Anti-Subordination Analysis after United States v. Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools

University of Chicago Legal Forum Volume 1999 | Issue 1 Article 10 Anti-Subordination Analysis after United States v. Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools Denise C. Morgan Follow this and additional works at: http://chicagounbound.uchicago.edu/uclf Recommended Citation Morgan, Denise C. () "Anti-Subordination Analysis after United States v. Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools," University of Chicago Legal Forum: Vol. 1999: Iss. 1, Article 10. Available at: http://chicagounbound.uchicago.edu/uclf/vol1999/iss1/10 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized administrator of Chicago Unbound. For more information, please contact . Anti-Subordination Analysis after United States v Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools Denise C. Morgant Disregarding the historical trend in favor of co-education, in recent years educators have begun to introduce a new generation of single-sex public schools and programs in the United States. Opponents of single-sex public education have challenged the legality of those new schools and programs - arguing that they violate the Equal Protection Clause of the Fourteenth Amendment. Their arguments rely heavily upon United States v Virginia,1 a 1996 Supreme Court decision that held that the all-male Virginia Military Institute violated that constitutional provision.2 Specifically, the opponents of single-sex public education argue that Virginia requires the government to defend its use of sexbased classifications with an "exceedingly persuasive justification," indicating that courts should now apply the same strict scrutiny to sex-based classifications that they have traditionally used to evaluate the constitutionality of classifications based on race As strict scrutiny has almost always proved fatal,4 they t Associate Professor, New York Law School; B.A. 1996, Yale College; J.D. 1990, Yale Law School. Sections of this paper were presented at the New York Law School Journal of Human Rights symposium Finding a Path to Gender Equality, and at the Third Annual Northeast People of Color Conference at Touro Law School. I thank Michelle Adams, Ina Allen, Meg Baldwin, Mary Anne Case, David Chang, Aleta Estreicher, Katherine Franke, Sally Goldfarb, Julie Goldscheid, Beverly Greene, Karen Gross, Tracy Higgins, Linda McClain, Carlin Meyer, Coralee Morgan, John Morgan, Arti Rai, Reva Siegel, Marjorie Silver, Eric Wold, Donald Ziegler, and Rebecca Zietlow for their encouragement and for their comments on earlier drafts. Thanks also to Michael McCarthy for library assistance, and to my thoughtful and talented research assistants Anup Anand, NYLS '98, Mariam Farooq and Holly Lake, NYLS '99, John Webb, NYLS '98, and Heather Wiltshire-Clement, NYLS '99. My work on this project was supported by summer research grants from New York Law School. 518 US 515 (1996). Id at 519. I refer to such classifications as "sex-based" because they treat anatomical and physiological traits as accurate markers of a person's gender identity. Usually we do just the reverse - we attempt to ascertain a person's anatomical sex by observing how he or she performs his or her gender. For example, a few years ago, a little boy pointed to my 382 THE UNIVERSITY OF CHICAGO LEGAL FORUM [1999: contend that Virginia spells the end of single-sex public education in this country.5 The Supreme Court's decision in Virginia - particularly its statement that sex-based classifications must be supported by an "exceedingly persuasive justification" in order to survive constitutional scrutiny - caused quite a lot of excitement. Those who were pleased with the Court's analysis and those who were unhappy about it were equally keyed-up about its implications for all-male and all-female public schools.' In fact, even those who did not believe that the constitutionality of all single-sex education was called into question by the case were excited about defending that proposition in light of the "changed" language.7 closely cropped hair and asked his brother whether I was a man. His exasperated brother responded, "No, she is wearing earrings." Mary Anne Case explains that "[a]s most feminist theorists use the terminology, 'sex' refers to the anatomical and physiological distinctions between men and women; 'gender,' by contrast, is used to refer to the cultural overlay on those anatomical and physiological distinctions." Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation:The Effeminate Man in the Law and FeministJurisprudence,105 Yale L J 1, 10 (1995). While sex is generally assumed to be binary - one is either a man or a woman - gender is not neatly divisible into the categories of masculinity and femininity. Rather, gender is fluid and culturally situated - what are considered to be sex appropriate gender identities and roles are defined by tradition, learned from prior generations, and constructed within peer groups. Compare Judith Butler, Gender Trouble 7 (Routledge 1990) (arguing that "[g]ender ought not to be conceived merely as the cultural inscription of meaning on a pregiven sex (a juridical conception); gender must also designate the very apparatus of production whereby the sexes themselves are established"). Gender is also frequently conflated with sexual orientation. However, while gender can be measured by behavior in a myriad of different social interactions including sexual ones, "[iun this society, sexual orientation is measured chiefly by... whether the object(s) of one's desire are of the same or of a different sex than oneself." Case, 105 Yale L J at 13 (cited in this note). See note 119 and accompanying text. See 60 Minutes: School or Scandal? ACLU and NOW Organizations Strive to Shut Down the Young Women's Leadership School for Girls in New-York (CBS television broadcast, June 8, 1997). ' Compare Ellen Goodman, Court Knocks Down Last Bastion of Male-Only Tradition, St. Louis Post-Dispatch 11B (July 5, 1996), with Anita K. Blair, The New Move Equal Protection Clause, 44 Federal Lawyer 35, 35 (Jan 1997) ("Any fair reading of the VMI decision shows that it prohibits states from denying educational opportunities to either young men or young women solely on the basis of their sex. It also forbids consideration of what girls or boys, as a class, of any age or situation want or need."); Steve Forbes, Rigidly Wrongful Ruling, Forbes 26 (Aug 12, 1996); Michael Prowse, Give men a break: Selfrighteous American feminists are waging a holy war against the beleaguered male of the species, Financial Times 16 (July 15, 1996); George F. Will, Ruling on VMI EndangersAll Single-Sex Education, Sacramento Bee B7 (July 5, 1996); Jeffrey Rosen, Single-Sex Schools and Double Standards, NY Times A2 (July 3, 1996). See also Virginia, 518 US at 601 ( (...truncated)