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New Department of Education Regulations Pave the Way for Public Single-Sex Schools and Classes, Part Two:
Will These Programs Be Constitutional and/or Good for Gender Equality?


Wednesday, Feb. 07, 2007

Last fall, the U.S. Department of Education adopted new regulations to provide public school districts with greater latitude to operate single-sex schools, and to offer single-sex classes within coeducational schools.

As I discussed in Part One of this series, these regulations mark a significant departure from previous regulations under Title IX of the Education Amendments of 1972, which had placed significant limits on the ability of public school districts (and private schools receiving federal funding) to educate students in single-sex environments.

In anticipation of the regulation change, the number of single-sex public schools has risen dramatically in recent years. Now, the formal adoption of new regulations will undoubtedly trigger another significant increase in such programs.

Will schools formed pursuant to these regulations be constitutional? If so, will they serve to enhance or to undermine gender equity? Little attention has been paid to either of these questions, despite the recent flurry of debate about single-sex education.

Legal Obstacles to Single-Sex Education in Public School Districts

There are two legal bases for public schools' obligation to comply with gender equity standards:

One is Title IX, which prohibits educational institutions that receive federal funding from discriminating on the basis of sex.

Title IX and its accompanying regulations once posed a significant barrier to public single-sex schools, and an even more significant one to single-sex classes. However, the new regulations reinterpret Title IX to provide greater flexibility for schools to operate such programs. (The prior regulations, and the significance of the departure made by the new ones, are discussed in the earlier column that is Part One of this series.)

The other is the Equal Protection Clause of the U.S. Constitution, which prohibits governmental entities from classifying persons on the basis of sex, without an exceedingly persuasive justification for doing so. Public schools still must follow the constitutional mandate of sex equality, as defined in a long series of Supreme Court cases decided over the last three decades. That brings us to the crucial question: Do single-sex schools or classes violate the Equal Protection Clause?

Constitutional Limits on Single-Sex Education

The constitutional status of public, single-sex education is not spelled out in black and white, but there are some discernible basic principles.

Under current constitutional doctrine, single-sex schools must have an "exceedingly persuasive justification" to survive judicial scrutiny. A program designed to overcome the hurdles to educational and employment opportunity faced by women and girls could potentially meet this exacting standard. However, neither of the single-sex programs to come before the Court fit this description - and hence, both were struck down.

First, in 1982, the Supreme Court in Mississippi University for Women v. Hogan struck down an all-female nursing school because there was no evidence women had been discriminated against historically in gaining access to the nursing profession. In fact, the opposite was true, as nursing was, and still is, a job predominately held by women. Excluding men from the school, the Court reasoned, would thus perpetuate, rather than break down, gender stereotypes.

Fourteen years later, the Court struck down the all-male admissions policy at the Virginia Military Institute (VMI) in United States v. Virginia. As with the all-female nursing school, the Court could find no affirmative action rationale to justify an all-male military school - a policy that would exacerbate, rather than ameliorate, existing gender inequalities in education. Moreover, the Court held that the State had failed to prove, as it had strenuously argued, that the exclusion of women was necessary to carrying out its educational mission.

While the VMI case did not formally change the standard for evaluating sex-based classifications under the equal protection clause, it articulated the standard in a way that seems to have more teeth: Sex-based classifications, the Court said in the VMI case, must be based on an "exceedingly persuasive justification" and must be "substantially related to the achievement" of the government's important objectives.

Moreover, the justification for a single-sex school or program must "be genuine, not hypothesized," and it must not rely on "overbroad generalizations about the different talents, capacities, or preferences of males and females." It must also not "perpetuate the legal, social, and economic inferiority of women."

Where do these decisions leave other public, single-sex schools? Justice Ginsburg, who wrote the majority opinion in the VMI case, specifically left open the possibility that single-sex schools could be found constitutional, but seemingly only if justified by a compensatory purpose. (This, incidentally, was also the required justification for most single-sex schools and programs under the prior Title IX regulations.)

Since educational opportunities have historically been denied to women significantly more often than they were to men, one might expect only female-only schools to survive judicial scrutiny. But the new Title IX regulations encourage school districts to act broadly to incorporate single-sex programming as to both sexes (rather than, say, exclusively offering single-sex programs that girls alone can opt into) and they say virtually nothing about the compensatory purpose the Constitution seems to require.

VMI also left open the possibility - though not the certainty - that separate but equal schools for boys and girls might survive heightened judicial scrutiny if they were truly equal. The alternate program for female cadets offered by VMI in its defense was so demonstrably unequal to the program male cadets enjoyed that the court never reached the ultimate question of whether separate programs could ever pass constitutional muster.

Single-Sex Elementary and Secondary Schools: Constitutionally Suspect?

Right off the bat, the new regulations raise constitutional flags. For example, they explicitly state that school districts can offer a school or program to only one sex, without a single-sex opportunity for the other. Under prior regulations, school districts could operate a single-sex elementary and secondary schools only if they made a comparable, single-sex school available to the excluded sex, or if it was justified by a compensatory purpose. This approach tracked the constitutional standards elucidated in Hogan and the VMI case.

Now, a district can operate separate schools for boys and girls for no reason at all. It is worrisome to invite districts to create single-sex schools whether or not they have a good reason for doing so.

And now, the only limit on such schools is that the opportunity offered to the excluded sex must be "substantially equal." But "substantially equal" and "genuinely equal" are not the same standard, and the "equal" alternative to a single-sex school for interested boys can be a coeducational school for everyone else.

The new regulations regarding single-sex classes (as opposed to schools) are even more constitutionally dubious. Previously, districts could offer single-sex classes or activities only when involving human sexuality or contact sports or when justified by a compensatory purpose.

Now, the new regulations, in contrast, accept a much broader range of justifications for operating single-sex schools and classes. Single-sex schools can be established without any justification, as noted above. Moreover, classes or activities can be restricted to students of one sex in order to either "improve educational achievement of its students, through [an] overall established policy to provide diverse educational opportunities," or "meet the particular, identified educational needs of its students." With respect to either objective, the regulations add, the single-sex nature of the program must be "substantially related to achieving that objective."

Neither of these objectives is focused on compensatory purposes. In addition, the "important objective" used to justify single-sex schools might simply be that the school wants to offer diverse educational opportunities, some of which are single-sex.

It's true that the Court in the VMI case left open the possibility that public entities might "evenhandedly . . . support diverse educational opportunities." But the regulations do not require "evenhandedness" in the operation of single-sex schools, nor do they require that single-sex opportunities be made available to both sexes if at all. This is a far cry from what the Constitution has been understood to require to justify a sex-based classification.

If the district's objective is the latter - to address the "particular, identified needs of its students" - one has to worry about the generalizations that will be used to identify "girls' problems" and "boys' problems." There is certain to be greater variation within each gender than between them, and, yet, the regulations invite districts to generalize by gender and to attribute problems that some boys or some girls may have to the rest of the group.

To be fair, because the regulations require that enrollment in public, single-sex schools and classes be entirely voluntary, the constitutional questions are a bit more complicated than they were in the Supreme Court's previous cases. However, it's still very much worth noting that the regulations are largely written as if the Supreme Court's prior decisions did not exist - flouting major elements and ignoring major tests and factors from these cases.

Single-Sex Education and Gender Equity: Potential Benefits, Potential Harms

Even if public single-sex schools and classes are constitutional (or, at least, not invalidated by a court on that basis), should feminists embrace them?

Probably not -- at least, not according to the broad, undifferentiated way the new regulations take. While a single-sex program could be operated in a way that enhanced gender equality, there are few if any safeguards built into these new regulations to ensure the opposite doesn't occur.

The research is mixed on whether single-sex education helps or hurts women and girls. There is clearly evidence that some students can benefit in some circumstances from single-sex education. Such environments may counteract stereotypes about girls' subjects and boys' subjects (and the corresponding stereotypes about careers later on). They may also provide less distracting educational environments that permit more time to be spent on academics.

Ideally, a single-sex school could provide girls with opportunities for leadership and advancement that they are sometimes deprived of in coeducational environments, because of discriminatory behavior by teachers, or domination by male peers. A single-sex environment might also counteract social pressure for girls to pursue "feminine" interests (through curricula designed to emphasize traditionally male-dominated subjects such as math and science), diminish girls' focus on appearance and dress, and permit girls to learn without facing sexual harassment or intimidation from peers. And some districts have shown increased test scores as a result of assigning boys and girls to different classrooms.

There may also be benefits for boys in single-sex education, though the research on that question is even less conclusive. Many scholars have argued that boys are best served by coeducational environments, while others have made limited claims about the benefits of all-boys' education for males from disadvantaged backgrounds.

But in its worst form, girls and boys can be deeply harmed by single-sex education. Single-sex curricula might simply serve to perpetuate existing stereotypes about the different abilities, interests, and learning styles of boys and girls. To take just one example, a study of public, single-sex classes in California found that in the Social Studies unit on the Western frontier, girls were taught to quilt and sew, while boys watched the movie "Alive!" and were taught outdoor survival skills.

Single-sex programs can be useful. The Young Women's Leadership School of East Harlem, for example, is an incredible success story, boasting excellent graduation and college admission rates for a group of female students drawn from a very disadvantaged population. But the regulations make no attempt to guarantee that the same-sex classes and schools they purport to enable will be more like the Young Women's Leadership School, and less like the curriculum relegating girls to quilting and sewing.

And even a well-designed single-sex program can send the wrong message. An all-female math class might help girls achieve math scores on par with their male peers. But, at the same time, it might suggest that girls are deficient in math and cannot compete against boys. Or it might make boys feel slighted, since they receive no similarly focused attention in that area.

The perpetuation of gender-based stereotypes occurs even when the substance of the single-sex program is useful. The only mechanism for policing stereotypes is the requirement that districts periodically conduct self-evaluations to make sure they are not relying on overbroad generalizations or stereotypes about gender in designing their programming. This is hardly a safeguard that should make anyone rest easy.

Thus, the problem with these regulations is two-fold, from a gender equality perspective: There is no way to ensure that districts run single-sex programs in their best form, rather than their worst; and even at their best, single-sex programs risk perpetuating stereotypes that have been harmful to women and girls. History tells us that separate is usually unequal, and girls usually receive the unequal end of the bargain. Who will be watching these programs to make sure we don't turn back the clock on gender equity?

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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