Reaching for the silver lining: Constructing a nonremedial yet "exceedingly persuasive" rationale for single-sex educational programs in public schools

Northwestern University Law Review

Volumn 96, Issue 1, 2001, Pages 367-401

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EID: 0348236954     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (252)

1. See Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381, 381-86 (1998) (discussing the "narrowing window of judicial tolerance for affirmative action").
2. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (clarifying that all government-created racial classifications are subjected to strict scrutiny); Hopwood v. Texas, 78 F.3d 932, 949-50 (5th Cir. 1996) (striking down an affirmative action admissions plan designed to increase minority enrollment at a state-run law school).
3. Lauren Cowen, A Class of Their Own: A Girls' Charter School Leaves Boys Out of the Equation, CHI. TRIB. MAG., Oct. 1, 2000, at 15 (describing community excitement surrounding the opening of an all-girls public school in Chicago).
4. See, e.g., Valerie E. Lee & Helen M. Marks, Sustained Effects of the Single-Sex Secondary School Experience on Attitudes, Behaviors, and Values in College, 82 J. EDUC. PSYCHOL. 578, 588 (1990) (describing statistical survey evidence which shows girls who attend single-sex schools are significantly more likely to attend selective colleges, pursue graduate degrees, and reject stereotypical views of women); Valerie E. Lee & Anthony S. Bryk, Effects of Single-Sex Secondary Schools on Student Achievement and Attitudes, 78 J. EDUC. PSYCHOL. 381, 394 (1986) (concluding that "single-sex schools appear to deliver specific advantages to their students" in the areas of academic achievement, future educational plans, and attitudes and behavior related to academics).
5. See, e.g., Valerie E. Lee & Helen M. Marks, Sustained Effects of the Single-Sex Secondary School Experience on Attitudes, Behaviors, and Values in College, 82 J. EDUC. PSYCHOL. 578, 588 (1990) (describing statistical survey evidence which shows girls who attend single-sex schools are significantly more likely to attend selective colleges, pursue graduate degrees, and reject stereotypical views of women); Valerie E. Lee & Anthony S. Bryk, Effects of Single-Sex Secondary Schools on Student Achievement and Attitudes, 78 J. EDUC. PSYCHOL. 381, 394 (1986) (concluding that "single-sex schools appear to deliver specific advantages to their students" in the areas of academic achievement, future educational plans, and attitudes and behavior related to academics).
6. See Rosemary Salomone, Rich Kids, Poor Kids, and the Single-Sex Education Debate, 34 AKRON L. REV. 209, 209-10(2000).
7. See Rosemary C. Salomone, Single-Sex Schooling: Law, Policy, and Research 2 (May 1998) (on file with author) (contending that single-sex schools "provide educational options to parents and children who lack the economic means to purchase them in the private school market").
8. See United States v. Virginia, 518 U.S. 515, 596 (1996) (Scalia, J., dissenting).
9. See Hopwood v. Texas, 78 F.3d 932, 932 (5th Cir. 1996).
10. See infra Part III.
11. See infra Part III.
12. See infra Part III.
13. For a history of supposedly "educational" policies designed to subjugate women see Denise C. Morgan, Anti-Subordination Analysis After United States v. Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools, 1999 U. CHI. LEGAL F. 381, 391-96 (chronicling the use of single-sex education to perpetuate gender stereotypes).
14. Vorchheimer v. Sch. Dist. of Phila., 532 F.2d 880, 886 (3d Cir. 1976), aff'd mem., 430 U.S. 703 (1977).
15. See. e.g., Morgan, supra note 12; Denise C. Morgan, Finding a Constitutionally Permissible Path to Sex Equality: The Young Women's Leadership School of East Harlem, 14 N.Y.L. SCH. J. HUM. RTS. 95 (1997) [hereinafter Morgan, Sex Equality]; Christopher H. Pyle, Women's Colleges: Is Segregation by Sex Still Justifiable After United States v. Virginia?, 77 B.U. L. REV. 209 (1997); Jonathan N. Reiter, Note, California Single-Gender Academies Pilot Program: Separate But Really Equal, 72 S. CAL. L. REV. 1401 (1999).
16. See. e.g., Morgan, supra note 12; Denise C. Morgan, Finding a Constitutionally Permissible Path to Sex Equality: The Young Women's Leadership School of East Harlem, 14 N.Y.L. SCH. J. HUM. RTS. 95 (1997) [hereinafter Morgan, Sex Equality]; Christopher H. Pyle, Women's Colleges: Is Segregation by Sex Still Justifiable After United States v. Virginia?, 77 B.U. L. REV. 209 (1997); Jonathan N. Reiter, Note, California Single-Gender Academies Pilot Program: Separate But Really Equal, 72 S. CAL. L. REV. 1401 (1999).
17. See. e.g., Morgan, supra note 12; Denise C. Morgan, Finding a Constitutionally Permissible Path to Sex Equality: The Young Women's Leadership School of East Harlem, 14 N.Y.L. SCH. J. HUM. RTS. 95 (1997) [hereinafter Morgan, Sex Equality]; Christopher H. Pyle, Women's Colleges: Is Segregation by Sex Still Justifiable After United States v. Virginia?, 77 B.U. L. REV. 209 (1997); Jonathan N. Reiter, Note, California Single-Gender Academies Pilot Program: Separate But Really Equal, 72 S. CAL. L. REV. 1401 (1999).
18. See infra Parts III & IV.
19. See infra Part I.
20. See infra Part II.
21. See infra Part III.
22. See infra Part IV.
23. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985).
24. Craig v. Boren, 429 U.S. 190, 197 (1976) (invalidating a statute permitting sale of beer with 3.2% alcohol to women but not to men between ages of 18 and 21).
25. See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973) (striking down an Air Force regulation granting housing and medical benefits to the wives of married servicemen but not the husbands of married servicewomen); Reed v. Reed, 404 U.S. 71 (1971) (invalidating automatic preferences for female over male administrators of estates).
26. See infra Part I.A.
27. For a broader discussion on the evolution of judicial opinion on single-sex education, see Kristin S. Caplice, The Case for Public Single-Sex Education, 18 HARV. J.L. & PUB. POL'Y 227, 231-34 (1994); Nancy Levit, Separating Equals: Educational Research and the Long-Term Consequences of Sex Segregation, 67 GEO. WASH. L. REV. 451, 455-64 (1999); Salomone, supra note 6, at 15-25; Amanda Elizabeth Koman, Note, Urban, Single-Sex, Public Secondary Schools: Advancing Full Development of the Talent and Capacities of America's Young Women, 39 WM. & MARY L. REV. 507, 535-43 (1998).
28. For a broader discussion on the evolution of judicial opinion on single-sex education, see Kristin S. Caplice, The Case for Public Single-Sex Education, 18 HARV. J.L. & PUB. POL'Y 227, 231-34 (1994); Nancy Levit, Separating Equals: Educational Research and the Long-Term Consequences of Sex Segregation, 67 GEO. WASH. L. REV. 451, 455-64 (1999); Salomone, supra note 6, at 15-25; Amanda Elizabeth Koman, Note, Urban, Single-Sex, Public Secondary Schools: Advancing Full Development of the Talent and Capacities of America's Young Women, 39 WM. & MARY L. REV. 507, 535-43 (1998).
29. For a broader discussion on the evolution of judicial opinion on single-sex education, see Kristin S. Caplice, The Case for Public Single-Sex Education, 18 HARV. J.L. & PUB. POL'Y 227, 231-34 (1994); Nancy Levit, Separating Equals: Educational Research and the Long-Term Consequences of Sex Segregation, 67 GEO. WASH. L. REV. 451, 455-64 (1999); Salomone, supra note 6, at 15-25; Amanda Elizabeth Koman, Note, Urban, Single-Sex, Public Secondary Schools: Advancing Full Development of the Talent and Capacities of America's Young Women, 39 WM. & MARY L. REV. 507, 535-43 (1998).
30. Vorchheimer v. Sch. Dist. of Phila., 532 F.2d 880 (3d Cir. 1976), aff'd mem., 430 U.S. 703 (1977).
31. Id. at 882.
32. Id. at 886.
33. Id. at 888.
34. Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982).
35. Id. at 727.
36. Id. at 729.
37. Id. at 729.
38. Garrett v. Bd. of Educ., 775 F. Supp. 1004 (E.D. Mich. 1991).
39. Id. at 1007.
40. Id.
41. Id. at 1014.
42. Daniel Gardenswartz, Comment, Public Education: An Inner-City Crisis! Single-Sex Schools: An Inner-City Answer?, 42 EMORY L.J. 591, 611 (1993).
43. See United States v. Virginia, 518 U.S. 515 (1996).
44. See supra note 14.
45. See Virginia, 518 U.S. at 520-24.
46. Id. at 521-23.
47. Id. at 540-41.
48. See id. at 525.
49. Id. at 531.
50. Id.
51. Id. at 532.
52. See id. at 526-27.
53. Id. at 551.
54. See Id. at 558.
55. Id. (Scalia, J., dissenting).
56. Id. (Scalia, J., dissenting).
57. Id. at 597 ("No state official in his right mind will buy such a high-cost, high-risk lawsuit by commencing a single-sex program.") (Scalia, J., dissenting).
58. Id. at 559 (Rehnquist, C.J., concurring).
59. See id. (Rehnquist, C.J., concurring).
60. Id. at 562-63. (Rehnquist, C.J., concurring). Even if diversity in educational opportunity were the Commonwealth's actual objective, the Commonwealth's position would still be problematic. The difficulty with its position is that the diversity benefited only one sex. . . . Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation. Id. Rehnquist also admits that "considerable evidence shows that a single-sex education is pedagogically beneficial for some students." Id. at 564 (Rehnquist, C.J., concurring).
61. Id. at 535 n.8.
62. The majority states that its inquiry was directed "specifically and only" at the "unique" educational opportunity offered by VMI and was not meant to "question the Commonwealth's prerogative evenhandedly to support diverse educational opportunities." Id. at 534 n.7. Others have noted this distinction as well. Reiter, supra note 14, at 1409, 1416 (concluding that the Court in Virginia "deliberately left open the issue of whether single-gender public schools are generally constitutional" and instead "opted to scrutinize individually challenged single-gender public schools to determine whether a unique educational opportunity is offered to one gender and not the other").
63. Most scholars interpret Virginia as making gender-classifications more difficult to defend, but not altogether unconstitutional. See, e.g., Morgan, supra note 12, at 383 ("Nor is there any reason to believe that the 'exceedingly persuasive justification' language in Virginia necessarily spells the end of the new generation of single-sex public schools."); Morgan, Sex Equality, supra note 14, at 102-03 (arguing Virginia leaves "single-sex schools constitutionally permissible under certain circumstances"); Pyle, supra note 14, at 212-14 (1997) (claiming "Justice Ginsburg's repeated insistence that the Court's holding in United States v. Virginia has narrow precedential implications . . . will cushion its immediate impact" (footnotes omitted)); Salomone, supra note 6, at 28 (asserting that Virginia "stopped short of renouncing all gender-based classifications, leaving open the constitutional door to single-sex schools under certain conditions").
64. Virginia, 518 U.S. at 533.
65. See, e.g., Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 75 (1996) ("[T]he Court [in Virginia] did not merely restate the intermediate scrutiny test but pressed it closer to strict scrutiny.").
66. See Virginia, 518 U.S. at 596 (Scalia, J., dissenting) (criticizing the majority for its "redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny"); see also Ass'n for Fairness in Bus. v. New Jersey, 82 F. Supp. 2d 353, 363 n.7 (D.N.J. 2000) (finding that Virginia "has stirred a controversy over whether intermediate scrutiny is now a more rigorous standard than once believed"); Low-Income Women of Tex. v. Bost, 38 S.W.3d 689, 705 (Tex. Ct. App. 2000) (Yeakel, J., dissenting) ("The Supreme Court possibly heightened the federal review standard somewhat in United States v. Virginia.").
67. See, e.g., Eng'g Contractors Ass'n of S. Fla., Inc. v. Metro. Dade County, 122 F.3d 895 (11th Cir. 1997). The Eleventh Circuit concluded that despite confusion about the standard put forth in Virginia, "gender-conscious affirmative action programs may rest safely on a weaker evidentiary foundation than race-or ethnicity-conscious programs." Id. at 905. The court admitted that "although the phrase 'exceedingly persuasive justification' has more linguistic verve than conventional descriptions of intermediate scrutiny, it does not necessarily follow that a new constitutional standard for judging gender preferences is embodied in that phrase." Id. at 907-908.
68. See, e.g., Bldg. Ass'n of Greater Chi. v. Cook County, 256 F.3d 642, 644 (7th Cir. 2001) (remarking that "the difference between the applicable standards [for race and gender] has become vanishingly small"). Adding to the confusion is the fact that although the Virginia court reintroduced the phrase "exceedingly persuasive justification" to equal protection jurisprudence, the court actually borrowed this language from an earlier ruling on single-sex education. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
69. See Virginia, 518 U.S. at 596 (Scalia, J., dissenting).
70. See id. at 546.
71. See id. at 536 ("Neither recent nor distant history bears out Virginia's alleged pursuit of diversity through single-sex educational options."); see also id. at 542-43 ("The notion that admission of women would downgrade VMI's stature, destroy the adversative system, and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other 'self-fulfilling prophecies' once routinely used to deny rights or opportunities [to women].") (citations and footnotes omitted).
72. Id. at 535 (pronouncing that "diversity among public educational institutions can serve the public good").
73. Id. at 533-34 (citations and footnotes omitted).
74. See infra Part IV.A.
75. There is limited precedential support for suspect classifications that are ultimately aimed at eradicating generalizations about particular groups. See Comfort v. Lynn Sch. Comm., 100 F. Supp. 2d 57, 65 n.12 (D. Mass. 2000) (finding that a race-based school assignment plan may be constitutional if designed not as a "form of stereotyping but a method to prevent the formation of stereotypes").
76. Virginia, 518 U.S. at 533.
77. See id. at 596 (Scalia, J., dissenting) (criticizing the majority for its "redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny").
78. Id. at 533.
79. Id. at 531.
80. See Morgan, Sex Equality, supra note 14, at 109-12.
81. See infra Part II.B.
82. See Gratz v. Bollinger, 122 F. Supp. 2d 811, 821 (E.D. Mich. 2000) ("[T]he public graduate or professional school context is distinguishable from the employment, minority business set-aside, and redistricting contexts.").
83. See, e.g., Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). In Hopwood, the Fifth Circuit borrowed the standard developed in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (striking down a municipal ordinance that required city contractors to set aside thirty percent of their subcontracts for minority-owned businesses), to examine race-based policies in a law school admissions plan. But in a concurring opinion, one judge wrote, This unique context, [law school admissions], . . . differs from the employment context, differs from the minority business set aside context, and differs from the re-districting context; it comprises only the public higher education context. . . . Consequently, we play with fire when we assume an easy crossover of Fourteenth Amendment maxims pronounced in cases decided in such other contexts. Hopwood, 78 F.3d at 965 n.21 (Wiener, J., specially concurring).
84. See Philip T.K. Daniel & Kyle Edward Timken, The Rumors of My Death Have Been Exaggerated: Hopwood's Error in "Discarding" Bakke, 28 J.L. & EDUC. 391 (1999). Daniel and Timken echo Judge Wiener's concurrence and criticize the Hopwood court for applying evidentiary standards developed for government hiring plans to the education context: "The cases that the Hopwood court relied upon were totally unrelated to higher education admissions programs and thus reliance upon them is tenuous at best." Id. at 400. "In rendering a decision based on prior cases that are not directly on point [the court] has exposed the unprincipled nature of its legal reasoning." Id. at 402.
85. See Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d 358, 380 (W.D. Ky. 2000).
86. See Daniel & Timken, supra note 79, at 412 ("The programs ruled unconstitutional in Croson and Adarand used race as more than a plus factor; in fact, the use of race was determinative.").
87. See Hampton, 102 F. Supp. 2d at 380.
88. Provided, of course, that the education offered is comparable. See Brewer v. W. Irondequoit Cent. Sch. Dist., 212 F.3d 738, 751 (2d Cir. 2000) (finding that the ruling in Bakke, which invalidated an affirmative action program that denied medical school admission to a white student because of his race, was "wholly dissimilar" from the case of an elementary school student prevented from transferring into the school of his choice because of his race).
89. Hampton, 102 F. Supp. 2d at 380.
90. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 350 n.2 (1985) (Powell, J., concurring) (finding that "[t]he law recognizes a host of distinctions between the rights and duties of children and those of adults"); Prince v. Massachusetts, 321 U.S. 158, 168 (1944) ("The state's authority over children's activities is broader than over like actions of adults.").
91. See Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 654 (1995) (concluding that "unemancipated minors lack some of the most fundamental rights ofself-determination"). The Court in Vernonia upheld a school drug testing program for athletes because "the necessity for the state to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction." Id. at 662.
92. See. e.g., Grayned v. City of Rockford, 408 U.S. 104, 120 n.45 (1972) ("Restrictions appropriate to a single-building high school during class hours would be inappropriate in many open areas on a college campus."); Nicholson v. Bd. of Educ. Torrance Unified Sch. Dist., 682 F.2d 858, 863 n.4 (9th Cir. 1982) ("The activities of high school students, for example, may be more stringently reviewed than the conduct of college students, as the former are 'in a much more adolescent and immature stage of life and less able to screen fact from propaganda.'") (quoting Schwartz v. Schuker, 298 F. Supp. 238, 242 (E.D.N.Y. 1969)); Chess v. Widmar, 635 F.2d 1310, 1319 (8th Cir. 1980) ("High school students necessarily require more supervision than do young adults of college age.").
93. See Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 238 n.4 (2000) (declining to directly analogize First Amendment cases dealing with public school students to those involving university students since "[these] students and their schools' relations to them are different and at least arguably distinguishable from their counterparts in college education").
94. Bradshaw v. Rawlings, 612 F.2d 135, 140 (1979).
95. Jason Walbourn, Strict in Theory, But Not Fatal in Fact: Hunter v. Regents of the University of California and the Case for Educational Research as a Compelling State Interest, 83 MINN. L. REV. 183, 201 (1998). In Hunter, discussed infra Part III.B., the Ninth Circuit Court of Appeals reviewed, and subsequently affirmed, the constitutionality of a race-based admissions policy at a university-run elementary school designed as a research lab for education reform. Walbourn contends that the main challenge facing the Hunter court was that the inquiry was "unlike any other case involving racial classifications." Id. at 200. Walboum described the dilemma this way: The paradigmatic affirmative action case involves a post-secondary educational institution that uses racial classifications in order to further the goal of diversity or to remedy the present effects of institutional discrimination. The California Board of Regents in Hunter, however, did not assert a remedial justification, nor did it implement an affirmative action program [when it created this school]. As a result, it created a situation where the application of Supreme Court precedent is forced and unnatural. Wisely, the Hunter court opted for a flexible application of the law rather than attempting to force this case into a rigid and inapplicable framework. Id. at 201.
96. See Sch. Dist. v. Schempp, 374 U.S. 203, 252-53 (1963) (Brennan, J. concurring) (distinguishing the holdings in two education-related First Amendment cases: "Far more significant is the fact that [one] dealt with the voluntary attendance at college of young adults, while [the other] involved the compelled attendance of young children at elementary and secondary schools. This distinction warrants a difference in constitutional results."); see also Boston's Children First v. City of Boston, 62 F. Supp. 2d 247, 259 (D. Mass. 1999) (questioning the automatic application of the rationale in Bakke and Hopwood -both of which dealt with law school admissions - to the elementary school context).
97. See Plyler v. Doe, 457 U.S. 202, 221 (1982) (finding that "education is perhaps the most important function of state and local governments").
98. See Meyer v. Nebraska, 262 U.S. 390, 400 (1923) ("The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted.").
99. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35-36 (1973).
100. See Plyler, 457 U.S. at 221. Public education is not a "right" granted to individuals by the Constitution. . . . But neither is it merely some governmental "benefit" indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. . . . In sum, education has a fundamental role in maintaining the fabric of our society. Id.
101. See Morgan, Sex Equality, supra note 14, at 109-110. [T]he Supreme Court has yet to decide a case involving single-sex education on the kindergarten through twelfth-grade level (K-12). Lower courts which have considered the issue have cited the formative nature of the pre-adolescent years and the uniqueness of adolescence as reasons the law should be more receptive to a variety of educational strategies and should scrutinize sexsegregation in K-12 education less harshly than in undergraduate and graduate education. Id.
102. See infra Part II. B.
103. United States v. Virginia, 518 U.S. 515, 534 n.7 (1996).
104. Abington Sen. Dist. v. Schempp, 374 U.S. 203, 253 (1963).
105. Though the presence of single-sex schools may harm a child's rights, it may simultaneously provide them with a benefit by enabling a girl or boy to reach her or his full academic potential, free from the gender stereotypes rife in coeducational settings. See Morgan, supra note 12, at 440-48. Thus, "[t]he same justifications for according the liberty interests of K-12 students less consideration than those of adults also support the argument that the equality interests of K-12 students should have more protection than those of adults." Id. at 446.
106. Walbourn, supra note 90, at 214-15. Walbourn makes this point in reference to race-based educational policies, but the point is equally valid in the gender context.
107. United States v. Virginia, 518 U.S. 515, 533 (1996).
108. Id. at 531 ("Parties who seek to defend gender-based government action must demonstrate an 'exceedingly persuasive justification' for that action.") (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136-137 & n.6 (1994); Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982)).
109. See J.A. Croson Co. v. City of Richmond, 488 U.S. 469 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986). In Wygant the Court struck down a public school faculty hiring plan that gave preference to racial minorities as a way of providing "role models" for minority students. The Court insisted upon "some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications." Wygant, 476 U.S. at 274. The Court concluded that "[s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy." Id. at 276. Three years later in Croson, the Court went even further to claim that "[c]lassifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility." Croson, 488 U.S. at 493.
110. See. e.g., Wessmann v. Gittens, 160 F.3d 790, 810 (1st Cir. 1998) (Boudin, J., concurring) (striking down racial classifications in public schools because they were not narrowly tailored to remedy prior discrimination); Hopwood v. Texas, 78 F.3d 932, 949-50 (5th Cir. 1996) (striking down university affirmative action admissions plan in part because it was not designed specifically to remedy past discrimination); Johnson v. Bd. of Regents, 106 F. Supp. 2d 1362, 1382 (S.D. Ga. 2000), aff'd, 263 F.3d 1234 (11th Cir. 2001) (citing Wygant to support the conclusion that racial classifications in university admissions plan can stand only if designed to remedy past discrimination).
111. 438 U.S. 912 (1978).
112. See. e.g., Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000).
113. See supra note 105.
114. Eng'g Contractors Ass'n of S. Fla., Inc. v. Metro. Dade County, 122 F.3d 895, 910 (11th Cir. 1997).
115. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986). But see Gratz v. Bollinger, 122 F. Supp. 2d 811, 823 (E.D. Mich. 2000) (questioning whether "what may be too amorphous and ill-defined in other contexts, i.e., the construction industry context, is also necessarily too amorphous or ill-defined in the context of higher education").
116. J.A. Croson Co. v. City of Richmond, 488 U.S. 469, 493 (1989).
117. Boston's Children First v. City of Boston, 62 F. Supp. 2d 247, 259 (D. Mass. 1999).
118. Comfort v. Lynn Sch. Comm., 100 F. Supp. 2d 57, 59-60 (D. Mass. 2000) (refusing to grant an injunction against a school board plan which prohibited some interdistrict student transfers in the name of preserving racial balance).
119. See Gratz, 122 F. Supp. 2d at 821 (concluding that a majority of the Supreme Court has never specifically prohibited nonremedial justifications for race-based policies in higher education).
120. Wessman v. Gittens, 160 F.3d 790, 795 (1st Cir. 1998). For a larger discussion of this issue, see Stephen E. Gottlieb, Compelling Governmental Interests: An Essential but Unanalyzed Term in Constitutional Adjudication, 68 B.U. L. REV. 917 (1988).
121. Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring).
122. McHenry v. Penn. State Syst. of Higher Educ., 50 F. Supp. 2d 401, 410 (E.D. Penn. 1999) (conceding that it "may be time to reexamine the heightened standard" applied to programs that rely on suspect classifications to further a compelling governmental interest).
123. See Hunter v. Regents of the Univ. of Cal., 190 F.3d 1061, 1065 (9th Cir. 1999), cert. denied, 69 U.S.L.W. 3110 (U.S. Oct. 2, 2000). In Hunter, the majority insisted their ruling, which allowed a university-run research-laboratory elementary school to use race in its admissions process, would not have an impact beyond the public schools and would not require courts to scrutinize every educational policy decision. But a dissenting opinion argued that Courts will now be thrust into the unseemly position of having to determine which "research" projects are sufficiently genuine and worthy to justify the use of racial classifications. A look back at our history belies this court's apparent faith in the judiciary's capacity to "distinguish good from harmful governmental uses of racial criteria." Id. at 1075 n.16 (Beezer, J., dissenting) (quoting Metro Broad., Inc. v. FCC, 497 U.S. 547, 609 (1990) (O'Connor, J., dissenting)).
124. Wessmann v. Gittens, 160 F.3d 790, 798 (1st Cir. 1998) ("[O]nly by such particularized attention" can courts determine "whether the Policy bears any necessary relation to the noble ends it espouses. In short, the devil is in the details.").
125. 438 U.S. 265 (1978).
126. For an in-depth discussion of the facts in Bakke, see Daniel & Timken, supra note 79.
127. Bakke, 438 U.S. at 317 (Powell, J., concurring).
128. Id. at 312.
129. Id. at 311-12.
130. See Victor G. Rosenblum, Surveying the Current Legal Landscape for Affirmative Action in Admissions, 27 J.C. & U.L. 709, 710 (2001).
131. See Johnson v. Bd. of Regents, 263 F.3d 1234, 1250 (11th Cir. 2001) ("We think it clear that the status of student body diversity as a compelling interest justifying a racial preference in university admissions is an open question in the Supreme Court and in our Court.").
132. Johnson v. Transp. Agency, 480 U.S. 616, 647 (1987) (Stevens, J., concurring). I see no reason why [an employer] has any duty, prior to granting a preference to a qualified minority employee, to determine whether his past conduct might constitute an arguable violation. . . . Indeed, in some instances the employer may find it more helpful to focus on the future. Instead of retroactively scrutinizing his own or society's possible exclusions of minorities in the past to determine the outer limits of a valid affirmative-action program . . . in many cases the employer will find it more appropriate to consider other legitimate reasons to give preferences to members of underrepresented groups. Id. at 646 (O'Connor, J., concurring). But see Taxman v. Bd. of Educ., 91 F.3d 1547, 1563 (3d Cir. 1996) (concluding that Stevens's concurrence in Johnson is "not controlling").
133. See Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1200 (9th Cir. 2000), cert. denied, 69 U.S.L.W. 3593 (U.S. May 29, 2001) ("We are well aware of the fact that much has happened since Bakke was handed down. Since that time, the Court has not looked upon race-based factors with much favor."); see also Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381, 381-86 (1998) (discussing the "narrowing window of judicial tolerance for affirmative action").
134. See Wessmann v. Gittens, 160 F.3d 790, 796 (1st Cir. 1998) ("[W]e assume arguendo - but we do not decide - that Bakke remains good law and that some iterations of 'diversity' might be sufficiently compelling, in specific circumstances, to justify race-conscious actions.").
135. See Rosenblum, supra note 125, at 709.
136. See Johnson v. Bd. of Regents, 263 F.3d 1234, 1245 (11th Cir. 2001) ("[A]lthough a majority of the Supreme Court may eventually adopt Justice Powell's [concurrence in Bakke] as binding precedent, and even now the opinion has persuasive value, the opinion is not binding on the issue before us today.").
137. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
138. Id. at 935.
139. Id.
140. Id. at 936.
141. Id. at 944.
142. Id.
143. E.g., Johnson v. Bd. of Regents, 263 F.3d 1234, 1249 n. 13 (11th Cir. 2001) (noting that "there is no unanimity regarding the status of Justice Powell's Bakke opinion as binding precedent").
144. E.g., Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1201 (9th Cir. 2000), cert. denied, 69 U.S.L.W. 3593 (U.S. May 29, 2001) (holding that the Fourteenth Amendment "permits University admissions programs which consider race for other than remedial purposes" and that "educational diversity is a compelling government interest that meets the demands of strict scrutiny of race-conscious measures").
145. See Hopwood v. Texas, 236 F.3d 256, 276 (5th Cir. 2000), cert. denied, 69 U.S.L.W. 3789 (U.S. Jun. 25, 2001) (reversing the portion of the district court's decision that enjoined the University of Texas Law School from using race in any admissions policy designed to further diversity).
146. Id. at 276-77. However, it is important to note that while the court of appeals lifted the injunction, it did not completely vacate its prior decision. Moreover, the court never admitted that Bakke required that diversity be a compelling governmental interest, only that it did not foreclose that possibility. Id. at 275 n.66.
147. Gratz v. Bollinger, 122 F. Supp. 2d 811, 821 (E.D. Mich. 2000) (upholding a law school admissions policy that took race into account).
148. See. e.g., McNamara v. Chicago, 138 F.3d 1219, 1222 (7th Cir. 1998) ("[Although remedial justifications are clearly permissible] whether other justifications are possible is unsettled."); Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d 358, 378 (W.D. Ky. 2000) ("The Supreme Court has never held that remedying past state-sponsored discrimination is the only interest capable of surviving strict scrutiny.").
149. 87 F.3d 916, 920 (7th Cir. 1996).
150. Id. at 919.
151. Id.
152. 190 F.3d 1061 (9th Cir. 1999), cert. denied, 69 U.S.L.W. 3110 (U.S. Oct 2, 2000).
153. Walbourn, supra note 90, at 185.
154. Hunter, 190 F.3d at 1063.
155. Id. at 1064-1066.
156. Id. at 1067
157. Id. at 1064 n.6 (emphasis added). But see id. at 1067 (Beezer, J., dissenting) (claiming that the majority opinion "strays from our precedent and fails to take heed of the Supreme Court's repeated warnings against allowing the use of racial classifications in non-remedial contexts").
158. Id. at 1064 n.6.
159. Id.
160. Id.
161. Id. at 1066 ("Without a racially and ethnically diverse student population the benefits to be gained by these innovations and studies would be lost.").
162. But see Walboum, supra note 90, at 205. Walbourn posits that nonremedial justifications other than the need for educational research may not enjoy the same acceptance. Id. For example, "[h]ad the court analyzed the case according to the validity of providing a quality education as the lone compelling state interest, it would have been forced to strike down the program." Id.
163. See supra Part I.
164. United States v. Virginia, 518 U.S. 515, 533-34 (1996).
165. Id.
166. Id. at 564 (Rehnquist, C.J., concurring) (emphasis added). Rehnquist went on to conclude that the state's interest in promoting an adversative method of education, like the one used at VMI, was not compelling enough to justify the exclusion of women from the school. See id.
167. Hill v. Ross, 183 F.3d 586 (7th Cir. 1999).
168. Id. at 586.
169. Id. at 590.
170. Id. (emphasis added).
171. Id. at 592.
172. Johnson v. Bd. of Regents, 106 F. Supp. 2d 1362, 1375-6 (S.D. Ga. 2000), aff'd, 263 F.3d 1234 (11th Cir. 2001).
173. Id. at 1365.
174. Id. at 1375.
175. Id. at 1376 n.10.
176. Id. at 1375.
177. Id. at 1376-77.
178. Id. at 1375.
179. Id.
180. Id.
181. Id. at 1376 n.10.
182. United States v. Virginia, 518 U.S. 515, 533-34 (1996).
183. See Garrett v. Bd. of Educ., 775 F. Supp. 1004, 1007 (E.D. Mich. 1991) (granting a preliminary injunction against the opening of three all-male public schools, because such schools would promote "a false dichotomy between the roles and responsibilities of boys and girls").
184. Virginia, 518 U.S. at 533.
185. See OFFICE OF EDUC. RESEARCH AND IMPROVEMENT, U.S. DEP'T OF EDUC., SINGLE-SEX SCHOOLING, 7, 35 (1993).
186. Virginia, 518 U.S. at 533.
187. Id.
188. See JANICE L. STREITMATTER, FOR GIRLS ONLY: MAKING A CASE FOR SINGLE-SEX SCHOOLING 109 (1999).
189. See MYRA SADKER & DAVID SADKER, FAILING AT FAIRNESS: HOW AMERICA'S SCHOOLS CHEAT GIRLS 1 (1994).
190. See id. at 59; see also CORNELIUS RIORDAN, GIRLS AND BOYS IN SCHOOL: TOGETHER OR SEPARATE? 53 (1990).
191. See AM. ASS'N UNIV. WOMEN, GENDER GAPS: WHERE SCHOOLS STILL FAIL OUR CHILDREN (1999).
192. See SADKER & SADKER, supra note 184, at 138.
193. See id. at 15; see also AM. ASS'N UNIV. WOMEN, HOW SCHOOLS SHORTCHANGE GIRLS: A STUDY OF MAJOR FINDINGS ON GIRLS AND EDUCATION 49, 54-57 (1992).
194. Rosemary Salomone, Rich Kids, Poor Kids, and the Single-Sex Education Debate, 34 AKRON L. REV. 209, 209 (2000) (citing statistics that show applications to private all-girls schools are up 33% since 1991).
195. See Lee & Bryk, supra note 4, at 387-89.
196. See id. at 389.
197. See Fred A. Mael, Single-Sex and Coeducational Schooling: Relationships to Socioemotional and Academic Development, 68 REV. EDUC. RES. 101, 107 (1998).
198. See id. at 109; see also Kusum Singh et al., Single-Sex Classes and Academic Achievement in Two Inner-City Schools, 67 J. NEGRO EDUC. 157, 162 (1998). But see Paul C. LePore & John Robert Warren, A Comparison of Single-Sex and Coeducational Catholic Secondary Schooling: Evidence from the National Educational Longitudinal Study of 1988, 34 AM. EDUC. RES. J. 485 (1997) (finding no significant statistical positive effects for girls in single-sex Catholic schools as compared to their Catholic co-ed counterparts).
199. See id. at 109; see also Kusum Singh et al., Single-Sex Classes and Academic Achievement in Two Inner-City Schools, 67 J. NEGRO EDUC. 157, 162 (1998). But see Paul C. LePore & John Robert Warren, A Comparison of Single-Sex and Coeducational Catholic Secondary Schooling: Evidence from the National Educational Longitudinal Study of 1988, 34 AM. EDUC. RES. J. 485 (1997) (finding no significant statistical positive effects for girls in single-sex Catholic schools as compared to their Catholic co-ed counterparts).
200. For example, Chicago recently granted a charter to an all-girls public school designed specifically to address the dearth of girls and women in math, science, and technology fields. See Cowen, supra note 3, at 12. Opening on August 22, 2000, the Young Women's Leadership Charter School of Chicago has a five-year charter from the Chicago Public School Board. Id. The school serves primarily "at-risk" girls from low-income neighborhoods and is based on a similar project begun in East Harlem, New York, in 1996. The American Civil Liberties Union (ACLU) initially threatened legal challenges to both schools, but as of fall 2001, neither has been the subject of litigation. See Jennifer Salvatore, The Legal and Policy Debate Over Public All-Girls Schools: Can Formal Gender Neutrality Bring True Gender Equality? 5 PUB. INT. L. REP. 1, 1-2 (2000).
201. See RIORDAN, supra note 185, at 147. Students from low-income homes seem to exhibit even greater long-term benefits from single-sex schooling. See id.
202. See Lee & Marks, supra note 4, at 585.
203. Id. at 588.
204. Id.
205. See RIORDAN, supra note 185, at 112.
206. See RIORDAN, supra note 185, at 148-49.
207. See Lee & Bryk, supra note 4, at 387-88.
208. See Singh et al., supra note 193, at 165. Unfortunately, most studies on the impact of single-sex education do not take race or ethnicity into account. Yet when they do, minority students seem to experience greater benefits from a girls-or boys-only setting than white students overall. Id.
209. Kimberly M. Schuld, Rethinking Educational Equity: Sometimes, Different Can Be an Acceptable Substitute for Equal, 1999 U. CHI. LEGAL F. 461, 471-75 (charging groups like the American Association of University Women with manufacturing the "Girl Crisis"). Schuld, along with some other critics, contends that these theories ultimately perpetuate gender stereotypes by implying that girls are incapable of competing with boys in coeducational settings. See id. at 475.
210. There are a number of scholars who dispute the notion of a "general consensus" on the benefits of single-sex education. See, e.g., Levit, supra note 24. Levit contends that "[t]he studies regarding the possible academic benefits of sex-exclusive environments come to widely divergent results." Id. at 504. She suggests that "[s]ome of the support for single-sex education rests on misinterpretations and misapplications" of works conducted by "educational theorists," ultimately concluding that single-sex environments do a disservice to the students who are educated in them. Id. at 506.
211. See Salomone, supra note 189, at 211. Many feminists are wary of single-sex public schools, fearing a return to a "pre-Title IX world where gender-segregated public schools and vocational classes shortchanged girls of educational resources and tracked them into a fixed set of low paying jobs and careers." Id.
212. See generally Gardenswartz, supra note 37, at 643 (noting that courts have held that "[t]he states should be allowed to experiment with special educational tools developed for their own particular needs." (citing City of San Antonio v. Rodriguez, 411 U.S. 1, 58-59 (1973)).
213. United States v. Virginia, 518 U.S. 515, 542 (1996).
214. See Morgan, Sex Equality, supra note 14, at 116 ("[W]e do not have to pick one strategy to fight for sex equality in public education. We can, and we should, provide the option of all-girls public schools at the same time as we seek to redress the gender bias in co-educational schools - no one is requiring us to find one ultimate solution.").
215. See Salomone, supra note 189, at 228 ("Given the fact that more than three decades of federal remediation and court-ordered integration have failed to stem the downward spiral of inner-city students, single-sex programs are an alternative worth consideration, at least on an experimental basis.").
216. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 58 (1973).
217. Id.
218. Bricklayers Union Local 21 v. Edgar, 922 F. Supp. 100, 108 (N.D. Ill. 1996) (striking down a union's challenge to the Illinois General Assembly's decision to create the Chicago School Reform Board of Trustees, a move which transferred the leadership of public schools from an elected to an appointed body).
219. See Hunter v. Regents of the Univ. of Cal., 190 F.3d 1061, 1064 (9th Cir. 1999), cert. denied, 69 U.S.L.W. 3110 (U.S. Oct. 2, 2000). The court cited and concurred with an educational expert's testimony that "[t]here is no more pressing problem facing California, or indeed the nation, than urban education; for it is in the urban school system that the majority of California's future citizens will be educated." Id.
220. See Koman, supra note 24, at 552 ("Experimentation is needed. The status quo is not solving America's social and educational problems.").
221. See, e.g., Gardenswartz, supra note 37, at 644 ("The urban crisis in our inner cities should serve as a valid justification for single-sex schools.").
222. Pittman v. Chicago Bd. of Educ., 64 F.3d 1098 (7th Cir. 1995), cert. denied, 517 U.S. 1243 (1996).
223. Id. at 1103; see also Hearne v. Bd. of Educ., 185 F.3d 770, 775 (7th Cir. 1999) (finding that the "crisis" in Chicago schools provided a "rational basis . . . [for] the General Assembly's decision to give special treatment to Chicago" by creating the Chicago Reform Board of Education and terminating a number of tenured employees).
224. See, e.g., Reiter, supra note 14. In 1996, California enacted the Single-Gender Academies Pilot Program Act, which authorized state funding for the establishment of pairs of all-boys and all-girls elementary schools in districts around the state. See id. at 1403-09.
225. Gardenswartz, supra note 37, at 642.
226. See Builders Ass'n of Greater Chicago v. County of Cook, 123 F. Supp. 2d 1087, 1116 (N.D. Ill. 2000). In Builders Association, the court cautioned: When a governmental entity decides to withhold opportunities from certain persons because of their race, ethnicity or gender, it must act with great care and be as certain as it can be that it has a sound constitutional basis for its action. Governmental bodies should not be encouraged to engage in casual experiments with such programs or to undertake them on a trial and error basis. Id.
227. The Seventh Circuit has made similar statements with respect to racial classifications, even though they are scrutinized more strictly than gender-based policies: "If academic research is required to validate any departure from strict racial neutrality, social experimentation in the area of race will be impossible despite its urgency." Wittmer v. Peters, 87 F.3d 916, 920 (7th Cir. 1996).
228. Wessman v. Gittens, 160 F.3d 790, 797 n.3 (1st Cir. 1998).
229. See, e.g., Bd. of Educ. v. Booth, 984 P.2d 639, 649 (Colo. 1999) ("[G]eneral statutory or judicial constraints, if they exist, must not have the effect of usurping the local board's decision-making authority or its ability to implement, guide, or manage the educational programs for which it is ultimately responsible."); Curtis v. Sch. Comm. of Falmouth, 652 N.E.2d 580, 584 (Mass. 1995) ("Public education of children is unquestionably entrusted to the control, management, and discretion of State and local school committees. . . . [C]ourts must take caution before they order changes in educational programs adopted by duly chosen local authorities.").
230. See Wisconsin v. Yoder, 406 U.S. 205, 214 (1972) ("[A] State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests . . . .").
231. See, e.g., Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 872 (2d Cir. 1996) ("[P]ublic school administrators must be given a great deal of autonomy in deciding how best to run their schools . . . .").
232. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) ("[T]he education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges."); see also Morgan, supra note 12, at 453-54 ("[A]s long as a genuine academic concern motivates the use of a single-sex approach, and not caprice, despair, or a desire for a larger number of schools of any nature, courts should not second guess professional judgments about educational policy.").
233. Epperson v. Arkansas, 393 U.S. 97, 104 (1968).
234. Freeman v. Pitts, 503 U.S. 467, 490 (1992) (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410 (1977)).
235. See Jenkins v. Leininger, 659 N.E.2d 1366, 1370 (Ill. App. Ct. 1995) ("[The question of the efficiency and thoroughness of the school system established by legislative permission is one solely for the legislature to answer and that the courts lack power to intrude.") (citing People v. Deatherage, 81 N.E.2d 581, 586 (Ill. 1948)).
236. See Tyska v. Bd. of Educ., 453 N.E.2d 1344, 1353 (Ill. App. Ct. 1983) (concluding that the decision to close schools or move students from one school to another is a "quasi-legislative function" and within the powers of the school board to exercise).
237. Picarella v. Terrizzi, 893 F. Supp. 1292, 1302 (M.D. Pa. 1995).
238. Morgan, Sex Equality, supra note 14, at 103 n.22 ("Courts usually give substantial weight to the opinions of professional educators in evaluating whether particular pedagogical strategies are educationally beneficial.")
239. See Bd. of Regents of the Univ. of Wisc. Sys. v. Southworth, 529 U.S. 217, 237 (2000) (noting that "autonomous decisionmaking" is an integral part of academic freedom (citing Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12 (1985))).
240. See Tyska, 453 N.E.2d at 1355 ("If the opinion of the court or others is to be substituted for the judgment and discretion of the [school board] at the insistence of a disaffected student or taxpayer, the government and management of our schools will be seriously impaired . . . ."); see also Quiroz v. State Bd. of Educ., No. CIV.S-97-1600WBS/GGH, 1997 WL 661163, at *4 (E.D. Cal. Sept. 10, 1997) ("The lack of judicial expertise and the traditionally broad discretion of localities to formulate educational policies counsel caution and restraint in this area.").
241. Bd. of Educ. v. Jennings, 651 P.2d 1037, 1046 (N.M. Ct. App. 1982) (Sutin, J., specially concurring).
242. See Morgan, supra note 12, at 420 ("[A]s long as a state can produce credible evidence that its use of a single-sex approach . . . is educationally beneficial, it is inappropriate for a court to second guess the professional judgment of educators in their choice of pedagogy.").
243. Wessman v. Gittens, 160 F.3d 790, 799 (1st Cir. 1998) (invalidating a race-based admissions policy at Boston Latin, an elite public magnet school, as an equal protection violation despite the school committee's benign intent: "the potential for harmful consequences prevents us from succumbing to good intentions"). According to the court in Wessman, "[N]oble ends cannot justify the deployment of constitutionally impermissible means." Id. at 809.
244. See Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d 358 (W.D. Ky. 2000). The court in Hampton dissolved a 25 year old desegregation plan for a public school district, concluding it was no longer needed and refusing to continue it based on evidence of de facto segregation. Id. at 375-76. Since African American parents voluntarily enrolled their children in majority-black schools, the court reasoned, it was not the type of segregation targeted by the plan. Id. at 376. Impermissible segregation, the court held, is that which is designed to stigmatize a group of people. Id. at 375-76. In contrast, allowing black students to self-segregate "does not now send a message of inferiority" since it does not "categorize, classify, label or separate [them] in a demeaning or negative way." Id. at 376.
245. See supra Part II.D.
246. See supra Part I.B.
247. See supra Part III.
248. See supra Part II.
249. See supra Part IV.C.
250. See supra Part IV.A.
251. See supra Part IV.B.
252. See supra Part IV.