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Sex-segregated public schools:
illegal and unwise

Single-gender education is legally vulnerable on equal protection
and other grounds; it is also a regressive social policy

The National Law Journal
January 16, 2012

The past decade has witnessed a growing number of experiments in sex-segregated public education. Although the bloom may be off the rose — districts in Louisiana, Pennsylvania and Wisconsin recently decided to end, or not commence, such plans — they are scarcely moribund, despite attacks by the American Civil Liberties Union and resistance from mainstream feminist groups. Indeed, in 2011-12, more than 500 schools in 40 states are either wholly single-sex or furnish single-sex classrooms. Some proponents claim that these programs are needed to remedy the ills of urban educational systems.

Taxpayer funding for such instruction raises a plethora of legal issues, which have largely come to the fore since 2006 when the U.S. Department of Education (DOE) promulgated new Title IX regulations adopting a more welcoming approach to such initiatives. The DOE issued them in response to No Child Left Behind's encouragement of "innovative assistance programs," including ones "to provide same-gender schools and classrooms" — "consistent," however, "with applicable law." This cautionary caveat has proven unhelpful on the statutory and administrative fronts, where text and legislative history are murky and judicial interpretation scant and sometimes outdated. Moreover, in the one U.S. Supreme Court case dealing with a constitutional attack on K-12 sex-segregated schooling, Vorchheimer v. School District of Philadelphia, 430 U.S. 703 (1977), the justices affirmed the court of appeals' rejection of the challenge by an equally divided vote, leaving no precedential trail.

Even assuming the revised rules do not violate Title IX's ban on sex discrimination in federally funded educational programs, single-gender pedagogy is legally vulnerable on several grounds — most fundamentally, as a denial of equal protection. Because it also amounts to regressive social policy, opponents should keep up the pressure to terminate these misguided experiments.

Examination of the impetus underlying the retreat from coeducation helps to illuminate its shaky constitutional foundations. Dr. Leonard Sax, executive director of the National Association for Single Sex Public Education, has done much to disseminate the view that segregation is supported by science. He and his adherents rely on research ostensibly showing that innate differences in the sexes' brain development call for divergent teaching styles: more confrontational for males, for example, more nurturing for females. Lax contends: "If you teach the same subjects to girls and boys in the same way, then by the age of 12 or 14, you will have girls who think 'geometry is tough' and boys who believe 'art and poetry are for girls' " — hence, the need for separate classes. However, an article in the prestigious Science magazine last September documents numerous methodological shortcomings in these "difference" studies. The authors conclude that no good evidence demonstrates the superiority of gendered schooling; rather, this approach exaggerates the risk of inculcating sexism. Diane Halpern et al., "The Pseudo-Science of Single-Sex Schooling," Science, Sept. 23, 2011, at 1706.

No Gender Stereotyping

Since Vorchheimer, the Supreme Court has clarified that, to survive equal-protection scrutiny, official gender-based classifications must serve important governmental objectives by means that are substantially related to the achievement of those goals. In the setting of single-sex higher education, the Court (most recently, in striking down the exclusion of women from Virginia Military Institute) has written that its defenders must show "an 'exceedingly persuasive justification' " and "must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females." U.S. v. Virginia, 518 U.S. 515, 524, 533 (1996).

When current research reveals at most an academic debate about the degree of difference in male and female learning modes, the extent to which these may be inborn or acquired, and the relationship (if any) between gender-specific teaching and better educational outcomes, the programs at issue plainly fail to meet the tough means-ends and justification standards. Moreover, even if one believed their proponents' claims were generally correct, the Virginia Military Institute case bars discrimination based on a "law" of gender averages — otherwise known as stereotyping.

In addition to invoking the Constitution, opponents can challenge certain types of school-district schemes by arguing that they do not provide the DOE-required "substantially equal" alternative for members of the excluded sex. This claim will usually be well-founded: Much sex-segregation involves charter academies, which offer benefits like lower student-teacher ratios and special curricula not available in regular schools. Also, institutions receiving money from federal agencies other than the DOE must adhere to these entities' unchanged Title IX regulations, which still proscribe gendered instruction; if they do not, they violate the law.

In sum, same-sex public schooling diverts resources and attention away from initiatives that might really help to improve foundering educational systems. It is, in any event, illegal and for that reason alone should cease.