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New Department of Education Regulations Pave the Way for Public Single-Sex Schools and Classes:
Part One In a Two-Part Series


Tuesday, Jan. 23, 2007

Last week, the Milwaukee, Wisconsin Public Schools System voted on whether to open all-boys and all-girls schools next fall. Meanwhile, in South Carolina, a similar decision has already been made: Eighth graders at Carvers Bay Middle School will have single-gender classes offered to them next year. In addition, elementary school students in Owensboro, Kentucky and Hampton, Virginia have already been learning some of their subjects in single-sex environments.

The introduction of these new programs is not a coincidence, but, rather, a result of the new federal regulations adopted by the Department of Education in October 2006. Under these regulations, which took effect in November, public school districts have far greater latitude to create single-sex classes, activities, and schools - all without running afoul of federal law -- than they used to.

In just ten years, the number of public, single-sex schools has risen from 3 to 241, an increase that occurred during a period in which the legality of such programs was uncertain at best. Now, with the imprimatur of the Department of Education, the number of single-sex schools and programs will certainly increase even more dramatically.

In this column, Part One of a two-part series, I will explain the new regulations and the departure they take from existing law - and explain why and how they were introduced. Moreover, I will consider the resurgence of interest in single-sex education.

In Part Two, I will go into further detail about the likely effect of gender segregation in the public schools. In addition, I will assess these programs' constitutionality, and their likely effect on gender equality.

Single-Sex Education and Title IX

Both public and private schools must comply with the mandates of Title IX of the Education Amendments of 1972, which prohibits schools that receive any federal funding from discriminating on the basis of sex. Single-sex education is controlled not only by the core provision of the statute, which broadly bans sex discrimination, but also by statutory exceptions and administrative regulations. (I have described the governing rules in more detail in a previous column.)

Under these provisions, private elementary and secondary schools can operate single-sex, without regard to the opportunities available to students of the other sex. In contrast, public schools were, under the original regulations, more restricted in their ability to maintain single-sex admissions policies, or to offer single-sex programs within a coeducational school.

Public school districts could operate single-sex elementary and secondary schools only if they made a "comparable" school available to students of the excluded sex. OCR interpreted this regulation to require that the comparable school also be a single-sex school. So a school district could operate identical all-male and all-female schools, but could not offer particular programs in one, but not the other, nor operate a single-sex school for only one sex.

In addition, districts could offer a school to students of one sex, without a comparable school for the other sex, only if it was designed to compensate for past discrimination against the sex for whose members the school was created.

Coeducational public schools could not offer single-sex classes, except for those involving participation in contact sports, and those relating to human sexuality. Again, the only exception to this rule was to satisfy an affirmative-action rationale: A single-sex class could be offered if it was designed to make up for prior discrimination against students of one sex.

As noted above, these regulations have been changed. But what has not changed is that public schools must comply with the mandates of the Equal Protection Clause of the U.S. Constitution, which prohibits governmental entities from utilizing sex-based classifications without an exceedingly persuasive justification for doing so. And, of course, regulations cannot trump the mandate of the U.S. Constitution.

The New Federal Regulations: A Significant Departure from Prior Law

The No Child Left Behind Act of 2001 is famous for - and has been much criticized for -- placing great emphasis on student testing to measure a school's quality and success. Along with this highly-controversial focus of the law, however, came a provision that has received hardly any attention at all. That provision set aside $3 million for grants to local educational agencies for "programs to provide same-gender schools and classrooms (consistent with applicable law)."

That provision was a little odd - for it was unclear when the law was passed, whether anything significant toward this end could be done in a way that was truly "consistent with applicable law." That law consisted of Title IX, its implementing regulations, and the Fourteenth Amendment of the U.S. Constitution, which contains the Equal Protection Clause. And at the time, applicable law left little room for permissible single-sex schools and programs in public school districts.

It thus came as no surprise when, shortly after the Act became law, President Bush called upon the Secretary of Education to draft new Title IX regulations that would take a more "flexible" approach to single-sex educational programs.

The Office for Civil Rights ("OCR"), located in the Department of Education, issued draft regulations in 2004, which it adopted in final form two-and-a-half years later. The stated purpose for the revised regulations is to provide educational entities "with additional flexibility in providing single-sex classes, extracurricular activities, and schools in elementary and secondary education."

Several features of the new regulations are notable for their departure from prior law. First, the regulations open the door generally to single-class classes and extracurricular activities. An elementary or secondary school can restrict classes or activities to one sex in order to meet one of two important objectives: (A) "To improve educational achievement of its students, through [an] overall established policy to provide diverse educational opportunities; or (B) To meet the particular, identified educational needs of its students." With respect to either objective, the "single-sex nature" of the program must be "substantially related to achieving that objective."

As long as one of these objectives exists, the only limits on single-sex classes or activities are these three: School districts must administer them in an evenhanded manner; student enrollment must be completely voluntary; and all students must be provided a "substantially equal coeducational class or extracurricular activity." This is a big leap from the old rule, which, as noted above, permitted schools to exclude members of one sex from a class or activity only for contact sports and sex-ed.

Who determines whether a school district has satisfied this three-part standard? Somewhat disturbingly, it's the school districts themselves: They are directed to perform self-evaluations to "ensure [single-sex programs] are based upon genuine justifications and do not rely on overly broad generalizations about the different talents, capacities, or preferences of either sex." OCR explicitly rejected the possibility of subjecting single-sex programs to periodic compliance checks, in favor of schools' self-policing - as combined with the right of parents and students to file administrative complaints, and OCR's "audit" authority.

For single-sex schools, the new regulations take another big leap. A district can provide a school for members of only one sex, as long as it provides a substantially equal single-sex or coeducational school for the members of the other sex (along with the members of the targeted sex who choose not to attend the single-sex school). A district can thus offer an all-boys' school without an all-girls' school.

These new regulations throw the door open to single-sex schools and classes in public school systems - yet there exists little consensus about the need for them, the appropriate way to design them, or how best to guard against the gender stereotypes inherent in intentional segregation. Despite these lingering issues, these programs are rapidly proliferating and will no doubt continue to do so.

Why the Resurgence of Interest in Single-Sex Education?

A decade ago, the idea of separate math classes for boys and girls in a public school would have struck most people as strangely outdated, and as troubling, due to its reinforcement of negative stereotypes about girls. Given the century of hard work that led to women's and girls' being integrated into all aspects of public and private life -- and to be presumed as capable as men and boys -- why would an idea like this gain any traction at all?

The answer seems to be, in part, based upon genuine concern about whether public schools are disadvantaging girls in some ways, and boys in others; in part, based upon misplaced frustration with failing schools, more generally; and in part, based upon dubious extrapolation from research on gender differences.

Advocates for single-sex education have put forward many claims to justify the educational model they urge. Some claim biological differences between girls and boys affect the way each sex learns, and the environment in which each learns best (or worst). Girls hear better, goes one such argument, so they might experience the normal voice of a male teacher as "yelling." So girls should sit in the back of the classroom (where the teacher's voice will seem quieter) or have a female teacher. Boys, on the other hand, it is sometimes argued, need to move around regularly -- so they feel stifled by the typical sit-at-your-desk classroom environment.

Sex-segregated classes, these arguments claim, would permit teachers to address such differences not just on an ad hoc basis, but for a whole class of similarly-situated students.

Arguments are also made about the way the sexes interact with each other. Immature sexual attraction between boys and girls is a distraction -- particularly, some say, during the middle school years. These sorts of arguments, at least, have some intuitive appeal.

But what do scientific studies show about the harms and benefits of single-sex education? Such studies are, at best, equivocal. Even the Office for Civil Rights -- the entity that produced these new regulations designed to increase the opportunity for single-sex education -- concludes only that: "Existing educational research suggests that single-sex education may provide some benefits to some students, under certain circumstances."

The danger of OCR's new approach to regulating single-sex programs and schools is that it gives districts the green light to create them, without providing any mechanism for ensuring that their programs, will benefit their students, under realistic circumstances.

In Part Two of this series, I will address, more specifically, the likelihood that public schools can run single-sex programs without undermining the fruits of the hard-fought battle for gender equity in elementary and secondary schools.

I will also consider another important question: Do the gender-segregated schools and programs endorsed by the new regulations violate the U.S. Constitution's Equal Protection Clause?

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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