New Title IX Regulations Pose a Serious Threat to Civil Rights of Students

On October 25, 2006, the U.S. Department of Education released new regulations inviting public schools across the country to institute sex segregated classes and programs. The ACLU decried these regulations as a significant threat to students' rights to equal educational opportunities.

In response to widespread sex discrimination in schools, in 1972 Congress passed Title IX, which mandates that no one shall "be excluded from participation in . . . any education program or activity receiving Federal financial assistance" on the basis of his or her sex. For over thirty years, Title IX has opened the doors to educational opportunity by prohibiting sex segregation and sex discrimination in schools. The new regulations, however, adopt a through-the-looking-glass interpretation of Title IX and invite school districts to segregate their classrooms and schools based on the flimsiest of educational theories.

"Many schools, for example, are considering segregating classes based on notions that boys can't hear as well as girls, and thus need to have teachers who yell, or that girls' brains can't perform well under pressure and thus girls should never be given a time limit on a test," said Emily J. Martin, Deputy Director of the ACLU Women's Rights Project. "The regulations give the green light to schools to develop programs based on just these kinds of junk science stereotypes, with the real potential to harm both boys and girls."

It would be discouraging if the Department of Education had stated that separate but equal was the new rule when it comes to gender equity in education, but the regulations are worse than that. The Department of Education considered the separate but equal standard and rejected it as asking too much of schools. The rule set out in the new regulations is separate but "substantially" equal.

Moreover, if a single-sex school is a charter school, the regulations say that in many instances there is no obligation whatsoever to provide equal opportunities to the excluded sex. Thus, if the only math and science high school in the community is an all-boys' charter school, under the regulations no equivalent opportunity need be provided girls.

By encouraging schools to institute such separate and unequal programs, the regulations invite schools to violate the Constitution, which prohibits sex segregation in public schools absent an exceedingly persuasive justification. As a result, school districts across the country will unnecessarily expose themselves to liability and harm students.

The Department of Education has defended the regulations by asserting that any sex-segregated program would be optional, but by its nature, sex segregation can never be truly voluntary. A girl cannot opt into the boys' class, and a boy cannot opt into a girls'. "It's precisely because segregation denies individuals the right to make their own choices that we as a society have rejected it as an educational model," said Martin. "It is deeply troubling that the Department of Education has chosen to turn back the clock on this progress."