Straight Suit for the Queer School

A few weeks back, I posted on New York's new public gay high school, the Harvey Milk school. The school has already spawned a legal challenge on the grounds that providing a school exclusively for gay students violates New York's civil rights laws by discriminating against heterosexual students. Eugene Volokh has the story.

Comments

[R.C. Dean]

No reason the opponents of separate but equal educational facilities can't work both a judicial and a legislative track at the same time. Although, as there is no chance in hell of anyone in NY other than the courts overturning this grossly unconstitutional arrangement, I would recommend that they put most of their eggs in the judicial basket.

[Julian Sanchez]

If, somehow, the state court failed to strike down the current arrangement, I could see it coming to an equal protection question. But barring that, which seems unlikely to me, I don't know how it would get that far.

[joe]

Julian, you think it's unlikely that a NY state court might uphold this? Am I reading you right?

[thoreau]

A lot of people around here say "Don't use the courts. Use the legislative process." If, for the sake of argument, a particular piece of legislation is in fact an infringement on liberties protected by either the state or federal Constitution, why not go to the courts? (I'm not necessarily saying the gay school is or is not an infringement on any liberties, I'm just asking a question of principle.)

The legislative process, be it local, state, or federal, has already created the injustice. There's a reason why we have that third branch of government. If the only legitimate purpose of government is to protect life, liberty, and property then surely it's legitimate to use the third branch (the judicial branch) to protest infringements of liberty.

Once again, whether or not you think this particular thing (the gay school) is a violation of a liberty protected by the US or NY constitutions, there's still the fact that a lot of people around here say "Use the legislative process, not the courts." And I'm asking what is wrong with the courts. Legislators can ignore your letter, especially if they get more letters from people opposing you. Courts are much less likely to refuse a case, at least initially. They might throw it out, but at least you'll get in the door to argue that the case should proceed. Legislators (be they local, state, or federal) are much less likely to pay attention (all notable exceptions being noted, and form letters don't count as attention).

[Warren]

Ahem, I think you are all missing the key point. This is just another, in the very long list of, examples that illustrates the need to privatize education.

[Xmas]

"The Harvey Milk School"...You'd think they'd come up with a name that was more butch.

[Julian Sanchez]

Warren-
Well, I can't speak for others, but in my case, it's sort of taken for granted. To most of my posts on education issues, you can append "of course, this wouldn't be a problem under a pure voucher regime, but since we're not there anytime in the near future..."

Joe-
Well, yeah. Given the wording of NY's civil liberties laws, it seems likely that this arrangement will be stricken. But maybe I'm naive on that point.

[Learned Hand]

Thoreau,

The problem with always resorting to the courts is that, in the end, we end up giving away our own power and capacity to govern.

Yes, in the short term you are right: the political process resulted in the policy that we dislike, and if a court overrules it, there is now a better outcome. However, the long term matters as well.

[thoreau]

Learned Hand-

It isn't just a matter of "good outcome, who cares?" The courts were put there as part of a government _originally_ designed to protect liberty (obviously that train was derailed, but that's another story). What is improper about protecting liberty via institutions designed to protect liberty?

Now, maybe the case at hand is a bad example, but I'm asking this more in response to the general sentiment "leave the courts out of it" than the specific case. That general sentiment pops up around here from time to time, and it gives short shrift to the notion that courts were put in place as a check on the other two branches of government.

[Learned Hand]

Thoreau,

I see your point and I concur. However, the fact that the courts exist as *a* problem solver does not mean that they are the only or the preferred problem solver.

The issue reduces to deciding at what point the courts legitimately should intervene in such matters. This has ebbed and flowed over the years (witness the Lochner era at the turn of the 20th Century for involvement in economic regulation, and then the Warren Court involvement in civil rights and liberties).

My point is that I believe the courts are getting involved too often in too many civic debates (because plaintiffs drag them in). The line of involvement should be moved further back.

[Steve]

Hmm. This may not necessarily be a bad thing for gay rights if it leads to a court deciding that sexual orientation groups must be given equal protection, even if it leads to Milk being "integrated."

[Julian Sanchez]

It's not a federal equal protection suit, though: New York State law already explicitly includes protections against discrimination on the basis of sexual orientation.

[joe]

True, Julian, but a state ruling upholding the Milk school could be challenged in federal court on the same "separate but equal" grounds as Brown. It's a longshot, but stay tuned.

[Learned Hand]

Julian: You're right, it is a question of state law. Nevertheless, joe and Steve also could be right that somehow this will become a federal question, a la the reasoning that produced the Supreme Court's decisions in Romer v. Evans and the Texas sodomy case.

Whether lawful or unlawful, the opponents of the school should work to undo the decision through the political process, rather than resort to the courts.