an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
After long periods when the best education was reserved for boys and men, it seemed an advance for girls and women to develop distinct educational opportunities. Over time, co-education prevailed in public schools largely due to cost factors, but "separate but equal" historically justified elite and private single-sex education. Recently, single-sex public schools and classrooms within schools are on the rise. Between 1995 and 2007, public single-sex schools multiplied from a handful to hundreds, and public schools introduced hundreds of single-sex classrooms.
A few single-sex public school programs have long histories and mirrored elite private single sex schools in quality. Yet historically, even when offered as brother-and-sister schools, single-sex education involved more prestige and resources at the all-male institutions. When Philadelphia in 1836 created Central High--restricted to boys--it generated demand for a similar selective and rigorous public high school for girls. The district as a result created Girls' High to offer a separate public high school intended to be comparable to Central--but as their very names suggest, Central had more pride of place, more financial resources, more alumni given longer history, and wider and deeper social networks. Seeking the best education, Susan Vorchheimer challenged the exclusion of girls from Central High, and a federal District Court in 1975 agreed with Vorchheimer after identifying disparities between the schools. Finding the education at each comparable, the court nonetheless rejected the exclusion of girls from Central High because the district provided no coeducational option for students seeking a rigorous public school education. The Court of Appeals reversed, denying any constitutional violation, and the Supreme Court in 1977 let stand the Court of Appeals rejection of an equal protection challenge to the exclusion of girls from Central High. (A Pennsylvania state court later found Girls' High and Central High unequal in terms of resources, teacher qualifications, and subjects available for instrution, and directed that Central High admit girls and it is now co-ed. Girls' High officially is open to boys but no boy has ever attended). To this day, public school co-education is not mandated--and separate-but-equal seems permitted. Although a federal District Court in 1991 issued a preliminary injunction to halt an effort to creat three Afrocentric, all-male academies in Detroit, the problem was not the single-sex enrollment but instead the failure to offer comparable alternatives for girls. The same year that the Supreme Court rejected the exclusion of women from the Virginial Military Institute--and the clumsy creation of an alternative program for women produced during litigation, the Young Women's Leadership School of East Harlem opened to acclaim, becoming one of the ten National Breakthrough High Schools of 2005.
The Department of Education, under President George W.Bush, issued a rule in 2006 permitting instruction in single-sex classrooms and schools, and the rule persists today. In 2006, the Department also made clear that a district providing a single-sex school would not have to offer a corresponding or similar single-sex school to the excluded group. These separate programs may be strong, effective, and impressive. But they may also perpetuate traditional gender stereotypes. The knotty problem is that co-educational settings may do that as well.
Another key element is choice. A Louisiana middle school proposed single-sex classes--with no voluntary enrollment--based on stereotypic views of boys as hunters and girls as mothers. The ACLU threatened suit and the plan terminated. If students do not themselves have the option to choose co-education in public schools but instead are assigned to single-sex programs, is there a renewed risk of fueling old stereotypes? Single-sex programs are proposed as a partial response to rightful concern about grossly inadequate educational opportunities for poor children. If shown to work, such programs should be given a chance.
Current social science does not seem equipped to answer which kind of school yields graduation and achievements levels eliminating gender disparities--as well as reduction of gender stereotypung. Growing evidence that many boys are vulnerable and faring less well than girls in terms of school achievement and graduation rates. But it would surely improve analysis to learn what elements in schools positively affect civic equality--the perception and treatment of girls and boys as equal participants, equal learners, and people of equal worth. Separate or integrated, education should be assessed in these terms to pursue the promise of equality.