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Law and Humanities Interdisciplinary Junior Scholar Workshop
June 1-2, 2003
“Separate Can Never Be Equal”:
Sex Segregation, Racial Desegregation, and the Law, 1969-1977
Serena Mayeri[†]
“[T]he sole grievance . . . is that complainant’s children, being of African descent, are not allowed to attend the same public schools as those in which children of white parents are educated. White children and colored children are compelled to attend different schools. That is all. The state . . . had the right to manage its schools in the manner which, in its judgment, will best promote the interests of all. The state may be of the opinion that it is better to educate the sexes apart. By such a policy can it be said that the equal rights of either sex are invaded?”
—Louisiana federal judge, 1878.[1]
“In the context of a charge that segregation with equal facilities is a denial of equality, is there not a point in Plessy in the statement that if ‘enforced separation stamps the colored race with a badge of inferiority’ it is solely because its members choose ‘to put that construction upon it’? Does enforced separation of the sexes discriminate against females merely because it may be the females who resent it and it is imposed by judgments predominantly male?”
— Columbia Law Professor Herbert Wechsler, 1959.[2]
In the century following the Civil War, when courts and legal scholars considered the relationship between educational segregation by race and the separation of the sexes, it was to rationalize the legality of the former by invoking the naturalness of the latter. Whether they believed segregation to be salutary or regrettable, innocuous or obnoxious as a matter of policy, the comparison to sex separation legitimated these commentators’ judgment that racial segregation did not offend the Fourteenth Amendment to the United States Constitution. In 1878, a federal court in Louisiana rejected a challenge to racial segregation in the state’s public schools, declaring that “Equality of right does not necessarily imply identity of rights.”[3] If the constitution’s equal protection guarantee prohibited racial separation, the court went on to suggest, the equality principle would also mandate “educating children of both sexes, or children without regard to their attainments or age in the same school.”[4] Such a result was clearly absurd.
Eight decades later, Columbia Law Professor Herbert Wechsler wondered, in a famous and widely read critique of the Supreme Court’s reasoning in Brown v. Board Education, whether it was appropriate “to make the measure of validity of legislation the way it is interpreted by those who are affected by it.”[5] To emphasize his point, he asked, rhetorically, whether segregation of the sexes constituted discrimination merely because women objected to its imposition by male authorities. For him, the answer was clearly no. The unquestioned legitimacy of sex segregation reinforced his suggestion that, however distasteful racial prejudice might be, Southern localities breached no constitutional equality guarantees when they segregated schoolchildren by race, provided facilities were comparable.
By the late 1960s, however, Brown was firmly entrenched constitutional doctrine, however elusive its effective implementation and popular acceptance remained. After dragging their feet or openly resisting integration for fifteen years, many Southern school districts faced newly stringent desegregation orders requiring the submission and implementation of specific plans subject to judicial approval. Offering parents and students “freedom of choice” in selecting local schools had proven ineffectual, so courts now required detailed blueprints for integration from school authorities. In 1969, a series of judicial decisions mandated what many white southern public school systems had thus far managed to avoid: enrolling white children in schools alongside African American boys and girls.[6] Local officials reacted in a variety of ways: many issued public statements of defiance and then grimly set about the task of grudging compliance; others endorsed the surreptitious—or unabashed—public funding of private white academies.
Meanwhile, coeducation, already pervasive at mid-century, was spreading even to the upper echelons of secondary and higher education as Northern elite institutions like Andover, Choate, Stuyvesant, Bronx Science, Harvard, and Yale admitted women or merged with their female counterparts, and a few prestigious women’s colleges, such as Vassar and Sarah Lawrence, opened their doors to men. While coeducation was by no means universal, the remaining smattering of single-sex schools and colleges had become isolated exceptions to the general coeducation rule.[7] Moreover, as the women’s movement gained momentum, calls for the extension of educational and employment opportunities previously denied to women grew more insistent. For many, single-sex schools were relics of an oppressive past, representing the stifling of female ambition and the denial of female achievement.[8]
Just as many of the remaining single-sex Southern public universities were opening their doors to students of both sexes, a number of school districts, faced with the prospect of racial integration and the accompanying specter of “race-mixing,” turned to sex separation as a palliative measure to minimize the “disruption” of desegregation. If school districts could comply with court orders without sending white girls to school with black boys and black girls to school with white boys, officials suggested, perhaps white parents could be convinced to remain within the public school system. Some couched their arguments in terms of economic efficiency or educational soundness, but the acknowledged purpose of many of the single-sex plans was to ease whites’ transition to integrated education, thereby avoiding white flight to newly established segregated academies. If white parents’ resistance to integration stemmed primarily from a fear of interracial sexual contact, the reasoning went, single-sex schools would make racial desegregation far more palatable.
African American families and civil rights organizations were less enthusiastic about sex separation as a “remedy” for racial desegregation. In expressing their opposition to single-sex schools, they articulated what was objectionable about sex separation in the context of racial desegregation; in so doing, they identified and constructed the meanings of sex separation, racial integration, and the relationship between the two. In the Southern desegregation context, sex segregation was clearly a racial harm from start to finish. But during the 1970s, the legal system became increasingly responsive to sex discrimination as an injury worthy of redress. With feminists extending legislative gains and winning new judicial breakthroughs, opponents of sex segregation schemes in racial desegregation plans were increasingly inclined to turn to sex discrimination theories as a primary legal tool.
Meanwhile, a parallel debate was underway in the North about the legitimacy of public single-sex secondary education in and of itself. In the late 1960s, some of New York City’s most prestigious public schools ceded to demands that they open their doors to girls. By the early 1970s, the coeducation crusade had spread to other cities, including Philadelphia, where the two most elite public schools—Central High School and the Philadelphia High School for Girls (“Girls High”)—remained single-sex. On the Northern front of the single-sex education controversy, sex separation also maintained a close and important relationship to racial segregation. But although this debate occurred contemporaneously with bitter disputes over busing, opponents of sex separation in the Northern context tended to see the two phenomena as analogous rather than intertwined. Here, sex separation functioned not an antidote to racial integration, but rather as a practice arguably parallel to racial segregation in its effect on equal educational opportunities for male and female students. Almost inevitably, disputants framed sex segregation by way of an analogy to racial segregation, a comparison that could be both an asset and a liability for opponents of single-sex schools. The debate over single-sex public schools also intersected with larger legal processes set in motion in the 1970s, as women’s rights activists pioneered a constitutional agenda in the Supreme Court. Beginning in 1971, a series of Court decisions for the first time struck down laws that discriminated against women.[9] In the years that followed, the ACLU Women’s Rights Project, led by Ruth Bader Ginsburg, attempted to convince the Court that sex-based legal classifications deserved special scrutiny. Meanwhile, feminists also pushed for Equal Rights Amendments to both the federal and state constitutions, and pursued legislation designed to equalize educational and employment opportunities for women and men. This constantly evolving legal and constitutional backdrop played an important role in the controversies over single-sex schools in both the elite public secondary education and the racial desegregation contexts, shaping the legal trajectories of both disputes.
This paper is part of a larger project that considers these two debates—over sex segregation in racial desegregation plans in the South, and over elite public secondary schools in the North—together. For the purposes of this workshop, I will discuss in detail the first debate, with occasional references to the second. I will trace the evolving debate over sex segregation from initial proposals in the 1950s, to implementation in the 1960s, and challenges to single-sex public schools in the 1970s. I argue that when sex segregation was first proposed as an antidote to white fears about racial integration, two things were clear: the anti-miscegenation motivation behind the proposals for single-sex schools, and the unproblematic constitutional status of sex segregation per se. Those who were concerned about constitutional challenges to such plans worried that courts might perceive their underlying motivation as imposing a racial “badge of inferiority” similar to the psychological harm outlawed in Brown. The notion that sex segregation might be sex discrimination did occur to some in the context of higher education, but even in that realm—historically more receptive to civil rights claims than primary and secondary schools—constitutional challenges in the late 1950s came to naught.
When a smattering of school districts throughout the South implemented sex separation in the wake of desegregation orders at the end of the 1960s, the question courts asked was whether the plans motivated by “racial discrimination” or by legitimate “educational purposes.” Over the course of the 1970s, as feminists developed legal tools to fight sex discrimination, and existing civil rights organization became more receptive to such claims, the legal debate over sex segregation in racial desegregation plans shifted. No longer was the legal discourse just about race and about barely submerged fears of interracial sexual contact; now it was also about the sex discriminatory intent and effect of sex segregation. This shift had significant ramifications for how lawyers and judges argued about sex segregation, but it also revealed that neither of these legal categories encompassed all of the harms perceived by African American families and local civil rights organizations. While many elite white Southerners cherished a venerable tradition of sex segregation, rendering the concept somewhat familiar to whites of lesser means, African Americans had always educated boys and girls together. This coeducational legacy helped to enable African American communities to articulate the harm of sex segregation in a manner that did not sharply differentiate race- and gender-related harms and thus in terms that existing paradigms of race and sex discrimination could not capture. While the legal discourse had expanded to cover an additional axis of discriminatory harm, with significant consequences for disputes over sex segregation in and out of court, legal concepts of race and sex discrimination nevertheless retained significant limitations as meaningful encapsulations of the injuries of sex segregation.
Civil rights and feminist advocates hoped for a conclusive resolution from the courts of whether sex segregation could be constitutionally valid, and if so, under what circumstances. It was not to be. In 1977, a pair of cases left the issues muddier than ever: in the Mississippi desegregation case United States v. Amite County School District, et al., the Fifth Circuit ruled that the Equal Educational Opportunity Act of 1974, a statute passed primarily to curtail busing, prohibited sex-segregated school assignments. In the same year, an equally divided Supreme Court affirmed without opinion a Third Circuit ruling that Philadelphia’s elite public boys’ school, Central High, was not constitutionally impelled to admit Susan Vorchheimer. Neither decision resolved the many unanswered questions about sex segregation and its relationship to racial segregation and desegregation. Nevertheless, the debate over the pedagogical desirability and constitutional legitimacy of sex segregation had been transformed forever.
“Not Even the Present Court Can Call It Unconstitutional”
Once upon a time, Jim Crow’s minions could muster the unquestioned legitimacy of sex segregation into service to justify and naturalize the separation of the races in public schools. To deem segregating black and white schoolchildren impermissible was as ludicrous to the Bertonneau court in 1878 as challenging the separate education of boys and girls. When Herbert Wechsler sought to vindicate “neutral principles” of constitutional law in 1959, the widespread acceptance of sex segregation as constitutionally unproblematic served for him as a basis for viewing racial segregation as equally within constitutional bounds. Though the constitutionality of racial segregation had come under escalating attack since the 1930s, challenges to sex separation were only just beginning to surface in the 1950s. As such, sex separation was a logical antidote to racial desegregation for many legislators and commentators who addressed the problem of racial integration after the Brown decision transformed the constitutional landscape in 1954.
In fact, even before the bombshell of May 17, 1954, at least one state anticipated the need for a contingency plan in case the days of school segregation were numbered. The Alabama legislature authorized sex separation in public schools in 1953,[10] and over the next four years, Tennessee[11] and Florida[12] followed suit, passing permissive legislation of various kinds. In 1955, former Connecticut Senator Hiram Bingham wrote a highly publicized letter to South Carolina Governor James F. Byrnes proposing sex segregation as an alternative to appease those who urged the abolition of public education if the state were forced to racially desegregate.[13] In 1959, segregationists in the Virginia House proposed a bill that would mandate the permanent discharge of any teacher who allowed coeducational classrooms.[14] Though this extremist approach did not win legislative approval, the Charlottesville schools initiated a sex separation ‘experiment’ for the 1959-60 school year.[15] Meanwhile, several school districts in Louisiana turned to sex separation after a 1960 law authorized the practice on the eve of a bruising battle over integration in New Orleans.[16]