SINGLE-SEX EDUCATION

How does law construct distinctions based on gender? How does gender construct legal categories? The question of whether state-funded (or subsidized) schools may constitutionally have single-sex admissions policies provides one template for considering the role of law in making gender and the role of gender in making law.

Historically, law has barred women from an array of educational, legal, and professional opportunities. Until well into the second half of the twentieth century, such barriers were justified as appropriate in light of women's distinctive nature, temperament, and role in society. Law thus ascribed certain traits to women and found, because of those ascriptions, women unsuitable for diverse roles in civil, economic, and political life.

But, in a series of opinions beginning in 1971, constitutional jurisprudence shifted from approval to skepticism of gender-based classifications. Through cases addressing gender-based rules about who can serve as an executor of an estate or as a juror and who can consume alcohol, claim dependents, or confer dependency benefits, the Supreme Court developed what it termed a "heightened scrutiny" test of gender-based classifications and invalidated many (but not all) as impermissible.

Some institutions have, however, been conceived to be specially situated vis-à-vis the equal protection clause. The armed forces offer one such example; in rostker v. goldberg (1981), the Supreme Court upheld a male-only military draft because women and men were assumed not equal for combat and because of the special place of the military in United States legal life. Age-based rules of sexuality provide a second example. In michael m. v. superior court (1981), the Court upheld the constitutionality of a California statutory rape statute that punished men engaging in sex with women under the age of eighteen but imposed no such penalty on women. Women's ability to become pregnant was used as a justification for special protections, while dissenters argued that such laws situated women as actors without agency, as victims beset upon by men.

Education is a third context sometimes conceived as requiring distinctive jurisprudential rules. During the 1970s, lower courts were faced with challenges to all-boy schools, and in 1982, Joe Hogan's objection to the women-only admissions policy of a state nursing school reached the Supreme Court. The state defended the policy as appropriate affirmative action for women. The majority in mississippi university for women v. hogan (1982), disagreed; Justice sandra day o'connor explained for the Court that nursing has not been a career closed to women and the options provided to Mr. Hogan were not equal to those available to women. Two Justices, william h. rehnquist and lewis f. powell, jr. , proposed in dissent that the diversity provided by colleges ranging from co-ed to single-sex provided distinctive benefits and served legitimate state policies. The Court expressly left open the question of whether " separate but equal " undergraduate institutions could be single-sex institutions.

More than a decade later, the Court returned to the question. Women challenged the all-male admissions policy of the Virginia Military Institute (VMI), self-described as teaching its students to become "citizen-soldiers." VMI defended by arguing that, because women and men had different styles of learning, the "adversative" environment of VMI was not suitable for women, who were sent instead to a program in a neighboring all-women's school, Mary Baldwin College. In united states v. virginia (1996), the Court (in an opinion written by the Court's second woman Justice, ruth bader ginsburg) held that Virginia had failed to afford equal benefits to members of both genders; the Court thus required women's admission to VMI. That ruling also resulted in the admission of women to South Carolina's all-male military school, The Citadel, about which challenges were pending in the lower courts.

The words used and the meaning of the standard by which the Court has assessed gender-based classifications have varied over the decades. In the VMI case, the Court required defenders of "gender-based government action" to shoulder the complete burden of demonstrating that an "exceedingly persuasive justification" exists for that action. Judges receiving such justifications were instructed to adopt an attitude of skepticism, founded in decades of state-sanctioned discrimination against women, and to insist upon a substantial link between the government's objectives and the classification adopted.

Such heightened scrutiny does not, however, render all gender classifications "impermissible." Rather, "[p]hysical differences between men and women" permit some classifications, but those classifications cannot be used "to create or perpetuate the legal, social, and economic inferiority of women."

Again, questions remain. What if VMI had created a separate set of facilities within its own boundaries, called it "VMI" and yet segregated women from men? What about all-women's colleges, created during the decades when women were barred from men's institutions and dedicated to enabling women full participatory rights? What about lower schools for adolescents, who are described by some researchers as specially susceptible to conforming to social expectations of stereotypically gendered behavior? What about all-girl classes in mathematics or science, fields particularly identified as inhospitable to women as students and professionals? What about the intersections of gender, race, and class? In New York City in the 1990s, special funding enabled the creation of an "all girls" junior high school to which public school students had access; in Detroit, Michigan, in the 1980s, a school created an all-male African American academy described as attentive to the distinct issues facing that set of children. And what about state subsidies, federal funds, and tax exemptions to private institutions? Should federal and state statutes maintain exceptions for single-sex organizations (like scouts), athletic programs, schools, any military programs, and prisons?

For some, the answer is that law should not sanction any gender distinctions unless absolutely necessary (and for some, virtually no distinctions are sustainable) and that to sanction such distinctions is to maintain and perpetuate them. For others, law must respond to the historically engendered understandings of the meaning of gender, race, sexual orientation, and class and therefore can—selectively and self-consciously—provide remedial responses to those who are members of historically disfavored groups. For example, girls and women may be able to have all-female institutions not because they learn differently than do boys and men but because boys and men create hostile environments for females or because teachers may shift their attention away from females to males. For still others, law should not work to eradicate gender-based distinctions and, as long as diverse opportunities are provided, law should permit as much public and private choice as possible to let a variety of expressions of the meaning of gender co-exist.

While the VMI decision could be seen as ensconcing an exacting constitutional test for all gender-based classifications, a decision two years later in Miller v. Albright (1998) provides an apt reminder that many judges and commentators remain comfortable with gender-based distinctions, especially when traceable to either biological or parental roles. Federal law provided that citizenship of children of citizen mothers was established at birth; confirmation of that citizenship, subject to proof of the mother's residence, was available at any time. A child of an alien mother and a citizen father, however, did not receive citizenship absent affirmative actions, within eighteen years of the birth, by the father or child to confirm their relationship. Justice john paul stevens, announcing the Court's judgment and joined by Chief Justice Rehnquist, found that the classification was "supported by valid government interests" in fostering ties between the foreign-born child and the United States and that "biological differences between single men and single women provide a relevant basis for differing rules governing their ability to confer citizenship on children born in foreign lands." Justices O'Connor and anthony m. kennedy recorded their concern about the gendered distinction but found the petitioner lacked standing to press a claim for her father, the citizen, and therefore upheld the statute. Justice antonin scalia (who had dissented in the VMI case) and Justice clarence thomas (who had not participated in the VMI case) joined the judgment on the ground that only Congress has the power to decide citizenship rules. Justices Ginsburg, david h. souter, and stephen g. breyer objected on the merits to the classification and returned to the language of heightened scrutiny for gender-based classifications, the requirement of exceedingly persuasive justifications, and the insistence on a substantial relationship between the classification and the objectives stated.

In sum, biology remains—for Justices, judges, and commentators—a basis for line-drawing. Yet disagreements abound about when biology is relevant, when classifications create or perpetuate the legal, social, and economic inferiority of women, and when such categories are either appropriately compensatory, founded in "real differences," or creatively expressive of the richness of human life.

Judith Resnik
(2000)

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