When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law

This Article addresses the problem of leveling down as a response to discrimination. Existing case law and legal scholarship generally assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or worsening the treatment of the favored group until they fare as badly as everyone else. The term “leveling down” refers to the latter response. This Article contends that courts and commentators have overstated the flexibility of equality rights in accepting leveling down as a response to inequality, and proposes a new framework that focuses on the expressive meaning of leveling down and its compatibility with a norm of equal concern. It concludes with a section demonstrating how the proposed analysis would enrich the debate among legal scholars over the normative appeal of equality rights