History demonstrates that sex and racial segregation in education has supported gender and hierarchies and the attendant subordination of African Americans and white women. For example, when public education became available for Blacks, its primary purpose was to prepare males and females alike to work. To the extent that gender-based educational opportunities were available, they were to train Black women for the social roles relegated to them - as domestics, for example - and to compensate for their perceived moral shortcomings. For white students, sex segregated education was key to perpetuating the cult of true womanhood, which, in turn defined and privileged white masculinity and white femininity. Thus, state-established schools for "white girls" prepared their charges to take their rightful places as keeper of home and hearth. The lasting nature of the sex- and race-based stereotypes underlying these forms of education were particularly apparent during the effort to racially desegregate schools in the wake of the Supreme Court's decision in Brown v. Board of Education. In this context, recalcitrant southern school districts resorted to sex segregation as a way to "dull the edge" of integration.

With this history, the article examines current efforts to segregate students based on sex, which reveals the intransigence of the racial and gender stereotypes, and the limitations they impose on students' educational opportunities. The article thus argues that critical examination of single sex schooling, considering the intersection of race and gender, at a minimum, is necessary to ensure that current efforts do not perpetuate subordination of already under-served students.

The article examines the Brown Fund Act within several contexts to assess its efficacy as a remedy and as a form of reparations. Specifically, the paper examines key aspects of Virginia's history and finds that state imposed limits on educational opportunities were part of larger systemic subordination of African Americans. Thus, for example, laws proscribing literacy for slaves, limiting the franchise for Blacks, denying integration in schooling, and enabling Black taxpayer dollars to be diverted to white schools combined to maintain a caste system in which Blacks perpetually would occupy the lower rungs. Viewed in this light, the Brown Fund Act is only a partial remedy and not truly reparative.

The article thus concludes by building upon the work of Professor Eric Yamamoto, and others, who have posited that reparations should emphasize material change by, inter alia, repairing institutions that have been tainted by state-sanctioned, state-enforced subjugation. The institution in need of repair in this instance is public education. In this regard, the paper explores a variety of legislative measures the state should pursue to effectuate such change and provide justice that it so long denied its Black citizens.

To make this case, the article is divided into three parts. Part I discusses Zelman in greater detail, first examining the issue of public education reform as a matter for feminist concern and then exploring the troubling implications of the privatization of education embodied in the choice the Court upheld. This Part notes private choice must be interrogated carefully to ensure it does not reinforce the subordinating social order. Part II discusses feminist legal theory concerning decisional autonomy to identify principles that may be useful to effect social change in public education, and thus urges the recognition of a positive right to parental autonomy grounded in the Fourteenth Amendment and its roots in post-Reconstruction efforts to provide Blacks 8 agency with respect to their families. Part III then applies those principles to the context of Zelman to argue that, in light of the district's long history of discrimination - which it refused to remedy - the state had an affirmative obligation to provide parents with meaningful choices that dismantled the racially subordinating system of education. In failing to do so, the state unreasonably interfered with the Cleveland parents' positive right to make meaningful decisions concerning the education of their children.

The "unique dispute resolution mechanism,” while critical to Canada's acceptance of the FTA to ensure impartiality, stirs controversy in the United States. In addition to criticism of the binational panel provisions on political and economic grounds (reflecting concealed protectionism and internal tensions between the Executive, the Congress, and the courts), the Congress considered and rejected speculation that these provisions may be constitutionally infirm. Though congressional approval has quelled the policy controversy, hidden in the constitutional question is distrust over a perceived protectionist bias of the International Trade Court and the Court of Appeals for the Federal Circuit in their present judicial review function. Some of the fears of the Canadians and United States free traders are well-known in the subsidy and dumping cases, and judicial review of agency orders in the United States has gone both ways. Nonetheless, for as much disinterestedness and impartiality in reviewing orders as possible under the FTA. including as much insulation as possible from unilateral statutory changes, the Canadians insisted and the United States negotiators agreed to Party election to have binding review of these orders in a binational forum outside domestic judicial control.

This article addresses those constitutional issues relating to the binding binational panel review provisions that may surface under the FTA. We wish to appraise these issues, to appraise ways in which potential difficulties have been resolved by the implementing statute, and to determine whether any other constitutional questions might properly be considered by federal courts in the United States.