[B]ecause single-sex classes are, by their very nature, a gender classification, it makes perfect sense to require the parent or guardian's clear and affirmative assent. While a failure to opt out may be a legal substitute for agreement in some other areas of the law, such as membership in class actions, presuming that parents or guardians have enrolled their child in a single-sex class completely voluntarily because they failed to opt out would undermine the purpose of Title IX to prevent discrimination based on gender.The court also noted that the fact that parents were not notified of the opt-out until a few days before the beginning of the school year also suggests that parents did not have a real opportunity to volunteer for single-sex classes.
For now the court did not reach the question, raised in the ACLU's complaint, of whether even a voluntary program of single-sex education such Van Devender's would be unlawful under the Equal Protection Clause. If litigation continues, however, the court would likely address that issue.
Decision: Doe v. Wood County Bd. of Educ., 2012 WL 3731518 (S.D. W. Va. Aug. 29, 2012).