Is Separate Inherently Unequal?
Constitution Day Talk
Ohio University
September 18, 2007
Professor Ruth Colker
Heck Faust Memorial Chair in Constitutional Law
Michael E. Moritz College of Law
Theory vs. Practice
Separate is Inherently Unequal
• From Plessy v. Ferguson to Brown v.
Board of Education
• Statement arose after frustration with
one step at a time approach
• But it has been no panacea
– Justice Roberts recently used it in Seattle
School District case to dismantle raceconscious admissions plan
Disability Constitutional
Protection
• Weaker than in Race Context
– But Court has recognized right of
individuals in group homes to live in
neighborhoods
– Has recognized rights of both mentally
retarded and those with severe emotional
illness not to be subject to death penalty
Role of Statutes
• Statutes have filled the gap left by
Constitutional protections
• Today, courts might find many of those
rights guaranteed by Constitution if
statutes were repealed.
– But that is unlikely
• Statutes developed around backdrop of
race constitutional protections
Law of Disability Discrimination
• Borrowed integration presumption from
race discrimination
– Education
– Voting
– The Internet
Integration Presumption
Rethinking Integration Presumption
• IDEA measures
success on the
basis of
presence in the
regular
classroom rather
than on the basis
of performance
Continuum of Services Approach
• Make sure that school districts offer
instruction in “regular classes, special
classes, home instruction and
instruction in hospitals and institutions”
• Then, help select the appropriate choice
from this list.
Help America Vote Act
• Goal of public, accessible polling places
New Developments
• Why not bring voting to the voter in
nursing homes and other places?
• Absentee and early voting
– Essential that it be fully accessible
– Accessibility has to include the process of
requesting the early ballot itself
Similar Problem: The Internet
• Is it a “place” of public accommodation?
Home v. Public Sphere
• Should it matter where
we shop?
Your comments?