So, I posted something technically inaccurate a couple weeks back and I was made aware of it (the beauty of having more than one contributor to the blog), so I want to correct it, but in doing so it raises another interesting question, which I will ask you to respond to at the end.
A couple weeks back I posted about Whether Favoring Male Teachers in Employment is Gender Discrimination? I wrote this:
So, when you have a protected class at stake, such as sex, we have a different test to determine whether the discrimination is illegal. Specially we ask whether there is a compelling reason to discriminate and whether that discrimination is narrowly tailored.
That is a technically inaccurate statement because although we protect sex in this country, we do not protect it at the exact same level as race, which is protected at the level I stated. What I articulated above is called a strict scrutiny test. What I should have articulated is called an intermediate scrutiny test because for gender discrimination issues in this country we only apply intermediate scrutiny. In the legal world, although intermediate scrutiny is much closer to strict scrutiny than it is to the rational basis test, this error was substantial on my part. So, for all my legal readers out there, I apologize.
photocredit: Naked_Eyes
For all my education readers, though, I am not going to apologize. When I teach discrimination issues to principals, I don't talk about the Intermediate Scrutiny test. I know it exists and I (think I) understand the difference, but I am not sure my educators will remember and somehow treat sex-discrimination differently. In their split second decision-making, if they can remember only one test, I want it to be the strict scrutiny test. Not only is that erroring on the side of caution legally, but ethically that is probably the better way to go as well.
On top of that, I am not even sure we should assume that it should be treated differently as a technicality. The Supreme Court in U.S. v. Virginia (the VMI female admissions case from a decade or so ago) said that to have a differentiated gender admissions policy a school must show an "exceedingly persuasive justification." How that's different from a compelling interest is unclear to me in the practicality of education. Yes, theoretically that is different, but practically in my students schools I don't see that difference and I don't want them to try and create it. If the Supreme Court can't even act with clarity on this issue, I sure as heck don't want my students trying to make that distinction in their schools.
So, I am going to continue to not teach the intermediate scrutiny test to my students in my education classes. But, I could be wrong in doing so. I would be interested in others' opinions on this and what other people are doing in their education law classes, both in ed. schools and in law schools. For my practitioner readers, what did you learn or what would you prefer to learn? I could be convinced otherwise on this if I find that most other people are teaching it or students would rather have the Intermediate test than not (this would be a great research project or dissertation for someone, by the way).
Anytime you try and live in two different worlds, like this blog does, there are bound to be contradictions and this is apparently one of those times. Anyway, I totally stand by the post and the recommendations in it, but I could have and should have been clearer about the legal standards assigned to gender in this country.