Separate but Equal: Plessy Meets Tessie

HERE'S a nutshell primer on the 14th Amendment's guarantee of ``equal protection of the laws,'' as applied to public schools:

* Separate but equal is OK - Plessy v. Ferguson, United States Supreme Court (1896).

* Separate but equal isn't OK; even if separate could be equal (and it almost never is), separate stigmatizes disadvantaged groups - Brown v. Board of Education, Supreme Court (1954).

* Separate but equal is OK, sometimes - US v. Commonwealth of Virginia, US 4th Circuit Court of Appeals (1992), Supreme Court review denied (1993).

There: You're as confused as a first-year law student, for free.

Constitutional antidiscrimination law is a maze, and you come out at unexpected places. Currently, for instance, you find (1) advocates for historically black colleges in Mississippi and other Southern states asserting that sometimes racially separate schools are good and should be constitutionally permissible, (2) women students raising classic Brown v. Board of Education arguments in order to gain admission to all-male state-supported military colleges, (3) some private women's colleges worrying about the possible consequences of judicial rulings antagonistic to single-sex education, and (4) a US court of appeals ruling that, as to gender, separate but equal might pass muster.

No self-respecting advocate would resurrect Plessy v. Ferguson, a rightly maligned Jim Crow case that upheld segregated railroad cars in Louisiana, which the Supreme Court buried with the famous Brown integration decision. But thought is swinging back to Plessy's separate-but-equal core in some higher-education contexts involving both race and sex.

In 1992, the Supreme Court ruled that Mississippi has failed to desegregate its university system, even though all the state's public colleges are now open to any student. The five historically white colleges are still predominantly white, and the three historically black colleges are still almost exclusively black; moreover, there are wide discrepancies in state resources channeled to the white and black schools.

Blacks thought they had won, but they are distressed by proposed remedial plans that would merge two of the black colleges with white universities. Blacks say the proper remedy is to raise funding for the historically black schools - which they understandably cherish as longtime nurturers of black achievement, self-reliance, and self-esteem. Yet it puts them, paradoxically, in the position of defending separate-but-equal facilities.

Similar issues are raised by the efforts of women to enroll in Virginia Military Institute (VMI) in Lexington, Va., and The Citadel in Charleston, S.C. - both all-male, state-supported military colleges. Last month, Chief Justice William Rehnquist allowed a female student, Shannon Faulkner, to attend classes at The Citadel pending the outcome of her lawsuit for admission.

The all-male schools' exclusionary admissions policies are no more justifiable than the racially discriminatory policies that were successfully attacked during the civil rights era: That is the assertion of the female plaintiffs and their many supporters in women's-rights organizations.

Yet some women are wary of that approach, for they worry that challenges to single-sex education could turn around someday and bite private women's colleges. Women's colleges thus share the concerns of historically black colleges. Both claim to play valuable roles for traditionally disadvantaged groups.

Of course, the more immediate legal question is whether the all-male colleges can make the same public-policy arguments for single-sex education that women's colleges raise. Opponents say that ``bastions of male power and privilege'' like VMI and The Citadel can hardly be equated to women's (or historically black) colleges, which were established to shield women (and blacks) from the effects of discrimination. In this line of thinking, separate but equal is a one-way remedy, available to disadvantaged groups but not to dominant ones.

The US Court of Appeals in Richmond, Va., isn't so sure. It ruled a year and a half ago that VMI's maleness might be able to survive if a genuinely comparable state-supported program for women can be established. Mary Baldwin College, a private women's school near VMI, has offered to sponsor such a program; a federal judge will review the proposal this week.

Separate but equal redux?

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