In Forthcoming Article, Law Professors Argue Public Single-Sex Education is Unconstitutional

Professors David Cohen and Nancy Levit's article on the constitutionality of public single-sex education, which is forthcoming in the Seton Hall Law Review, was recently posted on SSRN.  The authors conclude that neither of the commonly cited justifications for segregating classrooms -- presenting a diversity of education options and research into sex-based differences in learning styles -- warrant a sex-based classification under the Equal Protection Clause.  Here is the abstract:

Since federal regulations authorized single-sex education in 2006, there has been an explosion of single-sex schools and classes. Although the Supreme Court has not ruled, three federal court decisions have addressed the constitutionality of single-sex classes, and the issue will percolate toward Supreme Court review soon. The arguments are that parents should have choices and “diversity” of educational options, that “brain research” shows that boys and girls are so biologically different to need sex-specific educational environments, that educational outcomes are better, and single-sex learning environments allows boys and girls to break through gender stereotypes. This article dissects these arguments within the context of the constitutional doctrine of sex classifications, concluding that none is an “exceedingly persuasive justification” for the pernicious harms that are associated with sex segregation.

The article demonstrates that “diversity” was never intended to support segregation. It explains that parental choice does not eliminate the problem of state-sponsored segregation based on sex. Courts must address whether single-sex education is supported empirically before allowing it as a publicly funded option. The article reviews studies showing that most sex-differentiated behavior is learned, and biological differences do not justify sex-specific teaching methods. The article also examines studies of academic and emotional outcomes in single-sex and coeducational environments which confirm that the vast majority of outcomes do not support single-sex education.

The article then explores the formation of gendered behaviors and attitudes. The way that schools have been implementing single-sex education promote gender essentialism. Sex-segregation increases students’ and teachers’ stereotypes about sex and gender, gives them outlets for expressing those beliefs, and creates opposition between the groups. In short, sex segregated education violates the Equal Protection Clause, it has no “exceedingly persuasive justification” and instead exacerbates “outdated stereotypes” while “create[ing] [and] perpetuate[ing] the legal, social, and economic inferiority of women.”