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The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse

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The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse Articles The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse Serena Mayeri* INTRODUCTION In September 1977, hundreds of African American parents and students picketed the Amite County courthouse in Liberty, Mississippi. Holding banners that read "End Sex Discrimination," they launched a month-long * Assistant Professor, University of Pennsylvania Law School. For valuable comments on earlier drafts of this article, I would like to thank Nancy Cott and members of her research seminar; Cheryl Harris, Martha Umphrey, and the Law and Humanities Interdisciplinary Junior Scholar Workshop; William Nelson, Daniel Hulsebosch, and the Legal History Colloquium at New York University School of Law; and the New York Law and Humanities Workshop. This project has benefited tremendously from feedback offered at various stages by Kerry Abrams, Adrienne Davis, Rebecca Davis, William Eskridge, Katherine Franke, Glenda Gilmore, Risa Goluboff, Robert Gordon, Ariela Gross, Jill Hasday, Taja-Nia Henderson, Michael Jo, Laura Kalman, Deborah Malamud, Harriet Mayeri, Bethany Moreton, Maribel Morey, Julia Ott, Robert Post, Richard Primus, Rebecca Rix, Jed Rubenfeld, Jed Handelsman Shugerman, Reva Siegel, Anders Walker, Kenji Yoshino, and Philipp Ziesche. I am very grateful to R. Owen Williams, Deborah Dinner, Hans Leaman, and the YJLH staff for their substantive insights and editorial prowess. Thanks are also due to the librarians of the Library of Congress and the National Archives and Records Administration; to John Jacob of the Powell Archives at Washington & Lee University School of Law; and to Susan Tucker and the staff of the Newcomb College Center for Research on Women at Tulane University, who provided heroic assistance under trying conditions. Yale Journal of Law & the Humanities [Vol. 18:187 Yale Journal of Law & the Humanities, Vol. 18, Iss. 2 [2006], Art. 2 boycott of area public schools.' The African American community of Amite County was protesting a regime of sex segregation conceived in the immediate aftermath of Brown v. Board of Education and implemented fifteen years later, when the Supreme Court established school districts' "affirmative duty" to abolish dual school systems for black and white children.2 When whites in many parts of the South threatened to shut down public schools rather than desegregate, sex segregation had offered a promising antidote to fears of racial "amalgamation." Now, it was African American families fed up with sex separation who kept their children home. Their story, and the legal battles fought in their name, are the focus of this article. "Jane Crow,"3 the term I will use to refer to the use of sex segregation in racial desegregation plans, represents a little-studied phenomenon in the legal and social history of race and sex in the postwar southern United States.4 Examining the theory and practice of Jane Crow helps to elucidate the cultural ramifications of, and interactions among, racial integration, shifting sexual mores, gender politics, and legal change during this period. Debates and litigation over Jane Crow also exemplify a series of transformations in antidiscrimination law and discourse between the 1950s and the late 1970s. In particular, the sex segregation controversy reveals profound shifts in the conceptualization of the constitutional harm of discrimination and in the construction of the relationship between race and sex inequality. Before the Supreme Court declared racial segregation unconstitutional in Brown v. Board of Education, Jim Crow's defenders often used the unquestioned legitimacy of sex segregation to illustrate the absurdity of outlawing racial segregation-keeping black from white was as natural as separating male from female, the argument went. Brown permanently 1. Daniel Sheridan, School Boycott Leader Vows to Continue, NATCHEZ DEMOCRAT, Aug. 31, 1977 (on file with the Library of Congress, Records of the National Association for the Advancement of Colored People [hereinafter "Records of the NAACP"], V: 2570, Folder: Branches-States- Mississippi: A-J Misc., 1956-81). 2. Green v. New Kent County Sch. Bd., 391 U.S. 430, 437 (1968). 3. I use "Jane Crow" as a shorthand because it neatly captures the interconnections and overlap between sex segregation and Jim Crow. It should be noted, however, that the term "Jane Crow" apparently originated in the writings of the pioneering civil rights lawyer and feminist Pauli Murray in the 1940s, and referred to sex discrimination more generally. The term first achieved widespread dissemination in 1965, when Murray, along with Justice Department attorney Mary 0. Eastwood, published a pathbreaking article entitled, "Jane Crow and the Law." See Pauli Murray & Mary Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 GEO. WASH. L. REV. 232 (1965). For more on Murray and "Jane Crow," see, for example, Susan Ware, Dialogue: Pauli Murray's Notable Connections, 14 J. WOMEN'S HIST. 54 (2002). On Murray's contributions to feminist legal strategy in the 1960s and early 1970s, see Serena Mayeri, ConstitutionalChoices: Legal Feminism and the HistoricalDynamics of Change, 92 CAL. L. REV. 755 (2004). 4. Two recent articles have included brief discussions of these cases. See Jill E. Hasday, The Principle and Practice of Women's 'Full Citizenship': A Case Study of Sex Segregated Public Education, 101 MICH. L. REV. 755 (2002); Verna C. Williams, Reform or Retrenchment?: Single-Sex Education and the Construction of Race and Gender, 2004 WIS. L. REV. 15; see also Jack Balkin, Is There a Slippery Slope from Single-Sex Education to Single-Race Education?, 37 J. OF BLACKS IN HIGHER EDUC. 126 (2002). https://digitalcommons.law.yale.edu/yjlh/vol18/iss2/2 2 2006] Mayeri Mayeri: The Strange Career of Jane Crow disrupted this neat syllogism. As Part I of this article describes, in the wake of what some white Southerners called "Black Monday," sex segregation struck many observers as the perfect answer to fears that racial integration would lead inexorably to social intimacy and, ultimately, to interracial marriage and the horrors of "amalgamation," or "mongrelization." Many southern states passed laws authorizing the separation of students by sex, and some of the very few school districts that implemented desegregation in the first fifteen years after Brown considered or employed sex segregation. While there certainly was disagreement over the desirability and efficacy of the sex segregation solution, few questioned its constitutionality during this period. After all, anti-miscegenation laws remained on the books until 1967,' and civil rights proponents were reluctant to vindicate segregationist propaganda by even hinting that racial equality required black boys to attend school with white girls. And though a few commentators suggested that sex segregation might impose a racial "badge of inferiority," virtually no one characterized Jane Crow as sex discrimination. Part II chronicles the first shift in Jane Crow law and discourse, which occurred in the aftermath of the Supreme Court's 1968 mandate that Southern school districts expeditiously produce and implement desegregation plans designed to create racially "unitary" school systems.6 A number of school districts in several Southern states included sex segregation in these plans, prompting resistance from many African American communities, and, in some cases, federal government intervention. Objectors contended that sex segregation, in this context, "perpetuate[d] racial segregation by subterfuge."7 The Fifth Circuit responded by establishing a "racial motivation standard" to evaluate the legality of sex segregation schemes: courts were to inquire into whether the plans were motivated by "racial discrimination," or rather stemmed from legitimate "educational purposes. ' Though everyone understood- and many acknowledged outside of court-that fears about the social implications of racial integration were the real impetus for sex separation, the racial motivation standard encouraged school districts to manufacture race-neutral justifications for Jane Crow. Many of the "educational purposes" cited by school districts, such as the virtues of sex-specific curricular specialization and the need to rescue boys from the "feminized" classroom, reflected the failure of emerging anti-sex-discrimination norms 5. Loving v. Virginia, 388 U.S. 1 (1967). 6. Green, 391 U.S. at 440. 7. Brief of Appellants at 9, Smith v. Concordia Parish Sch. Bd., No. 28342 (5th Cir. Oct. 1, 1969) (on file with the National Archives and Records Administration [hereinafter "NARA"], Southwest Regional Division [hereinafter "S.W. Reg. Div."], RG 276, United States Court of Appeals for the Fifth Circuit [hereinafter "Fifth Circuit"], Case Files, Box 4235, 28342-28349). 8. United States v. Amite County, No. 28030 (5th Cir. Dec. 19, 1969) ("[l]s racial discrimination the motivation for the plan or does it have its basis in educational purposes?"). The term "racial motivation standard" is my own shorthand. Published by Yale Law School Legal Scholarship Repository, 2006 1 Yale Journal of Law & the Humanities [Vol. 18:187 Yale Journal of Law & the Humanities, Vol. 18, Iss. 2 [2006], Art. 2 to penetrate Jane Crow discourse. While many had come to view Jane Crow as racially discriminatory, neither litigants nor judges raised any qualms relating to sex discrimination in the late 1960s and early 1970s. The women's rights revolution changed all that, as Part III relates. The explosion in legal
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