Wednesday, October 9, 2013
With at least 116 single-sex public schools across the country and 390 more single-sex classes in some subjects, Professors David Cohen (Drexel/Earle Mack) and Nancy Levit (UMKC) argue that gender-segregated education is long due for review by the U.S. Supreme Court. In their new article, Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education, the authors present their case that “sex segregated education violates the Equal Protection Clause, it has no “exceedingly persuasive justification” and instead exacerbates “outdated stereotypes” while “create[ing] [and] perpetuate[ing] the legal, social, and economic inferiority of women.”” An excerpt from the introduction to Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education (Seton Hall Law Review, Vol. 44, 2014, forthcoming) is below:
The United States is seven years into an experiment with segregation in public education. This experiment, unlike the race segregation found unconstitutional in Brown v. Board of Education, is based on sex segregation. The experiment has benefitted from a peculiar alliance of political forces: conservatives, who have long believed that separation of the sexes is natural and appropriate, and some liberal groups, who see separatism either as a tool of liberation or as the lesser of bad alternatives compared to a flawed coeducational system. It resonates with a society that believes that men and women (and thus boys and girls), though equal, are inherently different. However, with seven years of experience with federally-sanctioned sex-segregated public education under the country’s belt, the arguments against sex segregation in public schools are even stronger than they were before the experiment began. Like the inherently unjust system of de jure race segregation that existed in this country, the current experiment is also unconstitutional.
In this article, we argue that this experiment must come to an end because it is educationally unsound, fundamentally discriminatory, and patently unconstitutional. We reach these conclusions by first reviewing the events that have led to state endorsed sex segregation in this country, the resulting expansion of such educational opportunities, and the legal developments since then. We break down buzzword justifications such as “choice” and “diversity” and highlight new research into brain differences (or lack thereof), educational outcomes, and sex stereotyping. In the process, we hold this expansion to the rigorous heightened scrutiny test employed by the Supreme Court for sex classifications and find that, like segregation based on race, segregating students based on sex violates the Equal Protection Clause.