Racialized Assumptions and Constitutional Harm: Claims of Injury Based on Public School Assignment
Volume 83, No. 4, Summer 2011
By Maureen Carroll [PDF]

In a disciplinary transfer claim, a student alleges a violation of procedural due process based on an involuntary assignment to an alternative school for disciplinary purposes. Courts hearing disciplinary transfer claims have struggled with whether to recognize or accord significant weight to the injury caused by assignment to a particular public school. In contrast, the Supreme Court recently accepted that injury without discussion in the context of an equal protection challenge to a school desegregation plan. This Article argues that the different approaches result not from differences in the doctrines underlying the two types of claims, but from differences in the racial composition of the presumptive plaintiff class. The assumption that white students have educational options not available to students of color causes courts to apply a different model of educational entitlement in each type of claim. The Article concludes that courts must apply the same model in all education claims in order to avoid perpetuating racial subordination.

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