The Post’s editorial “Junior High and VMI” (Sept. 7) raises some strong issues concerning the fate of the Young Women’s Leadership School in East Harlem and other single-sex education experiments after the Supreme Court decision against the Virginia Military Institute. Regrettably, that decision provides powerful support to opponents of those programs.
The American Civil Liberties Union, the National Organization for Women and others argue that the East Harlem school, as a public program, may not exclude any qualified individual merely based on his or her sex. The VMI decision says exactly that, and it allows no excuses based on what girls or boys of any age or situation want or need.
Most people trust the media’s assurances that the Supreme Court’s recent ruling affects only VMI and The Citadel. Few, it seems, have actually read Justice Ginsburg’s 41-page opinion. In fact, Justice Ginsburg in VMI crafted a new Equal Protection standard, “skeptical scrutiny,” which applies to all state laws and state actions classifying persons by gender.
Formerly, states could treat men and women differently if the practice was “substantially related to important governmental objectives.” Now, to survive skeptical scrutiny, states must demonstrate “an exceedingly persuasive justification” for treating the sexes differently. Specifically, no justification will be found persuasive if it relies on “overbroad generalizations about the different talents, capacities or preferences of males and females.”
How does this test work? In the VMI case, the lower courts credited expert testimony that single-sex schools are pedagogically valid and effective because of developmental differences between male and female adolescents. Justice Ginsburg excluded all such testimony, saying, “State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on ‘fixed notions concerning the roles and abilities of males and females.'”
Would a “truly equal option” for boys, as the Post suggests, cure New York’s constitutional problem? Well, what real-world school board would vote to subsidize a program that teaches boys “self-esteem” and limits their athletics and sports programs to those enjoyed by the girls across the street? Yet, if educators fashioned a parallel program aimed at boys’ needs and tried to exclude girls, they would flunk skeptical scrutiny, which disallows any justification based on “generalizations” about either sex.
The Post’s editorial ended with a prayer that the courts — George Will calls them “our robed masters” – will “find room for” some single-sex educational programs. The Constitution was originally intended to let the people, through their elected representatives, decide such matters. Indeed, the people of New York, Virginia and elsewhere, including countless parents and teachers, support having the option of public single-sex education for their daughters and their sons.
As dissenting Justice Scalia predicted, and the East Harlem case illustrates, the VMI decision makes it legally impractical and financially impossible to establish single-sex programs in public systems. The majority of justices who voted against VMI were unmoved by facts, experience, logic or common sense. We might as well pray, burn hecatombs and sacrifice some youths. Maybe then the High Court in Washington will heed us, the people.