October 24, 2006

Separate is not equal

by Sean Sirrine

It seems strange to me that I have to reiterate these words today 52 years after the U.S. Supreme Court informed the world in a 9-0 opinion that segregation is not an acceptable educational policy and that "separate educational facilities are inherently unequal." Brown v. Board of Education, 347 U.S. 483 (1954). But here I am once again bemoaning the inadequacy of the government to protect education from political manipulation. To quote Chief Justice Warren's Brown opinion again:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
That doesn't mean on some terms, but on ALL terms. This is being negated by the very people who have promised to uphold our rights to equal education:
For the first time in a generation, public schools have won broad freedom to teach boys and girls separately, stirring a new debate about equality in the classroom.
The Education Department on Tuesday announced rules that will make it easier to create single-sex classes or schools, a plan that's been expected for almost three years. [link]
For those of you who think that I am overreacting, keep reading the requirements:
The new rules will allow same-sex education anytime schools think it will improve students' achievement, expand the diversity of courses, or meet kids' individual needs.
Enrollment must be voluntary. And any children excluded from the class must get a "substantially equal" coed class in the same subject, if not a separate single-sex class.
Districts can also offer an entire school for one gender without doing the same for the other gender, as long as there is a coed school that provides substantially the same thing.
Let me reiterate, separate is not equal. Although as a policy matter I have sympathy for the desire to create better learning environments for children and supposedly some children learn better in single-sex classrooms, I think it is safe to say that the laws of this land make it illegal to educate one portion of our children separately from the other.

October 24, 2006 06:15 PM | TrackBack

You're forgetting that the standard of scrutiny for sex/ gender is significantly lower than that for race. The Court has refused to OK initial racial segregation of prisoners even for the strong reason of trying to make prisoners safer, but I don't think they've even had to entertain a challenge to the sex segregation of prisons. (I suppose coed prisons would reduce the problem of male-on-male prison rape...)

If you wanted to get the Department of Education's rules judged unconstitutional, you need to explain how they are equivalent to the denial of women's admission to Virginia Military Institute, as five of the votes for "exceedingly persuasive justification" still are on the Court. VMI's ex post explanations of why it wanted to stay male-only simply weren't very convincing; what seemed to be the obvious reason is that VMI just didn't want to change, and resistance to change isn't a constitutionally acceptable rationale.

The new DOE regulations, on the other hand, are themselves a change from the prior regime, and scrupulously require that both sexes be provided substantially the same education, which is what the Commonwealth of Virginia could not provide to women who were excluded from VMI. Note that Rehnquist's concurrence specifically lays foundation for single-sex schools: "considerable evidence shows that a single sex education is pedagogically beneficial for some students, and hence a State may have a valid interest in promoting that methodology..."

Posted by: PG at October 25, 2006 10:46 AM

I know, I know, legally I'm screwed. Maybe I can get Congress to change the scrutiny necessary?

Frankly, I believe the "lower threshhold" for women than for blacks is particularly appalling. I know we screwed over the blacks that were brought here as slaves, but how long were women treated as property? Thousands of years and still the court couldn't find that as a class they were significantly disadvantaged?

What crap. I'm about as convinced that the lower standard is good law as I am that Koramatsu is in any way good.

As a legal standard I agree that you have to tackle these ridiculous cases, but I'm hopeful that at some point they will be seen as cases just like Plessy.

Posted by: Sean Sirrine at October 25, 2006 08:08 PM

I couldn't remember the case, so I went to look it up.

If only there had been one more vote in Frontiero v. Richardson, women would actually have equal rights.

Posted by: Sean Sirrine at October 25, 2006 08:17 PM

In fact, come to think about it. I have to say that Justice Ginsburg may have done more harm than good in convincing the court to accept the heightened review over strict scrutiny.

Posted by: Sean Sirrine at October 25, 2006 08:21 PM


Given my example, are you saying that you think women and men should be in the same cells, or even the same prisons? I am about biased toward removing the distinctions between the sexes as one can be (indeed, it is the main reason I favor same-sex marriage; even if all homosexuals were happy to stay unmarried, the insistence that marriage only can be one man and one woman tends to perpetuate gender roles within marriage), but I do think that there are inherent biological characteristics of men that would make them more dangerous to women in a prison environment than women are to each other. Superior upper body strength and the hormonal impulse and ability to sexually penetrate are bad enough when men use them on each other; they would be even worse if women were subject to them within the penal (no pun intended) environment.

The distinction I would draw is between areas in which biological differences overwhelm merely socially-created ones, and areas in which the main differences are socially-created. For example, the ability to be the primary breadwinner is not particular to men; the ability to bear children at this point in biotechnology is particular to women. Roles within marriage may initially have grown from biological capacities, but in contemporary America, no laws distinguish between husbands and wives, and social norms do so decreasingly. (Though one of the biggest barriers to feminist progress are prejudices about what men can do, so that a man who chooses to be the primary caretaker faces even more social opposition than women in the workforce do.)

With race, in contrast, nearly all differences are socially created. There are a few biological tendencies that track with race, such as sickle-cell anemia for African Americans, but even many health outcomes have more to do with culture and socioeconomics than genetics (although even some of those are thought to have a genetic link, as with the higher mortality rate from breast cancer for black women). And these biological tendencies are essentially private; they may be reasons to maintain health statistics that check for race, so data can be collected that can help mitigate or cure problems, but they certainly don't argue for any form of segregation. As with the California prison case, the existence of social differences among races is just as much an argument for integration to decrease those differences, as it is an argument for segregation to keep the differences from causing trouble.

Even if we reached perfect legal, economic and purportedly social gender equality in our society, I would be intensely wary of putting male and female prisoners in the same cells. You'd pretty much have to remove the testosterone, testicles and penises from the men before I'd consider it safe.

Posted by: PG at October 25, 2006 09:21 PM

Didn't Brown v. Board rely quite a bit on empirical evidence that "separate-but-equal" in fact harmed minority children? As to single-sex education, the empirical evidence may well weigh in favor of segregation, which, combined with the lower standard of scrutiny, could lead to a different result.

Posted by: Tom T. at October 25, 2006 10:33 PM

Brown v. Board's only empirical evidence regarding harm to minority children was about their psyches; I don't know whether the empirical evidence on single-sex education indicates that children segregated by sex are less likely to feel inferior to the other sex than they were when coeducated.

Posted by: PG at October 26, 2006 01:58 AM

Hmmm, interesting question, especially coming from a woman. I have to admit that I am a bit surprised that you seem to essentially agree with Justice Scalia that women may be kept out of combat situations because of biological differences. I'd like to hear how you distinguish that.

Note that when you are talking about prison rape you are talking more about "socially-created" issues than about biological ones. Our prisons are run poorly, it isn't an inherently male characteristic to go around and rape other males. (Or females for that matter.)To say so would be akin to me saying that women inherently are docile and enjoy cooking and cleaning.

Posted by: Sean Sirrine at October 26, 2006 03:32 PM

What is inherent to a combat situation that would make it unsuitable for all women? *I* wouldn't want to be in a combat situation -- I didn't even like the level of physical training required for JAG -- but lots of women are fully capable of it, just as some men are not capable of it. Are you reaching for an analogy in which we would put male prisoners through many months of training to ensure that they were adequately prepared to be housed with women?

Our prisons are poorly run, but I don't think their administration is intended to encourage rape by men who otherwise never would have thought of it. The best the prison administrators can do to prevent rape is to make prison even more full of surveillance, isolation and intrusion; when survivors sue prison administrators, it's for failing to prevent the rape even after the victim complained, not for coercing the attackers into raping the victim. I suppose prisons could run therapy and counseling programs to get rid of the violent and hierarchical tendencies inherent to the type of men who tend to land in prison (i.e. men who are socially marginalized, far down the economic ladder, and accustomed to taking what they want by force because otherwise they have no access to it). But let's see how effective the program is before going to coed prisons. The average man isn't likely to rape anyone, due to both internal morality and external law; the man with a life sentence for sexual assault, robbery and murder is far more likely to do so.

Similarly, the women who choose to stay home and be the primary domestic workers probably do enjoy cooking and cleaning. We have a frequently unjust society that exerts many pressures that put people in places they have no business being, but some people do end up in an environment that matches their own tendencies. It would be as stupid to begin a program that required women who wanted to be domestic caretakers to work outside the home (unless it were necessary for wartime production or something of that sort) as it would be to require prisons to be coed.

Posted by: PG at October 26, 2006 10:20 PM

No, I was talking about the fact that the main argument for keeping women out of combat is the "biological differences" approach which I think is crap.

The argument goes something like this:

"Men have superior upper body strength and the hormonal impulse to fight, plus men don't have to deal with a menstural cycle while out in combat conditions that could make for an unsanitary situation."

You seem to agree that this is a good enough reason to keep them out of some of the most desired positions in the military.

As to the prison issue, I think you make my point for me. Just because prisons currently are run poorly there is an issue. I could make essentially the same argument for not allowing women to take any positions where they have to live in close quarters with men in the military. Inserting 'military' for prisons you get this argument:

Are you reaching for an analogy in which we would put male (soldiers) through many months of training to ensure that they were adequately prepared to be housed with women? Our (miltary is) poorly run, but I don't think their administration is intended to encourage rape by men who otherwise never would have thought of it. The best the (military) administrators can do to prevent rape is to make (combat sites) even more full of surveillance, isolation and intrusion; when survivors sue (military) administrators, it's for failing to prevent the rape even after the victim complained, not for coercing the attackers into raping the victim. I suppose (the military) could run therapy and counseling programs to get rid of the violent and hierarchical tendencies inherent to the type of men who tend to land in (the military)..."

In truth, I have to agree that we need to clean up the problem in prisons first, but requiring women to wait until other institutions clean up ther act just means that women aren't being treated equally for purely social reasons.

Posted by: Sean Sirrine at October 27, 2006 03:16 AM

I don't understand how you're getting the idea that I think women should be categorically excluded from any job, anymore than men should be categorically excluded from any job. Women who have the capacities for a position -- whether the requirements are upper body strength, aggressiveness, language skills, etc. -- should be eligible for it. Women have fought in combat for centuries, although they frequently had to don male clothing to do so. I think it was Rush Limbaugh who acknowledged that women have plenty impulse to fight; he just attributed it to PMS rather than testosterone.

Speaking of PMS, the menstrual argument against women in combat always has confused me since I first heard of Gingrich's making it. Tampons might not be advisable in a situation where one can't whip out a new one, because they're supposed to be changed at least once every 8 hours to avoid toxic shock syndrome, but that's why the original way to avoid getting blood on one's clothes was to wear a pad (made of cloth and worn by attaching it to a belt, which then was closed around the waist). The stuff about "unsanitary conditions" always comes with the tone of "Women bleeding! dirty dirty! keep them from the temple!" Even the rightwing women who oppose letting other women into combat don't raise it, presumably because they actually know what a period is like.

If you think the military is full of men with the same tendencies as men who land in high security prisons, I suppose that would explain Abu Ghraib -- except that the most public image of the perpetrators there was of a woman, Pfc. Lynndie England. The military trains people to restrain their impulses, follow rules and orders, and deal professionally with those placed under their authority. When soldiers don't do these things, it means they aren't achieving the military ideal, not that the military encourages them to be otherwise. Prisons are designed to keep the prisoners from getting out and harming non-prisoners; they've never been oriented toward keeping inmates from hurting each other. A prison that doesn't protect the general public, or that mistreats prisoners itself, is perceived as a failure; a prison that doesn't protect inmates from other inmates faces much less criticism.

If we think it acceptable to separate men from women in prison, that means we are applying a different standard than the Court does to separating people of different races in their initial cell assignments. The California prison system said that the social conditions were such that racial gang members often would assault members of other racial gangs if they were put in the same cell. The Court said that this feature of CA prisons was insufficient to permit any racial segregation. Applying the same analysis to gender means that the frequency of sexual assault in prison is not a good enough reason to permit any sex segregation.

Posted by: PG at October 27, 2006 02:09 PM


"Separate is not equal" is nice rhetoric, but as some of the commenters have alluded, it was important in Brown that the black schools were inferior to the white schools, and that by no stretch of the imagination could anyone call them "equal." So the court took away the "separate."

Derrick Bell has argued that Brown didn't really help matters, and that the Court should have focused on the "equal" rather than the "separate" and forced the states to devote equal resources to the black schools instead of forcing them to integrate.

Basically, Brown wasn't about names or labels. It was about the reality on the ground. I think it would be more consistent with Brown to argue that one gender or the other will suffer from single-sex education that it would be to simply repeat the "separate is not equal" rhetoric. Because sometimes it is.

Posted by: Prefertostayanonymousfornow at October 27, 2006 05:46 PM
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