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An Attempt To Erode Federal Gender Equality Guarantees?

Tuesday, Jun. 11, 2002

Last month, the Bush Administration announced its plan to endorse greater use of single-sex public schools and single-sex classes within public schools. The announcement came from the Office for Civil Rights (OCR), located in the Department of Education. OCR issued a notice of its intention to amend relevant law to take a more "flexible" approach to regulation of single-sex educational programs.

The impetus for OCR's notice was a little-noticed provision in the No Child Left Behind Act of 2001, signed into law by President Bush this past January. The provision appropriated $3 million for grants to local educational agencies for "programs to provide same-gender schools and classrooms (consistent with applicable law)."

The Act also required OCR to provide guidelines to potential applicants about the "applicable law" of single-sex education. OCR seems to be going further - not only apprising applicants of the law, but actually seeking to change the law to make single-sex education programs easier to adopt.

Constitutional Limits on Single-Sex Education

Public schools and districts must comply with the Equal Protection Clause of the federal constitution. The constitutional status of public, single-sex education is not entirely clear. Still, a few basic principles can be gleaned from the Supreme Court's two decisions evaluating public, single-sex educational programs.

Single-sex schools must have an "exceedingly persuasive justification" to survive constitutional scrutiny. A program designed to overcome the hurdles to educational and employment opportunity faced by women and girls can potentially meet this exacting standard, but neither of the single-sex programs to come before the Court have done so.

In the first single-sex education decision, Mississippi University for Women v. Hogan, the Court struck down an all-female nursing school. The Court's primary reason that the school could not continue to operate single-sex was that there was no evidence women had been discriminated against in obtaining the necessary education or gaining access to the nursing profession. Indeed, the opposite was the case; nursing, like teaching, had been a stereotypically "female" profession.

Fourteen years later, the Court struck down the all-male admissions policy at the Virginia Military Institute (VMI) in United States v. Virginia. There, the Court held that the State had failed to make a showing that the exclusion of women was necessary to its educational mission.

In addition, there was certainly no affirmative action rationale to justify a military program accessible only to men - as with the all-female nursing school, VMI and similar military-style schools had always been restricted to the very sex that had always been encouraged to attend. Thus, the single-sex restriction denied, rather than aided, gender equality.

Since women have historically received few educational advantages men did not, the predictable effect of these decisions could be a large boost to female-only schools and only a small boost to male-only schools in a limited number of fields. It may thus be that the predominant, constitutionally permissible use of single-sex education is to compensate women for past discrimination in educational or other opportunities.

Statutory Law Governing Single-Sex Education

Single-sex educational programs must also comply with Title IX of the Education Amendments of 1972. Title IX is a federal statute prohibiting sex discrimination in schools receiving any form of federal funding.

The core provision of Title IX simply states that no individual shall be "excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

Without more, this provision would seem to preclude single-sex education, since "exclud[ing]" one sex "from participation" is essential to such a program. But beyond this core provision, the statute also creates some exceptions, which allow single-sex education to exist in some forms.

The Statute's Exceptions For Certain Schools and Programs

First, with respect to admissions, Title IX only applies to graduate, professional, and vocational schools, and to public undergraduate institutions that have not traditionally been single-sex. Thus, private undergraduate institutions and all elementary and secondary schools (public and private) are seemingly permitted to admit only students of one sex - as are public undergraduate schools that have traditionally done so.

One Michigan federal district court has held, in the case of Garrett v. Board of Education, that this exception only applies to existing single-sex elementary and secondary schools, and thus should not allow the creation of new single-sex schools. But it is not clear whether other courts would share this view (and OCR does not even acknowledge it).

Second, with respect to programs within coeducational schools, the statute exempts a few specific programs. They include Boys' and Girls' State programs; father-son or mother-daughter activities at school (like the dreaded mother-daughter fashion show, which thankfully occurs more in television shows than real life); and scholarship awards in beauty pageants.

Beyond the statute itself, there are administrative regulations designed to interpret and implement Title IX. Unlike the statute and the relevant Supreme Court single-sex education rulings, these regulations can be amended or erased by the relevant executive agency without Congress's approval.

Accordingly, regulations can change when Administrations change - or through the course of a single Administration. The Bush Administration is looking to change them now, but must do so within the existing framework of the statute and the two Supreme Court decisions described above.

The pertinent Title IX regulations, among other things, place some limits on the ability to create or maintain single-sex elementary and secondary schools. They also contain rules governing the ability of schools to offer single-sex classes within coeducational institutions.

The current regulations state that a public elementary or secondary school may exclude an individual on the basis of sex only if the educational district or board makes available to him or her a "comparable" course, service, or facility. (In contrast, private elementary and secondary schools may operate single-sex without regard to the opportunities available to the opposite sex). Thus, in general, a public school district cannot offer a particular program - such as music, performing arts, shop, vo-tech, or home economics - in only an all-girls or an all-boys school.

The only exception is that districts may offer a sole single-sex school if it can be justified by an affirmative action rationale - that is, it serves to compensate for past discrimination against the sex for whom the school is created. This type of justification might allow, for example, a special public girls' science and mathematics school, with superior facilities.

Meanwhile, within coeducational institutions, the regulations prohibit single-sex classes except for those involving participation in contact sports and those relating to human sexuality. All other classes must be co-ed--thus, shop cannot be closed to girls and home economics cannot be closed to boys.

But again, an affirmative action justification can enable single-sex classes to be offered in other subjects. The district might have a special afterschool class for girls interested in math and science careers, for instance.

The Bush Administration OCR's Proposal for Change To the Regulations

Those, in sum, are the current Title IX regulations on single-sex education. What is the goal of OCR's planned amendments? According to OCR's request for comments on the proposed changes, its goal is to "support efforts of school districts to improve educational outcomes for children and to provide public school parents with a diverse array of educational options that respond to the educational needs of their children."

OCR also seeks comments on whether a coeducational class could be the "comparable" opportunity if it offers a single-sex class in some subject. Again, the only need for such comments would be if OCR is considering moving towards the addition of further permissible single-sex classes.

Perhaps most ominously, OCR seeks comments as to whether student assignments to single-sex classes could be mandatory - prefiguring a possible forced system of state-enforced sex-segregation even if students themselves resisted and protested.

As noted above, the regulations already permit schools districts to create single-sex elementary and secondary schools (as opposed to classes). Nevertheless, OCR is seeking comment on whether it should continue to require school districts to offer comparable, single-sex opportunities to both sexes if it chooses to offer them to one. (If there's a boys' performing arts school, there must be one for girls as well.)

Or, OCR, asks, should it permit, as with single-sex classes, the "comparable" opportunity to come in coeducational form? (There can be a boys' performing arts school and a co-ed performing arts school.)

Why The Bush Administration's Stance on Single-Sex Education Matters

Why should anyone care whether the President endorses greater reliance on single-sex education? As University of Chicago law professor Jill Hasday points out in a forthcoming article, coeducation does not guarantee equality for women, nor does single-sex education necessarily subordinate them. (Indeed, the effect can be reversed in particular circumstances.)

Rather, it is the more subtle ways in which educational programs are carried out that creates or denies equality: Are girls discouraged from taking classes that, although open to them, prepare them for typically male professions? Are they steered toward more "womanly" skills? Are boys and girls in a co-ed class treated differently from one another?

Yet the President's policy change should nonetheless make women's rights advocates nervous. First, the push to amend Title IX's regulations to permit single-sex programs comes at the same time the Bush Administration has refused to come out strongly in favor of Title IX's protections against discrimination in athletics opportunities for girls and women.

At issue in this case is a regulation requiring schools to offer athletic opportunities to each sex in proportion to their enrollment, a key component of Title IX's guarantee against sex discrimination in athletics. The Bush Administration did not defend the requirement, but instead asked only that the case be dismissed on narrow technical grounds.

Positions like this undermine the claim that the Bush administration harbors any general commitment to educational equality for girls, a historically elusive goal. Accordingly, they should convince observers to view the Administration's policies on single-sex education with some suspicion.

Moreover, the Bush Administration seems entirely unconcerned with the constitutional limits on single-sex education described above. In its "guidance on applicable law" mandated by the No Child Left Behind Act, OCR mentions in just a single sentence that public school districts may also face challenge on "constitutional grounds."

Those limits far deserve more of the Administration's attention. They serve the important function of preventing schools from offering programs that serve to perpetuate or create harmful stereotypes about the achievements and abilities of girls and women, and thus ensure single-sex education is used to create, rather than hinder, equality.

The Possible Conflict Between OCR's Envisioned Changes and the Constitution

The changes OCR seems ready to enact are not necessarily consistent with constitutional limits. Nor are they consistent with the important anti-discrimination principles that drive those limits. Indeed, the standard OCR appears to be using to evaluate equal opportunity is not "equality" of programs, but "comparability" of programs - which is not necessarily the same thing.

Moreover, it is important to note that OCR cannot defend its planned changes to the regulations by hiding behind the No Child Left Behind Act, for the Act does not require them. Rather, it simply sets aside money for schools who create single-sex programs that are "consistent with applicable law." And existing, applicable law already permits the creation of appropriate, single-sex schools and programs under certain circumstances, and the funding ought to be used for only such schools and programs - not dubious new programs OCR's changes might allow.

In sum, OCR's haste to change the law is worrisome - particularly given its apparent intent to remove important safeguards designed to ensure single-sex programs work for rather than against equality.

Many researchers have found that single-sex education may benefit women and girls in some circumstances, although many others dispute these findings. The one thing most agree on is that single-sex education is not the panacea for all that ails the public educational system.

Many of the features that make recently created single-sex programs desirable--small classes, parental involvement, and high-level teaching--have nothing to do with sex. Many of the positive effects of these programs could be replicated in coeducational programs with similarly rich resources.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University.

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