A New York City high school for gay students is making front-page news. The New York Post claimed an exclusive on its front page July 28, trumpeting, "GAY HIGH: New City School A First" about the Harvey Milk High School that the paper said is "devoted exclusively to gay kids." But the school, which is named after a member of the San Francisco board of supervisors (its city council) who was killed by a political rival, was actually founded in 1985 as a Board of Education program for clients of the Institute for the Protection of Lesbian and Gay Youth (since renamed the Hetrick-Martin Institute) It is the plan to expand the school from 50 to 170 students and its reclassification as a stand-alone high school that has attracted tabloid news interest and attacks from conservatives.

But it is also receiving scrutiny from civil libertarians, who frame the debate as a matter of civil liberties - for the non-gay students that they fear might be excluded from the school.

The debate comes at the same time that both the Pope and the president have weighed in on same-sex marriage, in an attempt to re-frame that debate from an issue of civil rights for gay people to one they might call moral rights for non-gay people: While "it's very important for our society to respect each individual," President Bush said, "on the other hand, that does not mean that somebody like me needs to compromise on issues such as marriage."

This is happening now because, thanks to recent events such as the Supreme Court ruling overturning state sodomy laws and the approval of an openly gay bishop in the Episcopal church, gay rights is looking like an increasingly accepted concept, and, thanks to changing attitudes worldwide, gay marriage is looking like an impending reality: Holland, Belgium, and parts of Canada have already opened marriage to gay couples, with Massachusetts expected to follow any day now by court decree.

With so much gay news around, it was probably hard for the Post to resist entering into the fray by claiming an exclusive. But the Hetrick-Martin Institute sent out a press release about the expansion of the Harvey Milk school way back in June 2002 after the Board of Education approved the $3.2 million necessary to renovate the space for the school and fund its operations. Since then, reporters have covered these plans on occasion, including me.

I actually worked for Hetrick-Martin myself from 1986 to 1995 as its director of education. The institute was one of the first agencies anywhere to recognize that HIV, with what we learned had an incubation period of about a decade, was a major threat to teenagers who could pick up the virus without developing symptoms until well into their 20s. Much of my job was to go out into mainstream schools educating young people and youth service providers about AIDS, but I also sometimes educated students from Harvey Milk.

The Harvey Milk High School program started under a Board of Education policy of making an onsite teacher available to any social service agency that had 20 or more young people who were not attending school. So, the board didn't vote to create a "gay school," it just did not discriminate against an agency whose clients were mostly lesbian, gay, bisexual, and transgendered - many of whom had been harassed and hounded into dropping out of school.

As much as the place made news from the beginning, with news camera crews chasing students down the block after school, so also from the beginning, a civil rights argument was used against it. Many educators, including United Federation of Teachers President Sandy Feldman, expressed reservations about what looked like a segregated learning environment. (She has since come around to seeing the need for the school.) Norman Siegel, then director of the New York Civil Liberties Union, was ready to try to stop the program from going forward on civil liberties grounds, but was dissuaded from doing so.

"I was told that it was for kids who had dropped out and that the program would help reintegrate them into mainstream schools," Siegel says.

Almost two decades later, Siegel, who is now director of the Freedom Legal Defense and Education Project, says that almost never happened, and he believes the school should be investigated for possible violations of the law, including a 2002 state law banning discrimination on the basis of sexual orientation. "If the parent of a non-gay student is turned down for the school, I would bring a complaint," he says. (There have in fact been non-gay students in the school, including a girl whose mother was lesbian; the girl had been subject to harassment in her previous school.) Siegel has a strong record of support for lesbian and gay rights, but says that when gay students are being bullied, "don't take the victim out of the school, take the bully out.

"We seem to be throwing in the towel on integration, on the 50th anniversary of Brown v. Board of Education," Siegel says. "The United States Supreme Court said that separate is inherently unequal. Schools that are all-black, all-female, or all-gay/lesbian offend that doctrine."

He is not alone in holding these views. "The city should never suggest that the solution to problems of discrimination and persecution of students who are perceived as different is to segregate them from the rest of the population," the New York Times wrote in a recent editorial about the Harvey Milk School. "The needs of gay teenagers can best be served by making sure that they, like all New York students, are able to attend regular public high schools in safety, free from bullying." In an Op-Ed in the same newspaper, a gay student also argued for mainstreaming, citing his own experiences.

Much the same arguments were used by the National Organization for Women against a school segregated by gender. In response to the establishment of an all-girls public school in East Harlem in 1997, NOW-New York City president Anne Conners said at the time, "While it's true that girls are discriminated against in school, this is a Band-Aid approach to educational equity. What we need is systemic change and the establishment of sex equity in all schools through such practical measures as increased funding for girls' sports and improved, mandatory teacher training."

There are several levels of irony in this debate, one of which is that it allows long-time opponents of gay rights to couch their arguments as one of compassion or civil liberties. For example, State Senator Ruben Diaz has also threatened legal action against the Harvey Milk School. "Instead of separating homosexual students," he told the Post, "schools should teach tolerance." Some may suspect Diaz's devotion to tolerance, since he once tried to block the Gay Games sports festival from taking place in New York because, he said, it might cause the spread of AIDS.

More ironic still: For all those years that Harvey Milk was a one-room schoolhouse helping a handful of students to complete their high school education, the Hetrick-Martin Institute was also part of the Education Coalition on Lesbian and Gay Youth, which was lobbying the school chancellor and Board of Education to make mainstream schools safe for lesbian and gay students. While chancellors from Nathan Quinones to Harold Levy agreed to limited staff training (mostly for guidance counselors), each resisted the kind of programming instituted by school systems in Los Angeles and San Francisco where each school designates a point person on gay issues who conducts training and is available to resolve conflicts.

Chancellor Joseph Fernandez was famous for pushing through an explicit HIV/AIDS education program in 1991, complete with condom availability (a program that has not been repealed but often goes unimplemented) and for trying to discipline School District 24 in Queens for resolutely refusing even to mention gay issues despite the mandates of the board's policy on multicultural education, which then included sexual orientation as a category. (The Board of Education later rescinded this at the behest of Mayor Rudy Giuliani). The myth at the time was that Fernandez was forcing schools to use the controversial second grade teacher guide, "Children of the Rainbow," which included a section on families headed by gay or lesbian parents among other family constellations. Fernandez in fact had only insisted that each district in its own way comply with policy by dealing with gay issues in some form by the sixth grade. The misunderstandings about Fernandez's position, fueled by the tabloid press, contributed to the board's refusal to renew his contract in 1993.

Mayor Mike Bloomberg is defending the Harvey Milk School, saying at a news conference on July 28, "Some of the kids who are gays and lesbians have been constantly harassed and beaten in other schools," insisting that the school "sort of solves that problem. It gets them an education without having to worry."

But even with an expansion of Harvey Milk to 100 and later 170 students, it is clear that, in a system with more than a million students, most lesbian, gay, bisexual, and transgender youth will remain in mainstream schools. Debra Smock, administrator of the Harvey Milk School, said, "In a perfect world, there wouldn't be a need for Harvey Milk School." But the question is whether this school will be used as an excuse to abandon efforts to change the anti-gay atmosphere in the vast majority of mainstream schools.

There is school anti-bullying legislation still pending in Albany and in City Hall, described in my civil rights column in May. But these are just the kinds of moves opposed by the most vigorous opponents of the Harvey Milk School.

Some school systems elsewhere, including in small Midwestern towns, have instituted programming for gay students in response to successful civil rights lawsuits brought by gay young people who were repeatedly harassed and beaten in school while the administration looked the other way. No such lawsuit has been brought in New York, but that is what it might take to get the Department of Education to do more than create the safety valve of a Harvey Milk School.

Andy Humm is a former member of the City Commission on Human Rights, and co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.