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In Brown’s Wake

You may remember the short-lived controversy that arose this summer about student government elections at the Nettleton Middle School in Mississippi: school officials had allotted student council positions according to race, with eight positions open to white students, four to black students. The school was quick to abort this policy once it came to national attention; when asked about why it had been implemented in the first place, the superintendent commented that it had been an attempt to “ensure minority representation and involvement in the student body.”

This December marked the 56-year anniversary of Brown v. Board of Education, the landmark Supreme Court case that called for an end to segregation — giving us the opportunity to evaluate the influence of this case on American schools half a century later. The dubious intention of Nettleton school officials only grazes the many issues surrounding segregation in public schools: in recent years, Americans have argued over everything from the racial segregation of high school proms to whether English as a Second Language ought to be taught by immersion or in separate classrooms (or even separate schools). In some urban school districts where non-white students predominate, school officials have abandoned the fight for integration in order to focus their attention on improving the education offered at these schools so as to close the racial achievement gap.

In her new book In Brown’s Wake: Legacies of America’s Educational Landmark, Martha Minow demonstrates that the decision of Brown v. Board continues to reverberate in our society, often in surprising ways. Many school districts in the United States have failed to fully become entirely integrated with respect to race: writes Minow, “Schools in fact are now more racially segregated than they were at the height of the desegregation effort.” But there are also many other ways that schools have become more segregated — by gender, sexual orientation, immigration status, socioeconomic background, religion, and disability. And the strategies of Brown v. Board are now used by advocates of “school choice,” who believe that school vouchers, tax credits, magnet schools, and charter schools are one way of achieving integration.

In this excerpt from In Brown’s Wake, Minow discusses one experiment in segregation: the Harvey Milk High School in New York City, created as a safe-haven for gay and lesbian students.     –Hanna Oldsman, publicity intern

The New York City public school system, in conjunction with a private organization established to support gay and lesbian youth, founded the Harvey Milk High School in 1985 for gay and lesbian teenagers. Its goal was to create a supportive, safe place for students who faced violence, harassment, or intimidation in mainstream schools. Enrollment from the start has been voluntary. Students apply to transfer to the school, which includes transgendered teens and teens who may be perceived to be gay, lesbian, bisexual, or transgendered.

The legal protections for students on the basis of sexual orientation remain ambiguous and subject to local rules, although federal courts have read Title IX of the federal Education Amendments of 1972 to encompass harassment on the basis of sexual orientation. Although some academic theorists question the analogy between race and sexual orientation for purposes of antidiscrimination law, legal advocacy organizations have followed the path carved out by the NAACP in advocating for legal protections for gays, lesbians, and transgendered people. Test case litigation is the familiar strategy, and it paid off in this area. In June 2003, the U.S. Supreme Court struck down as unconstitutional a Texas statue criminalizing homosexual sodomy. The majority opinion, written by Justice Anthony Kennedy, explained that “two adults who, with full and mutual consent from each other, [engage] in sexual practices common to the homosexual life-style…[enjoy] a right to liberty under the Due Process Clause…to engage in their conduct without intervention of the government.” An amicus curiae brief had analogized contemporary prejudices about sexual orientation with racial prejudices prevalent in the 1950s and 1960s.

Shortly after the decision in Lawrence v. Texas, the New York school board authorized an expansion of the initial Harvey Milk High School program from two classrooms with 50 students to eight classrooms with 170 students and a full four-year high school. This decision triggered protests, especially by conservative religious groups. When state Conservative Party chairman Mike Long attacked the school’s existence, he echoed critics of racial segregation: “Is there a different way to teach homosexuals? Is there gay math? This is wrong…. There’s no reason these children should be treated separately.”

Critics also include gay rights supporters who warn that the separate schooling fails to equip these schools’ students for the real world and fails to dismantle discrimination. One critic said: “Through long, painful years we reached a consensus that we couldn’t allow segregation. This is a short-term gain and we need to look at the long-term, larger issues.” A Michigan newspaper that took up the issue opposed the separate school as well: “Advocates say that by having their own school, gays will feel more comfortable and won’t be subjected to the intimidation that many of them now face in public schools. That argument comes uncomfortably close to racial segregationists in the 1950s and 1960s who insisted that black students did best when they were ‘among their own.’ ” Yet advocates point out that because of harassment and violence, adolescents who identify as gay, lesbian, bisexual, or transgendered are much more likely to drop out or attempt suicide than other students — and hence need a special school. Given evidence that calling someone “gay” remains a common insult among teens, sorting out how best to address prejudice and cruelty aimed at lesbian and gay students will undoubtedly pose challenges for some time to come.

A voluntary, separate school along the lines of the Harvey Milk High School may seem more acceptable in a large system, like New York’s, that includes citywide special schools in science, fashion, and other topics. Perhaps a special school for gay and lesbian students could be viewed as part of the city’s project of developing excellent magnet school with special themes. Yet it remains troubling to conceive as “voluntary” the transfer of a student to a special school in order to escape harassment at the regular school. Whether separate instruction can be equal seems less urgent than determining how to make integrated education safe. The very existence of the separate school may reduce pressure for policies of zero tolerance for harassment and violence in any school. This task is challenging legally, normatively, and practically, given that some students and parents claim that freedoms of expression and religion lie behind their critiques of homosexuality — even as other students claim they face harassment for being gay, lesbian, bisexual, or transgendered or for supporting such students. Abusive treatment of any fellow student should not be tolerated within a school setting. One court agreed with a student who claimed protection under Title IX after being harassed for advocating tolerance of gays and lesbians. New issues arise as younger students come out in middle schools that have not anticipated how to ensure their safety and well-being. Although some people object to any public school acknowledgment of the sexual orientations of students, the commitment to equal opportunity for gay and lesbian students animates most of the arguments on both sides of this issue.

Martha Minow is Dean and Jeremiah Smith, Jr., Professor of Law at Harvard Law School, where she has taught since 1981, and the author of In Brown’s Wake: Legacies of America’s Educational Landmark. She is an expert in human rights and advocacy for members of racial and religious minorities, women, children, and persons with disabilities. Her prior books include Government by Contract; Just Schools; Breaking the Cycles of Hatred; Partners, Not Rivals; Between Vengeance and Forgiveness; Not Only for Myself; and Making All the Difference.

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