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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
(Condensed Version)
Serena Mayeri
In the century following the Civil War, when courts and legal scholars considered the relationship between educational segregation by race and by sex, it was to rationalize the legality of the former by invoking the naturalness of the latter. As late as 1959, Herbert Wechsler wrote, in his famous article “Toward Neutral Principles of Constitutional Law”:
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?[1]
To Wechsler, the answer was clearly “No.” The unquestioned legitimacy of sex segregation reinforced his conviction that, however distasteful racial prejudice might be, Southern localities breached no constitutional equality guarantees when they segregated schoolchildren by race, assuming they provided comparable facilities.
In the long run, Wechsler’s critique of Brown did not catch on. But when racial desegregation seemed imminent in the months and years after Brown, numerous commentators, politicians, and casual observers suggested a perfect—and constitutional—“solution” to integration: to segregate white and black students by sex. If white Southern parents’ violent reactions to the prospect of desegregation stemmed from a visceral fear of widespread “miscegenation,” then what better to calm their fears than a scheme that would keep black boys away from their white daughters? In anticipation of the desegregation decision, Alabama had already passed legislation permitting sex segregation in public schools, and by the early 1960s, Tennessee, Florida, Louisiana, and Virginia followed suit.[2] Though New York Times columnist Arthur Krock wondered whether sex separation was in keeping with the spirit of Brown, most assumed the constitutionality of sex segregation was a foregone conclusion. As one proponent put it, there was “one form of segregation which is perfectly legal…This is segregation of the sexes. Not even the present court can call it unconstitutional.”[3]
When sex segregation was first proposed as an antidote to white fears about racial integration, two things were clear: first, the anti-miscegenation motivation behind the proposals for single-sex schools, and second, the unproblematic constitutional status of sex segregation. When a smattering of school districts across the South began to implement sex separation in the wake of desegregation orders at the end of the 1960s, the question courts asked was whether the plans were 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 organizations 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 not only had significant ramifications for how lawyers and judges argued about sex segregation; it also revealed how the legal categories “race discrimination” and “sex discrimination” failed to encompass all of the harms identified by the African American families and local civil rights organizations who challenged 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, the Fifth Circuit ruled that sex segregated pupil assignments were prohibited by the Equal Educational Opportunity Act of 1974.[4] 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 girls. Neither decision resolved the many unanswered questions about sex segregation and its relationship to racial segregation and desegregation. Nevertheless, the terms of the debate over the pedagogical desirability and constitutional legitimacy of sex segregation had been transformed forever.
There was very little actual school desegregation in the decade after Brown. Though token desegregation occurred in some formerly all-white schools under so-called “freedom-of-choice” plans, in 1969 virtually no white children attended historically black schools. In the wake of the Supreme Court’s decision in Green v. New Kent County School District, school districts were finally required to submit and implement concrete plans for desegregation.[5] In a number of districts in Louisiana, Mississippi, Tennessee, and South Carolina, those plans included some form of sex segregation. Sex segregation was particularly appealing to school boards in districts where black students constituted a majority, and some judges who approved these plans did so on the ground that without sex segregation, white flight to private schools would result in an all-Black public school system. Others maintained that pedagogical decisions should be locally determined, and argued that, as one Mississippi judge put it, sex segregation “has behind it a certain wisdom of the ages.”[6]
However, some judges shifted the burden of proof to the school boards. In December 1969, a Fifth Circuit panel called on trial courts to distinguish whether illegitimate “racial discrimination” or legitimate “educational purposes” motivated a given sex segregation scheme. In many cases, courts postponed consideration of the issue pending the establishment of a racially unitary system, but lawyers for school districts, private plaintiffs, the federal government, and civil rights organizations had several opportunities to argue the merits of sex separation as an instrument of racial desegregation. The remainder of this paper examines how these debates evolved over the course of a pivotal decade in antidiscrimination law, the 1970s.
Defending sex separation plans against charges of racial motivation could be a tricky business for school districts where white attitudes toward racial desegregation had run the gamut from profound reluctance to violent intransigence. However, sex-separating school boards had at least three factors on their side. First, the speed with which school districts had been ordered to comply with court edicts put a premium on proposals that promised a racially unitary system in a jiffy, regardless of the plans’ other characteristics. Second, sex separation could be viewed a direct response to very real concerns that desegregation would prompt a white exodus to the private segregated academies springing up across the South. Finally, though coeducation had become the predominant mode of American schooling, sex separation in and of itself carried little of the stigma associated with racial segregation, and evoked much nostalgia for an earlier, less complicated era of gender relations.
Since few observers could misconstrue the true rationale for sex separation in the context of racial desegregation plans, some school boards tacitly admitted that purpose without conceding it outright. Attorneys for school districts whose desegregation proposals included sex separation often insisted that the alternative was an all-black public school system. More dramatically, the Amite County school board declared in a brief to the Fifth Circuit that mandating racial desegregation without sex separation would amount to the abolition of public education in their rural Mississippi community.[7] These dire predictions were not entirely without foundation. Across the South, segregationist academies proliferated, often with the help of public as well as private funds, and the vocal support of white public officials.
There was little question in anyone’s mind that, as the Christian Science Monitor wrote in 1972, sex separation was really “a palliative for white parents worried about interracial dating and marriage that they saw coming from integration.”[8] Nevertheless, school boards had to deny that, as a matter of law, their sex segregation schemes were racially motivated. Some accomplished this feat of verbal gymnastics by insisting there was no smoking gun evidence of racial motivation; others attacked the racial motivation standard itself. The assumption underlying the school boards’ arguments—indeed, the assumption underpinning the racial motivation standard itself—was that sex separation did not in and of itself pose a constitutional question. As the state of Georgia argued, “Separation by sex may well help in making racial integration work…. [but] In any event, decisions on such matters obviously do not implicate… any basic constitutional values.”[9]
Therefore, courts had merely to assert a legitimate ‘educational purpose’ for segregating boys and girls. In the early years of racial desegregation, school districts advanced three primary pedagogical justifications for sex segregation. First, sex segregation could mitigate the distractions occasioned by the presence of the opposite sex, especially during the sexually charged years of adolescence. Second, sex segregation would accommodate sex differences in learning styles, maturation rates, and societal roles: for instance, one Mississippi judge referred to authorities proving that “girl’s nature is so different from that of boy’s that a different kind of education is required”, especially after age 12.[10] Third, many sex segregation proponents argued that coeducation damaged boys in particular, and emphasized the benefits of single-sex education for male students’ academic performance and leadership abilities. According to this argument, boys forced to “conform to feminine standards of behavior” were falling behind girls, leading to an unhealthy female domination of positions of leadership.[11] A fourth rationale offered by sex separating school boards also indicates the limited extent to which sex nondiscrimination norms had penetrated legal discourse at this point. Officials in St. Bernard Parish, Louisiana trumpeted sex segregation as a money-saving device: with single-sex schools, there was no need for the “needless duplication” of state-of-the art athletic facilities.[12] Indeed, single-sex schools regularly tailored curricula to traditional gender norms, with girls’ schools providing courses in home economics and secretarial skills, and boys’ teaching vocational agriculture and industrial arts. In 1969, neither judges nor plaintiffs’ lawyers identified any constitutional problem with such arrangements.
Indeed, during the first two years of contestation over sex segregation, civil rights lawyers concentrated on establishing the racially discriminatory intent and effect of conditioning racial desegregation on the separation of boys and girls. They reminded courts that the burden to refute racial motivation rested with the defendants, and that sex separation had never been proposed until racial integration appeared imminent. When implemented solely to avoid the dreaded specter of interracial sexual contact, plaintiffs in Concordia Parish, Louisiana argued, sex separation did nothing more than “perpetuate racial segregation by subterfuge.”[13] Federal government lawyers told a federal court in Georgia that “the subtle implications of sex separation as a required factor of racial desegregation are not lost on black children.”[14]
Some judges overlooked or discounted these arguments, but other judges were convinced by the testimony of African American students and parents, who played a crucial role in prodding courts to take a closer look at the motives underlying sex separation. Concerned African Americans took other direct action: in 1970, more than 300 black parents in Amite County signed a petition expressing opposition to sex segregation, and joined with other black families throughout Mississippi to boycott white businesses that gave financial support to segregationist academies.[15] African Americans in Taylor County, Georgia kept one-third of the district’s students out of school for more than two weeks in 1970 to protest a policy banning black bus drivers from transporting girls to school.[16] Though a few prominent African Americans were willing to put up with sex segregation in order to keep white financial resources from flowing out of the public school system, most black students and parents were unwilling to make what they considered a degrading trade-off with racially offensive undertones.
This racial stigma did not disappear in the ensuing years—far from it. But as the 1970s wore on, a new element entered the sex segregation debate—the question of sex discrimination. Legal and legislative breakthroughs, including the admission of women to the University of Virginia in the 1969 Kirstein case, the passage of Title IX in 1972, and the new era in constitutional sex discrimination doctrine both effected a transformation in consciousness and provided new legal tools to combat discrimination against girls and women. An early sign of this shift came with a 1970 Chicago Law Review note by Robert Barnett, which argued that sex segregation was sexdiscrimination for the very same reasons that racial segregation constituted racial discrimination.[17] In 1974, the Louisiana ACLU filed a complaint against Jefferson Parish School Board, arguing that sex segregation in the parish’s public schools was “inherently discriminatory toward women.”[18] Meanwhile, Legal Defense Fund lawyers in Georgia and Mississippi began gathering data on the discrepancies between boys’ and girls’ schools in an effort to utilize these new legal opportunities.[19]
The most comprehensive critique of sex segregation as a form of sex discrimination came in a 1977 report by the American Friends Service Committee on Title IX implementation in Southern schools. Funded by the Ford Foundation, the report detailed violations in curriculum, school policies, athletics, and employment in six southern states, devoting an entire chapter to sex segregated schools. The report drew an extended and conscious parallel between racial and sex segregation, enumerating the disparities in curricular and extra-curricular offerings at single-sex schools in Louisiana and Mississippi. Inferior math and science courses, athletic facilities, vocational training, and employment opportunities plagued the girls’ schools, and the AFSCC report dismissed school officials’ suggestions that sex segregation enhanced girls’ leadership opportunities, noting that “the election to school office hardly equates with one’s life chances to become a scientist.”[20]
The fact that school officials’ arguments for the maintenance of single-sex schools focused on girls’ opportunities marked a significant shift in emphasis on the part of sex segregation proponents: boys’ fragile gender identities and special educational needs were no longer the focus of attention, nor were sex differences. Rather, sex discrimination discourse had shifted the debate to the disadvantage experienced by girls and young women. The AFSC monitors certainly did not abandon the argument that racial discrimination was a significant motivation for and consequence of sex segregation in Southern school districts: rather, sex and race discrimination were, in this context, not merely analogous, but intertwined.
For local black leaders and for African American parents and students in sex segregating school districts, the issues of sex and race discrimination were hardly distinguishable and seldom distinguished. Like the LDF, ACLU, and AFSC, local NAACP officials and African American families seized upon legal tools like Title IX when they appeared. But all throughout the sex segregation controversy, African Americans living in communities with sex-segregated schools advanced a wide range of arguments not always easy to classify within existing legal categories of racial motivation or sex discrimination. Unlike white families whose affluent counterparts had often preferred to educate their sons and daughters separately, African Americans historically had not possessed the pedagogical inclination, much less the material wherewithal, to segregate by sex.
This coeducational tradition likely rendered the imposition of sex segregation even more jarring to African American communities than its racial implications already ensured. Though their concerns about the discrepancies between boys’ and girls’ schools did not make it into any legal documents prior to 1972, African American parents expressed frustration from the start that their daughters could not receive vocational training, and their sons lacked access to home economics courses.[21] By 1976, after families in Amite County, Mississippi had waited almost seven years for action from the federal courts and the predominantly white school board, they held a series of mass meetings culminating in a petition to the Fifth Circuit, public demonstrations, and a tremendously effective boycott of the public schools. Of course, racial motivation and sex discrimination were among their concerns, but African American parents, students, and local officials offered a critique of sex segregation that transcended those categories. Most galling to many was the lack of self-determination inherent in the sex separation schemes. As one local NAACP press release put it, “The elements of apartheid are present: Only twenty percent of the school system’s children are white, yet the minority opinion absolutely determines policy. The races are segregated by sex in an attempt to keep Black males and white females separated, but in the process Black males are denied coeducation with Black females, [in] a total disregard for the feelings, wishes and thoughts of the Black majority.”[22] Sex segregation also seemed to many a subversion of heterosocial interaction, with dire consequences both for pedagogy and for orderly sexual behavior. In their anxiety about interracial sex, black parents charged, whites were preventing black boys and girls from socializing with one another and—according to some—were encouraging homosexuality.[23] And for many students, black and white, separation from the opposite sex signified a ludicrous adult imposition on teenage freedom.