Discrimination and the “Leveling Down” Puzzle


Late last month, the Supreme Court heard oral argument in Espinoza v. Montana Dep’t of Revenue. In an earlier column here on Verdict, Professor Leslie Griffin admirably summarized the key substantive issues and where the justices appear to stand on them. Pursuant to a state constitutional provision barring aid to religious schools, the Montana Supreme Court invalidated a tax-credit program that facilitated subsidies to private secular as well as religious schools.

The Montana constitutional provision is a so-called “Blaine Amendment,” one among many similar state constitutional provisions that were adopted in the late nineteenth century to prevent subsidies from going to Catholic schools. Accordingly, one question in the case is whether that illicit anti-Catholic motive taints the current provision, which the state applies without apparent anti-Catholic bias.

As Professor Ilya Somin has noted, that question tends to expose both liberal and conservative jurists to charges of hypocrisy: conservatives expressing sympathy for the challenge to the Montana Supreme Court ruling were notoriously unmoved by the taint of a much more recent anti-Muslim religious bias in the Travel Ban case in 2018; liberals who dissented in that case seemed skeptical in the Montana case.

The question of what counts as illicit religious bias could well prove decisive in Espinoza, but in this column I want to focus on a different aspect of the case—one that potentially arises in all discrimination cases: how much freedom does government have to “level down” in response to a finding of impermissible discrimination?

Leveling Down

Leveling down is a familiar phenomenon in life and law. Suppose a child complains to a parent that the parent has treated the child unequally by allowing the child’s sibling but not the child some goody—an opportunity to stay up past the customary bedtime, say. The parent who wishes to act evenhandedly could “level up” by extending the largesse and allowing both children to stay up late, or the parent could deny the benefit to both and thus “level down.” The leveling down remedy will generate resentment, but it will produce equality. Likewise in law, as the Supreme Court explained in a 2015 case: “Whenever government impermissibly treats like cases differently, it can cure the violation by either ‘leveling up’ or ‘leveling down.’”

Montana’s attorneys argue in the Supreme Court that Espinoza is a simple leveling-down case. The state legislature enacted a statute providing tax credits that underwrite students at religious as well as secular private schools. However, the Montana Supreme Court found that the statute violated the no-aid clause of the state constitution (i.e., the state’s Blaine Amendment). Recognizing that the U.S. Supreme Court has construed the First Amendment’s Free Exercise Clause to bar states from specifically excluding religious education from subsidies for private education generally, the Montana Supreme Court concluded that, having invalidated the state statute as applied to subsidies at religious schools, it also had to invalidate the statute as applied to subsidies at secular schools or else violate the federal First Amendment. It did so and thus, according to the state’s attorneys, permissibly leveled down. Hence, they say, the plaintiffs cannot complain about religious discrimination because, following the elimination of the state subsidy program for everyone, they are not suffering any discrimination.

Not so, say the plaintiffs, offering essentially two counters against leveling down. First, they argue that the Montana Supreme Court did not in fact level down. Rather, that court found that it could not sever the invalid application of the state statute to religious subsidies from the valid application to secular subsidies. However, the plaintiffs say, the Montana Supreme Court had no business finding the religious subsidies invalid in the first place, because the state constitutional provision that ostensibly renders them invalid must yield to the federal First Amendment principle of no disadvantage to religion.

Second, the plaintiffs argue that even if the Montana Supreme Court’s decision can be characterized as an exercise in leveling down, that exercise was impermissible here. They cite a 1964 ruling of the U.S. Supreme Court that disallowed a decision by Prince Edward County, Virginia, to close its public schools in response to court-ordered racial desegregation.

There is plausibility to each of the plaintiffs’ arguments, but the case is also profoundly puzzling. The plaintiffs are right that the Prince Edward County case appears controlling, but their arguments are difficult to reconcile with the oft-repeated principle that leveling down is a permissible response to inequality.

Severability or Leveling Down? It Doesn’t Matter

The plaintiffs are essentially correct that the Montana Supreme Court did not level down in response to a First Amendment problem. The Montana Supreme Court did not reach the federal First Amendment issue. It found the state subsidy statute facially invalid under the state constitution because it resulted in aid to religious schools. Having facially invalidated the state statute, there was no need to address a federal First Amendment problem, because with no difference in treatment between secular and religious schools, there was no such problem.

Yet while the plaintiffs are correct in their characterization of the Montana Supreme Court opinion, nothing seems to turn on that point. The state is correct that it has no obligation to provide subsidies to private schools; as a result of the Montana Supreme Court invalidation of the subsidy program on its face it provides no such subsidies and therefore does not provide them in a manner that discriminates against religion. Although the Montana Supreme Court did not in so many words say it was leveling down, the impact is the same. Right?

Maybe, maybe not. During the oral argument, the more liberal justices focused much of their attention on a question of legal standing, but they also zeroed in on the no-discrimination claim, while some of the more conservative justices expressed considerably greater sympathy for the plaintiffs. Yet the leveling-down question does not necessarily have a consistent liberal/conservative valence. To see why, consider a hypothetical case in which the valence flips.

Suppose that in the early 2000s a state adds a provision to its constitution disallowing all marriages except those between “one man and one woman.” Now suppose that in 2020 the liberal state legislature passes a law authorizing same-sex marriage. The state’s conservative attorney general refuses to recognize such marriages as legal, citing the constitutional provision. The case goes to the state supreme court, which agrees with the attorney general that the state constitution bars such marriages but therefore concludes that the state does not recognize marriage at all, for same-sex or opposite-sex couples. Would that be permissible?

One reason we might say it would not be is that the U.S. Supreme Court case recognizing a right to same-sex marriage was based in a fundamental right to marry, not just in principles of equality. Yet even if that were not true—that is, even if the Constitution only protected a right of equal access to marriage rather than marriage itself—I suspect that many readers would think that in my hypothetical case the state supreme court had denied equality because it was motivated by hostility to marriage equality (and perhaps broader anti-LGBT bias).

And that is in fact exactly what the plaintiffs argue in Espinoza by citing the Prince Edward County school-closing case. The puzzle is how to reconcile, on one hand, the intuition that abolishing public schools rather than desegregating them or abolishing all marriage rather than recognizing same-sex marriages denies equal protection, with, on the other hand, the principle that leveling down is permissible.

The Palmer Problem

The classic case of leveling down is the 1971 Supreme Court ruling in Palmer v. Thompson. Jackson, Mississippi, was ordered to desegregate its public swimming pools. Instead, the city closed the pools. Citing the Prince Edward County case, plaintiffs cried foul, but the Supreme Court sided with Jackson. After all, the Court said, Jackson had no obligation to provide public swimming pools, so once it closed the pools it was not engaged in an equal protection violation.

The Espinoza plaintiffs distinguish Palmer by arguing that there “it was unclear whether the city was closing the pools for discriminatory or budgetary reasons, and th[e] Court did not want to question the city’s motives.” They are correct in their further contention that, to the extent that Palmer deemed illicit subjective motives an insufficient basis for finding an equal protection violation, later cases supersede Palmer’s rule. However, those later cases do not overrule the proposition—which has been repeatedly reaffirmed, including quite recently—that government may respond to inequality by leveling down.

Nor is it even clear that the plaintiffs are right about Palmer. They cite the 1977 Arlington Heights case as their example of subjective motive mattering, and so did Justice Alito during the oral argument. However, in Arlington Heights, the plaintiffs pointed to an illicit racially discriminatory motive coupled with a disparate racial effect. In Palmer there is only an illicit motive. One can argue—as various scholars have argued in criticizing the Palmer ruling—that there actually was a disparate effect in Palmer because of state-reinforced differential access to recreational opportunities, but that is not an argument against Palmer’s holding as such. And no case since Palmer strikes down a law or policy that was motivated illicitly, in the absence of some disparate effect.

The Palmer/leveling-down problem is difficult and, somewhat surprisingly, still unresolved after nearly half a century. If the Court uses the Espinoza case to clarify how the Palmer/leveling-down line of cases fits with the Arlington Heights line of cases, then Espinoza will prove to be a very important decision indeed.

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