Professor Berger explains that these programs are vulnerable to legal challenges on a number of grounds. The Constitution's Equal Protection Clause, for one, prohibits states and state-sponsored entities such as public schools from relying on gender stereotypes, which are frequently the basis for sex-segregated classes. In addition, she points out, many sex-segregated programs violate the Department of Education's recently-revised Title IX regulations, which, while relaxing earlier restrictions on single-sex education, still require "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." Last, Professor Berger points out that other federal agencies that provide funding for education also have Title IX implementing regulations, which still retain strict restrictions on single-sex education.
Professor Berger's observations about the legal vulnerability of hundreds of segregated public schools and classrooms raise legitimate questions about the role of government education and enforcement in this application of Title IX. As we noted on the blog yesterday, when OCR took a stand against universities' lax response to sexual assault, enforcement increased. A similar approach is certainly warranted in the context of single-sex education.
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