Is Separate Always Unequal? A Philosophical Examination of Ideas of Equality in Key Cases Regarding Racial and Linguistic Minorities in Education

Abstract

Advocates for language minority students depict the movement for language minority students’ rights as an outgrowth of the civil rights movement, which focused initially on securing rights for racial minorities. This article examines whether the same conceptions of equality and legal remedies apply for both groups. Building on Berlin’s notions of negative and positive liberty, I identify two conceptions of equality evoked in key legal cases regarding racial and linguistic minorities: negative equality, which consists of removing morally untenable discriminatory practices to ensure equality via similar treatment, and positive equality, which consists of ensuring equality by customizing treatment depending on a group’s particular needs. While these two conceptions of equality may appear at odds, I propose that the least restrictive environment standard, emanating from disability law, can serve to reconcile the two, holding that negative equality is paramount but positive equality may sometimes be necessary in time-bound, limited contexts.