After 19-year Probe, Feds KO Complaint Against NYC's All-girls School

It only took 19 years -- for the United States Department of Education's Office for Civil Rights (OCR) to approve as legal East Harlem's Young Women's Leadership School (YWLS) which began in 1996 as a middle school for girls and which is now a middle and senior high school. The all-girls public school -- New York City's first single-sex public school since the enactment of Title IX of the 1972 Education Amendments -- opened its doors to great fanfare from parents, politicians, and the city's wealthiest families. Ann Rubenstein Tisch, she of one of the city's and nation's wealthiest families -- founded the YWLS as a kind of finishing school for mainly minority girls, and situated the school in East Harlem, then and now a mostly Hispanic and black neighborhood.

The Tisches could have well afforded to open and fund entirely a finishing school with their own funds -- but they had a dream and a plan to change societal attitudes and Title IX law from that of disfavoring to expressly favoring and authorizing single-sex public education. Tisch and just about every public official in 1996, including New York City Mayor Rudolph Giuliani, and his successor, Michael Bloomberg, and their School Chancellor, endorsed the all-girls school as an educational benefit for its mostly Hispanic and black enrollees. Indeed, there had been scant opposition to the school's formation, except for the challenge to the brand new all-girls school that came from three of the city's civil rights groups, groups that advocated long past its fashion integrated, co-ed schooling. These were -- the New York Civil Liberties Union (NYCLU), the New York City Chapter of the National Organization for Women (NOW), then headed by president Anne Connors, and my group, the New York Civil Rights Coalition (NYCRC). The NYCLU and NYCRC had five years before the founding of the YWLS successfully blocked the creation of an Afrocentric public school for "at risk" black boys. Backed by the city's first African American mayor, David N. Dinkins, and by its Hispanic Schools Chancellor, I enlisted the aid of the famed black psychologist and educator, Dr. Kenneth B. Clark, my mentor, to argue against opening a public school for black males. That school had been proposed as "experimental" ["Dinkins Backs School Geared To Minorities," NY Times, March 9, 1991) and also as an educational benefit for the disadvantaged minority male student population of New York City.

To block that segregated single-sex public school, we in the civil rights community interposed two laws against the creation of a public school for black boys -- Title VI of the 1964 Civil Rights Act, which prohibited the exclusion from any public school of any students based on the student's race or skin color, and Title IX, which had prohibited discrimination and exclusion from a governmental entity (such as a public school) based on sex. Exactly how -- asked the NYCLU, NOW-NYC, and the New York Civil Rights Coalition -- only five years after a battle that blocked an all-male academy was a single-sex public school geared to minority girls different from that which had been assailed and stopped for minority (black and Latino) boys? The advocates and supporters of the YWLS answered flatly -- that "sex is different from race." And, they added, the YWLS wasn't exclusively for minority girls; there were, in fact, in the first year and subsequent years of its operation, a smidgeon of white girls among its student body. For the city's elected officials -- and the city's human rights agency law enforcers, who answered to the Mayor -- that was good enough of an answer. So good enough that all of them ignored the local law that had been enacted in1991 to expressly bar a school from denying admission to anyone on account of her sex. See "Girls School May Violate Little Known City Law', NY Times, July 17, 1996.

Thus, finding it futile to file a complaint with local authorities -- all of whom had declared support for the YWLS -- the three civil rights groups, opponents of the city's first new single-sex public school since the enactment of Title IX, went to the Feds for relief -- choosing to file with the New York Regional office of U.S. Department of Education's Office for Civil Rights a Title IX complaint that the New York City Board of Education, through operating and funding the YWLS was in violation of federal law, and was openly defying federal court rulings that said the government could not create and operate new single-sex public schools. As I explained why, I said in 1996, "If I can go to the Feds and get it done that way, so much the better. At the city level, there's so much politics involved..." (NY Times, July 17, 1996)

Who knew or thunk back then that a straightforward Title IX complaint would get mired in the politics of the federal bureaucracy which was pressured from Congress and shifting public opinion to change their interpretation of Title IX law? Who knew that après Giuliani a law-busting paternalistic mayor Bloomberg would signal his support for a network of all-male and all-girls public schools, such that by the time he had left office there were more than 20 single-sex public schools in operation? (See "Single-Sex Schools Help Inner-City Boys Succeed," by Laura Edghill, World Magazine, November 20, 2013).

We had preferred but couldn't file a lawsuit because no boy presented himself as a plaintiff for admission to the Young Women's Leadership School. As I kept telling anyone who would inquire: no boy wanted handed to him upon graduation a diploma that read that he was a proud alumnus of the Young Women's Leadership School. The YWLS' very name represented an attack on Title IX's equal protection principles. Its very name was a manifest admission by the city's Board of Education to the deliberate exclusion of boys. No boys had been recruited for the school, no boys were wanted. The founders of the school -- and the Board of Education had expressly promoted and organized the new public school as for girls only. And in 1996 a transgendered student population was either invisible or nonexistent. To this day, no transgendered boy has ever applied for admission to the YWLS. Who knows, that might happen next year.

True to expectations, only girls enrolled, and no boy's parents, to our knowledge, objected to the new single-sex public school. They saw the spanking new, small finishing school with pink walls -- and staffed with a select group of educators, and mentors, plus ancillary support from the city's elite and wealthy class, as assuring academic success and advancement for the disadvantaged minority girls. And, as expected, academically the Young Women's Leadership School posted unmitigated successes [tywls.org] -- it was and remains an exception to the drab and underperforming schools of the Harlem community and school system citywide. Its success was never truly ever in doubt -- with a selective enrollment, upfront parental support, a carefully screened teaching and supervisory staff, and resources galore--any such small school, of any demographic -- would score academic excellence and similar achievements.

The issue was always that of the rule of law, of equal protection for all students under the law, and of combating not acquiescing to or reinforcing crude stereotypes based on students' gender. The correlated issue -- for the few of us who objected to the then singular New York City single-sex public school -- was that of how minority boys were being stereotyped and depicted in the literature as wayward, as raging with hormones, and as disruptive influences on their sisters' and female peers' success and educational advancement. As law professor Rosemary C. Salomone has summarized and explained the need for single-sex education for minority children, "For teenagers in particular, there is no doubt that single-sex programs remove the social distraction of the other sex... These programs typically offer positive same-sex role models, especially missing in the everyday lives of disadvantaged boys... "

Children from the same household could not enroll in the same school if they were of the opposite sex. That did not seem to us as fair or as just. But, the school's proponents had their theories and research as to how boys and girls learn differently -- and would both benefit from separate schooling. [See for a recap, the Rosemary Salomone book, SAME, DIFERENT, EQUAL: RETHINKING SINGLE-SEX SCHOOLING (Yale University Press, 2003). To those studies, we who opposed separate and unequal schooling for boys and girls in public schools answered that such studies were, at best, speculative, and, for sure, sheer bunk. We had the law on our side. A federal district court judge in Detroit had in 1991 ruled unconstitutional and a violation of Michigan law Detroit's planned opening of all-male public schools, aimed at schooling African American boys separately from the girls. Opined the judge:

"There is no evidence that the school system is failing males because girls attend schools with them. Girls fail, too." (Garrett v. Board of Education, Detroit, 775 F.Supp. 1004 (E.D. Mich. 1991)

We might and could have readily and easily refuted the "studies" about gender differences in teaching and learning -- but we were never asked to do so by OCR. No one ever asked us for such refutation -- or for our further edification as to how separate education for minority boys apart from minority girls -- and vice versa -- fostered and reinforced in the public schools unequal treatment and crass stereotypes based on race and sex. [See "Study Challenges Claims of Single-Sex Schooling Benefits," news.wiscedu/22504; and "The Effects of Single-Sex Compared With Co-Educational Schooling on Students' Performance and Attitudes: A Meta-Analysis" www.apa.org/pubs/journals/releases/bul-a0035740.pdf; and Arizona State University Child Development Professor Richard Fabes' study that debunks the so-called benefits of segregation by sex: nytimes.com/roomfordebate/2011/10/17/single-sex-schools-separate-but-equal/What-our-research-on-single-sex-education-shows. And, "Single-Sex Education Unlikely to Offer Advantages Over Co-Ed Schools, Research Finds", www.apa.org/news/press/releases/2014/02/single-sex-education.aspx

What we could not refute or counter effectively were the large photos that a fawning media published of the first class of minority girls at the YWLS, dressed in their pleated skirts and frilly white blouses--school uniforms in a city that did not have a dress code for the unexceptional humdrum public schools. We civil righters couldn't persuade the public that black girls enrolled as students and being taught in a spanking new school building, and who were provided with mentors, and tea and crumpet breaks, and with an outstanding teaching staff were somehow disadvantaged by such special and separate treatment. This was not in the view of single-sex public school advocates odious discrimination or negative stereotyping.

The upshot of our losing the public relations war, and that of no boy ever coming to us to insist on being admitted to the YWLS was a night and day battle over the fundamentals and purposes of Title IX and equal protection law. In fact, within the three civil rights organizations that had brought the complaint there was also fierce blowback. Although each of our organizations weathered the storm -- from our own ranks -- from civil righters who favored a different view of Title IX, to allow for separate public education of boys and girls, we could not beat back the large scale opposition to our view of Title IX from within the United States Department of Education itself and from the decision makers at DOE's Office for Civil Rights.

Rather than enforcing the law as they and we then knew it, OCR officials ignored the agency's own policy guidelines and timeframes for complaint resolution and decision. It ignored all the evidence of the New York City Board of Education having openly defied Title IX regulations that in 1996 disfavored single-sex public schools for girls. OCR officials knew that the new school for girls only could not withstand scrutiny even under the then prevalent legal standard of comparable single-sex public school for the other gender in the vicinity or community. Rather, the Young Women's Leadership School in 1996 had stood alone -- even though its founders had contemplated a "network" of single-sex public schools in due course.

In effect, the founders and supporters of single-sex public school were pleading for and demanding from OCR more time before the OCR lowered its law enforcement hammer. So, instead of expeditiously deciding our Title IX complaint, OCR gave the founders and supporters of single-sex public schools more than enough time to make the singular school work and to establish a network of single-sex public schools in New York City. Rather than decide our complaint the Feds themselves raised questions about the desirability of enforcing Title IX regulations. In due course, OCR on its own drafted amendments to Title IX which would make single-sex public schools pass muster with the federal educational authorities.

It took OCR 19 years to decide against us -- to OK the YWLS, because it took them that long to override and to rewrite and recast Title IX regulations. Instead of enforcing the law as we then knew it, OCR under Republican and Democrat administrations, stalled its investigation, and then changed the law to fit the result it desired.

During their 19 year probe of our complaint, OCR seemingly went silent; they did not communicate with the complainants. As far as I know, they also never interviewed the parents and students of area schools that were being cheated of the excellent education that the smaller YWLS afforded its select student body -- which was, at first 50 students, which grew into a middle and senior high school for girls from the East Harlem community. Today, the school reflects that community's demographics, mostly Hispanic, and black, and a trickling of white enrollment--all girls.

Finally deciding our complaint, this past August, OCR's letter never offered any explanation whatsoever for its inordinate delay -- a delay which civil liberties attorney Norman Siegel described as "justice delayed...justice denied." In its letter to me, OCR did not even mention the 1996 date it had received our complaint. Siegel, expressing disgust, in his supplementary letter to an appeal that Anne Conners and I had filed from OCR's ruling, wanted to know this: "Has any Title IX complaint ever taken 19 years to resolve?"

Anne Conner, the now former president of NOW-NYC, and I had suggested in our appeal of the ruling that OCR had been pressured from elected officials and from the elected officials' donors not to decide the case -- against the Young Women's Leadership School--as Title IX law had required back in 1996. As Title IX regs required in 1997, and 1998 and 1999, and every subsequent year up to OCR revised and amended Title IX in 2006 to sanction under certain circumstances single sex public education.

Not only had, in our judgment, OCR acted in bad faith -- with the witting acquiescence of Education Secretaries at the helm since 1996, until today -- OCR had decided against deciding our complaint until its officials had changed the Title IX regulations. OCR even amended the appellate procedures for challenging its rulings. Now, complainants dissatisfied with and challenge the legal or factual bases of an adverse ruling from OCR on their complaint must appeal OCR's ruling to the very same office within OCRC that ruled against them. Unbelievable? Not really. Not in an Orwellian world--the kind that has been ushered in by results-oriented federal bureaucrats who have no fidelity to the rule of law or to equal protection values -- which they were once obligated to uphold. Worse, there is no appeal from their procedural irregularities -- irregularities which included their violating time frames and related policies for timely resolution and decision making on complaints.

The entirety of the appellate process at OCR is warped and out of sync with fairness and due process. OCR expects us to go to the same regional office that decided against us, the regional office of OCR which, we know, does not make decisions (on policy matters such as our Title IX complaint against the Young Women's Leadership School) independently of OCR brass in Washington, D.C. Given such an archaic and byzantine investigative and bogus appellate process, how will any citizen or person aggrieved by governmental misconduct -- who is seeking equal protection of the law -- to be expected to approach the OCR in good conscience? They can't. They can only expect to get the round-around, the kind of round-around that the Feds, under Republican and Democrat direction, gave to three renown civil rights organizations -- all three liberal in philosophy and egalitarian in their outlook on the law, and whose pleas for equality and fairness were rebuffed wittingly by mischievous local, state and federal law breakers.

The next, newly nominated U.S. Secretary of Education is named -- John B. King, Jr., a pleasant fellow and native son of the slums. He knows well the harsh lessons of segregation and of the perils of stereotyping children. Will he have the gumption to lead OCR out of its moral quagmire and legal mumbo-jumbo? Will today's kids' Dr. King say it loud..."TEACH KIDS, NOT STEREOTYPES."