Law and Humanities Interdisciplinary Junior Scholar Workshop
June 1-2, 2003
“Separate Can Never Be Equal”:
Sex Segregation, Racial Desegregation, and the Law, 1969-1977
Serena Mayeri†
“[T]he sole grievance . . . is that complainant’s children, being of African
descent, are not allowed to attend the same public schools as those in which
children of white parents are educated. White children and colored children are
compelled to attend different schools. That is all. The state . . . had the right to
manage its schools in the manner which, in its judgment, will best promote the
interests of all. The state may be of the opinion that it is better to educate the
sexes apart. By such a policy can it be said that the equal rights of either sex are
invaded?”
—Louisiana federal judge, 1878.1
“In the context of a charge that segregation with equal facilities is a denial of
equality, is there not a point in Plessy in the statement that if ‘enforced separation
stamps the colored race with a badge of inferiority’ it is solely because its
members choose ‘to put that construction upon it’? Does enforced separation of
the sexes discriminate against females merely because it may be the females who
resent it and it is imposed by judgments predominantly male?”
— Columbia Law Professor Herbert Wechsler, 1959.2
†
DRAFT: Please do not cite or quote without the author’s written permission. Thanks are due to Nancy Cott and
members of her gender history research seminar for their valuable comments on earlier drafts of this paper. I owe a
great debt to the staff at the Southwest Regional Division of the National Archives and Records Administration in
Fort Worth, Texas, for helping me to locate crucial court records from the Fifth Circuit. I would also like to thank
Robert Barnett, Adrienne Cannon, Jack Greenberg, Christian McMillen, and Anders Walker for their helpful
suggestions during the course of my document search. My thinking about this project has benefited tremendously
from conversations and correspondence with Ariela Gross, Adrienne Davis, Katherine Franke, Glenda Gilmore,
Robert Gordon, Jill Hasday, Laura Kalman, Deborah Malamud, Tavia Nyong’o, Rebecca Rix, Reva Siegel, Anders
Walker, and Philipp Ziesche.
1
Bertonneau v. Board of Directors of City Schools, 3 F. Cas. 294, 295-96, 1878 U.S. App. LEXIS 1614, *1-2 (D.
La. 1878).
Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” 73 Harvard Law Review 1, 33 (1959).
Wechsler’s article, cited widely as an exemplar of liberal legal skepticism toward the Brown Court’s reasoning, was
delivered as the Oliver Wendell Holmes Lecture at Harvard Law School on April 7, 1959. Upon his death forty
years later, Wechsler was eulogized by legal luminaries as one of the foremost legal scholars of the century.
2
2
In the century following the Civil War, when courts and legal scholars considered the
relationship between educational segregation by race and the separation of the sexes, it was to
rationalize the legality of the former by invoking the naturalness of the latter. Whether they
believed segregation to be salutary or regrettable, innocuous or obnoxious as a matter of policy,
the comparison to sex separation legitimated these commentators’ judgment that racial
segregation did not offend the Fourteenth Amendment to the United States Constitution. In
1878, a federal court in Louisiana rejected a challenge to racial segregation in the state’s public
schools, declaring that “Equality of right does not necessarily imply identity of rights.”3 If the
constitution’s equal protection guarantee prohibited racial separation, the court went on to
suggest, the equality principle would also mandate “educating children of both sexes, or children
without regard to their attainments or age in the same school.”4 Such a result was clearly absurd.
Eight decades later, Columbia Law Professor Herbert Wechsler wondered, in a famous
and widely read critique of the Supreme Court’s reasoning in Brown v. Board Education,
whether it was appropriate “to make the measure of validity of legislation the way it is
interpreted by those who are affected by it.”5 To emphasize his point, he asked, rhetorically,
whether segregation of the sexes constituted discrimination merely because women objected to
its imposition by male authorities. For him, the answer was clearly no. The unquestioned
legitimacy of sex segregation reinforced his suggestion that, however distasteful racial prejudice
Leading feminist advocate and Supreme Court Justice Ruth Bader Ginsburg, once a student of Wechsler’s at
Columbia and Harvard, remarked that “What [the ‘Neutral Principles’] article did, very effectively, is remind us of
lawyers’ professional obligation to examine, unsparingly, even the ultimate triumphs of the legal system, like Brown
vs. Board of Education.” Quoted in Tamar Lewin, “Herbert Wechsler, Legal Giant, is Dead at 90,” New York
Times, 28 April 2000.
3
Bertonneau, 3 F. Cas. at 296.
4
Id.
5
Wechsler, 33.
3
might be, Southern localities breached no constitutional equality guarantees when they
segregated schoolchildren by race, provided facilities were comparable.
By the late 1960s, however, Brown was firmly entrenched constitutional doctrine,
however elusive its effective implementation and popular acceptance remained. After dragging
their feet or openly resisting integration for fifteen years, many Southern school districts faced
newly stringent desegregation orders requiring the submission and implementation of specific
plans subject to judicial approval. Offering parents and students “freedom of choice” in
selecting local schools had proven ineffectual, so courts now required detailed blueprints for
integration from school authorities. In 1969, a series of judicial decisions mandated what many
white southern public school systems had thus far managed to avoid: enrolling white children in
schools alongside African American boys and girls.6 Local officials reacted in a variety of ways:
many issued public statements of defiance and then grimly set about the task of grudging
compliance; others endorsed the surreptitious—or unabashed—public funding of private white
academies.
Meanwhile, coeducation, already pervasive at mid-century, was spreading even to the
upper echelons of secondary and higher education as Northern elite institutions like Andover,
Choate, Stuyvesant, Bronx Science, Harvard, and Yale admitted women or merged with their
female counterparts, and a few prestigious women’s colleges, such as Vassar and Sarah
Lawrence, opened their doors to men. While coeducation was by no means universal, the
remaining smattering of single-sex schools and colleges had become isolated exceptions to the
6
On massive resistance in the years after Brown, see Numan Bartley, Rise of Massive Resistance: Race and Politics
in the South During the 1950s (1969).
4
general coeducation rule.7 Moreover, as the women’s movement gained momentum, calls for the
extension of educational and employment opportunities previously denied to women grew more
insistent. For many, single-sex schools were relics of an oppressive past, representing the
stifling of female ambition and the denial of female achievement.8
Just as many of the remaining single-sex Southern public universities were opening their
doors to students of both sexes, a number of school districts, faced with the prospect of racial
integration and the accompanying specter of “race-mixing,” turned to sex separation as a
palliative measure to minimize the “disruption” of desegregation. If school districts could
comply with court orders without sending white girls to school with black boys and black girls to
school with white boys, officials suggested, perhaps white parents could be convinced to remain
within the public school system. Some couched their arguments in terms of economic efficiency
or educational soundness, but the acknowledged purpose of many of the single-sex plans was to
ease whites’ transition to integrated education, thereby avoiding white flight to newly established
segregated academies. If white parents’ resistance to integration stemmed primarily from a fear
of interracial sexual contact, the reasoning went, single-sex schools would make racial
desegregation far more palatable.
African American families and civil rights organizations were less enthusiastic about sex
separation as a “remedy” for racial desegregation. In expressing their opposition to single-sex
schools, they articulated what was objectionable about sex separation in the context of racial
desegregation; in so doing, they identified and constructed the meanings of sex separation, racial
7
For an overview of coeducation in American history, see David Tyack and Elizabeth Hansot, Learning Together: A
History of Coeducation in America (1992).
See, for example, Alice de Rivera, “On De-Segregating Stuyvescent High School,” in Robin Morgan, ed.,
Sisterhood is Powerful: An Anthology of Writings from the Women’s Liberation Movement (New York: Vintage
Books, 1970), 366-71; Liva Baker, I’m Radcliffe! Fly Me!—The Seven Sisters and the Failure of Women’s
Education (New York: Macmillan, 1975).
8
5
integration, and the relationship between the two. In the Southern desegregation context, sex
segregation was clearly a racial harm from start to finish. But during the 1970s, the legal system
became increasingly responsive to sex discrimination as an injury worthy of redress. With
feminists extending legislative gains and winning new judicial breakthroughs, opponents of sex
segregation schemes in racial desegregation plans were increasingly inclined to turn to sex
discrimination theories as a primary legal tool.
Meanwhile, a parallel debate was underway in the North about the legitimacy of public
single-sex secondary education in and of itself. In the late 1960s, some of New York City’s most
prestigious public schools ceded to demands that they open their doors to girls. By the early
1970s, the coeducation crusade had spread to other cities, including Philadelphia, where the two
most elite public schools—Central High School and the Philadelphia High School for Girls
(“Girls High”)—remained single-sex. On the Northern front of the single-sex education
controversy, sex separation also maintained a close and important relationship to racial
segregation. But although this debate occurred contemporaneously with bitter disputes over
busing, opponents of sex separation in the Northern context tended to see the two phenomena as
analogous rather than intertwined. Here, sex separation functioned not an antidote to racial
integration, but rather as a practice arguably parallel to racial segregation in its effect on equal
educational opportunities for male and female students. Almost inevitably, disputants framed
sex segregation by way of an analogy to racial segregation, a comparison that could be both an
asset and a liability for opponents of single-sex schools. The debate over single-sex public
schools also intersected with larger legal processes set in motion in the 1970s, as women’s rights
activists pioneered a constitutional agenda in the Supreme Court. Beginning in 1971, a series of
6
Court decisions for the first time struck down laws that discriminated against women.9 In the
years that followed, the ACLU Women’s Rights Project, led by Ruth Bader Ginsburg, attempted
to convince the Court that sex-based legal classifications deserved special scrutiny. Meanwhile,
feminists also pushed for Equal Rights Amendments to both the federal and state constitutions,
and pursued legislation designed to equalize educational and employment opportunities for
women and men. This constantly evolving legal and constitutional backdrop played an
important role in the controversies over single-sex schools in both the elite public secondary
education and the racial desegregation contexts, shaping the legal trajectories of both disputes.
This paper is part of a larger project that considers these two debates—over sex
segregation in racial desegregation plans in the South, and over elite public secondary schools in
the North—together. For the purposes of this workshop, I will discuss in detail the first debate,
with occasional references to the second. I will trace the evolving debate over sex segregation
from initial proposals in the 1950s, to implementation in the 1960s, and challenges to single-sex
public schools in the 1970s. I argue that when sex segregation was first proposed as an antidote
to white fears about racial integration, two things were clear: the anti-miscegenation motivation
behind the proposals for single-sex schools, and the unproblematic constitutional status of sex
segregation per se. Those who were concerned about constitutional challenges to such plans
worried that courts might perceive their underlying motivation as imposing a racial “badge of
inferiority” similar to the psychological harm outlawed in Brown. The notion that sex
segregation might be sex discrimination did occur to some in the context of higher education, but
9
See Reed v. Reed, 404 U.S. 71 (1971); Frontiero v. Richardson, 411 U.S. 677 (1973); Weinberger v. Wiesenfeld,
420 U.S. 636 (1975); Craig v. Boren, 429 U.S. 190 (1976). These decisions represented a major departure from past
jurisprudence, which had routinely ratified sex-discriminatory laws. See, for example, Bradwell v. Illinois, 83 U.S.
130 (1872) (upholding a law preventing women from practicing law); Minor v. Happersett, 82 U.S. 162 (1874)
(validating the denial of suffrage to women); Goesart v. Cleary, 335 U.S. 464 (1948) (upholding a law preventing
7
even in that realm—historically more receptive to civil rights claims than primary and secondary
schools—constitutional challenges in the late 1950s came to naught.
When a smattering of school districts throughout the South implemented sex separation
in the wake of desegregation orders at the end of the 1960s, the question courts asked was
whether the plans motivated by “racial discrimination” or by legitimate “educational purposes.”
Over the course of the 1970s, as feminists developed legal tools to fight sex discrimination, and
existing civil rights organization became more receptive to such claims, the legal debate over sex
segregation in racial desegregation plans shifted. No longer was the legal discourse just about
race and about barely submerged fears of interracial sexual contact; now it was also about the sex
discriminatory intent and effect of sex segregation. This shift had significant ramifications for
how lawyers and judges argued about sex segregation, but it also revealed that neither of these
legal categories encompassed all of the harms perceived by African American families and local
civil rights organizations. While many elite white Southerners cherished a venerable tradition of
sex segregation, rendering the concept somewhat familiar to whites of lesser means, African
Americans had always educated boys and girls together. This coeducational legacy helped to
enable African American communities to articulate the harm of sex segregation in a manner that
did not sharply differentiate race- and gender-related harms and thus in terms that existing
paradigms of race and sex discrimination could not capture. While the legal discourse had
expanded to cover an additional axis of discriminatory harm, with significant consequences for
disputes over sex segregation in and out of court, legal concepts of race and sex discrimination
nevertheless retained significant limitations as meaningful encapsulations of the injuries of sex
segregation.
women from serving as bartenders); Hoyt v. Florida, 368 U.S. 57 (1961) (allowing women to serve on juries
voluntarily, while service was compulsory for men).
8
Civil rights and feminist advocates hoped for a conclusive resolution from the courts of
whether sex segregation could be constitutionally valid, and if so, under what circumstances. It
was not to be. In 1977, a pair of cases left the issues muddier than ever: in the Mississippi
desegregation case United States v. Amite County School District, et al., the Fifth Circuit ruled
that the Equal Educational Opportunity Act of 1974, a statute passed primarily to curtail busing,
prohibited sex-segregated school assignments. In the same year, an equally divided Supreme
Court affirmed without opinion a Third Circuit ruling that Philadelphia’s elite public boys’
school, Central High, was not constitutionally impelled to admit Susan Vorchheimer. Neither
decision resolved the many unanswered questions about sex segregation and its relationship to
racial segregation and desegregation. Nevertheless, the debate over the pedagogical desirability
and constitutional legitimacy of sex segregation had been transformed forever.
“Not Even the Present Court Can Call It Unconstitutional”
Once upon a time, Jim Crow’s minions could muster the unquestioned legitimacy of sex
segregation into service to justify and naturalize the separation of the races in public schools. To
deem segregating black and white schoolchildren impermissible was as ludicrous to the
Bertonneau court in 1878 as challenging the separate education of boys and girls. When Herbert
Wechsler sought to vindicate “neutral principles” of constitutional law in 1959, the widespread
acceptance of sex segregation as constitutionally unproblematic served for him as a basis for
viewing racial segregation as equally within constitutional bounds. Though the constitutionality
of racial segregation had come under escalating attack since the 1930s, challenges to sex
separation were only just beginning to surface in the 1950s. As such, sex separation was a logical
antidote to racial desegregation for many legislators and commentators who addressed the
9
problem of racial integration after the Brown decision transformed the constitutional landscape in
1954.
In fact, even before the bombshell of May 17, 1954, at least one state anticipated the need
for a contingency plan in case the days of school segregation were numbered. The Alabama
legislature authorized sex separation in public schools in 1953,10 and over the next four years,
Tennessee11 and Florida12 followed suit, passing permissive legislation of various kinds. In 1955,
former Connecticut Senator Hiram Bingham wrote a highly publicized letter to South Carolina
Governor James F. Byrnes proposing sex segregation as an alternative to appease those who
urged the abolition of public education if the state were forced to racially desegregate.13 In 1959,
segregationists in the Virginia House proposed a bill that would mandate the permanent
discharge of any teacher who allowed coeducational classrooms.14 Though this extremist
approach did not win legislative approval, the Charlottesville schools initiated a sex separation
‘experiment’ for the 1959-60 school year.15 Meanwhile, several school districts in Louisiana
turned to sex separation after a 1960 law authorized the practice on the eve of a bruising battle
over integration in New Orleans.16
See Robert Alden, “South Trying Out New School Plan: Separation of Sexes in High Schools Tested as an Aid in
Eventual Integration,” New York Times, 22 September 1957, 55.
10
Tenn. Laws 1957, ch. 98, section 1 (allowing school districts to “provide separate schools for persons of the male
sex and persons of the female sex”). [quoted in Barnett]
11
12
“Florida Passes Law to Segregate Sexes,” New York Times, 27 May 1959, 29.
“Pupil Separation By Sex Suggested: Ex-Senator Bingham Writes Byrnes This Would Help Solve Segregation
Woes,” New York Times, 20 January 1955.
13
Homer Bigart, “Virginia Passes Key School Bills: Almond's Plan for Easing Integration is Approved--Extremists
Active”, New York Times, 1 February 1959, 48.
14
“Schools Planning Sex Segregation: Charlottesville Will Separate Boys and Girls as Racial Integration Begins,”
New York Times/AP 10 July 1959.
15
Louisiana Revised Statutes No. 492 (1960) (“Local school systems may require the assignment of pupils to any or
all schools within their jurisdiction on the basis of sex.”). [quoted in AFSC Report, 94].
16
10
Meanwhile, commentators and observers across the nation trumpeted sex segregation as
the perfect solution to the perils of racial integration. If white Southern parents’ often violent
reactions to the prospect of desegregation stemmed from a visceral fear of widespread
“miscegenation,” then what better to calm their fears than a scheme that would keep black boys
away from their white daughters? “As everybody knows,” wrote Mitchell Rawson to the New
York Times six months after Brown I, “the historic position of the South is that the problem of
the close association of the races is basically a biological one. Complete separation of the sexes,
in separate buildings, would prevent the very worst results of the decision which are foreseen by
many people of good will, white and black.”17 Others euphemistically referred to “sex problems”
or “adolescent problems”18 as barriers to students “applying themselves”19 in racially integrated
schools. But few failed to observe that fear of what Americans had called “amalgamation” a
century earlier was at the root of this sudden enthusiasm for sex separation. New York Times
columnist Arthur Krock opined in 1956 that “Apprehension that steady expansion of…
interbreeding would be the result of propinquity in mixed schools of adolescents is the basic
cause of the Southern resistance.”20 Therefore, Krock wrote, “the suggestions of separation by
sexes goes to the heart of the controversy” over integration.21 When Florida’s governor signed
17
Mitchell Rawson, Letter to the Editor, New York Times, 24 November 1954.
Robert Alden, “South Trying Out New School Plan: Separation of Sexes in High Schools Tested as an Aid in
Eventual Integration,” New York Times, 22 September 1957, 55.
18
“Segregation by Sex: Florida School Bill Seeks to Bar Racial Intermarriage,” United Press International, 21 April
1959.
19
20
Arthur Krock, “In the Nation: ‘Gradual’ in the Frame of History: II,” New York Times, 27 March 1956, 34
Id. Krock continued: “These Southerners oppose, and fear with the deepest emotions of which human beings are
capable, amalgamation of the Caucasian and African races. Though certain of their ancestors were responsible for
the infusion of white blood in the race enchained by slavery, this has only intensified their conviction that the
anthropological consequences of this interbreeding is the lowering of both racial strains.” Id.
21
11
that state’s sex separation bill in 1957, the wire service headline read, “Segregation by Sex:
Florida School Bill Seeks to Bar Racial Intermarriage.”22
Fueling this single-sex renaissance was the pervasive perception that the constitutional
encumbrances placed upon racial segregation were inapplicable to sex separation. Rawson
suggested in 1954 that there was “one form of segregation which is perfectly legal….This is
segregation of the sexes. Not even the present court can call it unconstitutional.”23 Similarly,
Senator Bingham harkened back to nineteenth-century traditions of sex segregation in his letter
to Governor Byrnes, asserting confidently: “No one could claim that was unconstitutional.”24
Krock perceived that the “badge of inferiority” argument might extend to sex segregation, but
was referring to racial stigma, rather than to any notion of discrimination based on sex. “The
Supreme Court conceivably might outlaw [sex separation] on its 1954 reasoning that (since its
motive would be obvious) this arrangement also would ‘generate a feeling of inferiority [among
Negroes)...in many ways unlikely ever to be undone,’ and thus violate the ‘equal protection’
clause of the Fourteenth Amendment,” Krock wrote.25
Indeed, single-sex institutions were not immune from constitutional challenge in the
1950s. Most significantly, there were some who saw parallels between the exclusion of women
and the exclusion of African Americans from institutions of higher education. The African
American attorney Pauli Murray, who had made just such an argument in her unsuccessful
“Segregation by Sex: Florida School Bill Seeks to Bar Racial Intermarriage.” Sidney Rheinstein wrote in 1958 to
the New York Times: “Having been born and raised in the South, I think one of the main objections many
Southerners have to integration is that they do not wish children of different sexes to mingle. It took a long time to
have coeducation in this country. I cannot remember any coeducation schools in my boyhood, except perhaps a few
kindergartens. It is a fact that people in southern climates mature much faster sexually. Sex is an ever-present force
in everyone's life. I think it goes to the very basis of the integration question.” Sidney Rheinstein, Letter to the
Editor, New York Times, 25 August 1958.
22
23
Mitchell Rawson, Letter to the Editor, New York Times, 24 November 1954.
“Pupil Separation By Sex Suggested: Ex-Senator Bingham Writes Byrnes This Would Help Solve Segregation
Woes,” New York Times, 20 January 1955.
24
12
attempt to attend Harvard Law School in 1944, saw a 1958 suit seeking to overturn the bar on
admitting women at Texas Agricultural and Mechanical (A & M) University as a chance to
renew women’s legal quest for equal educational opportunity.26 Early indications were positive:
in Heaton v. Bristol, Judge W. T. McDonald of the Brazos County District Court found that “as a
matter of law separate but equal facilities are inherently unequal as applied to males and females,
and as a matter of law any attempt at classification of males and females for educational
purposes at the Agricultural and Mechanical College of Texas is irrational and immaterial to the
educational objectives sought, and does violence” to both the Texas and United States
Constitutions.27 However, Texas’s highest court overruled the trial judge, and the U.S. Supreme
Court twice declined to hear the women’s appeal.28
Nevertheless, the case gave the ACLU a vehicle through which to prove its commitment
to women’s rights advocacy despite the organization’s historic opposition to the Equal Rights
Amendment (ERA).29 ACLU attorney Rowland Watts saw the case as a chance “to build up a
‘sociological’ record—insofar as time and our research facilities permit—comparable to that
done in the racial segregation cases.”30 National Woman’s Party officials, some of whom were
less than friendly to the cause of racial desegregation, nevertheless saw in the Texas case a
25
Krock, “In the Nation: ‘Gradual’ in the Frame of History: II,” 34.
26
Transcript of Presentation by Pauli Murray to the PCSW, 1962, Pauli Murray papers, Box 49, Folder 885. Harvard
Law school had dropped its bar on women students just a few years after Murray’s bid to attend had failed, but as a
private institution it had not been a prospective target of legal action. As a public school, Texas A & M was subject
to constitutional strictures and could produce a favorable precedent for integrating other prominent universities.
27
317 S.W.2d 86, 91 (Tex. Civ. App. 1958).
28
Appeal dismissed, cert. denied, 359 U.S. 230 (1959); rehearing denied, 359 U.S. 999 (1959).
For more on how the ACLU evolved into one of the foremost advocacy organizations for women’s rights, largely
through the efforts of Dorothy Kenyon and Pauli Murray, see Susan Hartmann, The Other Feminists: Activists in the
Liberal Establishment (1998).
29
30
Letter from Rowland Watts to John M. Barron [attorney for Bristol, et al], June 25, 1959, ACLU Records, Mudd
Library, Princeton University, Box 1142, Folder 22.
13
golden opportunity to publicize the need for an ERA.31 Even those who were downright hostile
to racial integration could exploit the analogy between race and sex segregation. The Dallas
Morning News, for instance, editorialized that the only way to rationalize the courts’ refusal to
mandate the admission of women to Texas A&M on the grounds that the state provided adequate
coeducational alternatives, was to permit states to provide racially integrated and segregated
educational options. “If the court is consistent, which has never been proved, this decision is
important to states that desire educational segregation at the will of the educated,” the editors
wrote.32
The outcome of the Texas case did not bode well for those who would challenge sex
segregation as “inherently unequal.” Brazos County District Attorney John Barron, who argued
the Texas A & M case before the Texas supreme court, had hoped that the women’s lawsuit
would, on the one hand, evade the “explosive ingredients” of the sensitive race issue, and on the
other, facilitate challenges to sex separation as a tool of racial desegregation. In a letter to ACLU
lawyer Watts in July 1959, Barron expressed optimism that “The fact that many—and increasing
numbers—of school boards are using and are going to use segregation by sex to confute the
segregation decisions, should cause the Court to see that this is a serious and important issue
with far-reaching results.”33 But it was not to be. Indeed, it would be a decade before any
substantial legal challenges to sex segregation in school desegregation plans would arise.
For more on the National Woman’s Party, see Leila J. Rupp and Verta B. Taylor, Survival in the Doldrums: The
American Women’s Rights Movement, 1945 to the 1960s (1987).
31
“If the Court is Consistent,” The Dallas Morning News, 9 April 1959, ACLU Records, Mudd Library, Princeton
University, MC #001, Box 1142, Folder 22.
32
33
Letter from John M. Barron, District Attorney, Brazos County, Bryan Texas, to Rowland Watts, ACLU, July 14,
1959, ACLU Records, MC #001, Box 1142, Folder 22. Barron also hoped that, as in the racial segregation cases, “A
case at college or university level should be stronger than one at grade-school level, and the 'ice' should be broken
more easily.” Id.
14
“An Affirmative Duty to Take Whatever Steps Might Be Necessary”
The primary reason for this long delay was that very little actual school desegregation
occurred in the decade after Brown. In 1964, few white schoolchildren in the South had black
classmates. Though token desegregation occurred in some formerly all-white schools under socalled freedom-of-choice plans, in 1969 virtually no white children attended historically black
public primary and secondary schools. The Supreme Court’s decision in the 1968 case Green v.
New Kent County School District, which imposed upon school boards “the affirmative duty to
take whatever steps might be necessary to convert to a unitary system in which racial
discrimination would be eliminated root and branch,” served as an epitaph for this particular
incarnation of foot-dragging.34 In its wake, the Fifth Circuit Court of Appeals instituted
expedited procedures for school desegregation cases that resulted in a flood of court orders:
between December 1969 and October 1970, the court handed down no fewer than 166 opinions
involving 89 different school districts.35 Ironically, this sudden acceleration of desegregation was
driven in part by the impending trend toward conservatism in the executive branch. Concerned
that the Nixon White House’s commitment to school desegregation would not match their own,
officials in the Departments of Justice and Health, Education and Welfare (HEW) made sure to
file Green-inspired desegregation suits throughout the South before Johnson left office.
Sure enough, although Nixon appointed a HEW secretary with a strong record on civil
rights, Robert Finch, Southern conservatives led by South Carolina Senator Strom Thurmond
besieged Finch’s department and Justice almost immediately. As historians Frank T. Read and
Lucy S. McGough recount, the ultimate result of their battle was an unprecedented split between
34
35
391 U.S. 430, 437-38 (1968).
Frank T. Read & Lucy S. McGough, Let Them Be Judged: The Judicial Integration of the Deep South (Meutchen,
NJ and London: Scarecrow Press, 1978), 469.
15
the Justice Department and the NAACP Legal Defense Fund, which had for many years counted
federal government lawyers as crucial allies.36 Under tremendous pressure, Finch had issued a
directive interpreted across the South as a reprieve for recalcitrant school districts, countenancing
a form of delay that the Supreme Court would explicitly prohibit in the Mississippi case
Alexander v. Holmes County Board of Education in October 1969.37 Meanwhile, in a lesspublicized move, HEW initiated a new policy whereby staffers from the Office of Education
would assist school districts in developing desegregation plans, on the theory that local
consultation would make for more expeditious and mutually satisfactory results. As it turned out,
many school districts showed little interest in seeking the advice of HEW’s education experts.
Often, HEW’s recommendations would be met by school board counterproposals characterized
by varying levels of evasion, circumvention, and delay. In several cases, those counterproposals
included sex segregation schemes.
School boards proposed sex segregation in some instances as a temporary measure
designed to ease white parents into the frightening world of integration, in other cases as a
permanent antidote to the evils of interracial contact. As such, sex separation plans took a variety
of forms. In some schemes, classrooms were segregated by sex; more commonly, at least in the
cases challenged in court, entire school campuses would be designated all-male or all-female.
Sex segregation was particularly appealing to school boards in districts where black students
constituted a majority, or close to it, or where African Americans were concentrated in a
particular geographic area. In Concordia Parish, Louisiana, for instance, where the total
population of school-age children was approximately 55 percent white and 45 percent black, a
higher concentration of African American students lived in one particular area of the district.
36
Read & McGough, 485-88.
16
Citing the “exceptional” nature of the predominantly black schools in that area, District Court
Judge Ben Dawkins approved a three-step plan: in the first stage, a cohort of African American
students would be transferred to formerly all-white schools, or schools in which some token
desegregation had already occurred. Then, in the second stage, white students would begin to
integrate formerly all-black schools; it was in this pivotal phase that sex separation would occur,
in grades seven and above.38 Tacitly approving the delay and the sex segregation, Judge Dawkins
explicitly rejected HEW’s proposed plan for Concordia Parish, as “unworkable and impractical.
If adopted,” Dawkins declared, “there is grave danger that it would create an all Negro, or
substantially all Negro, public school system and thwart the objectives enumerated in the
desegregation cases.”39 In Amite County, Mississippi, where African Americans constituted
approximately 60 percent of the district’s 7,000 students and schools were few in number, white
students would have to attend all-black schools immediately if desegregation was to be
practicable: coincident with racial desegregation, two of the district’s secondary schools would
become all-male, and two all-female.40
In these early months of massive desegregation, district court judges responded to sex
segregation proposals in a variety of ways. Some, like Judge Dawkins, approved the separation
of boys and girls with little commentary, either deferring wordlessly to the school district’s
assessment of necessity or mentioning the sex segregation matter-of-factly as an unexceptional
37
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 (1969).
38
Opinion and Order, Aug. 1, 1969, Smith v. Concordia Parish School Board, et al., No. 11577, United States
District Court for the Western District of Louisiana, National Archives and Records Administration (NARA),
Southwest Regional Division, RG 276, United States Court of Appeals for the 5th Circuit, Case Files, Box 4235,
28342-28349.
39
Id. at 3.
40
Check this fact.
17
element of the desegregation plan.41 Others dismissed outright plaintiffs’ objections to the sex
separation, deferring to the local school boards’ judgment that such an arrangement was
desirable. In a pair of 1969 Louisiana cases, Judge Alvin Rubin upheld several sex-segregated
temporary school assignments over plaintiffs’ complaints that the plans were motivated by racial
hostility.42 Noting many school districts throughout the country had long maintained separate
schools for boys and girls despite the pervasiveness of coeducation, Judge Rubin emphasized
that “educational decisions are for the school board alone.”43 Since the school board was
“convinced that in this transitional period separate education based on sex would provide the
atmosphere most conducive for learning in these schools,” separation was “not a denial of equal
protection of the law.”44 In one Mississippi case, the district judge remarked that “the
philosophy of teaching young people on a basis of separation by sex is respectable and has
behind it a certain wisdom of the ages,” noting that aside from this historical pedigree, no federal
court had found the practice objectionable.45 Still other courts made outcomes the linchpin of
their decisions about sex segregation, placing the burden on the plaintiffs to show racially
discriminatory effects. In approving a half dozen plans that involved some sex segregation, a
federal judicial panel in Georgia focused on the lack of evidence that separate schools for boys
41
Judge Dawkins, for instance, did not discuss the merits of sex segregation specifically in his Concordia Parish
order.
“Plaintiffs contend that this proposal is racially motivated, and point out that separate education on the basis of
sex was not considered until the schools were ordered to desegregate.” Moore v. Tangipahoa Parish School Board,
304 F. Supp. 244, 249 (E.D. La. 1969).
42
43
Id. (emphasis added).
44
Id.
45
United States v. Carroll County, Civil No. 6541K (N.D. Miss. 1969), quoted in U.S. v. Board of Education of
Lincoln County, Georgia, Civil Action No. 1400 and Cobb v. Freeman, Civil Action No. 1420, in the U.S. District
Court for the Southern District of Georgia, Augusta Division, Apr. 27, 1970, Order, Records of the NAACP,
V:2819, Folder: Schools, Georgia, Legal Cases, 1970-1978.
18
and girls produced “any educationally unsound consequences or inequities resulting in racial
discrimination.”46
However, judges—particularly at the appellate level—increasingly began to shift the
burden of proof to school districts. Rather than requiring opponents of sex segregation to show
detrimental consequences thereof, some courts began to demand hearings on the motivation
behind single-sex schools. In December, 1969, a Fifth Circuit panel established racial intent as
the determining factor, calling on trial courts to distinguish whether “racial discrimination” or
“educational purposes” motivated a given sex segregation scheme.47 A federal district court
judge in Augusta, Georgia held a hearing in early 1970 on a sex segregation plan for Lincoln
County, found circumstantial evidence to indicate that the scheme was racially motivated, and
ordered the offending school to desegregate, sans sex separation.48 Later, in 1972, the Fifth
Circuit reaffirmed that racial motivation was the test of constitutionality for sex separation plans.
In many cases, courts “pretermitted” the question of sex segregation pending the
establishment of a racially unitary school system, their first priority in the face of school board
recalcitrance.49 However, lawyers for school districts, private plaintiffs, the federal government,
and organizations like the NAACP Legal Defense and Education Fund (LDF) had several
opportunities to argue the merits of sex separation as an instrument of successful racial
46
Order of the Court in United States v. Georgia, 21 April 1970, quoted in Barnett.
47
United States v. Amite School District, Mississippi, No. 28030 (5th Cir. Dec. 19, 1969).
48
U.S. v. Board of Education of Lincoln County, Georgia, Civil Action No. 1400 and Cobb v. Freeman, Civil Action
No. 1420, in the U.S. District Court for the Southern District of Georgia, Augusta Division, Apr. 27, 1970, Order,
Records of the NAACP, V:2819, Folder: Schools, Georgia, Legal Cases, 1970-1978.
49
See, for example, Motion for New Plan of Pupil Assignment, United States v. Hinds County School Board and
Amite County School District, Nos. 28030 & 28042, Oct. 25, 1973, RG 276, Box 4167, USCA 5th Cir. Case Files,
28030 & 28042, Box 4167, Sept. 1972-1973; Cite cases. In postponing consideration of the issue, courts often had
the support of the federal government. See, for example, Brief for the United States, Singleton v. Jackson Municipal
Separate School District, et al. [including Smith v. Concordia Parish School Board], Nos. 2842, et al., 5th Cir. RG
276, Box 3775, U.S. Court of Appeals for the Fifth Circuit, Case Files, 26285 (pt.)-26290 (“We believe that, in the
19
desegregation. The remainder of this paper will examine how these debates evolved over the
course of a pivotal decade in antidiscrimination law, the 1970s.
THE LEGAL CASE FOR SEX SEGREGATION
Defending sex separation plans against charges of racial motivation could be a tricky
business for school districts where white attitudes toward racial desegregation had run the gamut
from profound reluctance to violent intransigence. However, sex-separating school boards had at
least three factors on their side. First, the tremendous attitudinal and significant logistical
difficulties associated with racial desegregation, and the speed with which school districts had
suddenly been ordered to comply with court edicts, put a premium on proposals that promised a
racially unitary system in a jiffy, regardless of the plans’ other characteristics. Second, and
relatedly, sex separation was, more or less plainly, a direct response to very real concerns that
desegregation would prompt a white exodus to the private segregated academies springing up
across the South. Finally, though coeducation had become the predominant mode of American
schooling, sex separation in and of itself carried little of the stigma associated with racial
segregation, and evoked much nostalgia for an earlier, less complicated era of gender relations.
School boards were therefore able draw on preexisting notion of gender difference and
adolescent sexuality as they tout the educational benefits of separating boys and girls in
secondary schools. Despite the increasing prevalence of coeducation from the nation’s
kindergartens on through its most prestigious higher educational institutions, educational
rationales would become more prominent justifications for separating girls and boys as the issue
of racial motivation began to fade into the background. These educational rationales were both
present state of the record this Court may wish to defer consideration of the issue until racial segregation has been
eliminated in Concordia Parish.”).
20
similar to and different from the justifications that proponents of sex segregation would offer in
later years, for they remained relatively untouched by feminist critiques of sex separation and of
coeducation.
“Some Feeling of Inferiority and a Vivid Imagination”
Since few observers could misconstrue the true rationale for sex separation in the context
of racial desegregation plans, some school boards tacitly admitted that purpose without outright
conceding it. Often attorneys for school districts whose desegregation proposals included sex
separation insisted that the alternative was not coeducational biracial schools, but rather an allblack public school system which, they alleged, the HEW proposals were certain to provoke.
Representing the Concordia Parish School Board, W.C. Falkenheiner appealed to “realism,”
urging the Fifth Circuit panel to “ask itself whether it is realistic to adopt a plan which would
adversely affect the education of all children, both black and white, and whether it is realistic to
adopt a plan which, in the opinion of those best in position to know, has real prospects of
converting the public school system to a substantially all black system.”50 Other sex segregation
proponents had more apocalyptic visions, foreseeing the total abolition of public education if
boys and girls of different races attended school together. Lawyers for the Wilkinson County,
Mississippi school district warned of a “mass exodus” of white teachers from county schools if
immediate desegregation were pursued, and the district’s superintendent, Bernard Waites, signed
an affidavit asserting that he had “absolutely no doubt that if the plans as formulated by HEW
are put into effect, such plans will result in the abolishment of the Public Educational System in
the County and create a state of chaos inasmuch as the County pupil ratio is approximately 22%
50
Brief for Appellees 4-5, Smith v. Concordia Parish School Board, et al., No. 28342, 5th Cir., RG 276, United
States Court of Appeals for the 5th Circuit, Case Files, Box 4235, 28342-28349.
21
White and 78% Negro students.”51 Similarly, the Amite County school board declared in a brief
to the Fifth Circuit that “separation of the sexes is absolutely necessary if Defendants-Appellees
are to maintain a public education system within their school district.”52
As ominous as they sound, these dire predictions were not entirely without foundation.
Across the Deep South, segregationist academies had appeared in the 1950s and proliferated at
an accelerated pace in the wake of court-ordered desegregation at the close of the 1960s. In
Mississippi, state superintendent of schools Garvis Johnson appealed to white citizens to “help us
preserve our public education,” but his pleas placed hardly a dent in the “mass matriculation” of
white children at private schools.53 Rallies attended by thousands of white parents featured diehard segregationists like former gubernatorial candidate and country-music singer Jimmy Swann,
who campaigned for “private” segregated schools financed with state monies.54 These initiatives
were hardly limited to marginal political figures: though Governor John Bell Williams counseled
white Mississippians against violence, he support the state legislature’s attempts to provide
parents with private school vouchers, or, alternatively, to allow tax deductions for private school
expenses, and to continue compensating teachers who refused to comply with desegregation.55
By early 1970, a Mississippi state legislator could credibly if crudely declare that “What we’re
going to wind up with eventually is private schools for the white kids and a state-subsidized
51
Objections to HEW Plans, United States v. Wilkinson County Board of Education, et al., Civil Action No. 1160,
United States District Court for the Southern District of Mississippi, RG 276, USCA 5th Cir. Case Files, Box 4163,
Nov. 1969 (pt.)-March 1970
52
Motion of Defendants-Appellees to Amend Desegregation Order, United States v. Amite County School District,
et al, Nos. 28030 & 28042, Nov. 12, 1969, RG 276, USCA 5th Cir. Case Files, Box 4163, Nov. 1969 (pt.)-March
1970
James T. Wooten, “U.S. Forms Panel for Mississippi: Agents to Help Transition to Integrated Schools,” New York
Times, 1 January 1970, 21.
53
54
Id.
55
Id.
22
system for the niggers.”56 White business and community leaders fretted that without affordable,
segregated private schools white parents who could not afford to send their children would keep
them at home or worse, resort to violence.57 “These are the folks I'm worried about,” one white
teacher from Canton told the New York Times. “They have no alternative except no school or
integrated school—and they’re just the ones who might start trouble.”58 Others wondered aloud
whether public education had any future in Mississippi, given the recent repeal of the
compulsory school attendance law,59 and the massive withdrawal of funding from public schools
in some districts.60 In Louisiana, Governor John J. McKeithen fomented such speculation by
suggesting publicly that the state legislature would henceforth refuse to appropriate funds to the
school system.61
There was little question in anyone’s mind that sex segregation was meant to ward off
what Virginia Governor J. Lindsay Almond had in 1959 warned was “the livid stench of sadism,
sex immorality and juvenile pregnancy infesting the mixed schools.”62 As a 1972 Christian
Science Monitor article indicated, white school officials, parents, and students in rural Taylor
County, Georgia, freely admitted that the purpose behind the creation of single-sex schools in
their district was to minimize white flight to private segregated academies by avoiding the
James T. Wooten, “Exodus Seen as Threat to the System on Eve of Integration Move,” New York Times, 5
January 1970, 1.
56
57
Id.
58
Id.
59
Id.
60
Roy Reed, “Full Integration Worries and Angers Mississippi,” New York Times, 24 November 1969, 1.
61
Id.
Homer Bigart, “Almond to Fight for Segregation: Governor Calls on Virginians to Support Him Despite Courts’ Adverse
Ruling,” New York Times, 21 January 1959, 16. Anders Walker has shown that Southern politicians pursued thinly veiled
racial motives through legislation designed to regulate morality, illegitimacy, and other social issues. See Anders Walker,
“Bastards Out of North Carolina: Law, Illegitimacy and the Subversion of Civil Rights in the Most Progressive Southern
State,” forthcoming in Dykes, Divas and Divorcees: Women and Gender in the 20 th Century South, (Grace Elizabeth Hale
62
23
specter of interracial sex. “[J]ust about everyone concedes that the plan was really a palliative for
white parents worried about interracial dating and marriage that they saw coming from
integration,” the Monitor reported.63
At the same time that they declared sex segregation indispensable to racial desegregation,
an argument that depended on the underlying assumption that white parents would not tolerate
race-mixing in a coeducational context, school boards had to deny that, as a matter of law, their
sex segregation schemes were racially motivated. Some school district attorneys accomplished
this feat of verbal gymnastics simply by insisting that there was no evidence of racial motivation
behind their plans.64 Lawyers for the Concordia Parish School Board offered several alternative
explanations for the remarkable coincidence in timing. Refuting the plaintiffs’ contention that, in
the School Board’s words, its plan was “suspect simply because of the times and circumstances
under which it was adopted,” the district contended that its ability to implement sex segregation
previously had been constrained by court-ordered freedom-of-choice plans and the lack of
adequate facilities.65 Furthermore, the board’s brief argued, if racial motivation were at the root
of the sex separation scheme, the district would have separated all boys and girls in the parish,
not just those in two particular geographic areas.66 Of course, the brief conveniently neglected to
mention what district court judge Dawkins had emphasized in his decision approving the plan—
and Lauren Winner, eds.); Anders Walker, “Legislating Virtue: How Segregationists Disguised Racial Discrimination as
Moral Reform Following Brown v. Board of Education,” Duke Law Journal (Nov. 1997), 399-424.
63
John Dillen, “To Integrate, Set Boys, Girls Apart,” Christian Science Monitor, 8 April 1972, 1.
64
Brief for the State of Georgia, et al., United States v. Georgia, Nos. 71-2563 and 12972, 5th Cir., RG 276, USCA
5th Cir. Case Files, Box 6148, 71:2563-71:2569 (asserting a lack of racial motivation except perhaps for Taylor
County plan).
65
Brief for Appellees at 6, Smith v. Concordia Parish School Board, et al., No. 28342, 5th Cir., RG 276, United
States Court of Appeals for the 5th Circuit, Case Files, Box 4235, 28342-28349.
66
Id. at 7.
24
namely, that these areas were the only ones in the parish where black students outnumbered
whites by a substantial margin.
Sex segregation proponents also attacked the racial motivation standard itself. At first
they did so indirectly, arguing that regardless of intent, sex separation could not be
discriminatory since it applied equally to both races. “If any parent or student, white or Negro,
has some feeling of inferiority and such a vivid imagination,” attorneys for the Concordia Parish
officials wrote, “the School Board should not be held accountable for it. It is obvious that the
advantages and disadvantages attendant upon a separation by sex plan are all related to sex and
not to race.”67 From the Supreme Court’s 1971 decision in Palmer v. Thompson,68 school boards
mustered additional ammunition against the requirement that they prove absence of racial
motivation. A closely divided Court had ruled in Palmer that the decision by the city of Jackson,
Mississippi to close its municipal pool rather than allow racially integrated swimming did not
violate the equal protection clause. According to the attorney general of Georgia, Palmer thereby
“laid to rest the erroneous notion that ‘motivation’ is a proper subject of judicial inquiry.”69 But
Georgia’s attorneys were willing to cast Palmer aside and attack the racial motivation standard
head on: “Even… assuming further that the separation by sex was ‘racially motivated,’ the
proper response is so what! Most everything in public education is racially motivated today. This
is what the federal courts require” by pushing districts to desegregate, declared the state’s brief.70
67
Brief for Appellees at 8, Smith v. Concordia Parish School Board, et al., No. 28342, 5th Cir., RG 276, United
States Court of Appeals for the 5th Circuit, Case Files, Box 4235, 28342-28349.
68
403 U.S. 217 (1971).
69
Brief for the State of Georgia, et al., United States v. Georgia, Nos. 71-2563 and 12972, 5th Cir., RG 276, USCA
5th Cir. Case Files, Box 6148, 71:2563-71:2569. Justice Black’s opinion for the Court in Palmer included a fairly
lengthy disquisition on the “pitfalls” of judicial inquiry into legislative motivation, beginning with the declaration
that “no case in this Court has held that a legislative act may violate equal protection solely because of the
motivations of the men who voted for it….” Palmer v. Thompson, 403 U.S. 217, 224 (1971).
70
Brief for the State of Georgia, et al., at 17, United States v. Georgia, Nos. 71-2563 and 12972, 5th Cir., RG 276,
USCA 5th Cir. Case Files, Box 6148, 71:2563-71:2569.
25
“Is it not reasonable to assume that local school officials, faced with massive racial integration,
desiring that it work, and that meaningful public education be maintained, seize upon the device
of separation by sex as a means of reducing disciplinary problems?”71 In other words, the state’s
advocates argued in the most honest articulation of sex segregating school boards’ position, if the
courts insisted on forcing school districts to achieve a certain racial composition in their pupil
assignment plans, surely they could not object to a school board expediting that endeavor
through racially motivated measures whose ultimate goal was successful integration.
The assumption underlying the school boards’ arguments—indeed, the assumption
underpinning the racial motivation standard itself—was that sex separation did not in and of
itself pose a constitutional question. The Concordia Parish School Board could unabashedly
argue that because the “advantages and disadvantages attendant upon a separation by sex plan
are all related to sex and not to race,” and there was no constitutional issue to be resolved.72
Similarly Georgia’s brief declared that “Separation by sex may well help in making racial
integration work in some school systems. In any event, decisions on such matters obviously do
not on their face directly and sharply implicate any basic constitutional values and hence should
be left to the affected local school boards (who are more familiar with the educational and
disciplinary problems of their schools than are the courts).”73 The school boards were not the
only parties operating under this assumption; when Fifth Circuit judges Griffin Bell, Homer
Thornberry, and Lewis Morgan held a question-and-answer session for school desegregation
attorneys in November 1969, Judge Bell made clear that the court’s primary concern about plans
that called for sex separation was whether the boys’ and girls’ schools would each have a racial
71
Id.
72
See supra note __ and accompanying text (emphasis added).
26
balance proportional to the school population.74 Another judge wrote, in the course of approving
sex separation in Carroll County, Mississippi, “good authority” indicated “that girl’s nature is so
different from that of boy’s that a different kind of education is required.”75 But “in any case,”
the decision stated, “the concept embraces a philosophy that has not been held contrary to the
United States Constitution and must, therefore, be approved.”76 As the Concordia Parish School
Board declared confidently, there was a “complete absence of any legal authority for an attack on
separation of the sexes.”77 Therefore school districts had merely to assert a legitimate
“educational purpose” for segregating boys and girls and hope that their fervent disavowals or
tacit admissions of racial motivation would win over the courts—or at least not draw unwanted
judicial attention.
“Each of Us is Aware of These Great Differences”
In evaluating sex segregation schemes, the Fifth Circuit ordered trial courts to pose the
following question: “[I]s racial discrimination the motivation for the plan or does it have its basis
in educational purposes?”78 In a way, the educational justifications proffered for single-sex
schools were not as far removed from the real rationale behind the plans as the courts’
73
Brief for the State of Georgia, et al., at 18, United States v. Georgia, Nos. 71-2563 and 12972, 5th Cir., RG 276,
United States Court of Appeals for the Fifth Circuit, Case Files, Box 6148, 71:2563-71:2569 (emphasis added).
74
Proceedings [reported by B. L. Picket, Court Reporter], at 79-80, United States Court of Appeals for the Fifth
Circuit, Nov. 6, 1969, United States v. Hinds County School Board, et al., Nos. 28030, 28042, RG 276, USCA 5th
Circuit Case Files, Box 4163, Nov. 1969 (pt.)-March 1970. In fact, the Fifth Circuit panel ordered the Wilkinson
County, Mississippi, school district to implement the HEW proposal after the board failed to make a showing
regarding the racial composition of the proposed girls’ schools. Order, United States v. Hinds County School Board
and United States v. Wilkinson County School District, et al, Nos. 28030 & 28042, Dec. 22, 1969, 5th Cir.
75
United States v. Carroll County, Civil No. 6541K (N.D. Miss. 1969), quoted in U.S. v. Board of Education of
Lincoln County, Georgia, Civil Action No. 1400 and Cobb v. Freeman, Civil Action No. 1420, in the U.S. District
Court for the Southern District of Georgia, Augusta Division, Apr. 27, 1970, Order, Records of the NAACP,
V:2819, Folder: Schools, Georgia, Legal Cases, 1970-1978.
76
Id.
77
Brief for Appellees at 6, Smith v. Concordia Parish School Board, et al., No. 28342, 5th Cir., RG 276, United
States Court of Appeals for the 5th Circuit, Case Files, Box 4235, 28342-28349.
78
United States v. Amite School District, Mississippi, No. 28030 (5th Cir. Dec. 19, 1969).
27
dichotomous choice between racial hostility and educational benefits might suggest. From the
perspective of subjective motivation, racial fear and animus were, of course, diametrically
opposed to benign educational aims. Significantly, though, the educational purposes advanced to
justify sex separation sometimes shared the underlying assumption that boys and girls, especially
as they entered adolescence, were inclined to allow their sexual energies to distract them from
academic achievement and disciplined behavior. School districts in Louisiana, for instance, cited
studies showing that “the lack of distractions from the opposite sex” resulted in “ better work
habits” for both boys and girls and “fewer discipline problems.”79 Wrote St. Bernard Parish
school official Joseph Davies, “It is generally agreed that the ages of twelve to fifteen are the
worst years for boys and girls to be educated together….[P]utting girls and boys together in the
same school is not necessarily the normal, healthy thing to do.”80 Notwithstanding considerable
dissimilarities, these rationales shared in common with the anti-miscegenation view an
apprehension that coeducation sexualized interactions in a manner not conducive to educational
advancement, and both outlooks focused on adolescence as a particularly dangerous moment in
sexual, social, and cognitive development. Such critiques of coeducation echoed the rationales
justifying the exclusion of women from prestigious colleges; at Harvard University, for instance,
women were barred from the undergraduate library until the 1970s on the grounds that their very
presence would irredeemably distract men from their studies.81
Still, proponents of sex segregation more commonly cited sex differences, rather than
sexual distractions, as the primary rationale for separating boys and girls in school. Sometimes
“A Case for the Separation of the Sexes in Schools,” Appendix, Williams v. Iberville Parish School Board, No.
28571, RG 276, U.S. Court of Appeals for the Fifth Circuit, Case Files, Box 4290, 28569-28571.
79
80
Id.
28
these differences were presumed to need no articulation: “[O]ur school system overlooks one of
the ageless and most fundamental complications of teaching—the fact boys are different from
girls. Each of us is aware of these great differences and there is no valid reason to enumerate
them at this time.”82 Other sex separation advocates were somewhat more specific. “There are
differences in boys and girls, differences in maturation rates, in vulnerability to stress, in learning
styles,” argued Iberville Parish’s school board.83 “Our schools are sex-neutral institutions
operating on the assumption that all persons are alike with respect to the ways in which they
learn and achieve. It does make a significant difference whether the person we are teaching is a
boy pupil or a girl pupil and instruction provisions should be made accordingly.”84 Boys and
girls, the board argued, had different creative processes, levels of introspection and productivity,
sex role identifications, and attitudes toward authority. Sex separation was therefore a sensible
way of “accept[ing] patterns of difference and offer[ing] channels for their expressions; help[ing
to] shape identifications without stereotyping, and [providing] broad horizons, a supportive
atmosphere and range of learning possibilities from which the child boy or girl can select and
develop a personal life style to be integrated with a committed sex identity and a resolved social
sex role.”85 A district court judge affirmed in 1969 that the Carroll County school district had
shown that “According to good authority, opponents of coeducation…have argued that girl’s
81
As David Tyack and Elizabeth Hansot have shown, such arguments were not new: similar assertions recurred
repeatedly in debates over coeducation through the nineteenth century and well into the twentieth. Tyack and
Hansot, Learning Together.
82
Davies
“A Case for the Separation of the Sexes in Schools,” Appendix, Williams v. Iberville Parish School Board, No.
28571, RG 276, U.S. Court of Appeals for the Fifth Circuit, Case Files, Box 4290, 28569-28571.
83
84
Id.
85
Id.
29
nature is so different from that of boy’s that a different kind of education is required, especially
from the age of 12.”86
Significantly, most—though not all—of the benefits sex segregation proponents cited
accrued to boys. Sex separation assuaged the concerns of educators who believed that boys
suffered severe disadvantages vis-à-vis girls in primary and secondary schools. Boys, according
to the “Case for Separation of the Sexes in Schools” relied upon by several Louisiana school
boards, “have more trouble with reading and speech and account for 90% of the discipline
problems.”87 Rather than attributing these differences to the “traditional” assumption that boys
mature more slowly than girls, the experts cited by the school boards “have wondered if the real
reason was that boys entering school are forced to conform to feminine standards of behavior.”88
Sure enough, experiments in single-sex education demonstrated that, in the absence of girls, boys
“showed more excitement and real interest in school,” “were found to speak more freely taught
by a man than in a class with girls taught by a woman,” and were “more thoughtful and
considerate of each other.”89 Other studies showed that “boys in separate classes have made
better progress in language arts and math than boys in control [co-ed] classes. Group morale
developed as the boys become aware of their common interests and problems and began to
accept themselves and one another.”90 Similarly, one of the only judges to make concrete factual
findings regarding educational outcomes in sex separated schools found that “the achievement
level of the male students had shown substantial improvement with no lessening in the level of
86
United States v. Carroll County, Civil No. 6541K (N.D. Miss. 1969), quoted in U.S. v. Board of Education of
Lincoln County, Georgia, Civil Action No. 1400 and Cobb v. Freeman, Civil Action No. 1420, in the U.S. District
Court for the Southern District of Georgia, Augusta Division, Apr. 27, 1970, Order, Records of the NAACP,
V:2819, Folder: Schools, Georgia, Legal Cases, 1970-1978
87
“A Case for Separation”
88
Id.
89
Id.
30
the female students’ improvement,” and identified “measurably improved leadership qualities on
the part of the male students,” but no similar enhancement of female leadership.91
In fact, sex segregation proponents cited female leadership as a drawback of
coeducational schools. These educators were not hostile to female assertion in a single-sex
context—in fact, they speculated that girls would benefit from “an environment which permits
them to view men and boys as colleagues, not competitors—an environment that allows them
access to the lure of science and the puzzles of mathematics.”92 Rather, school officials worried
about the female “domination of positions of leadership” in coeducational schools and fretted
that “girls generally are more interested in excelling academically and boys have a tendency to
withdraw when placed in competition with girls.”93 Fortunately, according to Davies, girls did
not forsake the benefits of coeducational schools when they converted to single-sex status: in St.
Bernard Parish, “[g]irls continue to dress…appropriately although there are no boys to dress up
for.”94 In Taylor County, Georgia, where sex segregation persisted until the late 1970s, some
teachers were less satisfied with their male students’ sartorial and academic showing, reporting
that high school boys in all-male environments “became careless about their appearance” and
“apathetic about their schoolwork,” while the girls continued to outperform their male
counterparts academically.95 Nevertheless, the consensus among proponents of sex separation
was that single-sex schools would assuage the problem of female domination and academic
superiority, and give boys an opportunity to excel and participate without feeling browbeaten by
90
Id.
91
United States v. Hinds County School Board and Amite County School District, 560 F.2d 619, 621 n.3 (1977)
(quoting ---).
92
“A Case for Separation”
93
Id.
94
Id.
31
intersexual competition or alienated from the “feminine” environment of the coeducational
classroom.
Another rationale offered by sex separating school boards in the late 1960s and early
1970s more starkly indicates the limited extent to which sex discrimination concepts had
penetrated the legal discourse on sex segregation at that juncture. Describing St. Bernard Parish’s
initial foray into sex separation, Davies admitted that school officials “felt that certain problems
which might arise in newly integrated schools would be lessened if the sexes were separated,”
but claimed that economic frugality was the predominant consideration in converting from
coeducational to single-sex schools. Increasing enrollment, Davies explained, had created the
need for two additional secondary schools in the parish. Of the two existing high schools, only
one (likely the formerly white school) had a high-quality athletic facility; if the schools were to
remain coeducational, two brand-new, top-flight athletic facilities would be necessary, and the
district would have to upgrade the existing high school’s sub-par accommodations. A brilliant
solution struck St. Bernard Parish officials: separate the sexes! “Instead of spending money for
four first rate athletic plants,” Davies related triumphantly, “only two were necessary if the sexes
were separated and on the basis of the cost of these, the Board saved a million and half dollars by
eliminating needless duplication of athletic plants.”96 In fact, the St. Bernard Parish school board
had neatly killed two birds with one stone—they saved money and, at the same time, created
another alibi to obscure any underlying racial motivation. What is striking about their alibi,
though, is its pre-Title IX obliviousness to the idea that providing athletic facilities for boys and
not for girls was anything but a sensible cost-cutting measure.
95
Dillen, “To Integrate, Set Boys, Girls Apart,” at 10.
96
“A Case for Separation”
32
The provision of unequal opportunities for male and female students was hardly confined
to St. Bernard Parish, or to extracurricular activities—or, for that matter, to single-sex schools.
The single-sex environment often made plainer sex-role assumptions, spoken and unspoken, as
well as their concrete curricular manifestations. For instance, the Lincoln County, Georgia,
School Board explained that under its sex segregation scheme, “[c]ourses in Homemaking,
Business Education, Family Living would be emphasized for the female students, whereby on
the other campus, Vocational Agriculture, Industrial Arts, Shop programs, Brick Masonry,
Electrical Work and Mechanics would be emphasized in the school serving the male students.”97
Of course, such disparities were common in coeducational environments as well; separating the
sexes merely made these differences more apparent and eliminated any informal opportunities
for crossover that may have existed in mixed-sex schools. If girls wished to take courses in the
traditionally male-identified industrial arts or other male-dominated subjects like advanced math
and physics, they may have had a better chance of being able to do so in a coeducational setting
where those courses were already offered, than in an all-girls’ environment where there were no
such curricular offerings.
In the late 1960s and early 1970s, school districts could comfortably publicize differences
in facilities and curriculum between girls’ and boys’ schools without fearing judicial censure.
Meanwhile, the shift in Justice Department policy toward consultation and conciliation with
school boards signaled the federal government’s willingness to defer to local assessments of
educational necessity whenever possible. With the racial motivation standard called into further
question by decisions like Palmer, and federal courts in the Fifth Circuit overwhelmed with an
97
U.S. v. Board of Education of Lincoln County, Georgia, Civil Action No. 1400 and Cobb v. Freeman, Civil
Action No. 1420, in the U.S. District Court for the Southern District of Georgia, Augusta Division, Apr. 27, 1970,
Order, Records of the NAACP, V:2819, Folder: Schools, Georgia, Legal Cases, 1970-1978.
33
unprecedented volume of complicated cases, those who sought to challenge sex segregation had
a difficult task before them.
THE LEGAL CASE AGAINST SEX SEGREGATION
From the first suggestions in the 1950s that sex separation might provide the perfect
corrective to integration, through the implementation of such schemes in the 1960s and 1970s,
observers could hardly fail to recognize that the sudden enthusiasm for single-sex education
stemmed from fears that desegregation would dissolve long-standing taboos against interracial
sexual relationships. In the beginning, the legal legitimacy of sex segregation in the
desegregation context depended upon whether school boards could successfully deny that they
separated boys and girls to further racial discrimination. As we have seen, “racial motivation”
could be a muddy standard in the hands of school districts and judges, but one thing was clear as
the 1970s began: neither local officials nor courts perceived single-sex schools as presenting
constitutional questions of sex discrimination. As the following section will show, plaintiffs and
their attorneys shared the assumption that sex segregation was, in this context, about race
discrimination, not sex discrimination. Like the school boards and the courts, plaintiffs and their
sometime allies in the federal government argued their position in a world where, as one
defendant put it, there was a “complete absence of any legal authority” to attack sex separation.
The new decade would change all that. By 1977, when the Fifth Circuit Court of Appeals
interpreted the Equal Educational Opportunity Act to prohibit sex segregation in pupil
assignment plans, sex segregation had become an issue of sex as well as race discrimination with
which all parties—plaintiffs and defendants, judges and lawyers, teachers and students, children
and parents, blacks and whites, men and women—had to grapple. Whether they believed sex
34
segregation was innocuous or insidious, beneficial or harmful, neutral or racist, participants in
this legal debate had to contend with a new constitutional question: did separate public schools
for boys and girls discriminate on the basis of sex? This recasting of the debate reflected a
transformation in legal strategy and consciousness with profound consequences for the shape of
antidiscrimination law and for the social meaning of sex segregation.
“To Perpetuate Racial Segregation by Subterfuge”
During the first two years of contestation over sex segregation, plaintiffs and their
lawyers concentrated on establishing the racially discriminatory intent and effect of conditioning
desegregation on the separation of boys and girls. When possible, they reminded courts that the
burden to refute racial motivation rested with the school district defendants, and that sex
separation had never been proposed before racial desegregation appeared imminent. For
instance, plaintiffs in Concordia Parish pointed out that the district’s superintendent had testified
before the district court that “the coeducational system in effect in Concordia was educationally
sound as long as schools are racially segregated. When, however, racial integration becomes
inevitable, then sexual segregation suddenly is ‘most educationally sound.’”98 Such testimony
made “plain what must become obvious to black parents and their children” if the sex separation
plan went into effect: “to the school officials of Concordia, black boys are simply not good
enough to be in schools with white girls, and black girls are simply not good enough to be in
schools with white boys.”99 Under such circumstances, attorney George Strickler argued, the
practice constituted a badge of inferiority similar to that endured under Jim Crow, with all of the
98
Brief for Appellants at 9, Smith v. Concordia Parish School Board, et al., No. 28342, 5th Cir., RG 276, United
States Court of Appeals for the 5th Circuit, Case Files, Box 4235, 28342-28349
99
Id. at 10.
35
attendant stigma and psychological damage. Plaintiffs drew on the idea that segregation denied
members of the disadvantaged group the opportunity to “develop relationships with members of
the dominant class.”100 When implemented solely to avoid the dreaded specter of interracial
sexual contact, plaintiffs in Concordia Parish argued, sex separation did nothing more than
“perpetuate racial segregation by subterfuge.”101 It was not enough, declared lawyers for African
American families in Georgia, “that assignments based upon sex do not produce unsound
education or inequities resulting in racial discrimination.” 102 Under such suspicious
circumstances, “sex separation may be racial discrimination per se.”103
Plaintiffs and their lawyers also attempted to debunk the school districts’ argument that
sex separation could not be racially discriminatory since it affected both races equally. Citing
Loving v. Virginia (1967), Strickler noted that “the fact of equal application does not immunize
the statute from the very heavy burden of justification” requiring of race-related statutes, arguing
that “the same rule should apply to facially non-racial classifications which are nonetheless
racially motivated.”104 In a rare intervention by the federal government in a sex segregation
controversy, the United States similarly used the “miscegenation” cases to rebut Georgia’s
contention that “equal application” immunized sex separation from constitutional challenge.105
The brief also refuted the Georgia school boards’ reliance on Palmer v. Thompson,
distinguishing that case on its facts: in Palmer, defendants ceased to operate their swimming
100
Id. at 12.
101
Brief for Appellants at 9, Smith v. Concordia Parish School Board, et al., No. 28342, 5th Cir., RG 276, United
States Court of Appeals for the 5th Circuit, Case Files, Box 4235, 28342-28349.
102
Brief for Private Appellants at 3, United States v. Georgia, Sept. 7, 1971, No. 71-2563, RG 276, United States
Court of Appeals for the Fifth Circuit, Case Files, Box 6148, 71-2563-71-2569.
103
104
Id.
Brief for Appellants at 12, Smith v. Concordia Parish School Board, et al., No. 28342, 5th Cir., RG 276, United
States Court of Appeals for the 5th Circuit, Case Files, Box 4235, 28342-28349.
36
pools, while in seven Georgia school districts, schools remained open under a racially motivated
scheme of sex separation.106 “[T]he subtle implications of sex separation as a required factor of
racial desegregation are not lost on black children,” government lawyers concluded.107
As we have seen, some judges overlooked or discounted these arguments, either rejecting
them outright or failing to grant plaintiffs’ requests that the court hold hearings on racial
motivation. Other judges were convinced, often by the testimony of African American parents
and students who articulated the racial harm of sex segregation as a palliative for white
resistance to integration. For instance, one Tennessee district court noted that “whether the
defendants admit it, or whether that is the purpose of it…it is inescapable that to the Negro
citizens it appears racial.”108 Similarly, the court passing judgment on Lincoln County, Georgia’s
sex separation plan resolved that “against the background of this litigation, it is difficult for me
to conclude other than that racial undertones to some degree exist. Separation by sex was never
proposed until complete desegregation was ordered under the plan proposed by HEW,” the judge
wrote, noting that he had come away from a hearing on the plan “with the distinct impression
that the Negro population—school and general—regard the proposal as racially belittling.”109
As these statements suggest, black students and parents played a crucial role in prodding
courts to take a closer look at the motives underlying sex segregation plans. When possible, they
testified at hearings held to evaluate the plans, but when judges declined to hold hearings,
105
Brief for the United States at 27-28, United States v. Georgia, Sept 3, 1971, No. 71-2563, RG 276, United States
Court of Appeals for the Fifth Circuit, Case Files, Box 6148, 71-2563-71-2569.
106
Id. at 28, n.25.
107
Id. at 29.
108
McFerren v. Fayette County Board of Education, No. C-65-136 (W.D. Tenn.., Dec. 10, 1969), quoted in United
States v. Lincoln County Board of Education at 3.
109
U.S. v. Board of Education of Lincoln County, Georgia, Civil Action No. 1400 and Cobb v. Freeman, Civil
Action No. 1420, in the U.S. District Court for the Southern District of Georgia, Augusta Division, Apr. 27, 1970,
Order, Records of the NAACP, V:2819, Folder: Schools, Georgia, Legal Cases, 1970-1978.
37
concerned African Americans took more direct action. In 1970, more than 300 black parents in
Amite County, Mississippi signed a petition “express[ing] opposition to the plan of
desegregation presently in force in Amite County. Separation of children by sex is but another
way to keep our children segregated and but another example of white resistance and opposition
to integration,” the petition declared.110 The NAACP Legal Defense Fund filed a successful
motion to supplement the record, but received no other response to the parents’ petition from the
court.
African Americans also mobilized through extrajudicial channels to counter massive
resistance. Amite County’s black community joined with their compatriots across Mississippi in
1970 to boycott white businesses that gave financial support to segregationist private academies.
Results of the selective buying campaign and other efforts to keep whites in the public school
system varied widely; in some communities, most white children remained. In others, including
Amite County, large percentages of parents pulled their children out of what were now majorityblack schools. In Wilkinson County, one of the districts that had proposed sex segregation, only
two white children remained in the public school system in January 1970.111 Use of boycotts to
protest resistance to desegregation was not confined to Mississippi. Outraged when officials in
Taylor County, Georgia, decreed that only white drivers could transport girls on school buses,
while black drivers would transport boys, black families launched a boycott in the spring of
1971, keeping one-third of the district’s students out of school for more than two weeks. The list
of demands black leaders presented to the county’s school superintendent included amnesty for
students who participated in the boycott, assignment of drivers to buses without regard to race,
110
Attachment to Motion to Supplement the Record, United States v. Hinds County School Board and Amite County
School District, et al., Nos. 28030 & 28042, 5th Cir. Jul,. 8, 1970, RG 276, USCA 5th Cir. Case Files, Box 4164,
Apr.-Nov. 1970.
38
abolition of race-based seating assignments, and “humane treatment” for all student bus-riders.
“All we really want is equal opportunity for our bus drivers,” boycott spokesperson Sara Mathis
told the Atlanta Constitution. “What they are really saying is that black drivers aren’t good
enough to drive white girls to school. Our children won’t go back to school until our drivers get
equal opportunity.”112
Protests against sex segregation often combined with the articulation of other grievances.
In Macon, Georgia, where white public schools had been sex-segregated for decades, officials
abandoned plans to convert to coeducation as soon as desegregation became likely. As a result,
African American students lost their traditionally coeducational environment, and some
observers predicted that as desegregation dawned in 1970, black youth would “help the white
teen-agers end the sexual separatism that they have complained about vociferously in the past but
felt helpless to deal with.”113 The black community of Macon was hardly oblivious to the intent
behind the maintenance of sex segregation: Thomas M. Jackson, a local black lawyer who had
represented students seeking to desegregate the schools, declared that “separation of the sexes
has the same basis as the segregation of the races—fear of the Negro.”114 Some whites like
attorney and Board of Education member E. Lanier Anderson III, agreed, but declined to push
for coeducation lest, in Anderson’s words, “further confusion” be created “now that we’re just
getting over the desegregation hurdle.”115 Students of both races apparently felt so strongly about
ending sex segregation that they sabotaged a poll of parents’ views by intercepting the ballots
Thomas A. Johnson, “Mississippi Faces Negroes' Boycott: Their Leaders Act Against Merchants Who Support
New All-White Schools,” New York Times, 9 January 1970, 1.
111
Tom Linthicum, “Taylor Blacks Extend School Buses Boycott,” Atlanta Constitution, 27 April 1971, NAACP
Papers, V: 2819, Folder: Schools: Georgia, Correspondence, 1965-71.
112
113
Jon Nordheimer, “Integration Raises the Issue of Coeducation in the South,” New York Times, 4 June 1970, 32.
114
Id.
115
Id.
39
and voting for coeducation.116 Meanwhile, black high schoolers combined their protest against
sex segregation with agitation for employment opportunities, with one 16-year-old telling a
reporter, “They’d hire a white seventh grade dropout before giving a job to a black high school
senior….They think that just because we’re going to their schools we’re going to shut up and be
happy niggers.”117 Local NAACP officials also continued to pressure school boards throughout
the Deep South to end classroom segregation and other abuses, and in some cases the Legal
Defense Fund intervened by filing motions in court to enjoin practices designed to circumvent
integration.118
Civil rights proponents faced an unpleasant paradox in their opposition to sex
segregation: if single-sex schools presented a genuine opportunity to curtail white flight, they
might have a positive impact on the educational opportunities available to black students—not
because going to school alongside whites was such a boon in and of itself, but because a
continuing white presence would keep financial and other resources within the public school
system. It may have been for this reason that the four African American members of a biracial
committee mandated by the courts in Amite County voted unanimously in favor of the sex
separation plan proposed by the school board, and signed an affidavit memorializing their
approval in 1970.119 Some prominent African Americans in Taylor County, Georgia, were
apparently willing to make this trade-off as well: Albert O’Bryant, a black school principal, told
116
Id.
117
Id.
118
See, for example, Motion for Supplemental Relief, United States v. Hinds County Board of Education, et al, and
Alexander v. Holmes County Board of Education, Nos. 28042 and 28030, Dec. 15, 1969, United States Court of
Appeals for the Fifth Circuit, RG 276, Box 4163: Nov. 1969 (pt.)-March 1970 (“[M]any of the defendant school
districts have construed this court's order … to permit the reassignment of teachers and students to new school
buildings without any requirement that classrooms be integrated; defendants intend to maintain the racial identity of
individual classrooms within school buildings.”).
40
the Christian Science Monitor in 1972 that while the sex-segregated arrangement “left something
to be desired,” it was a procedure that ‘seemed to minimize the problems that people have
adjusting” to racial desegregation.120
Still, the strong African American tradition of coeducation conceived of sex separation as
an alien practice that introduced an additional element of unfairness and inequity by depriving
boys and girls of access to a full range of curricular offerings, and to each other. And for civil
rights activists and many African American families, the racial stigma associated with sex
segregation outweighed any practical benefits thereof. If the sex separation policy were not itself
a clear enough signal, some school districts also did their best to make sure that as few white
girls as possible would attend formerly all-black schools. In Taylor and Amite Counties, for
instance, the school districts converted black facilities into boys’ schools, preserving the
formerly white buildings for the girls.121 Under such circumstances, most African American
students and parents could hardly fail to conclude that school officials believed “black boys are
simply not good enough to be in schools with white girls, and black girls are simply not good
enough to be in schools with white boys.”122
119
Motion of Defendants-Appellees for Approval of Amended Desegregation Order as Approved by Bi-Racial
Committee, United States v. Amite County School District, Nos. 28030 & 28042, RG 276, USCA 5th Cir. Box 4163,
Nov. 1969 (pt.)-March 1970.
120
Dillen. For more on Taylor County, Georgia, see Stanford Maxwell Brown, Equalization, Freedom of Choice,
and Sex Segregation: School Desegregation in Taylor and Baker Counties, Georgia (M.A. thesis, University of
Georgia).
121
United States v. Hinds County School Board and Amite County School District, 560 F.2d at 621 nn. 1-2.
Similarly, the plan approved in Smith v. Tammany Parish School Board reserved the formerly all-white schools for
girls although there were not enough formerly white facilities to accommodate all of the district’s female students.
302 F. Supp. at 108.
122
See supra note __. It is not clear the extent to which white parents may have differentiated between the perceived
dangers to their daughters and the perceived dangers to their sons. As Adrienne Davis has argued, legal regimes
regulating interracial sexual contact historically were enforced in very different ways with respect to relationships
between black men and white women than they were with respect to relationships between white men and black
women. While black male-white female connections were seen as threats to white male supremacy if they occurred
at all, and were therefore violently sanctioned, legal restrictions on interracial marriage actually preserved white
male access to African American women by freeing them from any legal responsibility that might otherwise have
41
“Separate Can Never Be Equal”
The issue of racial stigma did not disappear from legal debates over sex segregation in
Southern school districts, or from public consciousness, in the ensuing years. The legal standard
for evaluating single-sex arrangements in the Fifth Circuit remained the elusive “racial
motivation” or “discrimination,” and regardless of doctrine no one could forget the
circumstances under which school boards had adopted the sex separation plans. But in the early
1970s, a new element began to permeate the legal discourse about sex segregation—the question
of sex discrimination. Beginning with a pioneering law review note in 1970 and culminating in
the detailed American Friends Service Committee report in 1977, sex discrimination became an
increasingly prominent concern for those who sought to end the practice of separating boys and
girls in newly desegregated schools.
While challenges to sex segregation were nothing new and by the late 1960s coeducation
had spread to many elite secondary schools and colleges without court intervention, advocates of
women’s rights had little success mounting legal attacks on surviving exclusionary university
policies before 1969. A small but significant legal breakthrough came in 1969 when a federal
district court declined to decide as a matter of law whether the exclusion of women from the
University of Virginia was unconstitutional, but expressed the view that “by analogy to the
development of constitutional law in the civil rights area that forced separation and so-called
equal but separate educational facilities are contrary to the due process and equal protection
clauses of the Fourteenth Amendment…as a matter of principle, women are entitled to enjoy the
attached to their behavior. Adrienne Davis, “Loving and the Law: The History and Jurisprudence of Interracial Sex”
(unpublished manuscript, 2000).
42
same educational facilities that are provided by the state for men.”123 On the strength of this
conjecture, the court indicated its tentative approval of a coeducation plan for the University in
1969, and then affirmed that the exclusion of women violated equal protection in February 1970,
though the three-judge panel declined “to go further and to hold that Virginia may not operate
any educational institution separated according to the sexes.”124 Local attorney Philip Hirchkopf,
who handled the case for the ACLU, wrote to legal director Melvin Wulf and more than a dozen
women’s rights advocates shortly after the ruling, “While we managed to desegregate the
University of Virginia, which is what we set out to do, I had hoped for more. At any rate, we
must accept our victories.”125 Ruth Bader Ginsburg was more upbeat, arguing to Bernice
Sandler, a fellow pioneer in securing equal educational opportunity for women, that the decision
was a “landmark” and a “path-breaker.”126
But although women’s rights advocates followed the debate over sex segregation in racial
desegregation plans in 1969-70, the plaintiffs and attorneys who challenged these schemes were
not yet incorporating arguments about sex discrimination into their rhetorical or legal arsenal. A
Chicago Law Review student note by Robert Barnett helped to formulate such arguments on the
eve of a revolution in constitutional sex equality doctrine.127 “The Constitutionality of Sex
Separation in School Desegregation Plans,” which circulated among desegregation lawyers
before its publication in 1970, advanced three approaches to challenging sex separation schemes.
123
Kirstein v. Rector and Visitors of the University of Virginia, Civil No. 220-69-R.
124
309 F.Supp. 184, 187 (D.C. Va. Feb. 9, 1970).
125
Letter from Phlip J. Hirschkopf to Mel Wulf, Re: Kirstein v. Rector and Visitors of the University of Virginia,
Feb. 12, 1970, Human Rights for Women Papers, Schlesinger Library, Radcliffe Institute, Harvard University, 83M229, Box 1, Folder: Kirstein.
126
Letter from Ruth Bader Ginsburg to Bernice Sandler, Sept. 8, 1970, Ruth Bader Ginsburg Papers, Library of
Congress, Container 7, Folder: Rutgers College, New Brunswick, NJ, Coeducation, 1970.
Robert B. Barnett, “The Constitutionality of Sex Separation in School Desegregation Plans,” 37University of
Chicago Law Review 296 (1970).
127
43
The first concerned “sex separation as racial discrimination,” another addressed “sex separation
as limiting freedom of association”—but Barnett took his analysis a step further and argued
further for “sex separation as sex discrimination.” He based his contention on “a parallel to the
harms found in race separation,” relying on “evidence pointing to the conclusion that the same
psychological detriments, alleged to harm the segregated black, may also harm the separated
female.”128 By this time, Barnett had at his disposal a rather extensive literature developing the
race-sex analogy, and he cited all the usual suspects: Blanche Crozier’s 1935 analysis of the
“Constitutionality of Discrimination Based on Sex,”129 Gunnar Myrdal’s American Dilemma
appendix,130 Ashley Montagu’s comparison of antifeminism and racism in Man’s Most
Dangerous Myth,131 Helen Mayer Hacker’s 1951 work on “Women as a Minority Group,”132 and
of course, Pauli Murray and Mary Eastwood’s seminal 1965 article “Jane Crow and the Law.”133
Like racial segregation, Barnett extrapolated, sex separation would also lead to educational
harms, “resulting in an atmosphere which inadequately prepares one for the realities of social life
in a world of two sexes.”134 “It may be,” he concluded, “that sex separation in school
desegregation plans…presents an ideal situation for a challenge to the validity and viability” of
the Supreme Court’s failure to regard sex classifications as constitutionally suspect.135
128
Barnett, 315.
Blanche Crozier, “Constitutionality of Discrimination Based on Sex,” 15 Boston University Law Review 723
(1935).
129
130
Gunnar Myrdal, An American Dilemma, app. __ (1944).
131
Ashley Montagu, Man’s Most Dangerous Myth: The Fallacy of Race (1948).
132
Helen Mayer Hacker, “Women as a Minority Group,” 30 Social Forces 60 (1951).
Pauli Murray & Mary Eastwood, “Jane Crow and the Law: Sex Discrimination and Title VII,” 34 George
Washington University Law Review 232 (1965).
133
134
Barnett, 316.
135
Id.
44
Though others might have shared the feeling that sex segregated schools could have been
the perfect context for the Supreme Court to reconsider sex equality doctrine, it was difficult
enough to convince busy Fifth Circuit judges to review the sex separation plans approved by
district courts and appealed by African American parents through the NAACP LDF, the ACLU,
and occasionally, the federal government. For instance, in Tangipahoa Parish, Louisiana,
plaintiffs waited four years just for the Fifth Circuit to order the trial court to make additional
findings regarding the motivation behind sex separation;136 three years hence, schools in the
parish were still segregated by sex.137 Amite County, Mississippi plaintiffs endured more than
seven years of unanswered motions, letters, and other entreaties before securing a ruling from the
Fifth Circuit, and similar delays obtained in Jefferson Parish, Louisiana138 and Taylor County,
Georgia. In each of these jurisdictions, sex segregated education persisted, vehemently protested
by plaintiffs and their communities but virtually undisturbed by the courts, until 1977.
In the meantime, sex discrimination law and policy underwent a profound transformation.
The Supreme Court reversed more than a century of precedent to hold, in fits and starts, that state
actions discriminating on the basis of sex would be subjected to some form of heightened
scrutiny.139 Title IX of the Education Amendments of 1972 mandated equality in educational
opportunity for women and girls.140 In a little-noticed provision of the Equal Educational
Opportunity Act of 1974, Congress prohibited pupil assignments on the basis of sex as well as
race, color, religion, and national origin. Moreover, these sweeping changes would not have been
136
Moore v. Tangipahoa Parish School Board, No. 30781, 5th Cir. June 14, 1974, RG 276, U.S. Court of Appeals
for the Fifth Circuit Case Files, Box 5751, 30776-30782.
137
American Friends Service Committee, Almost as Fairly: The First Year of Title IX Implementation, in Six
Southern States (Atlanta: Southeastern Public Education Program, 1977) (hereinafter AFSC Report).
138
AFSC Report, 99.
139
See supra note 9.
140
Education Amendments of 1972, §§ 901-903, 20 U.S.C.A. §§ 1681-1683.
45
possible without an attendant proliferation and expansion of advocacy groups concerned with
women’s rights and opportunities. Some of these groups, like the National Organization for
Women and its Legal Defense and Education Fund, were relatively new organizations founded
for the express purpose of advancing women’s legal status; others, like the ACLU, the American
Friends Service Committee, and the NAACP LDF, were longtime champions of civil rights who
now took up feminist causes.141
These doctrinal, legislative, and organizational developments provided a new language in
which opponents of sex separation could challenge desegregation plans involving single-sex
schools. While sex separation opponents continued to emphasize the racially discriminatory
intent and effect of these plans, the idea that the single-sex schools discriminated on the basis of
sex became equally, if not more, prominent as the decade unfolded. In 1974, for instance, New
Orleans ACLU attorney Jack Peebles filed a complaint against the Jefferson Parish, Louisiana
school board, emphasizing first and foremost that the district’s sex-segregated high schools
“establishe[d] a form of sex discrimination which results in a denial of equal educational
opportunities for female students.”142 The plaintiffs’ memorandum argued that sex segregation in
public high schools was “inherently discriminatory toward women,” presenting sociological and
psychological data to support the conclusion that separation inculcated feelings of inferiority,
and enlisting extensive testimony from Melvin Gruwell, Director of the Center for Teacher
Education at Tulane University, to that effect.143 Gruwell also asserted that sex separation
resulted in material inequities of opportunity for young women, arguing that curricular and
counseling disparities steered girls in single-sex schools toward certain fields of study and away
For more on women’s work in organizations like the AFSC during the 1950s, see Susan Lynn, Progressive
Women in Conservative Times (1991).
141
142
Complaint, Helwig v. Jefferson Parish School Board, quoted in AFSC Report, 98.
46
from traditionally male careers. Peebles closed his brief by citing the Supreme Court plurality’s
edict in Frontiero v. Richardson that sex classifications should be considered suspect.144
The most comprehensive critique of sex segregation as a form of sex discrimination came
in a 1977 report by the American Friends Service Committee on Title IX implementation in
Southern public schools.145 The report, funded by a Ford Foundation grant, reflected more than a
year of monitoring by AFSC’s Southeastern Public Education Program in six states—Alabama,
Arkansas, Georgia, Louisiana, Mississippi, and South Carolina—and was styled as a formal
complaint to the Office for Civil Rights at HEW. In addition to detailing violations in
curriculum, school policies, athletics, and employment, the report devoted a whole chapter to
districts maintaining sex-segregated schools, concluding that a requirement of comparable
programs and services could not obviate what was, to the monitors, a simple truth: “Separate can
never be equal.”146 Indeed, the report drew an extended and deliberate “parallel between racial
and sex segregation,”147 comparing single-sex schools to the “freedom-of-choice” desegregation
plans of the 1960s. “Sex discrimination will never be abolished so long as the burden of equality
of opportunity must be borne by the recipients of discrimination,” the authors argued.148 The
report detailed the difficulties monitors encountered when they attempted to gather information
on single-sex schools—recalcitrant school officials, intimidated teachers, elusive documentation.
“Particularly reticent,” according to the monitors, were black teachers who feared they would
143
Complainant’s Memorandum, Helwig v. Jefferson Parish School Board, quoted in AFSC Report, 100.
144
Id., quoted at 102.
145
Id.
146
Id. at 93.
147
Id.
148
Id.
47
lose promotion opportunities, be denied tenure, or even lose their jobs, if they expressed their
objections to sex segregation.149
The AFSC report also enumerated the disparities in curricular and extracurricular
offerings at the single-sex schools in two Louisiana parishes and in Amite County, Mississippi.
Similar patterns emerged in each of the districts: courses in subjects like engineering, advanced
mathematics, physics, Latin, vocational agriculture, and industrial arts would only be offered at
the boys’ schools, while home economics and secretarial skills were emphasized at the girls’
schools and unavailable to boys. In Tangipahoa Parish, there was “unanimous agreement among
principals, teachers, parents and students that texts were sex stereotyped and biased.”150
Monitors also cited vast disparities in athletic programs, with girls’ coaches earning just twenty
percent of the salaries received by the coaches of boys’ teams.151 In Jefferson Parish, girls’
schools had no gymnasium and no buses to transport them to athletic events.152 The Amite
County school system, monitors concluded, was in noncompliance with Title IX in every way
possible.153 On the eve of the monitors’ arrival, some schools instituted “last minute plan[s] to
equalize curricula,” but, the monitors found that “everything possible was being done to ‘subtly
and indirectly discourage students and teachers from following any non-traditional courses of
action.’”154 Often the proposed solution was to bus students from one school to another to
partake of courses not offered on their own campuses. One female student told monitors, “My
149
Id at 95.
150
Id. at 108.
151
Id. at 98.
152
Id.
153
Id. at 109.
154
Id at 96.
48
teachers said it’s silly to want to take a boy’s course like mechanical drawing, but I still want to.
Taking the bus (to the boys’ school) is complicated, though—so maybe I won’t.”155
Many female students expressed a fervent desire for coeducational schools, while some
school officials insisted that single-sex schools were better for girls, because they provided more
opportunities for female leadership. The report discounted this possibility, arguing that
“expectations for women” in single-sex schools “reinforce attitudes of female inferiority.”
Besides, even if “a female in a sex-segregated situation has more opportunity to become school
president—the election to school office hardly equates with one’s life chances to become a
scientist.”156 Indeed, the promise of empowerment through single-sex education for girls hardly
seemed extant in the sex-segregated schools of Louisiana and Mississippi. Still, this mode of
argumentation on the part of school officials marked a significant shift in emphasis on the part of
sex-segregation proponents: boys’ fragile gender identities and special educational needs were
no longer the focus of attention. Rather, sex discrimination discourse had shifted the debate to
the disadvantage experienced by girls and young women. After the Supreme Court’s sex equality
decisions and, especially, Title IX, saving money on the “needless duplication of facilities” was
no longer an acceptable justification for sex segregation.
Although the AFSC report primarily asserted an analogical relationship between race and
sex segregation, monitors certainly did not abandon the argument that racial discrimination was a
significant motivation for and consequence of sex segregation in Southern school districts. Nor
did plaintiffs and their attorneys omit evidence of racial motivations from their court
submissions. Though the Jefferson Parish plaintiffs were unable to produce a “smoking gun”—
school board members willing to testify that they instituted sex segregation as an antidote to
155
Id.
49
racial integration—expert witness Gruwell, who had been in close contact with school officials
in the parish at the time sex separation began, expressed the opinion that “there was a very, very
definite tie between the policy of segregation by sex and the problems of racial
desegregation.”157 The AFSC report quoted an elementary school principal in Tangipahoa Parish
who explained that even in coeducational schools, playgrounds were segregated by sex due to a
parental preference that boys and girls avoid interracial contact.158 Monitors in Amite County
found that classrooms in single-sex schools in many cases were still segregated by race, as were
school buses.159 Sex and race discrimination were, in this context, not merely analogous but
intertwined.
“This is History Being Made”
For local black leaders and for African American parents and students in sex segregating
school districts, the issues of sex and race discrimination were hardly distinguishable and seldom
clearly distinguished. Many black families and organizations protested sex segregation
intermittently from its inception, though some community members were willing to accept
racially desegregated, sex segregated schools as a step in the right direction—or at least as
preferable to an exodus of whites and dollars to private schools. All throughout the sex
segregation controversy, African American communities and local civil rights groups articulated
a set of grievances that combined many different concerns in a manner that did not sharply
demarcate the boundaries between race and sex discrimination harms. Like the LDF, ACLU, and
AFSC, local NAACP officials and African American families seized upon legal tools like Title
156
Id. at 97.
157
Id. at 101.
158
Id. at 105-6.
50
IX when they appeared, and used them to articulate pre-existing concerns about curricular and
other differences between the boys’ and girls’ schools. In letters to LDF lawyers, Fifth Circuit
judges, and in written and oral protests to white-dominated local school boards, African
Americans living in communities with sex-segregated schools advanced a wide range of
arguments not always easy to classify within existing legal categories of racial motivation or sex
discrimination.
Affluent white Southerners had often preferred to educate their sons and daughters
separately when resources and demography permitted; in fact, many southern cities segregated
white public school students by sex in order to attract well-to-do families able to send their
children to single-sex private institutions.160 In contrast, African Americans historically had
possessed neither the pedagogical inclination nor the material wherewithal to segregate by sex.
African Americans’ coeducational tradition derived from several historical legacies, some within
and some outside their control. Apart from the demographic and financial factors that usually
mitigated against sex segregation for both blacks and whites in rural areas, African Americans
had established cultural patterns of coeducation as early as the antebellum period—patterns
reinforced by the Northern teachers whose Reconstruction-era schools educated black boys and
girls together.161 As Glenda Gilmore notes, prominent African American pedagogues like Anna
Julia Cooper could envision and promote equal and universal education for black women as early
as the late nineteenth century precisely because their own coeducational experience—which, in
159
160
Id. at 109.
Tyack and Hansot, 97.
Tyack and Hansot, 54-55. For more on African American educational practices during slavery and
Reconstruction, see Thomas L. Webber, Deep Like the Rivers: Education in the Slave Community, 1831-1865
(1978); James D. Anderson, The Education of Blacks in the South, 1860-1935 (1988); Jacqueline Jones, Soldiers of
Light and Love: Northern Teachers and Georgia Blacks, 1865-1973 (1980). For a compelling study of African
American education in the Civil War and immediate post-bellum South, see Heather Andrea Denise Williams, Self161
51
Cooper’s case, included a classical education unavailable to most women, black or white, of her
time—had given them a glimpse of the possible.162 Nor had white school officials often
attempted to disrupt those historical practices: white legislators and local authorities were not
only unwilling to allocate the resources necessary to maintain separate schools for black boys
and girls, they also refused to apply the same gender prescriptions to African American children.
As the historians of coeducation Elizabeth Hansot and David Tyack point out, white
administrators “had a different standard of sexual propriety for the two races. White females,
relegated by men to a pedestal, supposedly needed the protection that came from isolation; black
women, exploited by white men and stereotyped as passionate and available, needed no such
buffering from males.”163 Further, as historians like Gilmore, Jacqueline Jones, and others have
shown, gender ideals within the African American community had often permitted—and even
encouraged—women to cultivate their minds without sacrificing their womanliness.164 Economic
conditions also mitigated in favor of equal education for women, as teaching was one of very
few alternatives to exploitative domestic employment for African American females.165
This coeducational tradition likely rendered the imposition of sex segregation even more
jarring to African American communities than its racial implications already ensured. Though
their concerns about discrepancies between boys’ and girls’ schools did not make it into any
legal documents until after 1972, African American parents expressed frustration that their
daughters could not receive vocational training, and that their sons lacked access to home
Taught: The Role of African Americans in Educating the Freedpeople, 1861-1871 (unpublished Ph.D. dissertation,
Yale University, Program in American Studies, 2002).
162
Glenda Gilmore, Gender and Jim Crow: Women and the Politics of White Supremacy in North Carolina, 18961920, at 39 (1996).
163
164
Tyack and Hansot, 96.
Gilmore, Gender and Jim Crow; Jacqueline Jones, Labor of Love, Labor of Sorrow: Black Women, Work and the
Family from Slavery to the Present (1985); Paula Giddings, When and Where I Enter (1984).
52
economics courses in the early days of sex segregation. In 1970, Rufus C. Huffman, educational
field director for the NAACP Special Contribution Fund, communicated these grievances to LDF
attorney Mel Leventhal. Referring to students in Amite County, Mississippi, Huffman wrote:
“[T]here are some boys who desire to take Home Economics and some girls want some
vocational training, but they are denied this opportunity because of sex segregation.” 166 Further,
he asserted that “[t]he aforementioned acts and conditions are in direct violation of the
constitutional rights of American citizens,” and requested that “immediate corrective actions be
taken.”167 In the same letter, Huffman communicated complaints about classroom and bus
segregation, and rules that prevented parents from visiting the schools to confirm their children’s
reports of these abuses.
As we have seen, African Americans’ out-of-court protests often combined discontent
with sex segregation with a variety of other concerns, from various other forms of resistance to
desegregation, to youth unemployment, to teacher layoffs. The Amite County protest of 1976-77
provides a rich example of the extent to which Black parents, students, and local leaders
continued to articulate a wide-ranging critique of sex segregation. By 1976, after families in
Amite County had waited almost seven years for action from the federal courts, and after the
predominantly white school board refused to act without a court order, local NAACP members
went to their state branch director in Jackson to discuss the black parents’ concerns. Their
complaints included “lack of interest on the part of the black students,” and “inferior education,
in that boys are not permitted to take certain courses, such as Home Economics, and girls are not
165
Tyack and Hansot.
166
Letter from Rufus C. Hoffman at 1-2, Education Field Director, NAACP Special Contribution Fund, to Attorney
Melvin Leventhal, Oct. 14, 1970, NAACP Papers, V: 2823, Folder: Schools: Mississippi, 1963-1971, n.d.
167
Id. at 2.
53
able to take certain courses, such as shop and the vocational courses.”168 Parents also sounded “a
special alarm about the tendency of boys toward homosexuality in the system.”169 After a series
of mass meetings with African American parents in Amite County, the state NAACP chairman
[check] Emmett Burns wrote a letter to the three Fifth Circuit judges responsible for overseeing
school desegregation in Mississippi, reiterating these complaints and further emphasizing that
pervasive dissatisfaction with sex segregation among African American students and parents
should override the objections of a minority of whites to coeducation. After all, Burns reasoned,
the public school student population in Amite County was over 80 percent black.170 Furthermore,
Burns told the Jackson Daily News, the single-sex system “doesn’t properly prepare students to
function in society because ‘we don’t live in a sexually segregated world.’”171
After an additional year had passed without any relief from the courts or the school
board, despite numerous entreaties, both rhetoric and the stakes of the controversy escalated
further. In August 1977, the Amite County and Mississippi state branches of the NAACP issued
a joint press release in which they
again deplore[d] the South African, Rhodesian type apartheid system of
strict school segregation by sex in the Amite County School System. The
elements of apartheid are principally present: Minority rule (only twenty
(20) percent of the school system’s children are white) yet the minority
opinion absolutely determines policy; the races are segregated by sex in an
attempt to keep Black males and white females separated, but in the
process Black males are denied co-education with Black females; and, a
168
Id.
169
Id.
170
Letter from Emmett C. Burns to Judges Griffin Bell, Homer Thornberry, and Lewis Morgan, United States Court
of Appeals for the Fifth Circuit, Aug. 4, 1976, Records of the NAACP, V: 2570, Folder: Branches--States-Mississippi: A-J Misc., 1956-81.
Jerry Oglethorpe, “Boycott in Amite Threatened,” Jackson [Miss.] Daily News, 4 August 1977, Records of the
NAACP, V: 2570, Folder: Branches--States--Mississippi: A-J Misc., 1956-81.
171
54
total disregard for the feelings wishes, and thoughts of the Black
majority.172
If remedial action was not forthcoming, “the only alternative left” was for “the NAACP to pull
the Black students out of school in an act of protest come fall.”173 The statement acknowledged
that such an action “would seriously hamper the educational progress of Black students
specifically, and the school system in Amite County generally, but the continued apartheid
system is more serious. We cannot and will not participate in a system that works to our
detriment,” the press release declared, for “a school system that contributes to zombi-ism and
homosexuality is both pedagogically and racially unsound.”174
The NAACP and the black community of Amite County followed through on their
pledge, successfully launching a boycott that kept the vast majority of students in the district at
home. As the school year began, only 391 white students and 44 black students were in class, out
of a projected enrollment of 2,400. Several hundred protesters gathered on the steps of the
county courthouse to protest sex segregation, and black leaders vowed to continue the boycott
for as long as was necessary to convince the school board to ask the Fifth Circuit for a
coeducational assignment plan.175 Robert Wilson, the only African American member of the
school board—and the only elected black official in the county—made no secret of his disdain
for sex segregation, but initially stopped short of endorsing the boycott. Mr. Wilson urged
parents to “put the concern of your children first—do not allow a few illiterate people to destroy
172
Amite County NAACP and Mississippi State Conference, NAACP, Press Release, Aug. 3, 1977, Records of the
NAACP, V: 2570, Folder: Branches--States--Mississippi: A-J Misc., 1956-81.
173
Id.
174
Id.
Daniel Sheridan, “School Boycott Leader Vows to Continue,” Natchez [Miss.] Democrat, 31 August 1977,
Records of the NAACP, V: 2570, Folder: Branches--States--Mississippi: A-J Misc., 1956-81.
175
55
your children's lives forever.”176 Boycott leaders were steadfast, however. “We know some will
get hurt by this,” said Rosie Wilson, whose own children were missing school. “[B]ut…[w]e
want the boys and girls in the same school this year. We’re going at this, step by step.”177
The next step was a contentious school board meeting held on September 1 [check],
several days after the boycott commenced. A delegation of about 70 African Americans
confronted the three white school board members in attendance, with Dorothy Chesser reading a
letter asking for their resignation on the grounds that the members “steadfastly refuse to serve the
needs of the majority of the people you represent.”178 The white board members expressed
satisfaction with the single-sex system, asserting that sex segregation was instituted at the
suggestion of HEW, a recollection black parents and their attorneys did not share.179 For his part,
Maurice Foreman, the white superintendent of schools, insisted that he had no power to express
an opinion on sex segregation, much less ask the courts to take legal action.180 Board member
Bernard Dunaway challenged African American parents to vote him and the other white
members out of office if they were dissatisfied with their performance, and defended sex
segregation as legitimate.181 “Are you insinuating there’s something wrong with black boys—
that they shouldn’t got to school with white girls?” Chesser asked Dunaway at one point. “I
176
“Sex-Segregated Schools Boycotted,” New York Times, 31 August 1977.
177
Id. It is not clear whether Robert and Rosie Wilson were related; one newspaper report suggested that they may
have been husband and wife. See “Boycott Continutes at Amite School,” 2 September 1977, Gloster [Miss.] Weekly,
Records of the NAACP, V: 2570, Folder: Branches--States--Mississippi: A-J Misc., 1956-81 (referring to “Rosa
Wilson” as the wife of school board member Robert Wilson).
“Black Parents in Amite County Vow to Continue Boycott of Schools,” Hattiesburg American (Associated
Press), 2 September 1977, Records of the NAACP, V: 2570, Folder: Branches--States--Mississippi: A-J Misc.,
1956-81
178
179
The proposed HEW plan of 1969 did not call for sex segregation, and there is no evidence that HEW officials
affirmatively suggested such an arrangement at any time, though in several instances HEW declined to take a
position on sex segregation in school district-drawn desegregation plans.
“Boycott Continutes at Amite School,” 2 September 1977, Gloster [Miss.] Weekly, Records of the NAACP, V:
2570, Folder: Branches--States--Mississippi: A-J Misc., 1956-81.
180
56
didn’t say anything to insinuate that,” Dunaway answered. “I just said we had different schools
for the white and for the coloreds” before coeducation ended in 1969.182
The school board meeting made clear that neither side was prepared to give an inch.
Almost two weeks later, the boycott was still in full force, with picketers greeting the few
students still attending each of the county’s four schools. Many wore signs reading, “End Sex
Discrimination.” By this time, black board member Robert Wilson no longer expressed
reluctance about the boycott, telling the New York Times that this was “only ‘a first step’ toward
gaining equality for Amite blacks, who for the most part are poor and lack political
organization.”183 For some, these concerted actions marked a milestone in local African
American mobilization. The 87-year-old aunt of picketer Mrs. A.M. Tobias attended a mass
demonstration in her wheelchair; as this lifelong Amite County resident, Ms. Pinkie Griffin, told
the Jackson Clarion-Ledger, she “never thought she would see this in Amite County.” “Yes,”
she declared, “this is history being made.”184
As these protests suggest, African American students, parents, and other community
leaders had a wide variety of objections to sex segregation, many of which were not easily
classified under either the race or the sex discrimination rubric as the law defined these
categories. Of course, few in Amite County, or in Taylor County, Georgia, or in the sex
segregating parishes of Louisiana, even attempted to deny that sex segregation was a “palliative”
to ease the transitional shock of desegregation. For many opponents, sex segregation was also
Daniel Sheridan, “Amite Trustees Refuse to End Sex Segregation,” Natchez [Mississippi] Democrat, 2
September 1977, Records of the NAACP, V: 2570, Folder: Branches--States--Mississippi: A-J Misc., 1956-81.
181
Mike Williamson, “Amite Board Endorses System,” Enterprise-Journal, September 1977, Records of the
NAACP, V: 2570, Folder: Branches--States--Mississippi: A-J Misc., 1956-81.
182
183
B. Drummond Ayres, Jr., “Blacks Boycott Schools Segregated By Sex,” New York Times, 13 September 1977.
57
sex discrimination, a denial of the full spectrum of curricular choice—boys could not learn home
economics and office skills, while girls were barred from vocational training and industrial arts.
But those were not the only objections. For many, the maintenance of single-sex schools by a
white-dominated school board in the face of opposition from the school system’s black majority,
was simply an affront to democratic values and basic fairness reminiscent of South African
apartheid. Protesting this exercise of illegitimate power could be a potent organizing tool for
poor, rural African Americans. On the other hand, sex segregation seemed to many a subversion
of normal heterosexual interaction, with dire consequences for both pedagogy and orderly sexual
behavior. In their anxiety about interracial sex, whites were preventing black boys and girls from
socializing with one another, and possibly even encouraging homosexuality. And for many
students, black and white, separation from the opposite sex signified a ludicrous adult imposition
on teenage freedom. The legal tools available to opponents of single-sex schools were not
expansive enough to contain the diverse array of objections protesters articulated in their battle
against sex segregation.
“A Similar If Not Equivalent Injury”
Although existing legal categories failed to capture the full complexity of their
objections, sex segregation opponents seized legal tools when they became available. Clearly,
the availability of new legislation and constitutional precedents, as well as an emerging
consciousness about a phenomenon called “sexism,” and the proliferation of organizations
concerned with women’s rights, were crucial factors precipitating the trend toward framing sex
segregation as sex discrimination as well as race discrimination. Before Title IX and the EEOA,
Lonnie Wheeler, “Race Underlying Issue in Liberty,” Jackson [Miss.] Clarion-Ledger, 3 September 1977,
Records of the NAACP, V: 2570, Folder: Branches--States--Mississippi: A-J Misc., 1956-81. The headline refers to
184
58
the federal government often declined to take a position on sex segregation, preferring to focus
exclusively on whether or not a proposed plan would create a racially unitary school system.
When Congress passed the Equal Educational Opportunity Act in 1974, plaintiffs and their
attorneys successfully pressured the Justice Department to ask the Fifth Circuit to evaluate sex
separation in light of a provision prohibiting “the maintenance of dual school systems in which
students are assigned to schools solely on the basis of race, color, sex, or national origin….”185
When it became apparent that they could more easily attract the HEW’s attention if they
couched their complaints as Title IX violations rather than merely as objections to courtapproved desegregation plans, activists from the NAACP, LDF, ACLU and AFSC seized upon
this strategy, seeking to document school district policies that discriminated on the basis of sex.
Relying solely on arguments about racial motivation had not been a successful strategy for
opponents of sex separation; while they succeeded in some courts, a good number of school
districts continued to operate on a sex-segregated basis. Moreover, since the Fifth Circuit’s legal
standard invited—indeed, required—school boards to advance “educational purposes” for sex
segregation, it seemed advantageous to respond with evidence that whatever benefits boys might
obtain from single-sex schools, sex-segregated girls suffered psychological harm and material
educational disadvantages.
As it turned out, however, the Fifth Circuit never passed judgment on either the race or
the sex discrimination issues. As the Amite County boycott entered its fourth week, a slightly
reconfigured panel finally ruled on the question that had been before the court for nearly eight
years. Judge Griffin Bell, who had presided over the Mississippi desegregation cases, had left the
court in early 1976; by 1977 he was firmly ensconced in Washington as Jimmy Carter’s attorney
the town of Liberty, Mississippi.
185
20 U.S.C. section 1702(a)(1).
59
general.186 His replacement on the Mississippi panel, Judge Charles Clark, had been President
Nixon’s first nominee to the Fifth Circuit, and had attained considerable prominence as the
lawyer for the University of Mississippi Board of Trustees when James Meredith attempted to
integrate Ole Miss.187 According to the historians Frank Read and Lucy McGough, Clark was
“certainly a vigorous defender of his client’s policies of segregation,” but had “earned the respect
of the Court’s membership in the forthright manner he disassociated his clients from the
intransigent Governor Barnett.”188 By 1977, Clark had become “perhaps the most articulate and
powerful spokesman” for judicial restraint on the court, and “as the only member…with schoolage children,” was “acutely aware of some of the troubling academic and disciplinary problems
that can follow forced integration.”189
In keeping with this philosophy of restraint, Clark managed to avoid the constitutional
issue of whether sex segregation violated the Fourteenth Amendment. Writing for himself and
his colleagues Lewis Morgan and Homer Thornberry, Clark sidestepped questions of intent and
effect, ruling that the plain language of the EEOA prohibited pupil assignments based on sex.190
He began by reviewing the procedural history of the case, delineating without comment the
factual findings made by District Court judge Dan M. Russell back in 1970:
[C]oncluding that ‘the separation by sex plan stems from sound
educational purposes as distinguished from racially discriminatory
purposes,’….[t]he district court entered specific findings that: (1) the
separation of the students by sex has produced a unitary school system; (2)
the achievement level of the male students had shown substantial
improvement with no lessening in the level of the female students’
186
Reg Murphy, Uncommon Sense: The Achievement of Griffin Bell (1998).
187
Read & McGough, 454.
188
Id.
Id. Clark’s children were attending the public schools of Jackson, Mississippi, when court-ordered desegregation
commenced. Id.
189
190
United States v. Hinds County School Board et al., and Amite County School District, et al., 560 F.2d 619 (1977).
60
improvement; (3) attendance levels of all students had improved; (4)
normal disciplinary problems in school buildings and on busses and
playgrounds had declined; (5) motivation of students and teachers had
improved, with measurably improved leadership qualities on the part of
the male students; and (6) the stability of the entire school
operation…resulted in increased attendance by white students and in
better cooperation of the community as a whole.”191
Clark then noted, seemingly without irony, that when the court “permitted the temporary use of
[this] modified plan, we expressly noted that our order was ‘an interim emergency measure to
stabilize the education process in this school district…and is not to be construed as a
precedent.”192 He continued, “Nothing this court has done before or since may be construed as
permanently approving this type of student assignment.”193
The legal landscape had changed since the Fifth Circuit last addressed a sex segregation
case, in the 1972 decision United States v. Georgia. Then, the court had affirmed earlier hints
that the standard for evaluating such plans was whether they were motivated by racial
discrimination or by educational purposes, tacitly rebutting the assertions of some school boards
that Palmer had demolished intent as an indicator of constitutional infirmity. Now, the Amite
County School Board embraced the racial motivation standard as the lesser of two evils,
presumably discerning that defendants would have a better chance enumerating the educational
purposes behind sex segregation than finessing the apparently clear language of the EEOA.194
Lawyers for the school district also argued that the EEOA should be interpreted in such a way as
to allow for sex segregation as practiced in Amite County, and to interpret the law otherwise
would be to erroneously assume that Congress intended to safeguard rights beyond the scope of
the Fourteenth Amendment’s protections.
191
Id. at 621 & n.3.
192
Id. at 622.
193
Id.
61
Judge Clark and his colleagues disagreed on both counts. Clearly, he wrote, the EEOA
superseded previous Fifth Circuit doctrine on sex segregation, rendering the racial motivation
standard obsolete. Whether or not the school board could manufacture educational purposes was
irrelevant: the language of the Act, on its face, prohibited pupil assignments based on sex.
Further, Clark argued that Congress had indeed intended the EEOA to supplement constitutional
protections, not merely to vindicate existing rights, which, in a pre-Bourne world, was
unremarkable as a matter of constitutional law, though perhaps arguable as a matter of legislative
intent.195 Though virtually no legislative history exists concerning the “sex” provisions of the
EEOA, the judges believed that the act “incorporate[d] a judgment that a sex-segregated school
district is a dual rather than a unitary school system and results in a similar if not equivalent
injury to school children as would occur if a racially segregated school system were imposed.”196
This was as close as the panel came to addressing the relationship between race and sex
segregation, and it did so not as a constitutional problem, but as a matter of statutory
interpretation. The Fifth Circuit thereby declined to mediate the heated disputes over the intent
and effects of sex segregation that the parties and their lawyers had waged for nearly a decade.
Meanwhile, feminists had hoped that the Supreme Court might resolve the sex
segregation issue once and for all in Vorchheimer v. School District of Philadelphia, argued in
early 1977. Instead, an equally divided Court affirmed the Third Circuit’s decision in favor of
the school district without issuing an opinion. Ruth Bader Ginsburg, a primary architect of 1970s
194
Id. at __.
I refer here to the Supreme Court’s decision two decades later in City of Bourne v. Flores, which called into
question the ability of Congress to provide protection under section five from acts that would not violate section one
of the Amendment. 527 U.S. 507 (1997). It is less clear that the Congress saw itself as expanding Fourteenth
Amendment protections to new categories of disadvantaged students when it passed the EEOA, since the primary
purpose of the statute was to curtail busing as a remedy for desegregation. Seen from another angle, however, it is
perfectly plausible that Congress believed it was expanding students’ right to be free of certain desegregation tools
that legislators and anti-busing activists perceived as burdensome.
195
62
feminist legal strategy, reflected in 1978 that perhaps the sex segregation issue had reached the
Court too soon, without the “generation of litigation” that had laid the legal and sociological
groundwork for Brown.197 In a speech later that year, she noted wistfully “the case that could
have been”—Helwig v. Jefferson Parish School Board, the ACLU’s challenge to sex segregation
in Louisiana. Years of delay and the contingencies of court composition had robbed sex
segregation opponents of the perfect vehicle for their arguments—a case that compellingly
combined the race and sex discrimination issues whose interrelationship had befuddled judges
and lawyers for nearly a century. Though events of the 1970s had transformed legal and popular
debates over sex segregation, the thorny questions about single-sex education and its relationship
to racial segregation raised in and out of court would defy judicial resolution for decades to
come.
196
197
Amite County, 560 F.2d at 623.
Ruth Bader Ginsburg, The George Abel Dreyfus Lecture on Civil Liberties, Tulane University School of Law,
Feb. 13, 1978, Ruth Bader Ginsburg Papers, Manuscript Division, Library of Congress, Container 13, Folder:
Speech File, Feb. 13, 1978.