(dissenting).
The majority opinion may be briefly summarized as follows:
The object of the [14th] Amendment was undoubtedly to enforce the equality of the two [sexes] before the law, but in the nature of things it could not have been intended to abolish distinctions based upon [sex], or to enforce social, as distinguished from political equality, or a commingling of the two [sexes] upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact with each other do not necessarily imply the inferiority of either [sex] to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for [male] and [female] children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of [women] have been longest and most earnestly enforced.
The quotation, with appropriate substitutions, will be recognized immediately as the analysis of Justice Brown, for the majority of the Supreme Court, in Plessy v. Ferguson, 163 U.S. 537, 544, 16 S.Ct. 1138, 1140, 41 L.Ed. 256, 258 (1896). No doubt had the issue in this case been presented to the Court at any time from 1896 to 1954, a “separate but equal” analysis would have carried the day. I was under the distinct impression, however, that “separate but • equal” analysis, especially in the field of public education, passed from the fourteenth amendment jurisprudential scene over twenty years ago. See, e. g., Brown v. *889Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).1 The majority opinion, in establishing a twentieth-century sexual equivalent to the Plessy decision, reminds us that the doctrine can and will be invoked to support sexual discrimination in the same manner that it supported racial discrimination prior to Brown.
But the resurrection of the “separate but equal” analysis is not my most serious quarrel with the majority opinion. What I find most disturbing is the majority’s deliberate disregard of an express Congressional finding that the maintenance of dual school systems in which students are assigned to schools solely on the basis of sex violates the equal .protection clause of the four- • teenth amendment. § 203(a)(1), Equal Educational Opportunities Act of 1974, 20 U.S.C; § 1702(a)(1) (Supp.1976). So long as Congress has acted within the sphere of its legislative competence in making such a finding, I submit, we are not free to substitute a “separate but equal” legislative judgment of our own. Because I conclude that Congress has acted to prohibit the maintenance of single-sex public schools pursuant to its powers under § 5 of the fourteenth amendment, I dissent from the majority’s substitution of a “separate but equal” legislative judgment. I would affirm the decision below.
I
Susan Vorchheimer, the named representative of the class bringing this action, was, when this case commenced, a tenth-grade student at George Washington High School, a co-educational comprehensive, as distinguished from an academic, high school. Upon graduation with honors from Masterson School, an academic junior high school, Vorchheimer applied to Central High School, one of two senior academic high schools in the Philadelphia School District which limit their enrollment to scholastically superior students. Admission to Central High School is, and has been since its founding in 1836, open to males only. The other senior academic high school is Philadelphia High School for Girls, which, as its name implies, admits only females. Vorchheimer is a scholastically superior student qualified to attend a school in which enrollment is limited to such students, and she chose to do so. But she chose to attend Central rather than Girls High because of Central’s academic reputation and her favorable personal reaction to its atmosphere as compared with Girls and a number of other senior high schools she visited. Her application for admission to Central, however, was denied solely on the basis of sex. Having met the qualifications for admission to an academic high school, she could be assigned either to Girls on the basis of her sex or to a non-academic high school within the district on the basis of her residence.
The majority opinion ironically emphasizes that Vorchheimer’s choice of an academic high school was “voluntary”. It was “voluntary”, but only in the same sense that Mr. Plessy voluntarily chose to ride the train in Louisiana. The train Vorchheimer wants to ride is that of a rigorous academic program among her intellectual peers. Philadelphia, like the state of Louisiana in 1896, offers the service but only if Vorch-heimer is willing to submit to segregation. Her choice, like Plessy’s, is to submit to that segregation or refrain from availing herself of the service.
II
On August 21, 1974, Congress passed a series of amendments to the Elementary and Secondary Education Act of 1965, 20 U.S.C. §§ 241a et seq. One of these amendments was the Equal Educational Opportunities Act of 1974 (hereinafter E.E.O.A.), 20 U.S.C. §§ 1701-1758 (Supp.1976). Section 202(a)(1) of this Act declared it to be the public policy of the United States that “all *890children enrolled in public schools are entitled to equal educational opportunity without regard to race, color, sex, or national origin.” 20 U.S.C. § 1701(a)(1). Had Congress stopped there one could argue, as the majority does, that a policy of “equal educational opportunity” does not preclude a “separate but equal” analysis, at least outside the racial context. But Congress went further. Relying specifically on the legislative authority conferred by § 5 of the fourteenth amendment, it made a series of legislative findings in § 203, the most important of which for the purpose of this appeal was that:
(1) the maintenance of dual school systems in which students are assigned to schools solely on the basis of . sex . . . denies those students the equal protection of the laws guaranteed by the fourteenth amendment. 20 U.S.C. § 1702(a)(1).
We are thus confronted with an explicit legislative finding that the maintenance of a dual school system on the basis of sex violates the equal protection clause. Philadelphia operates such a system in its senior academic high schools. We need look no further than this legislative finding in order to find a violation for which 42 U.S.C. § 1983 provides a remedy. But Congress was not content, as the majority suggests, merely to 'assert broad legislative findings that might later prove to be inconsistent with or unrelated to its specific statutory scheme, for it defined in § 204 of the amendment a number of unlawful practices based on its findings. 20 U.S.C. § 1703.
Section 204 states in pertinent part that:
No State shall deny equal educational opportunity to an individual on account of his or her . . . sex by—
(c) the assignment by an educational agency of a student to a school, other than the one closest to his or her place of residence within the district in which he or she resides, if the assignment results in a greater decree of segregation- of students on the basis of . sex . among the schools of such agency than would result if such student 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(c).
This subsection says that a pupil ■ assignment system which results in increased segregation by sex, as well as race, color or national origin, over what would result in a neighborhood assignment system, is unlawful. At first blush Philadelphia may not appear to operate a neighborhood school assignment system, as that term is used in § 204(c), for its academic high schools since eligibility for enrollment at those schools is determined by scholastic excellence rather than residence within a designated area. The majority opinion contends that § 204(c) is inapplicable to the factual setting of this case because the “ ‘neighborhood school’ concept which was so much a part of the busing dispute” was not “an attempt to abolish single-sex schools.” But this view fails to consider Congress’ understanding of the meaning of neighborhood school assignment which is disclosed in another subsection of the E.E.O.A. Section 206, 20 U.S.C. § 1705, provides in pertinent part that:
[T]he assignment by an educational agency of a student to the school nearest his place of residence which provides the appropriate grade level and type of education for such student is not a denial of equal educational opportunity or of equal protection of the laws unless such assignment is for the purpose of segregating students on the basis of . sex . . (emphasis added).
It is clear that this subsection must be read in conjunction with § 204(c), for it further clarifies and reenforces the meaning of that provision. Section 206 states that the lawful neighborhood assignment system outlined in § 204(c) also includes the school nearest the student which provides the “appropriate grade level and type of education” unless assignment to that school is for the purpose of segregation on the basis of race, color, sex or national origin. Thus, by assigning academically gifted students to *891Central or Girls on the basis of sex, the Philadelphia School Board assigns students in a manner which results in greater segregation of students by sex than if it assigned students solely on the basis of the nearest senior academic high school. The Philadelphia dual system for scholastically superior students not only falls within the legislative finding of the denial of equal protection of the laws, but is also a specified unlawful practice under § 204(e).
While I agree with the majority that the language of § 204(c) must be read with an appreciation of the heated debate over the school busing issue, I cannot agree that this contextual background justifies ignoring the plain language of both the legislative finding in § 203(a)(1) and the specified unlawful practice in § 204(c). Indeed, even in the remedial sections of the E.E.O.A., which are not applicable to the case sub judice, Congress has emphasized the prohibition of segregating public school students on the basis of sex. See § 216, 20 U.S.C. § 1715. If Congress-was not talking about single-sex schools in the provisions quoted above, what was it talking about? A more blatant disregard of the plain meaning of ordinarily well understood words of our common language — “dual school systems”, “sex”, “assignment by an educational agency of a student to [a] school” — can hardly be imagined. We may not like what Congress has done in enacting this statute but we cannot, as the majority does, simply ignore it. The statutory language of the E.E.O.A. convinces me that Congress did not inadvertently add the word “sex” to the list of prohibited bases for assigning public school students, but included it in those subsections with the express objective of abolishing single-sex public schools.
Rather than discuss the statutory language of the E.E.O.A., the majority engages in an extensive analysis of what Congress did not say or do in enacting that statute. Focusing on what it alleges to be congressional silence on the issue of school assignment on the basis of sex during the hearings and debates on the E.E.O.A., the majority finds an ambiguity in the statute and concludes that “a realistic and, in our view, inescapable interpretation is that Congress deliberately chose not to act and to leave open the question of single-sex schools.” This is certainly a novel use of legislative history, or more precisely, of legislative non-history as a tool for statutory construction. The majority argues that Congress spoke clearly in 1972 when it did not enact legislation prohibiting single-sex schools and that the silence of the ninety-second Congress should control this court’s interpretation of the words the ninety-third Congress used in enacting the E.E.O.A. in 1974. Congressional silence, especially that of a different Congress, I submit, can never be used to supersede the otherwise clear language of a statute.
Moreover, the majority opinion relies on a misreading of the legislative history of the E.E.O.A. Judge Weis writes that at some point prior to its being passed by the House, §§ 201(a) and (e) of H.R. 13915, the Equal Educational Opportunities Act of 1972, included the word “sex” among the prohibited bases for segregating or transferring students respectively. The majority then asserts that the word “sex” was deleted from those sections without discussion, and from this alleged congressional action draws support for its view that the 1974 legislation is equivocal and anomalous on the subject of single-sex schools. Apart from the issue of the relevance of this alleged action by a different Congress to the proper statutory construction of the plain language of § 204(c) of the E.E.O.A. in which the word “sex” is explicitly mentioned, the majority’s description of the 1972 proceedings is inaccurate.
On March 20, 1972, Representative McCulloch, speaking on behalf of Representatives Quie and Gerald Ford, introduced the Equal Educational Opportunities Act of 1972. This bill was modelled in large part after President Nixon’s proposals on schools and busing which were sent in a message to Congress on March 17,1972.2 At this stage H.R. 13915 did not mention sex in connec*892tion with the existence of dual school systems or the denial of equal educational opportunity. Only race, color and national origin were designated in the unlawful practices section as prohibited bases for segregating, assigning or transferring students. However, after 16 days of extensive hearings, the House Committee on Education and Labor reported an amended version of the McCulloch bill which included sex among the prohibited bases for assigning students in § 201(c) as well as in § 2(a)(1) of the policy and purpose section and § 3(a)(1) of the congressional findings section.3
A comparison of the language of the amended version of H.R. 13915 as it was reported out of the House Committee on Education and Labor and read to the entire House prior to passage, with that of the original McCulloch bill as it was introduced, is provided in H.R. 13915, 92nd Cong.2d Sess. (1972). Contrary to the majority opinion’s position, this comparison reveals that the word “sex” was never included in §§ 201(a), (e) of the Equal Educational Opportunities Act of 1972. Some confusion, however is created by Representative Pu-cinski’s Section-by-Section Analysis of the Equal Educational Opportunities Act of 19724 in which he states that “sex” is included in §§ 201(a), (e). His analysis, however, does not correspond to the actual language of the Act. It is this unofficial version rather than the official language of H.R. 13915 which Judge Weis quotes in the majority opinion. The majority again engages in a novel and impermissible use of legislative history. Finding an unofficial version of the bill which conflicts with the language of the bill itself, the majority adopts the former for the sole purpose of advancing its argument that the House of Representatives was unclear regarding the objectives of H.R. 13915 in 1972, and that the entire Congress was unclear regarding the objectives of the E.E.O.A. when it passed that legislation in 1974. The majority’s assertion, however, indicates only that either a particular congressman was confused about the language of H.R. 13915 in 1972 or that Congress inartfully drafted the E.E.O.A. in 1974 when it modelled that statute after the 1972 bill. If we were congressmen we might want to rewrite the E.E.O.A. to include sex in §§ 204(a) and (e). But as a court we must rely upon the language of the statute as written by Congress and resort to legislative history only to help clarify an ambiguity.
If there were some ambiguity regarding the applicability of § 204(c) to the facts of this case, and I believe none exists, the limited 1974 legislative history of the E.E. O.A. on this issue supports the interpretation I espoused above. Because it was pri*893marily an anti-busing amendment, the principal focus of the debate on the Esch amendment 1974 to the Elementary and Secondary Education Act of 1965 was on busing to achieve racial desegregation. Relative silence on the matter of sex discrimination is not surprising, since busing has not thus far been an issue in the sex discrimination context. But there was not, as the majority states, total silence on the subject of sex discrimination in the assignment of students. Congressman William Ford, a co-sponsor of the Esch amendment, explained the proposal in these words:
The amendment we now have before us would prohibit these types of [dual] school systems and it would prohibit the assignment of students to a school, based on race, color, sex, or national origin. 120 Cong.Rec. H 2161 (March 26, 1974) (emphasis added).
An alternative proposal to the Esch amendment was offered by Representative Anderson. This amendment, however, did not include sex among the prohibited bases for assignment of students.5 But Congressman Anderson’s proposal was rejected.6 In view of this evidence we cannot assume, as the majority does, that Congress did not intend to prohibit the assignment of students on the basis of sex. Congress expressly added sex to the list of prohibited bases for student assignment and consistently refused to delete it.
In summary, some congressmen, reading the majority opinion, certainly will say, as Samuel Shellabarger said with reference to the Supreme Court’s interpretation of the fourteenth amendment m Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874), 22 L.Ed. 627 and United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876), that “many of the framers of these amendments received information regarding their intentions which was new . . . .”7
III
The wording of the E.E.O.A. strongly suggests, if it does not compel, the conclusion that it was drafted with an eye to Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966).8 Having found that the E.E.O.A. governs this case, we are squarely presented with the precise issue which, according to the majority, we have no need to consider — the extent to which Congress may determine what activity constitutes a violation of the equal protection clause of the fourteenth amendment. The starting point for the consideration of that issue is the text of § 5 itself:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Is the legislative finding that pupil assignment by sex violates equal protection “appropriate legislation”? In answering that question we can set to one side two rather difficult problems. Certainly state action is involved when the Philadelphia School board makes pupil assignment decisions.9 Thus, we are not confronted with the question of the extent of congressional power to reach private action by legislation pursuant to § 5.10 Nor are we confronted with an attempt by Congress to contract rights to *894equal protection already determined by the Supreme Court.11 Congress eschewed any such attempt by concluding its legislative findings in § 203 with the caveat “that the provisions of this chapter are not intended to modify or diminish the authority of the courts of the United States to enforce fully the fifth and fourteenth amendments to the Constitution of the United States.” 20 U.S.C. § 1702(b). Here we are dealing only with a case in which, arguably, Congress has gone further in defining the substantive content of the equal protection clause than have the courts.12
I say arguably Congress has gone further than the courts, because at this point in the analysis I do not take a position as to the correctness of the majority’s treatment of the sex discrimination cases. But for present purposes I am willing to assume that no case has definitely ruled that a sex-based dual school system violates the equal protection clause. So assuming, analysis of the reach of congressional power under § 5 requires still a further refinement. We should distinguish between issues upon which the courts have not ruled, and issues on which the courts have previously rejected an equal protection challenge.
The majority opinion, pointing to Williams v. McNair, 316 F.Supp. 134 (D.S.C. 1970), aff’d, 401 U.S. 951, 91 S.Ct. 976, 28 L.Ed.2d 235 (1971) (per curiam), assumes that the Court has rejected an equal protection challenge to a sex-based dual school system. I have serious reservations about the precedential value of the Court’s summary affirmance in Williams v. McNair, since for all we know the Court’s reasons for affirming the judgment of the three judge district court were other than those relied upon by that court in its opinion.13 But setting aside those reservations, if Williams v. McNair, supra, means what the majority says it means, then this ease is controlled by Katzenbach v. Morgan, supra.
In Lassiter v. Northampton Election Bd., 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), the Court rejected a fourteenth amendment challenge to the North Carolina English literacy requirement for the exercise of the franchise. In § 4(e) of the Voting Rights Act of 1965, 42 U.S.C. § 1973b(e), Congress provided that no person who has successfully completed the sixth primary grade in a public school or accredited private school in Puerto Rico in a language other than English shall be denied the right to vote in any election because of his inability to read or write English. New York voters challenged the constitutionality of the congressional enactment in Katzenbach v. Morgan, supra. Justice Brennan wrote for the Court:
We hold that, in the application challenged in these cas.es, § 4(e) is a proper exercise of the powers granted to Congress by § 5 of the Fourteenth Amendment and that by force of the Supremacy Clause, Article VI, the New York English literacy requirement cannot be enforced to the extent that it is inconsistent with § 4(e). 384 U.S. at 646-47, 86 S.Ct. at 1721, 16 L.Ed.2d at 833.
Thus, Congress effectively determined that a state law violated the fourteenth amendment and set it aside even though the Supreme Court had previously rejected an identical challenge. On the authority of Katzenbach v. Morgan, supra, we must hold that the legislative findings in § 203(a)(1) *895and the prohibition in § 204(c) are proper exercises of the powers granted to Congress by § 5 of the fourteenth amendment, and that by force of the supremacy clause the Philadelphia sex based dual school system for academically gifted high school students cannot remain in operation.
The Katzenbach v. Morgan holding has spawned an extensive literature about the respective roles of the Court and Congress, and Congress and the States.14 Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), in which there is no opinion of the Court and no majority consensus as to the reasons in support of its judgment, shows at least that, just as with its commerce clause powers, the congressional powers under § 5 of the fourteenth amendment are not unlimited. One could imagine a congressional enactment of an equal protection standard striking down a state classification that is so arbitrary and unreasonable that the Court would reject it. But at the present stage of evolutionary development of our social institutions a court would be foolhardy indeed to suggest that congressional rejection of a state’s gender based classification fell into that category.
Assuming, as the majority does, that Williams v. McNair, supra, is authority for a separate but equal treatment of the sexes in public education, one would still have to conclude that the legislative finding of § 203(a)(1) — that separate is not equal for purposes of the fourteenth amendment— has overruled it. Indeed, from an historical perspective, section 5 of the fourteenth amendment would have allowed Congress, had it possessed the decency and will, to overrule Plessy v. Ferguson, supra, at any time between 1896 and 1954. Had Congress done so, I suggest, it would have carried the Court along with it. There is much to be said, I submit, in favor of congressional initiative rather than judicial activism in the unfolding of the full meaning of the equal protection clause. When Congress, reflecting the democratic processes, concludes that a state classification is unlawful, its conclusion has the advantage of the authority that comes from democratic consensus, while at the same time its conclusion remains subject to judicial review. When the Court acts similarly, there is neither the authority of consensus nor the safeguard of review by another branch. Thus, the Court should, it would seem, be appropriately deferential to state classifications, while acknowledging, as it did in Katzenbach v. Morgan, that Congress need not be deferential to the same degree. 384 U.S. at 651-56, 86 S.Ct. at 1723-1727, 16 L.Ed.2d at 835-838. Certainly Congress has a greater capacity than the Court to weigh the competing considerations. That is not to say, however, that when the Court has struck down a state classification the Congress may feel free to resurrect it. Id. at 651-52 n. 10, 86 S.Ct. at 1723-1724, 16 L.Ed.2d at 835-836.
IV
Thus far I have assumed that Williams v. McNair, supra, was precedential to the same extent as Lassiter v. Northampton Election Bd,, supra. If it is not, obviously the decision to defer to the Congressional legislative finding in § 203(a)(1) of the E.E. O.A. is far easier. The district court concluded, and I agree, that decisions subsequent to Williams v. McNair, supra, have deprived it of any precedential value it may have otherwise had, and have erected new standards for reviewing gender-based classifications which were not satisfied in this case by the Philadelphia Board of Educa*896tion. Certainly if Williams v. McNair, supra, is regarded as authority for the proposition that we review gender-based classifications by the rational relationship standard, it has been seriously undermined by subsequent cases. See, e. g., Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). The majority says that this case does not require a decision regarding the applicable standard because the classification satisfies either the rational relationship or the substantial relationship test. The district court concluded, and, I agree, that since Reed v. Reed, supra, the rational relationship test is regarded by a majority of the court as inapplicable to gender-based classifications.15
Unlike the majority, I find it particularly difficult to say on the basis of the record in this case that the exclusion of females from Central bears a fair and substantial relationship to any of the Philadelphia School Board’s legitimate objectives. Admittedly coeducation at the senior high school level has its supporters and its critics. The majority is also undoubtedly correct in suggesting that a legitimate educational policy may be served by utilizing single-sex high schools. But certainly that observation does not satisfy the substantial relationship test. Some showing must be made that a single-sex academic high school policy advances the Board’s objectives in a manner consistent with the requirements of the Equal Protection Clause. Reed v. Reed, supra, 404 U.S. at 76, 92 S.Ct. at 254, 30 L.Ed.2d at 229.
The Board, as the district court emphasized, did not present sufficient evidence that coeducation has an adverse effect upon a student’s academic achievement. Indeed, the Board could not seriously assert that argument in view of its policy of assigning the vast majority of its students to coeducational schools. Presumably any detrimental impact on a student’s scholastic achievement attributable to coeducation would be as evident in Philadelphia’s coeducational comprehensive schools which offer college preparatory courses as the Board suggests it would be in its exclusively academic high schools. Thus, the Board’s single-sex policy reflects a choice among educational techniques but not necessarily one substantially related to its stated educational objectives. One of those objectives, in fact, is to provide “educational options to students and their parents.” (App. at 38a). The implementation of the Board’s policy excluding females from Central actually precludes. achievement of this objective because there is no option of a coeducational academic senior high school.
Because I agree with the district court that the Board has not made the required showing of a substantial relationship between its single-sex academic high school policy and its stated educational objectives, I would affirm the decision below even if I were willing to ignore the pertinent provisions of the E.E.O.A.
. Chief Justice Warren, delivering the unanimous opinion of the Court, stated in pertinent part:
We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. . . . 347 U.S. at 495, 74 S.Ct. at 692, 98 L.Ed. at 881.
. See 118 Cong.Rec. 8928-34 (1972).
. I have found no discussion of why the word “sex” was added to these provisions in either the House hearings or the Committee Report accompanying H.R. 13915. See Hearings on H.R. 13915 Before the House Comm, on Educ. and Labor, 92d Cong., 2d Sess. (1972); H.Rep. No.92-1335, 92d Cong., 2d Sess. (1972). But this is not to say that the Committee was unaware that it was linking sex with the maintenance of dual school systems and the denial of equal educational opportunity, for it warned in its report that:
The provisions in the committee bill barring discrimination on the basis of sex are not meant to preclude separation of the sexes within schools for different courses, such as for gym classes. H.Rep. 92-1335, supra at 8.
This concern is reflected in the definition of segregation in Title V of H.R. 13915:
The term “segregation” is defined to mean the operation of a school system in which students are wholly or essentially separated among the schools of an educational agency on the basis of race, color, sex or national origin or within a school on the basis of race, color, or national origin, (emphasis added).
Unlike the majority I believe that in 1972 the House of Representatives consciously intended to include the word “sex” in these sections. It should not be forgotten that it was the ninety-second Congress which finally approved the proposed Equal Rights Amendment before it was submitted to the states for ratification. Certainly if the majority is willing to rely on a contextual background in 1972 to assist in the interpretation of 1974 statutory language, it should at least recognize that after more than two years of extensive consideration of a specific constitutional ban on sex discrimination, Congress probably was not acting inadvertently in dealing with single-sex public schools.
. This section-by-section analysis is included in H.Rep.No.92-1335, supra at 9-15, and reported as well in 18 Cong.Rec. 28836-38 (1972).
. 120 Cong.Rec. H 2166 (March 26, 1974).
. Id. at H 2177.
. S. Shellabarger’s Memorial Address on Chief Justice Morrison Waite, 126 U.S. 585, 600 (Appendix, 1888).
. During the course of debate in-the House in 1972 on H.R. 13915, Representative Pucinski, among others, argued that the bill was drafted on the basis of the authority granted in § 5 of the fourteenth amendment and defined by the Supreme Court in Katzenbach v. Morgan, supra, 118 Cong.Rec. 28835-36 (1972). See generally House Hearings on H.R. 13915.
. See, e. g., Brown v. Board of Education, supra.
. See United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J. 1353 (1964); Note, Fourteenth Amendment Enforcement and Congressional Power to Abolish the States, 55 Cal.L.Rev. 293 (1967). Cf. Communications Wkrs. of America v. American T. & T. Co., L.L. Dept., 513 F.2d 1024 (2d Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3067 (U.S. June 19, 1975) (No. 74-1601).
. Compare, e. g., Katzenbach v. Morgan, supra, 384 U.S. at 667-68, 86 S.Ct. at 1736, 16 L.Ed.2d at 844-845 (Harlan, J., dissenting) with id. at 651-52 n. 10, 86 S.Ct. at 1723-1724, 16 L.Ed.2d at 835-836. See Developments — Congressional Power Under Section Five of the Fourteenth Amendment, 25 Stan.L.Rev. 885 (1973).
. Unlike race, color and national origin, sex has not yet been declared a suspect classification by the Supreme Court. Compare, e. g., Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010, 1017 (1967) (race); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194, 198 (1944) (national origin) with Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (only four justices deem sex a suspect classification).
.But see Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975).
. Perhaps the most useful discussions are Cox, The Role of Congress in Constitutional Determinations, 40 U.Cin.L.Rev. 199 (1971), and Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv.L.Rev. 91 (1966). Other instructive commentaries include: Cohen, Congressional Power to Interpret Due Process and Equal Protection, 27 Stan.L.Rev. 603 (1975); Note, Federal Power to Regulate Private Discrimination: The Revival of the Enforcement Clauses of the Reconstruction Era Amendments, 74 Colum.L. Rev. 449 (1974); Developments — Congressional Power Under Section Five of the Fourteenth Amendment, supra note 11; Note, Fourteenth Amendment Enforcement and Congressional Power to Abolish the States, supra note 11; Frantz, supra note 11.
. It must be acknowledged that the appropriate standard against which a disputed gender based classification should be measured as synthesized from Reed v. Reed, supra; Frontiero v. Richardson, supra; Kahn v. Shevin, supra; Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); and Stanton v. Stanton, supra, does not spring from the pages of United States Reports with immediate clarity. But certainly there appears to be a majority consensus against the mere rational relationship test. See, e. g., Johnston, Sex Discrimination and the Supreme Court — 1971-1974, 49 N.Y.U.L.Rev. 617 (1974). See also Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8-10 (1972).