As many as 750 public schools segregated some classes and activities by sex in the wake of these new regulations, and there are at least as many schools that are entirely single-sex. Many of the school districts that have implemented single-sex classes have provoked litigation (or threat of litigation) for exceeding the scope of the Title IX regulations and other laws like the Equal Protection Clause. The Department's new "Q&A" style document appears to be aimed at promoting compliance by raising awareness and offering clarification as to exactly what the regulations permit with regards to single-sex classes. (Single-sex schools are not covered by the new guidance document because they are subject to a different regulations).
Here are some highlights from the guidance:
- The school's "important objective" for single-sex classes must be identified prior to implementation; the agency will not accept a rationalization offered after the fact. If the objective is not in writing, a school district may have difficulty proving to the Department of Education that it satisfied this requirement in the event of a compliance review.
- The "diversity array of opportunities" objective cannot be satisfied if the school's single-sex offering are the only thing that creates diversity in the curriculum. On the other hand, if -- for example -- a school offers a variety of electives, coop and externship opportunities, a STEM track, and/or the option to take classes at another school, adding single-sex classes may be related to the objective of offering a diverse curriculum.
- The "meeting individual students needs" objective requires schools to identify a demonstrated educational need (or possibly a social need) to justify separating classes or activities by sex. For example, if a school finds that boys at a certain grade are scoring lower on a state assessment text in a particular area, it could justify a single-sex class option as an intervention aimed at addressing that need.
- The school must rely on evidence that the single-sex nature of the class will promote the identified objective. For example, a school like the one previously mentioned could rely on evidence form a comparitor school or from published research findings that separating boys helped raised test scores in a particular area.
- However, such evidence may not include "overbroad generalizations about the talents, capacities, and preferences of either sex," including claims that a particular teaching method works well for most members of a particular sex. This clarification is important because it forecloses many examples we have read about, in which schools attempt to justify segregation based on claims that boys and girls in general respond differently to things like the level of classroom activity, the sex of the teacher, the content of teaching examples, the structure of assignments, or environmental factors like the noise levels, lighting, and temperature of the classroom. As the guidance recognizes, these claims, even if reliable, only justify separating students based on their preferences regarding the variable in question. They do not justify using sex as a rough proxy for that variable. For example, a school may believe that girls in general learn better in warmer environments. This does not justify offering a separate class for girls, though a school may offering two different classrooms at different temperatures and allowing students of either sex to choose the warmer or the cooler of the two based on their comfort level.