New York’s Single-Sex Provision

provides that “nothing in this article shall be construed to prevent the establishment of a single-sex charter school or a charter school de- signed to provide expanded learning opportunities for students at-risk of academic failure.”595 While the term “at-risk” does not necessarily indicate students of a specific race or sex, the single-sex provision ex- plicitly gives the imprimatur of the state to status-based segregation in education.

As discussed in Part III, equality is the touchstone of the Court’s assessment of whether separate schools for women and men may be considered lawful.596

In recent cases, the Court has raised the bar re- garding when sex-based discrimination of any variety will be toler- ated.597

Considered in light of the prevailing doctrinal norm, New York’s single-sex statute is not as clearly written as is advisable. The problem arises in part from the sparseness of the provision’s language and the absence of regulations to fill in the holes in the statutory lan-

593. See BELL, supra note 398, at 560-70 (discussing boundaries drawn for segregative pur- poses).

594. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 29-31 (1971) (up- holding a district court’s mandate requiring a school district to bus children to desegregate schools).

595. N.Y. EDUC. LAW § 2854 (McKinney Supp. 2000); cf. VA. CODE ANN. § 22.1-212.1:1 (Michie 2000) (“Consistent with constitutional principles, a school board may establish single- sex classes in the public schools of the school division.”); see also supra notes 77, 106 and ac- companying text (providing a discussion of states with similar provisions).

596. See United States v. Virginia (VMI), 518 U.S. 515, 532 (1996) (describing equal protec- tion in the sex discrimination context); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723 (1982) (subjecting the university’s admissions policy to equal protection scrutiny because it ex- pressly discriminated between applicants based on sex); Vorchheimer v. School Dist., 532 F.2d 880, 885-87 (3d Cir. 1976) (reasoning that “the special emotional problems of the adolescent years are matters of human experience and have led some educational experts to opt for one- sex high schools . . . [and] [w]hile this policy has limited acceptance on its merits, it does have its basis in a theory of equal benefit and not discriminatory denial,” and overturning a district court injunction mandating admission of a female student to an all-male public high school), aff’d by an equally divided court, 430 U.S. 703 (1977) (per curiam).

guage. The legislature’s decision merely to state that sex-segregated charter schools are not prohibited leaves important substantive mat- ters regarding implementation of the provision unaddressed.

The most conspicuous problem with the section is that it makes no provision whatsoever for the equality of sex-segregated charter schools in the event that they are established. The area of most con- cern relates to equality of resources. Ideally, the legislature would have included a provision in its enabling legislation stating something to the effect that any single-sex charter school established pursuant to section 2854 “shall” receive funding and resources at least equal to that received by coeducational alternative and/or traditional public schools and vice versa.598

That the legislature fails to include such a provision is especially remarkable given the detailed provisions re- lating to funding otherwise contained in the enabling legislation599

and the obvious equal protection implications of different levels of fund- ing for charter versus noncharter schools.600

There is a vast literature about equal protection claims brought in state courts in the years since Rodriguez; in some of these cases, state courts have determined that inequities in funding deny students residing in districts with fewer resources equal protection of the laws.601

Instead of mandating equality with respect to the funding of sin- gle-sex charter schools, the New York charter law seems not only to condone, but also to encourage inequality in the resources meted out to charter schools. The enabling legislation has this effect because,

598. Education codes contain complex formulas for establishing equity among school dis- tricts. However, the presence of gift clauses and the fact that special laws govern single-sex insti- tutions might require more specific rules.

599. See N.Y. EDUC. LAW § 2856(1) (McKinney Supp. 2000) (providing that the school of residence shall directly pay the charter school 100% of the funding to which the school is enti- tled pursuant to a formula specified elsewhere in the statute (including federal and state money for special needs students) for each student enrolled in the charter school who resides in the school district ); N.Y. STATE FIN. LAW § 97-sss (McKinney Supp. 2000) (providing for a charter school stimulus fund).

600. Much of the legal literature that is beginning to develop on charter schools, like the lit- erature on school choice, relates to the legal significance of funding provided to charter schools as opposed to noncharter public schools. See, e.g., CARNEGIE FOUND. FOR THE ADVANCEMENT OF TEACHING, SCHOOL CHOICE 25-27 (1992) (concluding that statewide interdisctrict choice programs tend to increase the “gap between rich and poor districts”); Note, The Limits of School Choice: School Choice Reform and State Constitutional Guarantees of Educational Qual- ity, 109 HARV. L. REV. 2002, 2004-06 (1996) (discussing the possibility that vouchers will cause traditional public schools to deteriorate by causing funding levels to decline).

601. See, e.g., Abbott v. Burke, 643 A.2d 575, 576-77 (N.J. 1994) (striking down a law that failed to guarantee equal funding between school districts).

like many other states’ enabling legislation,602 it includes a gift clause that anticipates and authorizes contributions to charter schools from private sources.603

This gift clause makes the likelihood of uneven funding of charter schools, including coeducational charter schools vis-à-vis single-sex ones, a distinct possibility.604

Regardless of whether a single-sex school receives fewer or greater resources than coeducational charter schools or traditional public schools, the probability of equal protection litigation is high. Both conditions may give rise to arguments of disparate treatment of similarly situated students by particular schools or school districts within the New York state system.605

Since New York’s school funding policies and practices are the subject of an ongoing lawsuit,606 the leg- islature’s decision not to mandate equality among charter schools, but to include a gift clause that seems to encourage inequality, is particu- larly confounding.

A more difficult area not addressed by the single-sex provision concerns curricula and academic requirements. This area is more con- ceptually and practically difficult than the funding issue because of the autonomy that deregulated schools are supposed to enjoy. One of the most important aspects of a charter school board’s power and the thing that most distinguishes charter schools from traditional ones is autonomy with regard to educational programming. Thus, legislative

602. See Hamilton, supra note 37, at 7-8, 85.

603. See N.Y.EDUC. LAW § 2856(3) (McKinney Supp. 2000):

Nothing in this Article shall be construed to prohibit any person or organization from providing funding or other assistance to the establishment or operation of a charter school. The board of trustees of a charter school is authorized to accept gifts, dona- tions or grants of any kind made to the charter school and to expend or use such gifts, donations or grants in accordance with the conditions prescribed by the donor; pro- vided, however, that no gift, donation or grant may be accepted if subject to a condi- tion that is contrary to any provision of law or term of the charter.

604. Like charter schools generally, single-sex schools usually are established because of the interest of a particular individual or group, thus increasing the likelihood of gift-giving by spe- cial interests. See, e.g., Levit, supra note 254, at 451-53 & nn.1-6, 464-69 (discussing various fac- tors, including perceived disadvantages to girls in schools, that animate parents, experts, and others to become interested in and establish single-sex schools or classrooms).

605. In a typical equal protection claim, a court must determine whether legislation that im- poses special burdens or benefits on certain classes is justified, for example, discriminating be- tween charter schools versus noncharter schools. See GUNTHER, supra note 414, at 601-08.

606. See Merri Rosenberg, Suit Due on School Financing, N.Y. TIMES, Sept. 6, 1998, at 14C (discussing a suit that challenges the inadequacy of the present school funding formula for pro- viding sufficient education for New York’s public school students). A trial court recently sided with the plaintiffs in the suit, finding the state’s school formula unconstitutional. See Abby Goodnough, New York City Is Shortchanged in School Aid, State Judge Rules, N.Y. TIMES, Jan. 11, 2001, at A1.

mandates in this area may frustrate the central purpose of deregu- lated education.607

Nevertheless, where the state permits sex-segregated charter schools, VMI and prior cases are clear that it must take steps to en- sure that this policy does not contravene the principle of equal pro- tection.608

Thus, the legislature might have included a provision man- dating that no single-sex charter school established pursuant to the enabling legislation is organized around any sex-stereotyping theme or curriculum.609

Such a simple directive would have left a charter school’s management wide discretion in educational programming in- tact, while prescribing equality in curricula for coeducational as well as single-sex schools, consistent with constitutional principles.

A final glaring example of the legislature’s failure to address problems of implementation raised by its sanctioning of single-sex charter schools relates to recruitment. The legislature did not address the question of how one establishes a single-sex charter school with- out discriminating in terms of recruitment and admission of students. The answer to this question, of course, is that one does not. Yet, New York’s charter school law and regulations are silent on what kinds of outreach programs or special appeals to applicants are permissible and do not violate of the enabling legislation’s antidiscrimination provisions.610 The lack of guidance about recruitment and admissions offered to those desirous of establishing single-sex charter schools in- vites the development of ad hoc and non-uniform processes. Such variable processes place individual single-sex charter schools (and such schools as a class) in jeopardy, since, as a general matter, subjec- tive and non-uniform processes are more vulnerable to equal protec- tion challenges than are objective and uniform processes.611

607. See supra notes 40-46 and accompanying text. 608. See supra notes 321-54 and accompanying text.

609. See United States v. Virginia (VMI), 518 U.S. 515, 533 (1996); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723, 730 (1982).

610. See N.Y. EDUC. LAW § 2854(2)(a) (McKinney Supp. 2000) (providing that charter schools “shall not discriminate against any student, employee or other person on the basis of ethnicity, national origin, gender, or disability or any other ground that would be unlawful if done by a school” and that “[a]dmission of students shall not be limited on the basis intellectual ability, measures of achievement or aptitude, athletic ability, disability, race, creed, gender, na- tional origin, religion, or ancestry”); Id. § 2854(2)(b) (providing that “[a]ny child who is quali- fied under the laws of this state for admission to a public school is qualified for admission to a charter school [to capacity]” and that, in the event that seats are filled, admission is by lottery).

611. See generally Brown-Nagin, supra note 346, at 365-66, 374-80 (1998) (discussing the use and misuse of statistical evidence in an equal protection case involving affirmative action in education).

In sum, New York’s single-sex enabling provision, like North Carolina’s racial balance mandate, though well intentioned, is not well conceived or well drafted. This statutory vagueness creates problems of constitutional significance.