Professor Joanna Grossman (Hofstra) has a two part column in FindLaw.com on the Department of Education's new single sex education policy.
In part one, she discusses the legal context for the new regulations, including the agency's former regulatory interpretation of Title IX and the effect of the No Child Left Behind Act in 2001. She also describes the "recent resurgence" of interest in single sex education, which derives from both "genuine concern about whether public schools are disadvantaging girls in some ways, and boys in others" as well as "dubious extrapolation from research on gender differences."
In part two, Professor Grossman analyzes the new policy's legality under the U.S. Constitution's equal protection clause. In the VMI case, the Supreme Court held that government must have "exceedingly persuasive justification" to engage in sex-based classification and the classification itself must be "substantially related to the achievement" of the government's important objectives. Under this test, Professor Grossman suggests, the new single sex regulations are constitutionally suspect. School districts can decide to experiment with single sex education for any reason, not just compelling or exceedingly persuasive ones. In particular, school districts could decide to segregate classes based on "overly broad generalizations about the different talents, capacities, or preferences of males and females," something the Supreme Court said would violate Equal Protection Clause.
Such generalizations are not only unconstitutional, they are harmful. By way of example, Professor Grossman suggests: "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.suggests that such generalizations about the different talents and capacities of boys and girls could harm students." She concludes by suggesting that without proper oversight to ensure that single sex education programs are tailored to acheive an important purpose, we risk "turn[ing] back the clock on gender equity."