VORCHHEIMER v. SCHOOL DISTRICT OF PHILADELPHIA

Print this transcript Transcript: 

Argument of Sharon K. Wallis

Chief Justice Warren E. Burger: We will hear arguments next in 76-37, Vorchheimer v. School District of Philadelphia.

Counsel, you may proceed whenever you are ready.

Ms Sharon K. Wallis: Mr. Chief Justice, and May it please the Court.

The question presented by this case is whether one particular public school, the Central High School Philadelphia, may exclude academically qualified female students solely on the basis of their gender.

District Court below applied this court’s analysis unread and examined all the proper justifications for this policy.

After identifying the school district’s goals and examining its justification in terms of the particular facts of this case, determined that the policy had not been shown to be fairly and substantially related to any of the respondent’s legitimate objectives.

This case presents the clearest and most compelling case in which segregation and public education violates the equal protection clause.

Central High School is unique institution for many reasons.

It was the first high school in Philadelphia.

It happens also to be the second public high school.

His one of two schools, both of them being single sex schools which are characterized as Academic High schools in the public school system.

Academic High schools are defined in terms of their exclusively academic curriculum and also their high admission standards which are only met by 7% of the students in the Philadelphia school system.

Because of these unique characteristics of Central High that it’s particularly difficult to justify the exclusion of female students in that institution.

It’s an exclusion that dates back originally to a time when Central was the only school in public school in Philadelphia.

Public high school education was only offered to exceptionally gifted students and it was not offered to female students because it was not regarded as appropriate to their abilities and their needs.

That’s what this court has referred to as old notions about the role of women and men in society.

Subsequently, Philadelphia High School for Girls was developed as an all female school which has the same admission standards but it does not have the history or the character of Central High School.

Unknown Speaker: When you say that history and the character.

Ms Sharon K. Wallis: Yes, Your Honor.

Unknown Speaker: Would you -- and for me it has not been and obviously was not in existence as long but what do you mean by the history and the character?

Ms Sharon K. Wallis: Well, Central has a very unique history not only because it was the first high school in Philadelphia but because it always held a certain position in the school system as the training ground for leaders.

If you are interested, you might want to look at (Inaudible) Republic which goes in some great detail of the history of Central High School.

Unknown Speaker: History and all -- are you referring to its reputation and standing?

Ms Sharon K. Wallis: Its reputation, its standing in the community and I think above all, its mission that is that it was always held to be and it was created to be a special school for training leaders within the public school system.

Unknown Speaker: For training leaders or for training exceptional boys?

Ms Sharon K. Wallis: No.

Well, the stated objective, which is repeated again and again, as you have seen in the Cornad Book, some excerpts of that are quoted not only in our brief but also in the brief of the United States as amicus curiae.

The goal of the school, the concept of the school was “to train leaders in industry and unlike” to train leaders in all fields of endeavor.

That was an education that was only open to male students.

The definition of the school was one of preparing people for leadership and I think we are relying obviously on Sweatt v. Painter.

I am taking that a step further in a sense, what I am saying is the school not only has all of the characteristics that made for greatness in an educational institution that is outstanding alumni, a great tradition of accomplishment as well as particular high reputation national reputation.

But in addition to that this is the result of a conscious effort to maintain such an institution within the Philadelphia school system and that institution has traditionally been exclusively open to male students.

The trial court here did find that the education available at Philadelphia High School for Girls was substantially equivalent to that available Central, but if you look at that finding authority and the surrounding findings, it become very clear that the trial court defined education as level of classroom instruction and the trial court mentions, for example, Central is the only high school in Philadelphia with the substantial private endowment that’s the Barnwell Foundation.

The Barnwell Foundation was responsible for bringing to the schools such distinguished speakers and this is just recently as Robert Kennedy when he was Attorney General.

Hubert Humphrey when he was Vice President.

More recently it does not happen to be mentioned in the courts opinion, Elliott Richardson.

This is not something in the very text.

Unknown Speaker: Mr. Wallis if the training at Central High and the training at Girls High was identical, would you still be here?

Ms Sharon K. Wallis: I think that we have to define the terms.

I understand the trial…

Unknown Speaker: I said identical.

Ms Sharon K. Wallis: That is not the term I am concerned about, it is training.

Unknown Speaker: That’s my question.

Ms Sharon K. Wallis: Yeah, the question is what do you mean by training or what do you mean by education?

What I mean by education and what I believe this court...

Unknown Speaker: Well, are you arguing that this is unequal.

That’s what I want to know, are you arguing unequal or not?

Ms Sharon K. Wallis: What I am arguing is that there is an important opportunity that is lost by being deprived of access to Central High School.

That opportunity is the opportunity for a unique preparation for a leadership role in society.

It is not a difference in classroom instruction particularly, although there are some differences in the schools.

Unknown Speaker: Let me extend Mr. Justice Marshall’s hypothetical a little.

Suppose as with some of the schools, they decided that four hours a day was enough class time for the students and in the same building under the same name with the same faculty, you had the boys go to school from eight until twelve and the girls go to school from one until five.

Then I would think you would agree that -- perhaps you would not that this is identical which to say what could be the problem in your view.

Ms Sharon K. Wallis: Well then I think you would have a fairly clear statutory problem.

Unknown Speaker: What?

Ms Sharon K. Wallis: There would be a stronger statutory argument, under Title 20, if you were talking about the same school with segregated classes.

I will put that aside for the moment, that’s not what you were asking me about obviously.

Unknown Speaker: Well, I thought I was.

Ms Sharon K. Wallis: Well, let me put it this way.

Unknown Speaker: Same building, same curricula, all the way through same teachers, everything identical except boys in the morning, girls in the afternoon.

Ms Sharon K. Wallis: I think that that would be certainly a different case from this one.

There are many qualities, many aspects of Central High School that we are concerned about here.

If the diploma were the same then that would be one opportunity the girls were not denied.

If by graduating from this institution in a separate program they were entitled to be full-fledged members of the Central High School Alumni Society with which the district court recognized was an extremely influential and important organization within Philadelphia.

That would be another opportunity that we would not be denied to female students under your hypothesis which is now.

There is another aspect of this case and that is the opportunity for young men and young women to enjoy a free exchange of ideas which the court talks about in Sweatt v. Painter and also in its companion case,McLaurin v. Oklahoma.

Unknown Speaker: Is that what your case is all about?

Ms Sharon K. Wallis: No, Your Honor.

Unknown Speaker: Are you arguing for a coeducational education.

Ms Sharon K. Wallis: The case is all about all of those things but...

Unknown Speaker: I think it is of some importance to identify what this case is about.

The Chief Justice’s question was directed to determining whether this is a separate but equal case and whether it separate but equal violates the constitution or whether on the other hand, it is a somewhat simpler case and that is that the best high school in Philadelphia excludes girls because they are girls which is quite a different case.

Ms Sharon K. Wallis: Your Honor, that is -- it is the easier case.

Unknown Speaker: Which case, which…

Ms Sharon K. Wallis: It is the easier case.

What I am saying is that this is the easiest possible case.

Unknown Speaker: Fine.

Ms Sharon K. Wallis: And the reason it is the easiest possible case is because Central does have all of these unique features and also because when you are talking about young women, who are academically gifted, you are talking about the young women, who are most qualified for leadership positions, both young women and young men.

Unknown Speaker: The Difficulty with your position is that is not the approach the District Court talk and it certainly is not the approach that the Court of Appeals talk.

Ms Sharon K. Wallis: You are right the District Court...

Unknown Speaker: The District Court said separate but equal is not bad and the Court of Appeals said it is okay.

Neither of the court said there was inequality.

Ms Sharon K. Wallis: Now the District Court…

Unknown Speaker: And so, you want us to find within the first instance.

Ms Sharon K. Wallis: Oh no! There is a confusion in the District Court in footnote one you will see.

The District Court unfortunately didn’t quite understand Sweatt v. Painter but the District Court made all of the necessary findings.

So, now I am asking you…

Unknown Speaker: For us to make a legal conclusion to the effect that you want.

Ms Sharon K. Wallis: Yes, the District Court found that the level of classroom education was significantly similar which this court assumed in Sweatt v. Painter.

The District Court went on to find very significant differences between the two schools.

Unknown Speaker: But why should contri to a District Court, it tells more about locality than we do conclude -- make a conclusion in the District Court as to whether these were substantially equal in its words.

Ms Sharon K. Wallis: Oh no! It’s not a question of whether they are equal or not.

For purposes of this record, we have to go on the hypothesis that the level of classroom instruction is the same, but…

Unknown Speaker: Will you in light of Finding 26 which says very specifically that the scientific facilities with Central are superior.

Ms Sharon K. Wallis: I think the court also found that the level was generally the same which is what I am saying.

Now there are differences.

Unknown Speaker: I thought that your argument passed down to the claim that in this public school system, Central High School is the best and it excludes girls because they are girls.

Ms Sharon K. Wallis: That is my argument.

Now I am trying to tell Justice White, why you can accept my argument and you don’t have to overrule the District Court and the reason is that the District Court found that there were very significant differences between the schools.

The Central was, in fact, superior in terms of the accomplishments of its alumni.

Unknown Speaker: But what about the Court Of Appeals.

Ms Sharon K. Wallis: They didn’t overturn any of those of findings.

The Court Appeals really…

Unknown Speaker: I know but they were on the basis that was substantial equality.

Ms Sharon K. Wallis: I don’t know where they got that.

They do.

No, I am mean seriously…

Unknown Speaker: But you are asking us to different with the Court of Appeals than any of this on that point.

Ms Sharon K. Wallis: No, because they did not change, they did not overrule any of the facts in the records.

They just say in a conclusory sense that the…

Unknown Speaker: Well, you would suggest that the Court of Appeals would have -- what if rule against you that they had thought the training at these two schools were substantially unequal, would you?

Ms Sharon K. Wallis: Well, Your Honor, this is…

Unknown Speaker: Would you are not.

Ms Sharon K. Wallis: Yes, I think they would have because I think the question here is not the facts.

The question here is the law.

The problem in the District -- we won in the District Court, let’s get back straight first.

The District Court’s analysis, which I think is a very good one, was this is obviously classification based on sex, gender.

Unknown Speaker: What is coming around to my hypothetical, do you really answering by inference; the question which you said you did not want to answer my hypothetical?

Was the same building, the same books, the same teachers, everything is the same morning and afternoon, you would still be here.

Ms Sharon K. Wallis: I did not mean to say that I did not want to answer.

What I was…

Unknown Speaker: Well, do you want to answer?

Ms Sharon K. Wallis: What I am trying to say that this is the easiest case.

All of those factors you have excluded in your hypothesis make this an easier case than hypothesis but…

Unknown Speaker: Well, I am not trying to find out…

Ms Sharon K. Wallis: But even under your…

Unknown Speaker: I am not trying to find that the educational opportunity in the school not afterwards, in the school was substantially the same.

Is that the hypothesis you accept?

Ms Sharon K. Wallis: The hypothesis that I would -- what I take from the record is that the District Court found that the education offered the classes were not significantly different, but that…

Unknown Speaker: So, we are reviewing, the Court Of Appeals is not going to remember.

Ms Sharon K. Wallis: Well, yes that you are still reviewing it from the factual record which the Court of Appeals did not disturb.

They did not find that any of factual findings ran against the way to the evidence and if it is these are still the facts.

Unknown Speaker: We have try once again?

Ms Sharon K. Wallis: And?

Unknown Speaker: And I promise I will not ask you another question if you will answer this one.

Are you standing on a separate but equal or not?

Ms Sharon K. Wallis: For same schools are not equal.

In addition to that…

Unknown Speaker: Are you standing on separate by equal, is that your point that schools are unequal.

Ms Sharon K. Wallis: I don’t think that I have to argue that separate but equal is the law in order to argue the schools are not equal; I am saying the schools are not equal.

Unknown Speaker: I respectfully say you have to take one position or the other.

Unknown Speaker: Or at least alternatively.

Ms Sharon K. Wallis: I think alternatively that the schools number one, are not equal and number two…

Unknown Speaker: Even if they are it is unconstitutional to segregate on the basis of sex.

Ms Sharon K. Wallis: No.

Unknown Speaker: No?

Ms Sharon K. Wallis: That even if not, a slightly narrower position which is even if they were equal which I think the purposes of legal analysis was with District Court’s position that the School District fail to demonstrate why female should be excluded from Central High.

That is not to say that sex segregation is inherently unequal and therefore unconstitutional.

All I am saying is that this court decided Reid(ph), this court decided Craig, you decided the intervening cases.

You decided in those cases that classification based on gender must be justified and you indicated what type of justification must be met and most recently in Craig you said it has to be substantially related to an important governmental purpose.

You also said there that that was but you would said in Reid.

The trial court here happened to apply the language in Reid because he did not have benefited Craig but I don’t think there is any substantial difference there.

Trial court said this is a sex classification case, School District justified.

School district presented certain proper justification.

The trial court examined those and said that they fail to meet the standard.

The Supreme Court of United State just told me in Reid I must apply and therefore I find that the exclusion of female students from Central High School is unconstitutional.

Now that is not nearly as broad as saying the exclusion of female students from any school in the entire country...

Unknown Speaker: That is not your threshold argument either.

Ms Sharon K. Wallis: What?

Unknown Speaker: That is not a threshold argument either.

Ms Sharon K. Wallis: I believe….

Unknown Speaker: You are saying that they are substantially unequal and only if it were found that they were substantially equal, would you prefer to defend the District Court’s position.

Is that it?

Ms Sharon K. Wallis: Well, I think that the respondents have to meet both of those in order to prevail.

They must convince you that the schools are equal under the standards set forth in Sweatt v. Painter which applies…

Unknown Speaker: You are the appellant, you are the appellant, you are the one that has got to convince us both courts below were wrong on non-equality.

Ms Sharon K. Wallis: You are right.

Alright, you have to be convinced.

Unknown Speaker: By somebody.

Ms Sharon K. Wallis: By somebody that the schools are in fact equal…

Unknown Speaker: Contrary to the views of the District Court.

Ms Sharon K. Wallis: No.

Unknown Speaker: I mean in consisted with the views of…

Ms Sharon K. Wallis: The District Court found that the schools were equal only in one respect.

In Sweatt v. Painter, the court hypothesized that the Jim Crow Law School and the University of Texas would be equal in that particular way and found that all of these other characteristic what they called intangibles were terribly important in determining whether equal protection standard was met.

We have all those findings.

I am not asking you to overrule the findings of the District Court; I am just asking you to apply Sweatt to this case.

If you look at Footnote 1, the District Court confused Brown and Sweatt and said in order to apply Sweatt, you had to show feeling and inferiority.

That is just wrong under law.

That is why the District Court did not make use of the findings, but the findings are there.

We are not asking you to make any new findings that are not in the record.

Now, that and in addition to that the court and both, Sweatt and McLaughlin was concerned, I believe, with individuals who were destined for leadership positions in the community and according to both of those cases says that the free exchange of ideas with members of the dominant society is a very important interest in addition to the intangibles like prestige of the faculty and prestige of graduates, etcetera, etcetera that just the opportunity to the free exchange of ideas is essentially important to those individuals who are going to take on leadership positions in the community.

To that extent, I am arguing that segregated education is hardest to sustain when you are talking about the most talented young women in the public school community because the net context you are talking about girls who are going to be lawyers and doctors and judges and all of those things.

And it is most important for them just as it is important for them to graduate from a school where that they will have an entree to alumni who are in leadership positions in those fields of endeavor.

It is important for them to go to school with the boys who are likewise going to be leaders in all of those fields of endeavor perhaps in greater numbers for sometime to come.

Cutting of those contexts does a great disservice to these particular women.

Now, with the court’s permission I would like to reserve rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well, Ms. Wallis.

Ms Sharon K. Wallis: Thank you.

Chief Justice Warren E. Burger: Mr. Gilbert.

Argument of Alan H. Gilbert

Mr. Alan H. Gilbert: Mr. Chief Justice, and may it please the court.

This is not a case of an invidious sex based discrimination.

I would point out to the court the finding, which was made by the District Court, Finding No. 18 on page 43(a) of the petition that Girls High School, the school which is available to the petitioners “has to build the vision of many 19th Century as educators both men and women by becoming the equals of Central in preparing its students for college.”

Talking about a high school here, Your Honors, especially in all academic senior high school function of which is to prepare students for college.

Girls High School and Central High School are equal in that regard.

The District Court apparently thought that there was a constitutional right to a coeducational academic education right which I do not think this court has ever found and said that it did not have to take into account the existence of Girls High School.

Petitioner’s desire to attend Central High School was sufficient basis for its decision that we did find then on to the rational relationship standard the school district’s policy passed constitutional muster in the way in the words of the District Court.

Your Honor, essentially Girls High School is just as good as Central High School.

The only finding in the record and it was not a finding that was the basis for the District Court’s decision concerns the science facilities, Your Honors, and that finding apparently is based on statement by a student who was witnessed for the petitioners that Central has a student-built cyclotron and a classroom planetarium.

There is nothing else in the record concerning the science facilities and in the record is the very expensive science program available for females at Girls High School.

The course list, which is in the record in Exhibit D2, is quite expensive, really more expensive than that available at Central High School.

But essentially we are dealing with two institutions which are equal in preparing the students for college.

At one point the District Judge said, they were comparable and either statement of the comparison between the two schools were satisfied that they are substantially equal.

Unknown Speaker: The Court of Appeals did not disturb that, I take it.

Mr. Alan H. Gilbert: No sir, it did not, Your Honor.

Unknown Speaker: Did they affirmatively agree with it?

Mr. Alan H. Gilbert: Yes, in the statement of the case by the Court of Appeals, the Court of Appeals summarized the party’s position that the schools for boys and girls are comparable in quality, academic standing, and prestige, that is a 5(a) of the petition.

Unknown Speaker: Comparable is quite a different word from identical.

You can compare anything.

Mr. Alan H. Gilbert: Your Honor, I think the…

Unknown Speaker: Or any two or more things.

Mr. Alan H. Gilbert: We are not arguing that the two institutions in question are identical.

Obviously, they are two separate institutions.

Unknown Speaker: One has got women in it and one has got men.

Mr. Alan H. Gilbert: That’s correct, Your Honor, and that really is about the only difference, Your Honor.

Unknown Speaker: There is an additional science teacher at Central, isn’t there?

Mr. Alan H. Gilbert: And there probably are….

Unknown Speaker: The record does show that, doesn’t it?

Mr. Alan H. Gilbert: I think that was in the...

Unknown Speaker: And there is no compensatory additional member of the faculty at the Girls’.

Mr. Alan H. Gilbert: I think the record does show that, Your Honor, but there are additions….

Unknown Speaker: And there is a finding that in scientific facilities, at least, Central is superior.

It still means its comparable, one is superior and the other is inferior and they are comparable.

Mr. Alan H. Gilbert: Your Honor, as I suggest that finding is not in that particular relevance in this case…

Unknown Speaker: Very relevant, but first of all we have to know what kind of a case we have here.

Mr. Alan H. Gilbert: You have a case of equal schools, Your Honor.

Unknown Speaker: You know what that what Finding 26 indicates and Finding 26 was left undisturbed as were all the other findings by the Court of Appeals, am I wrong about that?

Mr. Alan H. Gilbert: You are right, Your Honor.

Except for finding 51, which I think well, not specifically reversed by the Court of Appeals, that was the finding on the academic quality of the other high schools, the comprehensive high schools, we alleged to the Court of Appeals that the other high schools have within them academic programs if you will along with the general course of study for students who are not interested in going to college, but that these academic programs with equal of Central and Girls High School in preparing students for college and the finding of the statement of the Court of Appeals was that the comprehensive schools provide a wide range of courses including those required for college admissions, for advanced placement classes for students who are intellectually able to progress at a faster than average rate, that’s at 2(a) and 3(a) of the petition.

It is pointed by the petitioner, the named petitioner who probably desire not to go to Girls High School, went to a comprehensive high school, George Washington High School and was able from that school to go to the University of Pennsylvania and skipped a senior year in high school.

Unknown Speaker: Let’s go back these terms.

Mr. Alan H. Gilbert: Yes, Your Honor.

Unknown Speaker: Now, the term comparable is used throughout this record.

Does that mean is abused in the sense of things, which are subject of being compared or does it mean is the word used in the sense that the intelligence of women is comparable to the intelligence of men that they are essentially the same, but there is no difference.

Mr. Alan H. Gilbert: I think they are essentially used in that term, in that sense comparable in this case means essentially equal.

Unknown Speaker: (Inaudible)

Mr. Alan H. Gilbert: Yes, Your Honor.

Unknown Speaker: It is comparable better or less being separate, but equal?

Mr. Alan H. Gilbert: For purposes of this case, Your Honor, I think it is the same.

Unknown Speaker: It is the same…

Mr. Alan H. Gilbert: Comparable, I think that perhaps the court having used the equal in the one finding, Finding #18, the District Court that is, Your Honor, probably should have used it throughout consistently; however, it did make the finding that the two schools are equal in preparing students for college irrespective of whether Central or Girls may have one or more teachers in a particular department different from -- they are not the identical school.

Unknown Speaker: When they did say specifically that the chemistry, physics, etcetera it was below.

Mr. Alan H. Gilbert: No, I don’t think so, Your Honor.

Unknown Speaker: They said science would below.

Mr. Alan H. Gilbert: It said scientific facilities the scientific program, Your Honor, is a quite a different story.

As a matter of fact the finding of the District Court was that the courses at the two schools are comparable and of equal quality.

Unknown Speaker: They have said, -- they also said that the science department was less.

Mr. Alan H. Gilbert: I don’t mean if the argument did, Your Honor, but…

Unknown Speaker: Well, if you are going to take those findings you got to…

Mr. Alan H. Gilbert: That is not the finding, Your Honor.

The finding is that…

Unknown Speaker: What about the…

Mr. Alan H. Gilbert: Scientific facilities, it’s not science program or course, science program or courses at Girls High maybe superior to that at Central High School.

Unknown Speaker: I am interested in what they found to be inferior and they did find it to be inferior.

Mr. Alan H. Gilbert: Scientific facilities, Your Honor, not science program.

Unknown Speaker: Well that is inferior.

Mr. Alan H. Gilbert: The finding was on scientific facilities.

Unknown Speaker: Then why is it separate, but equal?

Mr. Alan H. Gilbert: Why the schools equal, Your Honor?

Unknown Speaker: Why are they separate?

Mr. Alan H. Gilbert: Your Honor, the School District here is perusing a respected pedagogical method and that is something which has been stipulated to by the petitioners.

It is perusing a policy in its academic, in high schools they are providing an option for students they can either take the comprehend and go into their comprehensive high school and pick the academic program there in their coeducational for the most part or they can go to a single sex school.

There is evidence in the case not just stipulations, Your Honor.

Recent studies that we were done suggesting and supporting Doctor James Coleman(ph) study that coeducation maybe inimical to academic achievement and social adjustment.

With those kinds of evidence in the case, Your Honor, I think it is perfectly reasonable for School District to make this option available.

It is I think hardly relevant.

Unknown Speaker: I don’t understand the option.

There are two schools that concentrate on high level of academic training higher than in any of the other school in Philadelphia, right?

Mr. Alan H. Gilbert: I don’t agree with Your Hour’s assumption there.

I think that…

Unknown Speaker: Well, then what is all this noise about Central High being so great.

Mr. Alan H. Gilbert: Well Your Honor, I think that the record demonstrates that…

Unknown Speaker: I thought Central High was one of the greatest high schools in the country that its reputation.

Mr. Alan H. Gilbert: Your Honor my thing is...

Unknown Speaker: And I might also add, I have never heard of Girls High.

Mr. Alan H. Gilbert: You may have heard under the name Philadelphia High School for Girls.

Apparently that name, Girls High has become a pejorative term for the petitioners in their brief to this court and I think it is a rather proud name.

There is in the record evidence that community leaders including...

Unknown Speaker: I denied to the both.

If Girls High is so great.

Mr. Alan H. Gilbert: Because, Your Honor, there is relevant, I think highly relevant pedagogical reasons for making the option available of single sex education something which this record demonstrates is relevant to the School District’s basic purposes of providing educational options and the best education available to parents and students and educators who may wish to avail themselves of that option.

Unknown Speaker: The entry requirements for the two schools are quite bit different than other schools.

Mr. Alan H. Gilbert: Your Honor, yes the...

Unknown Speaker: Doesn’t Philadelphia currently anticipate a higher grade of student in the two schools and...

Mr. Alan H. Gilbert: Your Honor, the pertinent comprising would be between Central and Girls High School and the academic students at the Comprehensive High Schools and no such study was done a study.

A study was entered between and there is the evidence comparing the Comprehensive High Schools in total to from Girls..

Unknown Speaker: If the education at the Boys school and the Girls school in Philadelphia, these two schools we are talking about.

If the education of those two schools is better generally than in the Comprehensive High Schools, the only way that a young man or young girl can get that brand of education is by going to a single gender school.

Mr. Alan H. Gilbert: Your Honors, the major premise is the one which I would not agree with.

Unknown Speaker: I just said it to say, I did not put it as premise I said if…

Mr. Alan H. Gilbert: If that were the case, Your Honor then I would agree that there would only be the two schools to go to.

Unknown Speaker: If you want to call the premise -- on that premise the only way a person can get that level of education is by going to a school, either all boys school or all girls school.

Mr. Alan H. Gilbert: And that would be correct Your Honor.

Unknown Speaker: I take that the part of the argument that you complied, there is a freedom of states and their subdivision to experiment in a educational matters…

Mr. Alan H. Gilbert: Yes Your Honor, the opinion of this court, decision of this Court in various cases – as recently as San Antonio Independent School District v. Rodriguez has stated that it is important for the local educational bodies to have the ability to be flexible and that in its approach to educational methodologies as long as there is no inequality, no invidious discrimination between individuals.

Unknown Speaker: How long as this experiment of separate races has been going on until about 100 years?

Mr. Alan H. Gilbert: Separate sexes Your Honor.

Unknown Speaker: Yes.

Mr. Alan H. Gilbert: These two schools have been an existence for a 100 years.

Unknown Speaker: It is not an experiment, is it?

Mr. Alan H. Gilbert: This particular mode of education I think is being reevaluated and reexamined as recently as the last month in the study which I cited in the brief, educators have come out with a conclusion that it maybe better for students to be educated at single sex schools and just because the policy evolved in the nineteenth century as we admit that it did, does not mean that educators cannot reexamine it and experiment again with it.

Unknown Speaker: Well, I suppose, for example, in the field of corrections in this country, we have been in the business now for nearly 200 years.

The states are still experimenting and -- there is a widespread view that we haven’t discovered the right solutions yet.

So there is nothing wrong with experiments that go long for 100 years as long as that.

Mr. Alan H. Gilbert: I would agree Your Honor and that maybe particularly true in education.

Educators have an ability to reexamine their prior methodologies and say that they would like to try different type of education and maybe this would be better.

Unknown Speaker: Mr. Gilbert, does the record tell us when the Philadelphia School Board last reexamined this question of whether there should be separate schools for the two?

Mr. Alan H. Gilbert: Your Honor the record doesn’t tell us that, but the School Board every year passes on the budget for the schools...

Unknown Speaker: But does it tell us whether the issue has ever been presented to the board as to whether or not, one or both of these schools should be made coeducational.

Mr. Alan H. Gilbert: Well Your Honor, the board directly defends to this case.

Unknown Speaker: Other than the fact that they authorize to defense of the case.

Mr. Alan H. Gilbert: Not on the record Your Honor, but the.

Unknown Speaker: So then the record does not tell us why the board has adapted its policy does it?

Other than -- somebody sue the board.

Mr. Alan H. Gilbert: When the superintendent of schools, the Chief Executive Officer of the Board stated in his deposition testimony that the advantage of the two schools and this in the record indeed, as an educator he explained that its parents and students – providing for parents and students an option, then the students and parents that prefer that kind of atmosphere speaking of single sex schools.

I think we can do well to provide that for those who want the opportunity, so is something which the educational people in the school district have been examining it throughout.

I am sure there is a debate even in a school district, though there is co education or single sex, only get educators together -- there is lot of controversy.

Unknown Speaker: Yeah, but I take that your task is conceding that you must justify what you are doing here to some extent.

Let us assume that we take -- accept your position that two school are for all intents and purposes equal, and that there is no substantial difference between the two in terms if educational opportunity.

You say the case is automatically over then?

Even if that is true then nevertheless there is a gender based classification here and people are treated, or accept the schools or another based on the gender, and do you think the Sate must justify the even if the schools equal must the state justify the classification to any extent or do you say, well, that is the end of it?

Mr. Alan H. Gilbert: I think the burden, I think the school district would not particularly concern but you have the burden of proof in this matter nor was he going to stand on that…

Unknown Speaker: Well, I am just asking, must there be some justification for the use of it, for the use of the gender classification.

Mr. Alan H. Gilbert: To show that it is not arbitrary or capricious, I think that is the extent of the burden that we had and I think we show that this is no an invidious discrimination case, I do not think we had to go any higher than that, we did go higher than that.

We showed that the classification is highly relevant…

Unknown Speaker: How convincing does your It helped submission have to be that there are solid educational reasons for having separate education for boys and girls?

Mr. Alan H. Gilbert: I think that the – that all we had to show was a rational basis.

It was done in Williams v. McNair stipulation.

Unknown Speaker: The lowest level of Equal Protection…

Mr. Alan H. Gilbert: Until we have to show because there is not an invidious discrimination here, and perhaps this court has recently stated in Craig v. Boren.

That way there is an invidious discrimination, perhaps there is a higher standard but this is not that case Your Honor.

The case, the most relevant President in this particular matter.

Unknown Speaker: Do you say if there were five experts on each side of this issue, five saying there was a solid basis for differential education and five of them saying there is just no advantage whatsoever, and the evidence was equally balanced you should win?

Mr. Alan H. Gilbert: Yes, Your Honor.

Unknown Speaker: Well, let suppose there were five one way and one on the other, is not the trial of facts totally free to accept the one, and reject the five if he wants to?

Mr. Alan H. Gilbert: I think that only the thing that trial of the fact was to determine, was whether there was a reasonable basis for this case not whether there was a preponderance of the evidence in a negligence matter or beyond the reason without an criminal matter.

We are just trying to show that we are not acting arbitrarily or capriciously, I think we did that.

The district court said we did that by virtue of the stipulations, we can add in there, the testimony of the exhibit from Dr. Jones who performed the study which really proved the Dr. James Coleman’s(ph) concerning the single sex and coeducation.

There is a controversy here, Your Honors.

Unknown Speaker: Mr. Gilbert, 7% of the students qualified for admission to one of these two schools, -- does the record tell us what percent of the students actually go to these schools?

There is how many of those who qualify elected to go to one of those single sex schools and how many elect to go a coed school.

Mr. Alan H. Gilbert: I must speak the record shows us that Your Honor.

Unknown Speaker: It doesn’t correctly show that both of these schools are somewhat under populated.

Mr. Alan H. Gilbert: At the time of this litigation, Your Honor, they were.

Unknown Speaker: This has contrasted to the most of the other schools 44.30 offices.

Mr. Alan H. Gilbert: Yes, at the time of the litigation, these two schools had less than capacity enrolment.

That is in the record, Your Honor.

Unknown Speaker: That is what I thought.

Mr. Alan H. Gilbert: From that we could nearly conclude that some part of persons were passing up the opportunity nor that Philadelphia lacked the exceptional -- and I think that we can conclude anything about it.

Unknown Speaker: I would not conlclude anything from that Your Honor.

I would like to respectfully submit that the school districts position as presented in its brief and indicates to the questions and pray that this Court affirms the judgment of the Court of Appeals for the Third Circuit, Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Gilbert.

Miss Wallis do you have anything further?

Rebuttal of Sharon K. Wallis

Ms Sharon K. Wallis: Yes I do Your Honor.

One thing I would like to attract the court’s attention at some point to the Exhibit A in our reply brief, which exerts all the high-school related information from one of the P-12.

I think you will find it gives you some overview and some information that will be helpful in considering this case.

Now, very briefly, the District Court reviewed every single one of the justifications that was proffered here and found that they were without mark, with respect to this particular case, and testimony was presented of two sorts, one of them, Dr. Jones’ study indicated at best that some male students may to some slight extent benefit from single sex education, that was based on study.

Unknown Speaker: Well, can I ask you the same thing, I asked your adversary.

Supposing, suppose that we -- contrary to your submission, we have concludes that the two schools were identical or equal or substantially equal, but nevertheless there is a gender based classification here, when we have to get to the question of separate, but equal, but do you think the city must justify the gender based classification at all on the assumptions that these schools are equal.

Ms Sharon K. Wallis: I think they must justify.

Unknown Speaker: And at what level, there is such a thing at different levels?

Ms Sharon K. Wallis: Well, I think that what this court has said really is that you must scrutinize the justification.

Let me give you an example.

They purported to prove and it does seem to be some of evidence to this extent that some female students benefit from single-sex education because they are afraid to express themselves in presence of boys of whatever it may be.

Let’s assume for the present purposes that that evidence is valid.

You cannot use that argument to sustain the continued existence of central as an all-male institution because what you are doing is excluding female students who may not belong in that category like Susan Vorchheimer who obviously is able to excel and….

Unknown Speaker: Well, if the city submits in good faith, then it is a fundamental belief that separate education gets better educational results.

Suppose I just submit that, and they say that’s the reason for it and there are some basis in the literature among the experts, for that belief, how close they must scrutinize exhibition.

Ms Sharon K. Wallis: You have to examine it.

And you have to examine it first to say, is it really relevant to their goal?

Now, and that is what the District Court did.

If it is true that some female students benefit from single-sex education; that is a reason for having a school for female students.

It is not a reason for refusing to admit female students to a Central High School, if they are in fact, female students who would benefit from Central.

So, you have to examine that.

Number two, they say there is expert -- there are education.

Unknown Speaker: Let me just stop you there.

Could you validly say that those female students should be given the privilege of attending an all-female school and yet males might feel the same way and they should not be given the privilege of attending an all-male school.

How could you do?

You are suggesting you could have co-educational and female, but you can't have male and female?

Ms Sharon K. Wallis: Well, that is another point that I am getting to.

Unknown Speaker: Well, it’s directly responsive to your point that that evidence is not relevant.

Ms Sharon K. Wallis: The question is in what way would suppose we are successful in this lawsuit and female students are admitted to Central High School.

Why would a male student want to go girls’ high, since he already has a coed academic school that he can go to, that Central High School?

Now, the next issue is, well, should he be able to go to a single-sex school?

He could also go to a single-sex school because the School District still has Thomas Edison, which is a single-sex comprehensive school.

So, he can go to an all-boy school too, which is the reason that they are preferred justification and the District Court said they say it is freedom of choice.

It can not be freedom of choice, that can not be the real reason because they do not offer choice to students who are interested in academic education and besides that…

Unknown Speaker: How do we know if that isn’t the real reason; they are psychoanalyzed people to find that out?

Ms Sharon K. Wallis: No, I think they have to address to a good judgment to it and in this….

Unknown Speaker: Well, and you allow some good judgment in the school board to say that this subject is in dispute and it has been in dispute for a couple of hundred years or at least a hundred and we are going to try the general run of schools, coeducational that we are going to try two special schools, one for boys and one for girls.

Ms Sharon K. Wallis: No.

Unknown Speaker: Anything irrational about that?

Ms Sharon K. Wallis: I am not suggesting in this argument that they could not do that.

They have two comprehensive schools, Edison and Kensington.

They may maintain those schools under, what we are asking for a year, as single-sex schools, as options for those students who would choose single-sex education.

What we are saying is that you can not take, number one, the best school of a system and number two, you can not take the only academic schools and make them entirely single-sex.

That is the problem here that students who choose academic schools are not given a choice and that is why you can not say this is in order to provide freedom of choice; that is what the District Court said because you are only providing freedom of choice to the people who choose a single-sex academic high school and you do not have any idea who would choose a coed academic high school because you do not offer that alternative.

Unknown Speaker: That statement you have just made clearly responds to Mr. Justice Marshall’s question that’s separate, but equal is unconstitutional; the statement you’ve just made.

Ms Sharon K. Wallis: In this case, this is what I have to say, but I have not said and I do not think I have to say in this case that it would not be permissible for the School District to maintain single-sex schools and they do, have two others as well as a female school.

If they could justify those and the only way to justify them on the theory that they are based on freedom of choice is to show that a full range of choices are generally available, which is not the case here.

Unknown Speaker: Ms. Wallis, I noted which you haven’t made here, statutory argument nor indeed that Mr. Gilbert, you weigh that or you won’t rely on it, just if we did not give you an opportunity to or the time limitations didn’t?

Ms Sharon K. Wallis: If you want me to respond to that.

Unknown Speaker: No, I just want you to – why didn’t you?

Ms Sharon K. Wallis: The reason I did not was -- there are two reasons; one, I think that the constitutional argument is much narrow.

If you decide the case on the statute and the only way that will avoid the constitutional argument, then you must decide that all schools must be coeducational because that is what the statue would say and I do not believe that -– that’s broader than the relief that we are asking for in this case and therefore I would not urge it on this court and I think there is a Section 5 problem, which is raised by the United States, which I think is much more difficult again than the constitutional problem here, so I think it only creates difficulties.

It is better to decide it on the narrower constitutional grounds.

Chief Justice Warren E. Burger: The case is submitted.

Thank you, counsel.