Op-Ed - 01/01/97
Single Sex Education
Who Should Decide About Single-Sex
Anita K. Blair
The Post's editorial "Junior High and VMI" (Sept.
7) raises some strong issues concerning the fate of the Young Women's Leadership
School in East Harlem and other single-sex education experiments after
the Supreme Court decision against the Virginia Military Institute. Regrettably,
that decision provides powerful support to opponents of those programs.
The American Civil Liberties Union, the National
Organization for Women and others argue that the East Harlem school, as
a public program, may not exclude any qualified individual merely based
on his or her sex. The VMI decision says exactly that, and it allows no
excuses based on what girls or boys of any age or situation want or need.
Most people trust the media's assurances that
the Supreme Court's recent ruling affects only VMI and The Citadel. Few,
it seems, have actually read Justice Ginsburg's 41-page opinion. In fact,
Justice Ginsburg in VMI crafted a new Equal Protection standard, "skeptical
scrutiny," which applies to all state laws and state actions classifying
persons by gender.
Formerly, states could treat men and women differently
if the practice was "substantially related to important governmental objectives."
Now, to survive skeptical scrutiny, states must demonstrate "an exceedingly
persuasive justification" for treating the sexes differently. Specifically,
no justification will be found persuasive if it relies on "overbroad
generalizations about the different
talents, capacities or preferences of males and females."
How does this test work? In the VMI case, the
lower courts credited expert testimony that single-sex schools are pedagogically
valid and effective because of developmental differences between male and
female adolescents. Justice Ginsburg excluded all such testimony, saying,
"State actors controlling gates to opportunity, we have instructed, may
not exclude qualified individuals based on 'fixed notions concerning the
roles and abilities of males and females.'"
Would a "truly equal option" for boys, as the
Post suggests, cure New York's constitutional problem? Well, what real-world
school board would vote to subsidize a program that teaches boys "self-esteem"
and limits their athletics and sports programs to those enjoyed by the
girls across the street? Yet, if educators fashioned a parallel program
aimed at boys' needs and tried to exclude girls, they would flunk skeptical
scrutiny, which disallows any justification based on "generalizations"
about either sex.
The Post's editorial ended with a prayer that
the courts - George Will calls them "our robed masters" - will "find room
for" some single-sex educational programs. The Constitution was originally
intended to let the people, through their elected representatives, decide
such matters. Indeed, the people of New York, Virginia and elsewhere, including
countless parents and teachers, support having the option of public single-sex
education for their daughters and their sons.
As dissenting Justice Scalia predicted, and the
East Harlem case illustrates, the VMI decision makes it legally impractical
and financially impossible to establish single-sex programs in public systems.
The majority of justices who voted against VMI were unmoved by facts, experience,
logic or common sense. We might as well pray, burn hecatombs and sacrifice
some youths. Maybe then the High Court in Washington will heed us, the
Ms. Blair is Executive Vice President and General
Counsel of the Independent Women's Forum and author of its amicus curiae
brief in the Supreme Court case, supporting Virginia and VMI. She is also
a member of the VMI Board of Visitors.