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Sometimes 'Equal' Means 'Different'

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New York City should go the legal distance in defending single-sex public education

The debate over single-sex education is heating up again. The office for civil rights of the U.S. Department of Education has informally notified New York City Schools Chancellor Rudy F. Crew that an all-girls leadership academy, opened last year in East Harlem, appears to violate Title IX, the federal statute that bars sex discrimination in federally funded education programs. Federal officials have suggested that a possible solution might be to admit boys to the school or to open a "comparable" all-boys school at a nearby location. The chancellor has publicly rejected both proposals, threatening to take the case to federal court if necessary. However this stalemate is resolved, the resolution will reverberate far beyond the borders of New York.

When the Women's Leadership School opened last year, it revived interest in a concept that had languished for several years in the aftermath of litigation brought by civil liberties and women's groups against all-male Afrocentric academies for at-risk students in Detroit. The determination shown by officials and sponsors of the East Harlem school and the enthusiasm voiced by the young women and their parents appear to have re-energized the movement and extended it outside the inner city. This year, half a dozen California school districts are establishing "single gender" separate academies for boys and girls, including boys' schools in order to comply with a recent California law and, arguably, to insulate the plan from legal attack. ("Calif. Opens Single-Sex Academies," Sept. 10, 1997.) Fueling the debate is the U.S. Supreme Court's decision last year declaring the all-male Virginia Military Institute unconstitutional.

Yet despite all the saber rattling by opponents of the concept, single-sex education has solid grounding in the law and in research findings. Title IX itself implicitly excludes the admissions policies of elementary and secondary schools, other than vocational schools. The New York City case, however, hinges on the interpretation of a provision in the Title IX regulations requiring that public school systems provide "comparable" courses, services, and facilities to any student excluded from a school on the basis of sex. But the regulations do not require that such courses, services, and facilities be provided in the same school or even in a nearby separate single-sex school. In other words, a single-sex school for girls does not trigger a legal obligation to open a comparable single-sex school for boys provided similar opportunities are offered, even in a coed setting. The New York board of education maintains that the East Harlem school district already provides numerous "comparable" opportunities for boys within several coed schools throughout the district.

Most graduates of single-sex high schools confirm the value of separate education.

Not only do the civil rights groups give the "comparability" requirement a strained reading, but they completely overlook a key provision within the Title IX regulations permitting schools to take "affirmative action" to "overcome the effects of conditions which have resulted in limited participation by persons of a particular sex." Those conditions and the effects of single-sex schools in overcoming them are now well documented in research findings.

Studies sponsored by the American Association of University Women confirm not only the gender gap in self-esteem as girls advance from elementary to middle and high school, but also the sexually hostile school environment in which many young women struggle to assert themselves academically and to survive emotionally. According to the results of a 1990 survey of 3,000 boys and girls between the ages of 9 and 15, only 29 percent of girls, compared with 46 percent of boys, retain the high self-esteem in high school that they exhibited in elementary school. Girls further demonstrate a dramatic drop in their interest in math and science during those years. Of even more immediate concern, a 1993 AAUW report reveals that 31 percent of the girls surveyed had been targeted "often" for sexual harassment. Such a threatening learning environment clearly impedes the ability of young women to focus on academics.

Opponents such as the National Organization for Women argue that single-sex schools do not prepare young women for the real world, nor do they permit girls or boys to transcend historically gender-based barriers in society and in the world of work. Yet research findings and anecdotal evidence point in the opposite direction. Most graduates of single-sex high schools, including myself, confirm the value of separate education. Researchers have found that young women in single-sex secondary schools demonstrate higher educational and professional aspirations, greater self-confidence, and less traditional views of women in the workplace. They tend to take math and science courses on higher levels, and outscore their coed counterparts on general academic and science exams. These gains continue even when they choose coed colleges. Not only do they attend more selective institutions, but they are more likely to obtain advanced degrees and choose nontraditional careers. Most importantly, single-sex education has proven particularly beneficial to minority girls who, in one recent study, scored nearly a year ahead of their peers in public coed schools.

While the New York case now centers on the potential findings of a violation under Title IX, opponents of single-sex schools have also raised constitutional claims under the 14th Amendment's equal-protection clause, making the analogy to the "separate is inherently unequal" doctrine of the high court's Brown v. Board of Education decision and raising the specter of the court's more recent decision in the VMI case. These claims may resurface in subsequent litigation even if the Title IX issue is resolved administratively. Yet single-sex schools give evidence of neither racial nor gender discrimination in a legal sense.

Despite all the saber rattling by opponents of the concept, single-sex education has solid grounding in the law and in research findings.

Any comparison between racially separate, academically inferior schools, mandated by law in a 1950s society that was pervasively segregated, and a voluntary single-sex program, particularly an academically rigorous one, obviously is flawed. Clearly, the stigma or "badge of inferiority" that the court found in Brown bears no relevance to an approach intended to enhance and not deny educational opportunities. The gender-based claim is equally questionable. The court in its VMI decision left open the door to single-sex schools under certain conditions, stating that government may draw distinctions based on gender as long as they are supported by an "exceedingly persuasive" justification. Research findings on the educational burdens that weigh upon girls in coed schools along with the benefits derived from single-sex schooling provide a convincing argument in meeting that standard.

When we strip away all the rhetoric of "benevolent sexism" and "separate is unequal" and focus on the educational issues, we find a confusing inconsistency in oppositionist arguments. Rather than redress a legal wrong, their position effectively turns the equality ideal on its head. Over the past three decades, that ideal has come to mean not just "same is equal" but sometimes "different is equal" and even "more is equal" when applied to various student populations, including the economically and educationally disadvantaged, linguistic minorities, and the disabled. Why should gender be any different? Single-sex education, particularly for minority girls, is merely an extension of that very concept that these same civil rights groups have pressed before courts, legislatures, and administrative agencies.

I am not suggesting that separate schooling should be mandated or that it is even appropriate for all girls, or that some boys could not benefit from a similar approach. What I am suggesting is that the case for girls, particularly in the socially and emotionally sensitive adolescent years, proves legally and educationally compelling. In fact, an argument can be made that coed schools better serve many boys, placing them in an environment where they learn to relate to girls as equals. On the other hand, one has to seriously question whether government should mandate, as some opponents argue, that all public school students attend a coed school. Viewed in the context of the larger debate over school reform, single-sex education is another issue where principles of individual liberty (in the form of choice) and equality (in the form of equal educational opportunity) are clearly reconcilable and mutually reinforcing despite misguided assertions to the contrary, assertions grounded more in ideology than in sound pedagogy.

It would be appropriate for New York to seriously consider a similar voluntary opportunity for boys, as a matter of policy and after thoughtful planning and research on the particular target population. But for the OCR to mandate, as a matter of law, that an all-boys school be established as a condition for continuing the all-girls school in question is a case of federal-intervention overkill. Such a mandate distorts the letter and spirit of Title IX, completely overlooks well-documented differences in the educational and social experiences of girls and boys, misunderstands the nature and significance of experimental programs, and impedes school officials from addressing the needs of disadvantaged students for whom the prevailing system has proven such a dismal failure.

The federal government, in fact, should encourage school districts around the country to become similar "laboratories" for small-scale, diverse, and measured experimentation from which can emerge the most effective approaches to educating different populations of girls and boys, both separately and together.

Unlike other school districts that have retreated from single-sex schooling in the face of real or threatened litigation, New York City should take the lead, go the legal distance, and lift the cloud hovering over single-sex public education nationwide.


Rosemary C. Salomone is a professor of law at St. John's University in New York City and the author of Equal Education Under Law.

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