Bush Administration Authorizes Separate but Equal Schools

JB

Two years in the making, the new rules, announced Tuesday by the Education Department, will allow districts to create single-sex schools and classes as long as enrollment is voluntary. School districts that go that route must also make coeducational schools and classes of "substantially equal" quality available for members of the excluded sex.

The federal action is likely to accelerate efforts by public school systems to experiment with single-sex education, particularly among charter schools. Across the nation, the number of public schools exclusively for boys or girls has risen from 3 in 1995 to 241 today, said Leonard Sax, executive director of the National Association for Single Sex Public Education. That is a tiny fraction of the approximately 93,000 public schools across the country.

"You're going to see a proliferation of these," said Paul Vallas, chief of schools in Philadelphia, where there are four single-sex schools and plans to open two more. "There's a lot of support for this type of school model in Philadelphia."

Since the 1970's there have been two major arguments for separate but equal schools dividing the sexes. The first wave of arguments was that single sex education actually benefited girls; the argument was that what benefits women at elite single sex private colleges like Wellesley or Smith also could benefit girls at public elementary and secondary schools. The second wave of arguments was that single sex education benefited boys, who were often emotionally behind girls of the same age and increasingly in need of educational discipline. That argument hasn't flown as well, in part because it requires that girls' educational interests be sacrificed to boys' interests, which, of course, reminds people of pretty standard forms of sex inequality practiced over the centuries. (One federal district court held a plan for single sex education for African-American boys in Detroit unconstitutional on this ground.). Hence the current argument made by advocates of single-sex education is that it benefits both girls and boys. (One also assumes the argument is that it benefits them equally.)

It's important to note that if these arguments were made for the constitutionality of educating whites and blacks separately, they would almost certainly fail. It's also important to note that the issue presented here is different from affirmative action programs, which courts have sometimes upheld under a strict scrutiny analysis. Affirmative action does not separate the races, it integrates them by including more minorities in majority white schools; the constitutional problem with affirmative action is that it employs overtly racial criteria to achieve this goal. Sometimes courts hold that this is constitutional, other times they hold that it is not. A school policy that required blacks and whites to attend separate schools, even based on purported educational benefits, would bear a very heavy burden of proof, and if there were any way to improve test scores without employing separate but equal, the program would fail.

Under current law, sex discriminations must be based on an exceedingly persuasive justification to survive a constitutional challenge. Assuming that improving test scores is a sufficiently important interest, state run or supported schools must show that they could not achieve these benefits without the separation.

Back in 2002 I wrote an short essay on an earlier version of these regulations for the Journal of Blacks in Higher Education. They wanted to know about the consequences of such a policy for African-American children, and whether single sex education might lead to single-race education. The essay is shaped with those concerns in mind. But I hope that it also gives you some insight into what the constitutional issues are and why Americans have viewed separating the sexes differently from separating the races. The focus of the essay is also important because many of the arguments for single-sex education are now being made not for the benefit of suburban schools but for charter schools in inner city areas, so questions of sex, race, and class are inevitably combined.

The key issue, as I explain below, is whether single-sex education revives old stereotypes about women's roles, whether single sex education sacrifices girls' interests to benefit boys, and finally, whether single-sex education is a cheap fix that does little to solve longer term issues of quality education in inner-city schools. These are key questions to consider in assessing whether the new Bush Administration regulations are constitutional.

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Balkin, Jack M. "Is There a Slippery Slope From Single-Sex Education to Single-Race Education?" The Journal of Blacks in Higher Education (August 2002).

The Bush Administration has recently issued regulations permitting school districts to experiment with same-sex classes for elementary and secondary schools, arguing that in some cases separation of the sexes might help the educational process. The announcement of this experimental program has been greeted with only mild controversy in the daily papers. This in itself says a great deal about how the law of equality has developed in the United States in the past half century. The Bush Administration did not dare suggest the possibility that students might benefit from single-race schools, or from schools solely for Latino youth. After all, the canonical event in American civil rights law is the decision in Brown v. Board of Education, which held that schoolchildren could not be deliberately separated on the basis of their race. Yet single-sex education continues to exist in this country; and the U.S. Supreme Court has never squarely held that single-sex education in elementary and secondary schools is forbidden.

The Bush Administration's recent proposal suggests two related questions: First, why isn't single-sex education as troublesome as single-race education? Second, if single sex-classes could have genuine educational benefits, why wouldn't single-race classes for African-American children?

To answer these questions, we need to understand how race discrimination differs from sex discrimination. But more importantly, we must understand how these two forms of inequality have interacted with each other and with inequalities of class--in American history. That is because one cannot evaluate calls for single-sex education or single-race education for that matter-- without paying attention to the economic inequalities they tend to obscure.

The primary methods of unjust subordination of blacks in American history have been degradation and separation; for women they have been paternalism and role differentiation, emphasizing women's special responsibilities as caretakers. So whites-only policies always meant something different from men-only policies. Separation of blacks signaled their social inferiority and their enforced separation from white society. By contrast, separation of women actually reinforced their connection to men and their roles as men's wives, mothers, and daughters. While gender discrimination presumed that women would play a subordinate role within families headed by men, race discrimination was premised on keeping black and white families separate, so that they would not be social equals.

For these reasons single-sex education has never carried the same social meanings as single-race education. Moreover, as University of Chicago legal historian Jill Hasday has pointed out, single-sex education has always possessed a more benign connotation precisely because of the ways that it intersected with and reinforced class and race discrimination.

When we think of single-race schools, we think of dilapidated schoolhouses for blacks in the Jim Crow era; when we think of single-sex schools, we think of Wellesley. This is no accident. Single-sex education for women was an instrument of class inequality: it was originally reserved for elites, particularly in the East, in order to prepare women for life in society, and this led to its contemporary image as being largely innocuous, genteel, and even beneficial for women. Single-sex education for women, particularly at the university level, was a sign of class position, given that lower class women often received little education at all. This contrasts markedly with racially segregated education: Rich and poor whites alike were segregated from blacks because racial segregation confirmed and established white superiority and white solidarity, which was particularly important for lower class whites.

In fact, sex segregation in public schooling was connected in important ways to race segregation; especially after the decision in Brown v. Board of Education. Separating the sexes prevented mixing white women with black men. In the Jim Crow era, schools for blacks were usually not segregated by sex, because legislatures did not care much about the possible corruption of black women.

A recurring theme in calls for sex-segregated education has been the need to keep boys from being distracted by girls. Put another way, women were often seen as a cause of men's lack of success, so that it was necessary to separate them in order to ensure that men thrived. In the case of private religious schooling-- to which some poor and middle class parents might aspire-- single-sex education was a symbol of moral rectitude, suggesting the ability of school officials to instill proper ( i.e. traditional) values in their charges. Only much later did the notion gain credence that sex segregation allowed women to develop self-esteem so that they could effectively compete with men.

These historical facts tend to suggest why single-sex education carries very different freight than single-race education. Single-sex education, especially in private schools, was a symbol of economic status for women, not a symbol of material deprivation. That made it easier to for it to survive the second wave of American feminism in the 1960's and 1970's. Its elitist origins allowed it to be reinterpreted as an educational device that helped women become leaders and that even poor and middle class girls could aspire to and benefit from. Conversely, coeducation often did not guarantee an end to gender steering in programs and instruction, an end to separate facilities and programs for men and women, or equal opportunities for women, as one can witness from the continuing struggles over Title IX and women's athletics.

Today, when we think about proposals for single-sex schooling, we should keep in mind that both elements of race and class will inevitably be involved. One should have no illusions that simply because single-sex education seems benign in schools like Wellesley or Smith that it necessarily is so when it is transposed out of the paradigm of elite women's education and placed in the setting of inner-city schools In the urban setting, single-sex education tempts school administrators to focus on the interests of black boys to the detriment of black girls. It repeats in racialized form the familiar idea that girls are the cause of boys' lack of educational success and that boys must be kept free of distraction. Single-sex education may seem to serve the goals of class equality and upward mobility because it gives poor families something that only rich families were once able to afford, as well as offering the promise of discipline and moral rectitude. Yet it can also unwittingly become a method of preserving traditional gender roles for women. Perhaps most importantly, it can be embraced as a relatively cheap solution to educational problems in urban schools that diverts attention from severe long term problems of inequality and lack of educational opportunity in public education. Given a fixed educational budget, dollars could better be spent on improving general educational quality than on creating single-sex schools and classrooms.

As for the possibility that single-race schools might improve educational opportunity, the answer is quite simple: America already has plenty of single-race schools. They have been produced by the de facto segregation that reigns in this country fifty years after Brown v. Board of Education. A recent study by the Civil Rights Project at Harvard's John F. Kennedy School of Government estimates that more than a third of the nation's black schoolchildren currently attend schools with a minority enrollment of 90- 100%, and the percentage of black schoolchildren who attend such schools has been rising since the mid 1980's. There is no evidence that this de facto segregation has worked to the advantage of black and Latino children. If it has worked to the advantage of white children in suburban school districts, it is because those schools generally have vastly superior resources. Given these facts, it is highly unlikely that moving from de facto to de jure separation of the races will improve the lot of African-American or Latino children.

Separation of the races, like separation of the sexes, is a diversion from the real issue: educational equality in funding, resources, and attention.

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. His latest book is "What Brown v. Board of Education Should Have Said" (N.Y.U. Press 2001).