Inequities for Black Americans, including educational ones, are now often rooted in “neutral” policies—ones facially innocent, but effectively discriminatory. This Article helps establish the Thirteenth Amendment as a viable alternative in antidiscrimination law for challenging such policies. While undoing these policies has traditionally been the work of the disparate-impact theory, that theory’s success at bringing about enduring social change is stunted for several reasons.
The Amendment is rich legal ground into which we might instead sow new seed. Its social and legislative histories and Supreme Court precedent make clear that the Amendment was designed to eradicate social policies that entrench or perpetuate the vestiges of slavery, whether those policies are racially explicit or facially neutral. Accordingly, the Amendment overlaps with the disparate-impact theory’s original goal of remedying the present effects of past discrimination.
Appreciating the Amendment’s power requires recognizing that in abolishing slavery, the Amendment conferred freedom. And the views of the Amendment’s earliest advocates confirm that one of the most profound enactments of freedom for Black Americans was, among other things, obtaining an education. This Article is the first to explain why any education practice that discriminatorily denies access to public education for Black Americans also violates the Amendment’s conferral of meaningful freedom to Black Americans. The Article operationalizes the Amendment in this regard by applying it to a relatively popular context for disparate-impact challenges: school discipline policies.
This Article moreover emphasizes the special role of Congress acting on its power under the Amendment to define the aspects of such freedom and outlines how Congress might do so. Direct congressional action under the Amendment is vital because it mitigates the difficulties of judicially enforced disparate-impact theory. Such action would also constitute an overdue reconciliatory step towards directly confronting slavery’s legacy, as the Amendment vests in Congress a responsibility to scrutinize any lingering barriers to Black Americans’ acts of freedom, like obtaining education. In outlining an education equity framework under the Thirteenth Amendment, the Article nods towards the Amendment’s enforcement possibilities as an anchor for antidiscrimination law beyond public education.