SHAWN GARRETT,
individually and as next friend to CRYSTAL
GARRETT, a minor, and NANCY DOE, individually and
as next friend to JANE DOE, JUDY DOE, and JESSICA
DOE, minors, Plaintiffs,
v.
THE
BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF THE
CITY OF DETROIT, Defendant
No.
91-CV-73821-DT
UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
MICHIGAN, SOUTHERN DIVISION
775
F. Supp. 1004; 1991 U.S. Dist. LEXIS 15200
August
15, 1991
COUNSEL: [**1]
ATTORNEYS FOR
PLAINTIFFS: Richard Soble, Esq., Goodman, Eden,
Millender & Bedrosian, Detroit, Michigan,
Martha F. Davis, Esq., NOW Legal Defense and
Education Fund, New York, New York, Paul
Denenfeld, Esq., Beverly Clark, Esq., ACLU Fund
of Michigan, Detroit, Michigan.
ATTORNEYS FOR
DEFENDANT: Eric L. Clay, Esq., Otis M. Smith,
Esq., Lewis, White & Clay, Detroit, Michigan.
JUDGES: George
E. Woods, United States District Judge.
OPINIONBY: WOODS
OPINION: [*1005]
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS'
MOTION FOR PRELIMINARY INJUNCTION
GEORGE E. WOODS,
UNITED STATES DISTRICT JUDGE
Plaintiffs filed
this suit on Monday, August 5, 1991, alleging the
defendant Board of Education of the School
District of the City of Detroit
("Board") violated the Fourteenth
Amendment to the United States Constitution,
Article 1, @ 2 of the Michigan Constitution,
Title IX, the Equal Educational Opportunities
Act, Michigan's Elliott-Larsen Act and Michigan's
School Code through the establishment of
male-only academies. Plaintiffs are girls
enrolled in Detroit public schools and their
parents. n1 Plaintiff Nancy Doe is a Detroit
resident with daughters aged 11, 6, and 5, all of
whom will attend Detroit public schools this
fall. n2 Defendant Board of Education for the
School [**2] District of the City of Detroit
controls, manages and administers the public
schools for the city pursuant to Mich. Comp. Laws
Ann. @ 380.401 et seq. (West 1988).
- - - - - - - -
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n1 Shawn Garrett
is a Detroit resident with a four year old
daughter who will be attending preschool in the
Fall of 1991. Shawn Garrett, both individually
and as next friend to Crystal Garrett,
voluntarily dismissed her action before oral
argument, stating she had been subjected to
harassing phone calls and comments from members
of the community.
n2 Nancy Doe and
her daughters proceed pseudonymously. The
defendant subpoenaed the Does to appear; however,
the Court quashed the subpoenas prior to oral
argument.
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On August 5,
1991, plaintiffs moved this Court to issue a
temporary restraining order to enjoin the Board
from taking any further steps to implement the
male academies. This motion was denied; the Court
set an expedited hearing date for the resolution
of plaintiffs' motion for preliminary injunction.
The Court heard oral argument August 15, 1991,
[**3] and issued its opinion from the bench. This
written opinion supplements the bench order.
[*1006] I
Three male
academies ("Academies") are scheduled
to open on August 26, 1991. The Academies will
serve approximately 250 boys in preschool through
fifth grade. Grades six through eight will be
phased in over the next few years. The Academies
offer special programs including a class entitled
"Rites of Passage", an Afrocentric
(Pluralistic) curriculum, futuristic lessons in
preparation for 21st century careers, an emphasis
on male responsibility, mentors, Saturday
classes, individualized counseling, extended
classroom hours, and student uniforms.
Plaintiffs
contend that these special offerings (1) do not
require a uniquely male atmosphere to succeed;
and (2) address issues that face all children and
adolescents, including females. Plaintiffs
further charge that despite the stated goal of
the Academies to address the high unemployment
rates, school dropout levels and homicide among
urban males, the Academies do not target
"at-risk" males; rather, they serve a
mix of boys from all achievement levels. n3
- - - - - - - -
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- - - - - - -
n3 Selection
criteria included seven variables from which an
at-risk point value was derived. Applicants were
then separated into three categories: high need,
mid-level and low need. One-third of the students
admitted were randomly selected from each need
category.
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- - - - - - - [**4]
II
The Sixth
Circuit requires the Court to consider four
factors in deciding a motion for injunctive
relief:
(1) the
likelihood of plaintiffs' success on the merits;
(2) whether the
injunction will save the plaintiffs from
irreparable injury;
(3) whether the
harm to plaintiffs if relief is not granted
outweighs the harm to others if relief is
granted; and
(4) whether the
public interest would best be served by the
issuing of the injunction.
In Re DeLorean
Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985).
The Court will address each in turn.
A. Likelihood of
Success
Plaintiffs
allege in their complaint that the defendant has
deliberately chosen to disregard the rights of
girls in the public school system, despite the
specific advice of state governmental authorities
and the federal policy requiring equal
educational opportunities without regard to sex.
Each of the laws allegedly violated by defendant
Board is discussed below.
1. Federal and
State Constitutions
Gender-based
classifications implicate the protection afforded
by the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution as
well as the corresponding provision of [**5] the
Michigan Constitution, Article 1, Section 2. The
Equal Protection Clause of the Michigan
Constitution, Article 1, @ 2, provides protection
against discrimination equal to or greater than
the protection provided by the federal
Constitution. Doe v. Dep't of Social Services,
187 Mich. App. 493, 512-19 , 468 N.W.2d 862
(1991). Because plaintiffs offer no additional
arguments based on the greater protection offered
by the Michigan Constitution, the analysis is
combined for the sake of brevity.
In Mississippi
v. Hogan, 458 U.S. 718, 724 , 73 L. Ed. 2d 1090 ,
102 S. Ct. 3331 (1982), the Supreme Court held
that exclusion of an individual from a
publicly-funded school because of his or her sex
violates the Equal Protection Clause of the
Fourteenth Amendment, unless the defendant can
show the sex-based "classification serves
'important governmental objectives and that the
discriminatory means employed'" are
"substantially related to the achievement of
those objectives." Hogan, 458 U.S. at 724
(quoting Wengler v. Druggist Mutual Ins. Co., 446
U.S. 142, 150 , 64 L. Ed. 2d 107 , 100 S. Ct.
1540 (1980)). n4
- - - - - - - -
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n4 According to
the plaintiffs, Detroit offers no schools for
girls even comparable to the Male Academies;
therefore, the Court is not presented with the
question of whether the Board can provide
separate but equal public school institutions for
boys and girls. See Hogan, 458 U.S. at 720, n. 1.
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- - - - - - - [**6]
[*1007]
Plaintiffs maintain the Board cannot meet this
standard because the Board's policy of excluding
girls inappropriately relies on gender as a proxy
for "at-risk" students. The Academies
were developed in response to the crisis facing
African-American males manifested by high
homicide, unemployment, and drop-out rates. While
these statistics underscore a compelling need,
they fall short of demonstrating that excluding
girls is substantially related to the achievement
of the Board's objectives. The Board has
proffered no evidence that the presence of girls
in the classroom bears a substantial relationship
to the difficulties facing urban males.
Accordingly,
plaintiffs conclude that the male academies
improperly use gender as a "proxy for other,
more germane bases of classification," Craig
v. Boren, 429 U.S. 190, 198 , 50 L. Ed. 2d 397 ,
97 S. Ct. 451 (1976), in this instance, for
"at risk" students. n5 Specifically,
the gender specific data presented in defense of
the Academies ignores the fact that all children
in the Detroit public schools face significant
obstacles to success. In fact, in its resolution
establishing the Academies, the Board
acknowledged an "equally urgent and unique
crisis facing [**7] . . . female students."
Urban girls drop out of school, suffer loss of
self esteem and become involved in criminal
activity. Ignoring the plight of urban females
institutionalizes inequality and perpetuates the
myth that females are doing well in the current
system. Accordingly, plaintiffs contend there is
no adequate justification for the Academies'
exclusive focus on boys. See Craig v. Boren, 429
U.S. 190, 204 , 50 L. Ed. 2d 397 , 97 S. Ct. 451
(1976).
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n5 Plaintiffs
assert that the Academies fail to target even
those male students who are most at risk because
admission requirements specify a mix of students
with a wide range of achievement levels be
included.
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- - - - - - -
Plaintiffs also
assert that the special curriculum proposed for
the Academies suggests a false dichotomy between
the roles and responsibilities of boys and girls.
For example, the Rites of Passage curriculum
teaches that "men need a vision and a plan
for living," "men master their
emotions," and "men acquire skills and
knowledge to overcome life's obstacles."
These issues confront [**8] all adolescents and
are not rites peculiarly male. Therefore, they
are insufficient to justify gender-based
classification.
Defendant
responds that the validity of the objective of
the male academies distinguishes the instant
matter from the program found unconstitutional in
Hogan, wherein the Supreme Court addressed the
single sex admissions policy of the Mississippi
University for Women School of Nursing. In Hogan,
the State attempted to justify the policy by
proving it compensated for historical
discrimination against women. The Court rejected
this argument. In contrast, the defendant here
argues it has confirmed the present delivery of
education has resulted in substantially lower
achievement levels for males than for females and
that the Academies are the solution to this
problem. The primary rationale for the Academies
is simply that co-educational programs aimed at
improving male performance have failed.
The Court is
wary of accepting such a rationale. Although
co-educational programs have failed, there is no
showing that it is the co-educational factor that
results in failure. Even more dangerous is the
prospect that should the male academies proceed
and succeed, success [**9] would be equated with
the absence of girls rather than any of the
educational factors that more probably caused the
outcome.
Defendant argues
that just because females also face academic
performance problems does not weaken the
importance of their objective in opening the male
academies. Further, the Board states it has
recognized the difficulties faced by urban
females and developed alternative programs housed
in single sex schools that specifically address
the needs of females, such as pregnancy-related
programs. The Court does not find fault with this
argument; [*1008] the objective of the male
academies is important; but, the degree of
importance does not eliminate the defendant's
burden of showing that the second prong of the
Hogan test is met.
Defendant argues
in the alternative that the second prong,
"substantially related" is satisfied
for three reasons. First, the establishment of
male academies is critical to expeditiously
determine what curriculum and training programs
will work to keep urban males out of the City's
morgues and prisons. Second, the Board has
already reviewed smaller scale experimental
programs at two schools that specifically
addressed the special needs of [**10] urban males
and found them successful in improving the
overall academic and behavioral aspects of the
urban males' life style. n6 Third, the Board
knows that current co-ed programs do not work.
Consequently, the Board finds that research
supports the establishment of an experimental
school with a specialized curriculum to address
the special needs of urban males.
- - - - - - - -
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- - - - - - -
n6 Ray Johnson,
Assistant Principal at Cooper Elementary School,
created a voluntary extra-curricular mentorship
program, "Man-to-Man." The program is
three years old and affords male students weekly
interaction with professional male mentors across
the city. Johnson asserts that the program has
been successful and has led to some improvement
in the academic status of male participants.
Woodward School enacted a similar program that
met with similar success.
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- - - - - - -
None of these
findings meet the defendant's burden of showing
how the exclusion of females from the Academies
is necessary to combat unemployment, dropout and
homicide rates among urban males. There is no
[**11] evidence that the educational system is
failing urban males because females attend
schools with males. In fact, the educational
system is also failing females. Thus, the Court
concludes the application of the second prong of
the Hogan test to the facts at hand, makes it
likely that the plaintiffs will succeed on a
constitutional argument. n7
- - - - - - - -
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- - - - - - -
n7 Plaintiffs
also argue that the voluntary assignment of
students to the Academies does not save the
Academies from unconstitutionality. Defendant
does not dispute this argument; consequently, the
Court need not discuss it. In addition,
plaintiffs note that experimental programs are
not exempt from constitutional requirements.
Again, defendant does not respond to this
argument. Finally, plaintiffs contend that the
male academies do not qualify as affirmative
action programs. Defendant does not dispute this
statement.
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- - - - - - -
2. Title IX
Plaintiffs also
argue that the Academies violate Title IX of the
Education Act Amendments of 1972, 20 U.S.C. @
1681 et seq., (1990), and its implementing [**12]
regulations, 24 C.F.R. 106, et seq., (1990).
Title IX prohibits those educational programs
receiving federal funds from treating students
unequally on the basis of sex. The regulations
implementing Title IX provide that students may
not be given "different aid, benefits, or
services" because of their sex. 34 C.F.R. @
106.31(b)(2). In addition, the regulations
prohibit recipients of federal financial
assistance from providing any course or otherwise
carrying out any of its educational programs on
the basis of sex, or from requiring or refusing
participation therein by any students on such
basis. 34 C.F.R. @ 106.36. The regulations also
list the exceptions; that is, the types of
classes which may be single sex. See 24 C.F.R. @
106.34(c), (e), and (f). Because the Academies do
not fall within the listed exceptions, plaintiffs
conclude that they violate Title IX.
Defendant argues
the plaintiffs cannot succeed on this theory
because Title IX (1) excludes from coverage,
admission plans in kindergarten through grade
twelve; and (2) its legislative history
recognized the need for continued experimentation
with unique methods of education, such as the
Academies.
Regarding
admission plans, [**13] 20 U.S.C. @ 1681(a)(1)
provides as follows:
Classes of
Educational Institutions Subject to Prohibition
In regard to
admissions to educational institutions, this
section shall apply only to institutions of
vocational education, professional education, and
graduate higher education, and to public
institutions [*1009] of undergraduate higher
education; (emphasis added)
This section
would allow for the selection of prospective
students on the basis of sex. Therefore,
defendant concludes, all things being equal, a
school could be created that would admit students
of only one sex. Defendant's argument is flawed.
The Court views this exemption for admissions as
applicable primarily to historically pre-existing
single sex schools; n8 it is not viewed as
authorization to establish new single sex
schools. No case has ever upheld the existence of
a sex-segregated public school that has the
effect of favoring one sex over another. The
interplay of the Constitution and other statutes,
as well as the legislative history, diminishes
the persuasiveness of this argument.
- - - - - - - -
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- - - - - - -
n8 The
limitation on Title IX's applicability to
admissions policies of public elementary and
secondary schools was added to the Senate version
of the bill immediately prior to its passage. A
House Amendment to the Senate version explicitly
covered the admissions policies of such schools,
requiring that they convert to coed status within
seven years of the bill's passage. Sen. Rep.
92-604. The conference committee considering
these provisions adopted the Senate version which
according to Senator Bayh was intended to allow
continued single sex admissions by existing
institutions.
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- - - - - - - [**14]
The Court
examines defendant's second argument, that
congressional intent allows for experimentation
with single sex educational options noting
exceptions for military academies, social
fraternities, and youth service organizations. An
additional exemption is made for any public
institution of undergraduate higher education
that "traditionally and continually from its
establishment has had a policy of admitting only
students of one sex." Accordingly, the
statute recognizes the value of single sex public
schools and did not intend to preclude
experimental programs designed as such.
Plaintiffs'
claims, however, do not rest solely on the denial
of admission; rather, they rely on Title IX to
protect their right to the same benefits and
services. Undoubtedly, plaintiffs desire access
to the programs offered at the Academies.
Defendant, by way of the affidavit of Arthur M.
Carter, Interim Deputy Superintendent of the
Board, states that the educational programs are
no different from the individualized instruction
and benefits offered in other schools throughout
the system. (Aff. at p. 14.) It is unclear,
however, whether all of the course offerings
available at the Academies can be had at [**15]
any one school and from the evidence before the
Court it appears this is not the case.
Additionally,
defendant argues that the Secretary of Education
has promulgated regulations under Title IX that
allow the Board of Education to establish the
male academies. 24 C.F.R. @ 106.3 provides in
relevant part:
If . . . a
recipient has discriminated against persons on
the basis of sex . . . recipient shall take such
remedial action as the Assistant Secretary deems
necessary to overcome the effects of such
discrimination.
(b) In the
absence of finding of discrimination on the basis
of sex . . . recipient may take affirmative
action to overcome the effects of conditions
which resulted in limited participation therein
by persons of a particular sex.
The Board has
reviewed the evidence and determined that
conditions have resulted in limited participation
of urban males in educational programs and
activities. Therefore, even in the absence of a
specific finding of discrimination by the
Assistant Secretary of Education, the Board
maintains that the regulations do not prohibit
the action it has taken.
Despite the
Board's stance, the Office of Civil Rights of the
Department of Education, ("OCR"),
[**16] the federal governmental authority charged
with administrative enforcement of Title IX, has
opined that all male public elementary and
secondary school programs violate Title IX. n9
Also, [*1010] the Michigan State Department of
Education notified defendant that the male
academies violated Title IX. (Complaint, Exhibit
H.) At this stage in the litigation, this Court
defers to the opinion of the OCR. Therefore,
plaintiffs have met their burden of showing the
likelihood of success on this cause of action.
- - - - - - - -
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- - - - - - -
n9 In August,
1988, the Superintendent of the Dade County
Public Schools sought an OCR ruling concerning
experimental all male kindergarten and first
grade classes. OCR stated the rationale for
stated exceptions to Title IX are privacy or
safety concerns. (Complaint, Exhibit H.)
Similarly in April, 1990. The Wisconsin
Department of Public Instruction sought a ruling
from OCR regarding conditions under which an all
black, all male school could be created. Again
OCR responded that segregation of students on
such a basis violated Title IX. (Complaint,
Exhibit H.)
- - - - - - - -
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- - - - - - - [**17]
3. Equal
Educational Opportunities Act
The Equal
Educational Opportunities Act,
("EEOA"), 20 U.S.C. @ 1701, et seq.,
(1990), prohibits a student assignment to a
school other than a neighborhood school if
reassignment "results in a greater degree of
segregation of students on the basis of . . . sex
. . . among the schools of such agency than would
result if such students were assigned to the
school closest to his or her place of residence
within the school district of such agency
providing the appropriate grade level and type of
education for such student." 20 U.S.C. @
1703 (1990). This act was passed to eliminate the
vestiges of dual school assignments based on
racial discrimination and no mention of single
sex schools ever occurred in the Senate and House
debates.
The only
reported decision considering the issue of sex
segregation under the EEOA, United States v.
Hinds County School Bd., 560 F.2d 619 (5th Cir.
1977), held that the sex-segregated schools
violated the EEOA. The Fifth Circuit Court of
Appeals concluded that the EEOA expressly
"prohibits . . . sex-segregated student
assignment," even if there is some
educational purpose in implementing the system.
[**18] Id. at 625. Plaintiffs cite this case in
support of their position that the Academies
violate the EEOA.
Defendant
distinguishes this case factually. In Hinds, the
school district was comprised of four schools,
all of which segregated children by sex.
Furthermore, the School District there argued
that the assignments should be permanent. In the
case at bar, the Academies are experimental in
nature; the charter authorizes a three-year
existence. Also, there are 251 schools in the
Detroit district; the Academies number 3.
Finally, the defendant argues that a female
academy will be established "soon."
Defendant also
argues that the EEOA section cited by plaintiffs
is inapplicable as it deals with "the
assignment" by an educational agency whereas
students are not assigned to any school by the
Board. Rather, the students at the Academies are
volunteers.
Plaintiff
responds to these arguments as follows: the EEOA
does not make exceptions for "separate but
equal" programs; if Congress wished to
create an exception to the provision of the EEOA
for "voluntary freedom of choice"
plans, it could have done so. n10
- - - - - - - -
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- - - - - - -
n10 Exempting
freedom of choice plans would have destroyed the
effectiveness of the EEOA by permitting a school
board to allow white students to
"voluntarily" transfer into
race-segregated schools so long as the board did
not make such assignments.
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- - - - - - - [**19]
Because the only
applicable case is so easily distinguished, the
Court finds the plaintiffs have not demonstrated
probability of success sufficient to meet their
burden as to this cause of action.
3. Michigan's
Elliott-Larsen Act
The
Elliott-Larsen Act, Mich. Comp. Laws Ann. @@
37.2102(a), 37.2303(a), 37.2402, (West 1985),
provides that "full and equal
utilization" of and benefit from educational
institutions and facilities and public
accommodations shall not be denied on the basis
of an individual's sex. In 1986, the Michigan
Supreme Court held that "when evaluating
whether a classification by gender amounts to
impermissible sex discrimination under Section
302(a) of the Civil Rights Act, Art.1, @ 2 of the
Michigan Constitution, or under the Equal
Protection Clause of the Fourteenth Amendment of
the United States Constitution, the standard to
be applied is the same." Civil Rights Dept.
v. Waterford, 425 Mich. 173, 190 , 387 N.W.2d 821
(1986). Therefore, the Court need not [*1011]
extensively address the likelihood of success on
this claim; it relies instead on the prior
analysis regarding the constitutional claims.
Plaintiffs do
argue, however, that the Act prohibits
educational institutions [**20] from publishing
notices -- such as the Board flyer concerning the
male academies -- indicating "a preference,
limitation, specification, or discrimination
based on . . . sex." Mich. Comp. Laws Ann.
@@ 37.2402(d), (e), (West 1985).
This district
has previously held in Rogers v. Int'l Ass'n of
Lions Clubs, 636 F. Supp. 1476, 1482 (E.D. Mich.
1986), that a preliminary injunction was
warranted as the continued exclusion of women
from a public club constituted "a gross
violation" of the policy underlying the Act
and "should not be allowed to
continue."
Because the
Court has already determined that the plaintiffs
will likely succeed on the merits of their
constitutional claim it logically concludes
success is also likely on the ground that the
Academies violate the Elliott-Larsen Civil Rights
Act.
5. Michigan
School Code
Section 380.1146
of the Michigan State School Code of 1976
("Code") provides in full:
A separate
school or department shall not be kept for a
person on account of race, color, or sex. This
section shall not be construed to prevent grading
of schools according to the intellectual progress
of the pupil to be taught in separate places as
may be deemed expedient. [**21] (Mich. Comp. Laws
Ann. @ 380.1146 (West 1988).
This provision
is a limitation on the power of local school
boards to establish schools and attendance areas
within the district. See Hiers v. Brownell, 376
Mich. 225, 235 , 136 N.W.2d 10 (1965). It
incorporates a private right of action to enforce
its requirements. See Mason v. Board of
Education, 6 Mich. App. 364, 370 n. 6 , 149
N.W.2d 239 (1967) (private suit brought to
enforce the Code of 1955, the predecessor statute
to MCLA @ 380.1146).
The Code of 1976
added sex as a prohibited classification but in
all other respects was a recodification of prior
law. The prior law prohibited the establishment
of a school excluding students based on a suspect
classification. Accordingly, plaintiffs assert
that the Board's policy of establishing male
academies and excluding girls from those
Academies violates the Code.
Defendant
concedes that the Code prohibits the
establishment of a separate school on the basis
of sex, but argues it does not prohibit separate
alternative educational programs tailored to the
needs of students at risk. The Board also
maintains that the male academies are not
separate schools. n11
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n11 Since the
Academies are separately named and housed, the
Court finds this argument factually
unsupportable.
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- - - - - - - [**22]
Defendant argues
that the Academies are not intended and do not
have the effect of existing as separate schools
that disadvantage students or deny them equal
educational benefits because of sex. Rather, they
are designed to obtain information in an
experimental setting and the knowledge generated
from this experiment will be used to benefit all
students, male and female. Defendant asserts that
the purpose of the male academies is not to
separate or ban female students, thus, it is not
the activity the legislature intended to prohibit
by enactment of @ 380.1146. Mich. Comp. Laws Ann.
@ 380.1146 (West 1988).
Defendant refers
the Court to cases involving affirmative action
programs, then admits the Academies are not such
a program. n12 According to the defendant, case
law makes clear the legal prohibitions against
discrimination must be interpreted with reference
to the "circumstance and purpose behind
their adoption." Local 526 v. Civil Service
Commission, 110 Mich. App. 546, 555 , 313 N.W.2d
143 (1981) (affirmative [*1012] action program
designed to increase representation of women and
minorities in the state civil service did not
violate Michigan Constitution); Johnson v.
Transportation Agency, 480 U.S. 616 , 94 L. Ed.
2d 615 , 107 S. Ct. 1442 (1987) [**23] (program
designed to overcome the underutilization of
women must not be rejected as violative of Title
VII because to do so would bring about an end
completely at variance with the purpose of the
statute.) Defendant implies that the Court should
analyze the Academies in this context. The Court
declines because defendant's inference is
rebutted by its own admission.
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n12 The Board
could not satisfy the criteria necessary for an
affirmative action exception since it has not
demonstrated past "gender inequity"
exists in favor of girls thus justifying
reverse-discrimination. See City of Richmond v.
J.S. Croson Co., 488 U.S. 469 , 102 L. Ed. 2d 854
, 109 S. Ct. 706 (1989).
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Defendant also
argues the Code, read in its entirety, must be
construed to allow innovative alternative
educational programs. The Code allows local
school boards to address the specific problems
incurred by various groups of students,
encourages curriculum regarding minority
cultures, Mich. Comp. Laws Ann. @ 380.1174, and
provides for special education programs for
educationally-handicapped [**24] students. Mich.
Comp. Laws Ann. @ 380.1701. There are also
provisions for gifted children, remedial
assistance programs and programs for
"pregnant persons" and/or
"school-age expectant parents . . ."
Mich. Comp. Laws Ann. @ 380.1301. The practical
effect is that the predominant sex of the
students at the alternative education
institutions for pregnant students are female;
however, such an effect does not render these
institutions illegal as a violation of the Code.
Boys are, in fact, included under the expectant
parents provision. The Board also refers the
Court to the language of Mich. Comp. Laws Ann. @
380.1146:
This section
shall not be construed to prevent grading of
schools according to the intellectual progress of
the pupil to be taught in separate places as may
be deemed expedient.
Mich. Comp. Laws
Ann. @ 380.1146 (West 1988). The recitation of
exceptions undermines the Board's position. The
Academies do not qualify under any of those
provisions cited. The Court does not define the
Academies as a "program" eligible for
exemption. Nor do the Academies merit exemption
based on the intellectual grading provision. The
admission procedure demonstrates this was not the
purpose [**25] for which they were established.
The Board notes
the Academies do not specifically prohibit
attendance by females. n13 This argument cannot
save the Board. The name, "Male
Academies," in and of itself, as well as the
descriptive literature, clearly excludes females
from real participation in the program. Although
the Board states the Male Academies are not
intended or designed to be discriminatory
single-sex programs in one breath, in the next it
asserts that the program is designed to gather
data to determine what type of curriculum and
teacher training programs are necessary to
alleviate the disparate impact of the current
educational system on urban males. The Board
cannot have it both ways. The Code explicitly
bans sex segregation and explicitly states
exceptions to this rule. Plaintiffs are,
therefore, likely to succeed with their claim on
this cause of action.
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n13 One female
student has been provisionally admitted
conditioned upon the resolution of this matter.
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The Court,
convinced that plaintiffs have met their [**26]
burden on the first factor necessary for
injunctive relief, turns to the second factor.
B. Irreparable
Harm
Plaintiffs argue
they will suffer serious, irreparable and
immediate harm unless injunctive relief is
granted. An injury is irreparable only if it
cannot be undone through monetary remedies. Ohio
v. Nuclear Regulatory Comm'n, 812 F.2d 288, 290
(6th Cir. 1987).
Although
plaintiffs assert that it is well settled that a
violation of constitutional rights constitutes
irreparable injury, per se, Planned Parenthood
Ass'n v. Cincinnati, 822 F.2d 1390, 1400 (6th
Cir. 1987), this interpretation stretches the
holding cited and is not endorsed by this Court.
Planned Parenthood merely held that a [*1013]
potential irreparable injury existed in the form
of a violation of a constitutional right.
Such an
irreparable injury may also be found here. The
fact that plaintiffs may continue in the regular
school system does not eliminate or render
harmless the denial of their rights to equal
opportunity under the Equal Protection Clause.
See Deerfield Medical Center v. Deerfield Beach,
661 F.2d 328, 338 (5th Cir. 1981). The Deerfield
court [**27] goes on to state that loss of First
Amendment rights for even minimal periods of time
constitutes irreparable injury justifying the
grant of a preliminary injunction. Id. (citations
omitted) This analysis is also applicable to the
Fourteenth Amendment rights at stake here.
The Board hints
that an academy for girls is in the works. This
intimation about establishing a girls' academy
does not alleviate the injury. n14 Later attempts
to equalize opportunities to girls will not
compensate for the plaintiffs' lost opportunities
to learn, gain self-esteem and be trained for a
successful future. Again the balance on this
factor weighs in favor of granting a preliminary
injunction. Therefore, the Court turns to the
third factor.
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- - - - - - -
n14 The loss of
one semester cannot be seen as a minimal period
of time and the opening of a girls' academy in
January is not guaranteed.
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C. Harm to
Others If the Stay is Granted
If the Court
orders the Academies to admit girls, the opening
may be delayed beyond the start of the school
year. Clearly, [**28] students and teachers will
be disrupted. The Court suspects greater
disruption would result if plaintiffs won this
suit and the Academies were then aborted.
Plaintiffs
maintain that because defendant has been informed
of the illegality of the Academies since February
1990 (See letter of Jo Jacobs), defendant could
have avoided this harm. Further, plaintiffs
assert the harm is minimal compared to the
irreparable violation of plaintiffs' civil rights
if the Academies are allowed to proceed under a
single sex policy. In this case injunctive relief
would fulfill the traditional purpose of
preserving the "existing state of things
until the rights of the parties can be fairly and
fully investigated and determined." DeLorean
at 1229, quoting Blount v. Societe Anonyme du
Filtre Chamberland Systeme Pasteur, 53 F.98, 101
(6th Cir. 1892).
Defendant Board
argues that an injunction would cause harm to all
students because all would benefit from the study
of males in a controlled environment. Defendant
asserts that female students are a targeted
benefactor of the program through
"system-wide implementation of those
characteristics identified as necessary to the
rectification of the past [**29] impediments to
the educational success of our youth . . ."
n15 Moreover, male students who are not currently
receiving an adequate education within the system
will continue to be harmed by inadequacies.
Accordingly, this harm outweighs the perceived
harm to plaintiffs.
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- - - - - - -
n15 That this
argument eviscerates defendant's earlier argument
as to the need for single sex education is not
lost on the Court.
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The Board also
notes that the Detroit Public Schools have
incurred expenses estimated at $ 454,000 to
establish the Academies. (Affidavit of William
Aldridge, Divisional Director, Office of
Financial Planning and Budget for the Detroit
Public School System) Monetary hardship would
result if the schools could not open. The Court
remains unpersuaded by this argument: economic
loss can later be recouped. Further, the schools
can open after admission is made available to
females. See Ohio v. Nuclear Regulatory Comm'n,
812 F.2d at 290.
Finally, the
Court must consider whether the Board has any
valid interest [**30] in opening the male
academies in light of the finding that plaintiffs
are likely to succeed on the merits of this case.
Relying on the reasoning used by the Sixth
Circuit in Ohio v. Nuclear Regulatory Comm'n,
this Court finds no substantial harm would result
from preventing the operation of an
unconstitutional school.
[*1014] D.
Public Interest
Plaintiffs argue
that the public interest is better served by
preventing the opening of an unconstitutional
educational facility. Defendant argues the
Academies seek a bona fide public good to the
detriment of no one. Defendant further contends
that the creation of the Academies is
substantially related to the important
governmental interest of the Detroit Public
Schools in obtaining information directed toward
meeting the special educational needs of
inner-city males. This "pilot setting"
affords the public schools the opportunity to
evaluate the effectiveness of various curricula
and other programs in meeting the educational
needs of males.
This Court views
the purpose for which the Academies came into
being as an important one. It acknowledges the
status of urban males as an "endangered
species." The purpose, however, is
insufficient to override [**31] the rights of
females to equal opportunities.
Now, therefore,
this Court GRANTS plaintiffs' motion for
preliminary injunction.
So ordered.
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