The principle and practice of women's "full citizenship": a case study of sex-segregated public education.

AuthorHasday, Jill Elaine

INTRODUCTION I. HEIGHTENED SCRUTINY, "FULL CITIZENSHIP STATURE," AND "LEGAL, SOCIAL, AND ECONOMIC INFERIORITY". A. The Uncertain Reach and Reasoning of Heightened Scrutiny B. "Full Citizenship Stature" and "Legal, Social, and Economic Inferiority" II. SEX-SEGREGATED PUBLIC EDUCATION: A CASE STUDY IN USING HISTORY TO INFORM AN INQUIRY INTO WHETHER A SPECIFIC PRACTICE DENIES WOMEN "FULL CITIZENSHIP STATURE" OR MAINTAINS THEIR "LEGAL, SOCIAL, AND ECONOMIC INFERIORITY" A. Different Populations of Women Are Not Necessarily Interchangeable in Considering What Denies Women "Full Citizenship" and Maintains Their "Inferiority" B. Separation Is Not the Only Mechanism for Denying Women "Full Citizenship" and Maintaining Their "Inferiority": The Historical Overlap Between Sex- Segregated and Coeducational Public Education C. Women and Men Are Not Necessarily Interchangeable in Considering What Denies "Full Citizenship" and Maintains "Inferiority" CONCLUSION INTRODUCTION

For more than a quarter century, the Supreme Court has repeatedly declared that sex-based state action is subject to heightened scrutiny under the Equal Protection Clause. But the Court has always been much less clear about what that standard allows and what it prohibits. For this reason, it is especially noteworthy that one of the Court's most recent sex discrimination opinions, United States v. Virginia, (1) purports to provide more coherent guidance.

Virginia suggests that the constitutionality of sex-based state action turns on whether the practice at issue denies women "full citizenship stature" or "create[s] or perpetuate[s] the legal, social, and economic inferiority of women." (2) Yet the opinion does not begin to indicate how the sex discrimination jurisprudence might implement this new standard. In particular, it does not tell us how to determine whether any specific practice deprives women of "full citizenship" or maintains their "inferiority." (3)

The answer to this question is far from obvious. Indeed, even the large legal literature that has long argued that constitutional law enforcing the Equal Protection Clause should be structured around a commitment to combating "subordination" provides us with relatively little guidance. This literature would seem to have concerns importantly aligned to those that Virginia articulates. But it ultimately does not teach us much about how to identify the practices that undermine women's "full citizenship" or sustain their "inferiority." (4)

This Article attempts to give some content to the framework that Virginia presents. More specifically, it explores how analyzing the historical record of a practice can inform an investigation into whether, when, and why that practice is consistent with women's "full citizenship stature" or operates to perpetuate their "legal, social, and economic inferiority." (5)

History is not the only source that one could use in considering how to give flesh to the standard that Virginia suggests, and the social understandings and distributive consequences associated with a practice over time cannot conclusively establish how a practice is currently functioning or should currently be regulated. But examining a practice at some remove from the present can reveal hidden dimensions of a problem and bring into sharper focus questions that are obscured in contemporary debates. A historical record can direct a Court's attention toward particular issues, uncover areas of concern, and illuminate factors that might be relevant. This Article takes the historical record of sex-segregated public education in the United States as its case study. That record is an especially apt place to begin because Virginia directly concerned the constitutional status of a sex-segregated public school. (6)

The Article proceeds in two parts. The first examines heightened scrutiny, "full citizenship stature," and "legal, social, and economic inferiority" as they appear and function in the Court's sex discrimination jurisprudence. (7) The second considers how the historical record of sex-segregated public education might help us learn what we would need to know in order to determine whether, when, and why the practice of sex-segregated public education denies women "full citizenship stature" or "create[s] or perpetuate[s] the legal, social, and economic inferiority of women." (8)

As we will discover, the record of sex-segregated public education over time suggests that Virginia's "full citizenship" standard may ultimately challenge many of the assumptions on which the current sex discrimination jurisprudence is based, including some endorsed in Virginia itself. (9) For example, Virginia, like the sex discrimination case law before it, appears to treat the claims of different populations of women as constitutionally interchangeable. But the historical record of sex-segregated public education reveals that practices can deny "full citizenship" to one set of women and not another, or can deprive different groups of women of "full citizenship" in different ways. (10) The practice of sex-segregated public education, for instance, has historically been entangled in both racial and class stratification, and has inflicted injuries on women that varied depending on their racial and economic status. This suggests that a decisionmaker regulating single-sex public schools under the framework Virginia outlines would be well-advised to consider whether some or all of those schools have different consequences for different groups of women.

Similarly, the current sex discrimination jurisprudence focuses on separation as the mechanism through which inequality is maintained, perhaps because this mechanism has featured so prominently in the history of race discrimination in the United States. The sex discrimination case law seems to assume, for example, that sex-segregated and coeducational public education are wholly different practices, directing constitutional scrutiny at the former while all but ignoring the possibility that coeducational public schools might operate to undermine women's equal citizenship.

Yet the historical record of sex-segregated (and coeducational) public education makes clear that separation of the sexes is not the only means by which practices can deprive women of "full citizenship" and sustain their "inferiority." (11) Some of the same mechanisms of inferiority can function in both sex-segregated and coeducational public schools. Indeed, the historical record reveals that differences of form like that between sex-segregated and coeducational public education can actually prove relatively unimportant in terms of their substantive impact on women's status. Through at least the first half of the twentieth century, for instance, sex-segregated public education was systematically structured to steer and push women toward marriage and motherhood and to discourage and disable them from pursuing prominent participation in economic or political affairs. This feature of the practice, which we might call "sex role confinement," did not depend on separation, however. Role confinement was present in approximately equal measure in the coeducational public schools of the period.

This suggests that a Court considering whether all sex-segregated public education should be constitutionally prohibited under Virginia's framework--a question that the Court has yet to decide--could usefully compare the practices of sex-segregated and coeducational public education. Presumably, a Court would be unwilling to categorically ban coeducational public schooling. But if the practices of sex-segregated and coeducational public education turn out to be operating with equal effect to maintain women's "legal, social, and economic inferiority," it is hard to see why a jurisprudence committed to women's "full citizenship" would want to emphasize form by absolutely prohibiting sex-segregated public schooling, or how transferring all public school students to coeducational schools would advance women's "full citizenship stature" and fight their "inferiority." (12) Along the same lines, this record also suggests that if sex-segregated public education is not absolutely prohibited under Virginia's framework, a Court determining what constitutional regulations would best prevent single-sex public schools from undermining women's equal citizenship should consider the potential problem of role confinement. Similarly, a Court interested in protecting women's equal status would be wise to focus much more constitutional scrutiny on coeducational public schools directly, examining them also as possible sources of women's inequality.

Finally, the Virginia opinion appears to express a particular constitutional interest in women's "full citizenship stature" and "the legal, social, and economic inferiority of women." (13) But prior sex discrimination cases, and parts of Virginia, treat men and women interchangeably. For instance, all of the Court's opinions on sex-segregated public education are committed to the proposition that single-sex public schools--whether they enroll male or female students--must conform to separate but equal standards by not excluding a sex of students that lacks access to equal public educational opportunities elsewhere in the jurisdiction. The historical record of sex-segregated public education, however, reveals that a practice that functions to deprive women of "full citizenship" may not necessarily inflict the same harms on men. (14) For example, women's exclusion from men's public schools, when women did not have the same opportunities available elsewhere, has often caused women to suffer serious dignitary and material harm. But it is not at all clear that men's exclusion from women's public schools (when they did not have same opportunities available elsewhere) has historically operated to impinge upon the "full citizenship" of either men or women. (15) This suggests that separate but equal standards may...

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