Reaching for the Silver Lining: Constructing a Nonremedial Yet "Exceedingly Persuasive" Rationale for Single-Sex Educational Programs in Public Schools
Kolb, Pherabe, Northwestern University Law Review
Outside of a few slim circumstances, courts are more reluctant than ever to endorse government programs that rely on racial or gender classifications for their success.' In the last decade, courts have curtailed severely a government's ability to make decisions or create programs with race or gender in mind, even when their aims are well intentioned.
However, the possibility of alternative educational environments, environments that include just girls, or just boys, is exciting for many children and their parents.3 Studies show that single-sex environments may offer some students the only real opportunity of attaining and building on their academic potential.4 For those with the financial resources to choose a single-sex private or parochial school, this opportunity always has been available. Yet for the inner-city public school student-the student in the
poorest district with the least likelihood of going on to college and the highest risk of dropping out-this aspiration has an unattainable price of admission.5 Without the financial resources to pay tuition, the opportunity to learn in a single-gender environment is all but impossible for the neediest of children.6
Despite their noted potential, single-sex schools may be at risk of legal extinction. The Supreme Court's 1996 ruling in United States v. Virginia, which required the all-male Virginia Military Institute (VMI) to admit women, struck fear in the hearts of those who support gender-specific educational programs. Moreover, that same year, the Fifth Circuit Court of Appeals invalidated a race-based affirmative action program in a state-run university! The combined weight of these opinions caused many educators to worry that the days of race-specific and gender-specific policies, even those that have proved beneficial, were over.
Indeed, a review of the case law reveals that unless a race- or genderspecific educational program is designed to remedy past discrimination perpetrated by that institution, a court likely will strike it down.9 Hence, the dark clouds created by recent court rulings foreshadow that without a concrete evidentiary showing of past discrimination-and a program designed explicitly and only to redress it-no race- or gender-based program ever can survive judicial scrutiny.
In the last three years, however, a handful of circuits have questioned the single-mindedness of these rulings.10 Recognizing that equal opportunity is not just the product of looking backward to atone for old sins, but of gazing forward to realize new possibilities, the prospect of an exceedingly persuasive, yet nonremedial, justification that will withstand constitutional scrutiny offers supporters of single-sex public schooling a silver lining on a horizon of otherwise darkening clouds.'
When a school district makes distinctions based on race or gender, its decision-making process should be subjected to a higher degree of judicial scrutiny. The tarnished history of "educational" prerogatives in this area cannot be ignored.12 However, the sorry legacy of these decisions should
not preclude outright all future policies that rely on race or gender classifications. Certainly there can be some circumstances when it is legal, as well as ethical, for a government to take race or gender into account when making a decision.'3
Although many scholars have attempted to predict whether the Supreme Court will uphold a single-sex public school,14 none has referenced the relatively recent cases that support nonremedial rationales for race- and gender-based policies. Thus, this Comment proffers an "exceedingly persuasive justification" for single-gender public education that relies, in part, on rulings upholding nonremedial race-based and gender-based government policies in limited circumstances. …