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Excerpted From: Brence D. Pernell, The Thirteenth Amendment and Equal Educational Opportunity, 39 Yale Law and Policy Review 420 (Spring, 2021) (465 Footnotes) (Full Document)


Brence PernellA police officer handcuffed two six-year-old Black American children at their school in Orlando, Florida in September 2019. One child's grandmother reported that she was told that her granddaughter, Khia, had been charged with the crime of battery after having a tantrum. Khia was processed at a juvenile detention center, which included having her mugshot taken before her release.

Khia was close in age to Jmiyha Rickman, an eight-year-old girl with special needs in Alton, Illinois. Jmiyha was arrested six years prior at her school. Police officers cuffed her feet and hands, and they belted her waist before hauling her off in a police car and detaining her for close to two hours. As with six-year-old Khia, the police officers reported that Jmiyha had been having a tantrum.

Earlier in 2019, an 11-year-old Black American boy was arrested after he would not leave a classroom based on his refusal to stand for the pledge of allegiance to the American flag, which he thought represented a racist country. Not long after that, multiple police officers in Pennsylvania pinned a Black American girl's arms behind her back while a white police officer punched her and pulled her hair, eventually forcing her face down onto a cafeteria table. She ultimately was arrested for being involved in a physical altercation with another young student. The incident recalled what happened just five years before when a young Black American girl in South Carolina refused to turn over her cell phone in class. A police officer body-slammed her to the ground after ripping her from her chair with his forearm around her neck and before flinging her past a row of desks. She also was arrested.

Incidents like these underscore research from the last decade that highlight how school-discipline policies--in particular, the rise of “zero-tolerance” approaches not applied equally to Black American students. And the racial disparities are growing. The most recent 2015-2016 schoolyear data demonstrate, for example, that though there were about 100,000 fewer suspensions nationwide than two years prior, the number of students being referred to law enforcement authorities and arrested on school grounds or at school activities increased. Black American students accounted for 15% of the student body in the 2015-2016 school year, but 31% of arrests and a disproportionately high number of suspensions.

Because of this racially warped approach to school discipline, Black American students are significantly more likely to become entrapped in what has been dubbed the “school-to-prison pipeline,” whereby discipline policies funnel students from schools to the criminal justice system. Equal educational opportunities for Black Americans suffer as a result.

Litigants and advocates have increasingly challenged this discriminatory phenomenon primarily under disparate impact, a precious legal theory for effective antidiscrimination litigation and civil rights advocacy in the statutory civil rights context. Sociologists, social psychologists, and legal scholars have characterized the theory as a “crucial” legal tool, and leading civil rights advocates have framed it as “vital” for combatting discrimination. Again, discriminatory school policies, like discipline, are regularly challenged or scrutinized under the statutorily-based disparate-impact theory. As recently as 2016, the U.S. Department of Education's (DOE) Office for Civil Rights (OCR) and the Department of Justice (DOJ) issued joint guidance to endorse the theory and aid public schools across the country in avoiding disparate impacts for minority students when disciplining students.

The disparate-impact theory originated close to fifty years ago as a relatively powerful instrument for remedying the effects of past discrimination for Black Americans in the employment context and has since been recognized in a range of other contexts. The disparate impact framework differs slightly across statutory contexts, but the gist of it is the same: a practice or policy, despite being “neutral” on its face--that is, not discriminatory--is prohibited if it has a “disproportionately adverse effect” on a protected class and lacks a “legitimate rationale,” or cannot be proven as necessary. Unlike a claim of “disparate treatment,” which implies discriminatory intent, a finding of disparate impact tends to connote unintentional or indirect discrimination. The disparate-impact framework originated with the recognition that discriminatory motives could be disguised and that inequality could be easily perpetuated given the nation's long history of discrimination against Black Americans.

Though it was most recently upheld by the Supreme Court in 2015, the disparate-impact framework's remedial power for Black Americans, in both intangible and practical ways, is increasingly waning. First, the theory's implicit recognition of “unintentional,” or innocent, discrimination has contributed to a hampered social understanding of intent, blame, and accountability with respect to racial justice. Second, ominous tension between the Fourteenth Amendment Equal Protection Clause and the disparate-impact theory lingers. Third, as a practical matter, there is an increasingly high bar for plaintiffs to prove that a particular discriminatory practice is not “necessary” for an institution, or that a particular practice “caused” a disparate impact, both components that courts have required under the current doctrinal framework. Lastly, federal agencies have inconsistently enforced it as an anti-discrimination tool, despite agencies clearly being the most empowered to do so. These factors may be the reason for the relatively low number of school discipline disparate-impact cases that get litigated and the low success rates for disparate-impact plaintiffs. Regardless, the theory has undeniably struggled with eliminating facially neutral, discriminatory practices, including in the school discipline context.

The disparate-impact framework, weaknesses notwithstanding, is currently the only doctrinal structure available for claims challenging ostensibly neutral practices that discriminate against Black Americans. Insofar as neutral policies are the most pervasive forms of discrimination, a grave impediment to social justice for Black Americans thus exists.

Here enters the Thirteenth Amendment. This first of the Reconstruction Amendments was ratified in 1865 to officially confer freedom to Black Americans whom had been enslaved. Several scholars have offered the Amendment as a theoretically available alternative for the work of traditional disparate-impact claims. This is arguably in large part due to the Supreme Court's declaration a century after the Amendment's ratification that the Amendment empowered Congress to pass legislation abolishing “all badges and incidents of slavery.”

Those remarkably simple collection of words interpreting the Thirteenth Amendment create a powerful opportunity for social change. Others have recognized this, even as the flailing disparate-impact theory continues to be endorsed, as is. Absent from that scholarship is a comprehensive discussion of the distinct advantages to basing in the Amendment those claims that would otherwise be governed by the floundering disparate-impact theory. This Article fills that gap. It explains why the disparate-impact theory's shortcomings highlight the need for a renewed reliance on the Amendment to challenge facially neutral policies that discriminate against Black Americans. The aim here is to make evident the utility of the Thirteenth Amendment as a supplemental tool for challenging facially neutral policies that discriminate, not a replacement for the disparate-impact theory.

This Thirteenth Amendment approach is appropriate for several reasons. It could overcome the disparate-impact theory's current weaknesses and its practical hurdles that have been roadblocks for any meaningful racial justice for Black Americans. The Amendment's history moreover reveals that its aim to remove all “badges and incidents” of slavery is, in several respects, inclusive of the same antidiscrimination goals the disparate-impact framework was originally intended to accomplish for Black Americans: eradicating the present effects of past discrimination. Indeed, the Supreme Court has repeatedly--and explicitly--left open the question of whether the Amendment encompasses practices with a disparate impact. And compellingly, the Thirteenth Amendment departs from the Fourteenth Amendment (the constitutional source of most racial justice claims) in that the Thirteenth Amendment not only can be race-conscious in its implementation, but arguably should be.

As part of this approach, Congress must assume its responsibility to enforce the Thirteenth Amendment by enacting legislation prohibiting neutral practices and policies that discriminate against Black Americans. This legislation would first require making clear and reasonable determinations that certain circumstances or injuries amount to badges and incidents of slavery. Claims, particularly those that might otherwise have been unsuccessfully challenged under the current statutorily based disparate-impact theory, would flow from what should be more unencumbered congressional findings. This straightforward approach is supported by the Amendment's social and legislative histories, as the Amendment's proponents viewed the notion of post-slavery freedom richly and expansively. The histories also illustrate Congress's special role in enacting legislation that would illuminate and operationalize these constitutional values. Lastly, this congressional approach to the Amendment's enforcement would eliminate the issues that often pose problems for disparate-impact plaintiffs challenging discrimination.

To emphasize the potential for the Thirteenth Amendment in this regard, I explore its applicability to a context in which the disparate-impact theory has been most regularly employed: challenging school discipline practices in public education. The school discipline phenomenon holds discursive value in this Article because it most consistently receives national attention with respect to the disparate-impact concerns in schools--as evidenced by the plethora of advocacy reports, public-facing government documents, and media attention relative to other disparate-impact issues. This Article's focus notwithstanding, I do not mean to suggest that only discrimination that the disparate-impact theory has been used to challenge would be appropriate for Thirteenth Amendment claims. Nor do I mean to suggest that school discipline be the sole education equity issue the Thirteenth Amendment might implicate. Indeed, the Amendment's social and legislative histories confirm that others agreed with Black Americans who viewed attaining an education as one of the most significant attributes of freedom. Real freedom would have to mean, among other important things, the absence of any barrier to public education for Black Americans.

These include barriers like discriminatory school discipline policies. The U.S. American tradition of policing Black American bodies is informed by perceptions and social domination practices that are, if not identical, very clearly rooted in the same views and social customs that either underlay or helped perpetuate the United States's enslavement of Black Americans. Accordingly, this Article holds that Congress should lead the way in enforcing the eradication of race-based policing in schools as a violation of the Thirteenth Amendment to the extent that such practices continue to impede real freedom. In outlining a potential application of the Thirteenth Amendment to racially discriminatory school discipline policies, the Article offers a potential alternative for generally challenging racial disparities in education or pursuing antidiscrimination litigation in other contexts altogether.

I structure this Article in three Parts. In Part I, I provide a brief overview of the current disparate-impact framework's doctrinal requirements and a discussion of its original aim regarding discrimination against Black Americans. I include, as a specific example, the disparate-impact standards under Title VI of the Civil Rights Act of 1964 with respect to challenging discriminatory public-school policies. I then discuss the specific reasons the disparate-impact theory's power for accomplishing racial justice for Black Americans generally has suffered. I turn to the Thirteenth Amendment in Part II, where I discuss the Amendment's relatively limited jurisprudence, in part to emphasize the sound legal foundation for utilizing the Thirteenth Amendment as a basis for antidiscrimination litigation. I next explore the legislative and social histories of the Amendment to illuminate why courts and legislators should liberally understand the concept of “freedom” for Black Americans to ensure the most faithful consideration and enforcement of claims brought under the Amendment that challenge racial discrimination. I note how such a concept of freedom necessarily encompasses the removal of discriminatory public-school discipline policies. In Part III, after connecting the common antidiscrimination goals of the Thirteenth Amendment and the disparate-impact theory, I endorse a two-part standard Congress could apply to reach a finding that racially discriminatory practices--like zero-tolerance public-school discipline policies--constitute a “badge and incident” of slavery and therefore are prohibited by the Amendment. I then explain Congress's special authority to enact legislation based on such a finding and the relevant constitutional and political considerations. I end with a discussion of how the Thirteenth Amendment approach to barring facially neutral policies' discrimination against Black Americans can avenge the current weaknesses of the traditional disparate-impact theory.

[. . .]

Two years ago marked the anniversary of when many acknowledge that some of the first enslaved Africans arrived to the shores of what is now the United States. Those ultimately enslaved in the United States would be subjected not only to inconceivable violence and physical subjugation, but also a complex social and political apparatus of domination primarily configured by a white American imagination. Slavery went beyond the legal ownership of humans and was comprised of “an entire system of conventions, understandings, practices, and institutions that conferred power and social status and maintained economic and social dependency.” To justify their treatment of those they enslaved, white Americans created a powerful myth of Black American inferiority that dehumanized them. Black Americans' dehumanization was essential to the maintenance of slavery as an institution; without that treatment, the American promise of liberty and equality among all of its citizens could not be taken seriously. And one of the many other powerful ways of reinforcing this dehumanization and controlling Black Americans was the creation of barriers to public education.

Most accept that the Thirteenth Amendment was to end slavery in its physical form. Less appreciate the Amendment's purpose to outlaw more than that. This is so despite what both legislative history and the views of then-contemporary Black Americans suggest about how actual freedom was conceptualized. To Black Americans, legislators, and others, freedom meant, among other things, being educated without encumbrance. Supreme Court precedent--with its focus on Congress's role in removing the “badges and incidents” of slavery under the Thirteenth Amendment--echoes the truth of this broad conceptualization of freedom.

While the Thirteenth Amendment resulted in the removal of bondage and forced servitude, the deeply entrenched myth of Black American inferiority persisted. It is that myth of Black inferiority with which the United States still contends today in its quest for racial justice. As Saidiya Hartman writes:

If slavery persists as an issue in the political life of black America, it is not because of an antiquarian obsession with bygone days or the burden of a too-long memory, but because black lives are still imperiled and devalued by a racial calculus and a political arithmetic that were entrenched centuries ago. This is the afterlife of slavery--skewed life chances, limited access to health and education, premature death, incarceration, and impoverishment.

One of the many aspects of slavery's “afterlife” is racially discriminatory school policies in public schools. The same myths of inferiority that were created and perpetuated to justify and maintain slavery-- specifically, Black Americans' inherent intellectual inferiority and social deviancy--inform, if not justify, discriminatory school policies concerning discipline and punishment. And those same policies have the effect of creating access barriers to Black Americans' education, again, a key feature of the system of slavery.

It is for these reasons that the Thirteenth Amendment is a more than appropriate legal ground for challenging ostensibly neutral, but racially discriminatory, school policies. These are policies that disproportionately enact violence on Black American bodies, feed Black American children into prisons, and deprive Black Americans of meaningful life opportunities. Freedom from such practices--a freedom defined by more than not being in physical bondage--is a more “practical” freedom, that which Reconstruction Senator Trumbull defined as the mechanism by which “each individual has the power to pursue his own happiness according to his own views of his interest and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws.” This is the form of Black American liberation that the Thirteenth Amendment imagined. And it is this kind of practical freedom that is in the spirit of that radically new “Re-constructed” constitutional system the Reconstruction Amendments birthed.

Bolstering the argument for the Thirteenth Amendment as home to such claims are the challenges we know those same claims would face if brought under the disparate-impact theory. In this regard, the Thirteenth Amendment is especially appropriate because of its common aims with the original intention of the disparate-impact theory to remedy the lingering effects of past discrimination. The zenith of such discrimination was the system of slavery, but the disparate-impact theory has increasingly struggled to bring about social change in a way that challenges slavery's vestiges in a meaningful way. Courts, legislators, advocates, and, crucially, the citizenry at large--would do well to join in relying on the Thirteenth Amendment to fill this gap. Doing so would not only honor both the Amendment's clear purpose and the disparate-impact theory's original intent, but also force the United States to reckon seriously with slavery's legacy.

The humiliation and violence of racially discriminatory school policies notwithstanding, such practices are hardly the most pernicious or socially injurious that are at risk of persisting if the nation fails to do so. To this point, the Article nods towards the Thirteenth Amendment's potential as salve for the failures of the disparate-impact theory in challenging race-neutral discriminatory practices in contexts beyond public education. How, for example, might other early prominent acts of freedom performed by Black Americans inform and connect to other specific sites of discrimination today?

Though legislators may not agree on how to address social issues like racially discriminatory school discipline, Congress is constitutionally empowered--and vested with the responsibility--to inquire and act under the Thirteenth Amendment to address such policies as a legacy of slavery. Congressional action holds particular advantages over judicial enforcement and would, moreover, be a critical step towards a meaningful consideration of what that legacy still brings to bear on life opportunities for Black Americans. Even good faith disagreement following a real commitment to act is preferable to what has been the functional neglect of the Thirteenth Amendment's power and promise.

Some are concerned about the Thirteenth Amendment's “risk” of being used to confront many structural aspects of our society with respect to race, in response to which I invoke Justice Brennan's implicit suggestion of the absurdity of “too much justice.” Instead, focused activation of the Thirteenth Amendment may achieve the antidiscrimination work other legal frameworks have struggled to address and challenge entrenched structural inequality, a way we move towards real freedom for Black Americans-- in schools and beyond.

Adjunct Professor of Law, New York University School of Law.

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