Copyright (c) 2004 San Diego Law Review Association
San Diego Law Review
SYMPOSIUM: REMEDIES DISCUSSION FORUM: Ubi Jus, Ibi Remedium: The Fundamental Right to a Remedy Under Due Process
41 San Diego L. Rev. 1633
TRACY A. THOMAS*
One of the legacies of Brown v. Board of Education is its endorsement of affirmative remedial action to enforce constitutional rights. 1 In the companion cases of Brown I and Brown II, the United States Supreme Court rejected mere declaratory or prohibitory relief in favor of a mandatory injunction that would compel the constitutionally-required change. 2 Disputes over the parameters of this active remedial power and compliance with the ordered remedies have dominated the ensuing decades of post-Brown school desegregation cases. 3 These enforcement disputes have overshadowed the importance of Brown's establishment of a remedial norm embracing affirmative judicial action to provide meaningful relief. This Article seeks to salvage that remedial norm by grounding it in the Due Process Clause of the Fourteenth Amendment. Arguing that the right to a remedy is a fundamental right, this Article suggests that a strict scrutiny calculus must be used to justify the denial of a remedy.
Disputes over remedies provide a convenient way for dissenters to resist conformance to legal guarantees. 4 Courts can declare rights, but then default in the remedy to avoid a politically unpopular result. The same pull and tug of Brown's remedial norm seen in the desegregation cases is present today in the school funding cases. 5 While plaintiffs generally have been successful in these cases challenging the financial disparities between poor and rich school districts, "winning the case has not been the same as winning the remedy." 6 Defendants continue to balk at declarations of unconstitutional ...
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