white students) are superior to Black schools (and Black teachers and Black students). This history, and the narratives it reinforced, remain lodged in our cultural fabric. Nearly seventy years after Brown, white Americans continue to prefer whiter schools and whiter neighborhoods—even when presented with objectively indistinguishable alternatives.315
Ultimately, Bakke and Brown are imperfect analogies for the school-financing doctrine that governs contemporary adequacy challenges. Nonetheless, these cases reveal how civil rights litigation and the law it produces can shape how we think about, talk about, and seek to remedy racial inequality in the United States. In Bakke, Justice Powell catalyzed a turn to diversity (and away from racial justice) that continues to influence public discourse and consciousness on matters of racial inclusion and representation. In Brown, the Supreme Court conflated access to white space with racial justice. This integrationist vision of racial justice, and the implicit racial hierarchy on which it rests, continues to shape dominant conceptions of educational equality in America.
It may be that school-financing doctrine never attains the cultural resonance or impact of a Brown or Bakke. Nonetheless, prevailing doctrine pushes litigants—and by extension, the public—to think about educational justice in terms of student deficits, a frame that is neither inevitable nor most conducive to realizing a fairer and more equal educational landscape. For advocates, this backdrop poses a question: How can stakeholders avoid problematic racial frames without giving up school-financing litigation? In the next and final Part, I offer some provisional thinking on a way out of this civil rights catch-22.
IV. A Way Out?
Framing matters. That much is clear. And racial frames that emphasize community deficits appear prone to hinder short- and long-term projects of racial reform—even when mobilized in the context of civil rights litigation. What, then, are we to do? Given the unintended consequences that can follow even successful litigation, how should communities, attorneys, and students balance the potential benefits and risks of litigation?
Below, I offer provisional thoughts on one way forward. Here, I focus on litigants’ autonomy to determine how they frame racial inequality—even under doctrinal constraints. To be clear, my focus on litigant behavior (per the racial stories they tell) should not be viewed as the fix to the catch-22 outlined herein. A more comprehensive and structural response would also center Supreme Court jurisprudence—the source of our catch-22—and consider how doctrinal changes might mitigate the bind plaintiffs and their attorneys face.
Nonetheless, I focus on litigants for two primary reasons: First, nothing precludes civil rights plaintiffs and their attorneys from mobilizing alternative racial frames. Constraints will always exist—whether they be doctrinal or simply competing visions among stakeholders. But, as I discuss below, doctrine is not determinative—particularly when it comes to public-facing communications that need not satisfy discrete legal elements.
Second, there are examples of successful litigation in which plaintiffs highlight racial inequality without reverting to deficit frames. One example from the domain of education, to which I now turn, is Smith v. Regents of the University of California. Smith is noteworthy because the plaintiffs employed a racial narrative that juxtaposed student talent, resilience, and potential against a backdrop of biased tests and institutional deficiencies. For multiple reasons, the underlying claims in Smith rendered doctrine less restrictive than would be the case in adequacy challenges like Gary B. or A.C. Nonetheless, Smith offers one route to reframing racial inequality.
A. Smith v. Regents
In 2019, a coalition of students and organizations sued the University of California Regents (UC) for using the SAT and ACT within its admissions process.316 The plaintiffs self-identify as “students and organizations that are committed to college access for underrepresented minority students and students with disabilities.”317 Given A.C. and Gary B., one might expect the Smith plaintiffs to emphasize the students’ underachievement and academic deficits. In fact, the Smith plaintiffs do just the opposite—and in so doing, they resist dominant narratives that portray Black and brown students as unprepared for the rigors of higher education.318
From the complaint’s opening paragraphs, the Smith plaintiffs center the students’ individual worth and merit. Their message is clear and consistent: institutional failures and biased tests (that confer unearned race and class preferences on wealthy and white students) unfairly disadvantage talented and accomplished young people of color.319 To the extent deficits exist in this story, they lie with the UC system and the tests it relies upon.320 The plaintiffs specifically critique the SAT and ACT as “prox[ies] for students’ wealth and accumulated advantage.”321 UC’s use of such tests, in turn, corrupts even the pretense of meritocracy by “systematically and unlawfully den[ying] talented and qualified students with less accumulated advantage a fair opportunity to pursue higher education at the UC.”322
Returning to our racial inequality frames, Smith represents our first encounter with a narrative that falls in the upper-right quadrant—that is, a narrative that emphasizes student assets and attributes unequal outcomes to external forces (e.g., institutional deficiencies). Smith offers a useful reference point, in part, because the plaintiffs neither elide nor diminish how race shapes institutional access. To the contrary, the plaintiffs center race within their analysis and critique. Nonetheless, they flip a common script. Whereas dominant narratives present damaged and deficient students, the plaintiffs portray a broken institution as the story’s chief antagonist. In this sense, the plaintiffs contrast their assets with the university’s deficits.
Moreover, the plaintiffs do not ignore evidence—including statistics—of racial inequality.323 Given the lawsuit’s aim, it would be hard to imagine a complaint that omitted racial gaps in test performance or admissions rates. One might wonder, accordingly, whether exposure to the litigation—and, specifically, statistics of racial inequality—could trigger the backlash discussed throughout. For multiple reasons, the plaintiffs take measures that should mitigate that risk.
First, the plaintiffs do not allow the facts to “speak for themselves.”324 Recall that in the studies outlined above,325 evidence of inequality was presented alone. As a result, participants were left to draw their own conclusion—often leading to internal causal theories. Here, in contrast, the plaintiffs complement the data with an explicit causal story that explains, in express detail, the provenance and relevance of any observed racial disparities. Specifically, the plaintiffs trace racial disparities, both in test performance and admission rates, to fraught exams and institutional reliance thereon—not to unmotivated, unprepared, or incapable students. In so doing, the plaintiffs resist the often unspoken but powerful presumption that disparities track actual gaps in preparation and potential.326
Second, the plaintiffs decouple the related association that links elite universities and whiteness.327 As one example, the plaintiffs indict UC’s current admissions regime as “granting a wealth and race bonus to affluent and White students.”328 This framing calls attention to unearned race and class advantages that UC, through its admissions process, extends to white and wealthy students. Relatedly, the plaintiffs expose how reductive and unmindful presumptions about Asian success mask meaningful differences across Asian ethnicities.329 In so doing, the plaintiffs resist model-minority myths that, beyond distorting the Asian American experience, attribute Black or brown underperformance and underrepresentation to inferior cultural values.330
Third, the racial disparities presented in Smith are subordinate to other facts and a consistent narrative that foregrounds the plaintiffs’ noteworthy achievements and accolades. As a result, this evidence of inequality—as a proxy for community deficits—is rendered less salient than in Gary B. or A.C. The statistics, in turn, are less prone to activate and reinforce racial stereotypes and related narratives that rationalize the status quo.
In total, Smith offers a roadmap for litigants to discuss race and racial inequality without inviting the pitfalls that follow deficit frames.331 At the same time, context matters. Not all legal challenges will be as inviting to the type of racial framing that animated Smith. That said, Smith still offers a road map to guide racial discourse across civil rights domains. Below, to conclude, I explore how the Gary B. and A.C. plaintiffs might have reframed their disputes to better model the emphasis on assets and institutional deficiencies that animates Smith.332
B. Reframing Gary B. and A.C.
Smith offers an imperfect model for reframing the racial discourse that defined Gary B. and A.C. Among other differences, Smith did not involve an adequacy challenge. The plaintiffs, accordingly, did not confront the doctrinal hurdles present in Gary B. and A.C. Moreover, Smith involved university admissions, a context distinct from the K–12 educational setting relevant to school-financing litigation. These distinctions are real. But they should not be overstated. Smith remains a useful model for re-imagining how one might recast stories of racial inequality in the K–12 inadequate-funding context.
Above all, doctrine is relevant but not determinative. This is true, in part, because judges (or juries) are never the sole audience a plaintiff can address. Beyond courts, the public often comprises a distinct and critical audience—particularly when litigation confronts a matter of broad public concern. School-financing litigation, as with civil rights litigation more broadly, falls into this category. And, unlike courts, the public is far less concerned with a party’s ability to satisfy discrete legal elements.333 To the contrary, doctrinal requirements that rightly constrain arguments in the court of law are far less relevant when one pivots to the court of public opinion.
One example of this maneuvering has occurred in Students for Fair Admissions, Inc. v. President of Harvard College (SFFA), ongoing litigation concerning Harvard’s race-conscious admissions policy. The SFFA plaintiffs have advanced two distinct legal claims: (1) the claim that Harvard intentionally discriminates against Asian applicants; and (2) a more generic claim challenging the legality of Harvard’s affirmative-action policy.334 As a matter of fact and law, these claims exist independent of each other. It would be hard to know this, however, based on the plaintiffs’ characterization of the case. Across their public-facing communications (and, to a lesser extent, their legal briefing), Students for Fair Admissions (SFFA) has blurred any meaningful distinction between their two claims. More specifically, SFFA has constructed the narrative that affirmative action is the source of anti-Asian bias—a portrayal that suggests Harvard’s admissions policy pits Black and brown students against their Asian American counterparts.335
The foregoing frame is inconsistent with SFFA’s formal allegations, which recognize that white applicants are the primary beneficiaries of any anti-Asian bias.336 And yet, since the litigation’s inception, the “affirmative action-as-culprit” framing has dominated public perception of the case. From SFFA’s perspective, this is a win in itself; it furthers SFFA’s broader objective to politically malign and legally compromise the case for affirmative action—and race-conscious remedies writ large. As I explain elsewhere, “[b]y positioning [Asian Americans] as affirmative action’s victim[s], SFFA can weaken the normative appeal and doctrinal security of an already fragile set of policies.”337
SFFA offers several lessons. First, it is a reminder that legal doctrine, even if relevant, does not dictate the racial narrative a plaintiff employs. Second, SFFA’s communication strategy reveals how a party’s public-facing discourse, when intentional, consistent, and sustained, can shape public understanding about a case in ways that diverge from the arguments written in a party’s legal brief. Third, and perhaps most important, it is a reminder that meaningful civil rights reform, even if mandated through the court of law, rarely occurs without corresponding support in the court of public opinion. To this end, litigation’s impact on public perception and public consciousness can be as significant as the court ruling itself.
Conclusion
My goal has been to illuminate an underexamined predicament facing civil rights litigants. As described throughout, certain doctrinal regimes incentivize plaintiffs to emphasize community deficits that track pervasive racial stereotypes and regressive theories of inequality. Even if strategic in the context of litigation, racialized deficit frames can harden many of the conditions that necessitate litigation in the first place. As a result, even successful litigation can calcify structural forces and individual behaviors that produce and sustain racial inequities across educational domains.
By highlighting these risks, my intent is not to stifle litigation strategies nor to question how local communities mobilize against an unjust status quo. Nonetheless, it behooves litigants, their allies, and the civil rights community to appreciate the potential for deficit framing to hinder ambitious projects of antiracist reform.338 For those committed to discussing racial inequality in ways most likely to facilitate such efforts, Smith offers a provisional roadmap. Moreover, as noted above, litigants are not the only actors implicated in this doctrinal bind. Others, including judges and legislators, should consider reform when civil rights doctrines drive racial discourse prone to compromise the pursuit of racial justice.339
If nothing else, the catch-22 outlined herein should inform ongoing debates about the benefits and limitations of civil rights litigation. In all hopes, this Article offers a new point of entry into a long-standing conversation.