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

The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse has just been posted by Serena Mayeri, University of Pennsylvania Law School. It was published in the Yale Journal of Law and the Humanities (2006). Here's the abstract:

This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools as posing a constitutional sex discrimination problem; the only question judges asked was whether the sex separation schemes were motivated by “racial discrimination” or by “legitimate educational purposes.” Legitimate educational purposes included bolstering boys’ opportunities for leadership at girls’ expense, providing sex-specific curricula for boys and girls, and avoiding the “needless duplication” of athletic, vocational, and other facilities. During the 1970s, the women’s rights revolution transformed the legal discourse surrounding these “Jane Crow” cases. Advocates began to frame sex segregation as imposing a stigma and sense of inferiority on girls in a manner analogous to the effects of Jim Crow on African American children. This analogy-based sex discrimination paradigm became the principal framework for analyzing sex segregation, but it failed to capture what was at stake for white and black communities in the struggle over Jane Crow. The Jane Crow cases provide an alternative to the dominant Supreme Court narrative of sex segregation, shedding light on the complex historical relationship between race and sex inequality and on the consequences of framing constitutional equality harms in particular ways.