Monday, January 16, 2012

Public Single-Sex Education Vulnerable to Legal Challenge, Professor Explains

A recent essay in the National Law Journal by emerita Columbia law professor Vivian Berger criticizes the trend in single-sex education. Noting that the "bloom may be off the rose" in light of some recent, high-profile decisions to cancel single-sex classes, either voluntarily and/or in response to litigation pressure (see, e.g., here, here, here, and here), she points out there are more than 500 public schools that are either wholly single-sex or sponsor some number of single-sex classes. Professor Berger's observation is timely in light of Friday's front-page story in the Boston Globe, which reported on a controversial decision to segregate the first grade at a public school in Roxbury.

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.