Experts Question Legality of High School for Gays

NEW YORK – When news surfaced that Harvey Milk High School (search), a fully accredited public school for gay, lesbian, bisexual and transgendered students, would expand its programs to become a fully-fledged high school next month, many education experts were surprised to learn that classrooms could be legally segregated based on sexual orientation.

"I thought it was a joke when I first read it," Krista Kafer, senior education analyst at The Heritage Foundation (search), said of the New York City high school. “It seems like an unfortunate and controversial use of taxpayer money. I would have no issue with it if it were a private school.”

In fact, one concerned group led by state Sen. Ruben Diaz (search) filed a lawsuit Wednesday in the state Supreme Court alleging that the school violates state anti-discrimination policies in schools.

They weren't the only ones taken aback by the announcement that public funds would be used to run the Harvey Milk project.

Educational reform advocate and Foxnews.com columnist Joanne Jacobs said she was sympathetic to the needs of gay students, but wary of educational policy that would remove them from public classrooms — a policy reminiscent of racial segregation a half-century ago.

“I think we should be very reluctant to separate students, especially about something that's not about education,” Jacobs said. “Learning is the same, gay or straight.”

New York Conservative Party Chairman Mike Long (search) said he was outraged by the project, which has been running since 1984, and argued that the program is illegal and an example of special-interest politicking in education.

"I think this was clearly to appease somebody or a group of people, and those that were involved — I'm sure with the best of intentions — thought this was a good idea, when, in fact, this is an idea gone mad," Long said.

But according to some legal experts, separating students based on sexual orientation is legal.

Steven Goldberg, a professor of education law at Arcadia University, said that a state government's obligation to provide a public education doesn't prohibit it from implementing group-specific education.

"Because blacks are protected under the equal protection clause of the 14th Amendment, to single black students out — even for their own benefit — is clearly unconstitutional," Goldberg said.

On the other hand, Goldberg said, separating gay students can be legally justified in the same way that special-education classes, gifted classes and before-school prayer groups are justified.

"Ironically, because [gays] don’t have equal protection under the Constitution, there's nothing wrong [with] segregating them legally, particularly if they're doing it voluntarily," Goldberg said.

The Supreme Court outlawed segregation in public schools in 1954 in the Brown v. the Board of Education (search) of Topeka decision, saying that it violated the equal protection clause of the 14th Amendment. The ruling required publicly funded schools to end the “separate but equal system” of segregation.

The Civil Rights Act (search) of 1964 extended protection to minorities and prohibited discrimination based on race, color and national origin, but legal protection did not cover sexual orientation, age or disability.

Sarah Strauss, a doctoral candidate at Columbia Teachers College who is studying the needs of gay students, said projects like Harvey Milk are desperately needed to address problems such as bullying, as well as the high dropout and suicide rate among gay kids.

"In the short term, at least the Harvey Milk school serves a pressing need for certain kids, but there are other gay, lesbian, bisexual, transgendered and questioning students in public schools in New York," Strauss said. "I think the next step is for the state to pass a law to prohibit discrimination based on sexual orientation."

Jonathan Plucker, director of the Indiana Education Policy Center at Indiana University, said that not enough research has been done to justify the Harvey Milk program.

"Coming at it from a research perspective, I'm a little perplexed about where the research is that says, 'This is a good idea,'" he said.

Although Plucker is wary of the timing of Harvey Milk, he said that if research shows that the program successfully addresses problems in providing an education to gay, lesbian, bisexual, transgendered and questioning students, it should be expanded.

"If the research comes out and says we're seeing really good benefits where we weren't before, I think society has only gained," Plucker said.

But Long said he isn't convinced. He's working with a Christian law advocacy group, the Thomas More Law Center (search), to examine the legality of the high school.

"Legal or not legal, it is a clear misuse of taxpayers' money," Long said. "You are creating a segregated environment in our school system."