Dept. of Education and Same-Sex Schools

The New York Times reports today on yesterday's announcement by the U.S. Dept. of Education to give more latitude to school districts interested in establishing same-sex schools. A limited number of such schools have been in operation in New York and other cities, but the new regulations promulgated by the Dept. of Education will undoubtedly encourage other school districts to consider them as a viable option.

There have been some studies showing that single-sex education for boys and girls in elementary and high school lead to better test results, and that the breadth of educational opportunity is wider for students at single-sex schools because of a differing set of peer pressures and expectations.

Still, there are serious Title IX questions that arise from encouraging single-sex education. On the most basic level, under the new regulations, school districts that choose to use single-sex education must make sure that there are "substantially equal" opportunities for the excluded sex available. But what does that mean in practice? If there is an all-girls school that offers language lessons in Mandarin, but a co-ed school in the district doesn't do so because of a lack of funding or the inability to find a qualified Mandarin teacher for the co-ed school, what does "substantially equal" mean? Allowing girls at the co-ed school to travel to the all-girls school for Mandarin classes, but not the boys? Then hiring a tutor for interested male students at the co-ed school? Hiring a tutor for all of the interested students at the co-ed school? Or perhaps ignoring the interest of the students at the co-ed school and encouraging them to take another language class, and viewing that as a "substantially equal" opportunity?

Beyond the logistical and practical difficulties, there is a larger problem of the possible benefits of single-sex education vs. the legal issues raised by segregating classrooms. The racial segregation of schools is an inevitable analogy -- the NYT article quotes Nancy Zirkin, vice-president of the Leadership Conference on Civil Rights as saying "Segregation is totally unacceptable in the context of race....Why in the world in the context of gender would it be acceptable?”

Granted, there are differing legal standards for analyzing laws that are based on gender and those based on race, but there is a strong argument to be made that same-sex schools violate Title IX and the Equal Protection Clause of the Fourteenth Amendent to the Constitution. Title IX provides the opportunity for school districts to use single-sex education for compensatory reasons to remediate past discrimination and will help promote equal educational opportunities and combat gender stereotypes. Instead of working under that framework, the new regulations obliterate that standard, possibly opening up the door for single-sex education that actually promotes gender stereotyping and undermines equal educational opportunities for boys and girls.