ACLU Single-Sex Notice of Intent Comments to the Department of Education

Gerald A. Reynolds
Assistant Secretary for Civil Rights
U.S. Department of Education
Mary E. Switzer Building, Room 5000
400 Maryland Avenue, SW
Washington, DC 20202

Re: Single-Sex Notice of Intent Comments

Dear Mr. Reynolds:

On behalf of the American Civil Liberties Union (ACLU), we respectfully submit these comments in opposition to the proposed amendments to regulations implementing Title IX of the Education Amendments of 1972, published at 67 Federal Register 31,098 (May 8, 2002). The proposed amendments would promote sex-segregated classes and schools at the elementary and secondary levels. The ACLU is a nationwide, non-partisan organization with nearly 300,000 members dedicated to protecting the individual liberties and freedoms guaranteed by the Constitution and laws of the United States.

The ACLU believes that every person has the right to equality of educational opportunity free from invidious discrimination. Education must be made available to all children on equal terms. Educational opportunity should not be denied or restricted for any reason including a child’s race, religion, sex, national origin, language, or family circumstances. Educational equality is not attained through single-sex programs in public elementary and secondary schools or institutions of higher education because sex segregation violates the equal protection guarantees of the Fifth and Fourteenth Amendments. Public schools have the obligation to ensure that both females and males can obtain an education in a coeducational setting free from sex discrimination.

As detailed below, we believe the proposed changes are ineffective means of improving education for all public school children and have the potential to exacerbate inequality. Not only would the proposed changes in the regulations undermine Title IX and violate the Equal Protection Clause, but they would also perpetuate the inequalities associated with gender segregation. Additionally, the changes would fail to meet constitutional scrutiny because there is no exceedingly persuasive justification for regulations allowing greater flexibility to create single-sex classes or schools. Providing more leniency to create single-sex programs is not substantially related to achieving the government’s objective of improving educational outcomes and responding to the needs of children. This is clear from the lack of research showing that single-sex education programs are effective. Furthermore, the government’s objective of ensuring against discrimination cannot be served by the proposed changes to the regulations because single-sex education fosters sex discrimination. Therefore, the ACLU urges the Department of Education to leave current Title IX regulations intact.

I. The Proposed Changes to the Regulations Undermine the Progress Made by Title IX.

In response to widespread discrimination in education, Congress passed Title IX of the Education Amendments of 1972, mandating that no one shall “”be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.””[1] Title IX was designed to be a strong, comprehensive measure that addresses the many forms of sex discrimination in education. Its coverage ranges from school admission policies to the glass ceilings that have prevented women from reaching the highest positions in academia. The purpose of Title IX is to eliminate sex discrimination in education. It works towards liberating women and girls from stereotypes and misconceptions about their abilities and aspirations.[2] Title IX plays an important role in making sure that girls receive the educational opportunities that have traditionally only been enjoyed by boys.

Title IX has been instrumental in leveling the playing field for women in education. Any changes that weaken Title IX regulations to allow gender discrimination by supporting single-sex education would stymie years of progress made toward ensuring gender equality in education. Modifying Title IX guidelines to provide more leeway to school districts to establish single-sex education programs would cause the 30-year-old statute that prohibits gender discrimination in education to deteriorate. The proposed changes would turn the clock back thirty years, encouraging schools to implement exactly what Title IX seeks to eliminate: disparities in educational opportunities for girls and boys.

A. Progress Resulting from Title IX

Before Title IX, schools used discriminatory admission practices to prevent women and girls from receiving equal education. Over the last thirty years, there has been progress for girls and women in education as Title IX has opened up new opportunities for them across the nation. Prior to Title IX, the most prestigious scholarships were restricted to men, and men were given preference in the award of loans and fellowships. Title IX prohibits practices that deny women financial aid and over the past thirty years financial aid programs have evolved to assist women’s access to higher education.[3] In the 1970s, only 18% of women were completing four or more years of college. Two decades after the enactment of Title IX, 27% of women were completing four or more years of college.[4] Today women make up the majority of students in American colleges and universities, and by 2006 they will earn 55% of all bachelor’s degrees.[5] In 1972, women received 16% of doctorate degrees. As a result of Title IX, this number has steadily increased and in 1998, 42% of all doctorate degrees were awarded to women.[6]

While Title IX has made a notable difference in access to and quality of education for women and girls, perhaps the most profound impact has been in the area of athletics. For example, as a result of Title IX, the resources and benefits allotted to female athletes have significantly improved, thereby expanding opportunities for females to participate in sports. In 1971, fewer than 300,000 high school girls participated in interscholastic sports, and by 1997, that number had grown to over 2.4 million. This development is important not merely because female students have more opportunities, but also because athletic involvement during school leads to benefits in health and education. High school female athletes are less likely to get involved in drugs, less likely to have unwanted pregnancies, and have a reduced risk of breast cancer and osteoporosis.[7] They also have higher grades, better achievement test scores, are more likely to graduate high school, and are more likely to go to college than girls who are not athletes.[8] By opening the doors to educational opportunities for women and girls, Title IX gives them the ability to enhance their earning potential as career women.

B. Continued Discrimination Despite Title IX

Despite the progress made in recent years, barriers for women in education persist. Sex segregation is prevalent in career guidance, where more than 90% of girls are clustered in programs that train them for the traditionally female fields of teaching, health care, and office technology.[9] These patterns of sex segregation are not the result of women’s independent choices. Evidence shows that these results are the product of sex discrimination, which still occurs in many schools because Title IX is not enforced.[10] Women still fall behind men in earning higher degrees, instead remaining in programs traditional for their sex that lead to low-wage jobs.[11] While there has been some improvement in the areas of math and science, girls and women are vastly underrepresented in the area of technology. A recent study by the National Women’s Law Center reveals that female students are steered away from advanced computer courses and are often not informed of opportunities to take technology-related courses.[12] Even in the area of athletics, where the most noticeable advancements for girls have occurred, male sports continue to receive more money than female sports at the Division I and II levels.[13] These statistics show that there are too many women and girls who still face sex discrimination in their education programs. Instances of discrimination in education cannot be combated by relaxing Title IX regulations; instead, vigorous enforcement of Title IX is necessary. Therefore the Department of Education should not alter Title IX regulations to promote sex segregation in education.

II. The Proposed Amendments Violate the Equal Protection Clause.

Single-sex education violates the equal protection guarantees of the Fifth and Fourteenth Amendments, as well as basic civil liberties principles. The Supreme Court first addressed the constitutionality of a single-sex school in 1982, in Mississippi University for Women v. Hogan. 458 U.S. 718 (1982). In this case, the Court held that denying males the right to enroll for credit in the Mississippi University for Women School of Nursing violated the Equal Protection Clause of the Fourteenth Amendment. Id. The Supreme Court reaffirmed its position on single-sex admissions policies in United States v. Virginia, holding that the state’s exclusion of women from the Virginia Military Institute (VMI) violated the Fourteenth Amendment’s Equal Protection Clause because it deprived women of the ability to take advantage of the unique educational opportunities provided by VMI. 518 U.S. 515 (1996).

A. The Proposal Would Perpetuate Inequalities Associated with Gender Segregation

Separate schools for women historically have been significantly inferior to their counterpart male facilities. In 1996, the Supreme Court compared the all-male VMI with the all-female Virginia Women’s Institute for Leadership (VWIL). Virginia, 518 U.S. 515. It found that there was not “”substantial equality in the separate educational opportunities”” and that therefore, denying women admission to VMI violated equal protection. Id., at 554. Virginia’s attempt to remedy the sex discrimination that resulted from having a male-only military institute by providing a parallel program for women through VWIL failed to satisfy constitutional requirements because the VWIL program lacked most of the tangible and intangible benefits of a VMI education. Id. at 551-57. Course offerings, facilities, faculty, financial support, and the student body of VWIL hardly matched VMI’s, and graduates of VWIL would not receive the benefits associated with the prestige and influential alumni network of VMI. Id. at 551-53.

Under current Title IX regulations, specific, uniform guidelines apply equally to all school districts. The proposed changes in Title IX regulations would allow school districts to offer sex-segregated schools and classes that are “”comparable”” but would not establish standards as to what a comparable educational opportunity means. Such a policy would produce various definitions of educational equality across school districts, with no guarantee that they would adhere to the equal protection standards determined by the Supreme Court. Given the Court’s decision in United States v. Virginia, school districts must provide equal opportunities for both sexes. See 518 U.S. at 557. In its equal protection analysis, the Court noted that the Fourth Circuit erred in comparing VMI and VWIL under a “”substantive comparability”” test instead of using the exacting standard developed by the Court. Id. at 529. Therefore, establishing classes or schools for the different sexes that are “”comparable”” to each other, as that term may be defined by each school district, moves away from the standard set by the Supreme Court for ensuring educational equality between the sexes. The government has an obligation to provide “”genuinely equal protection”” in education. Id. at 557. This cannot be established through single-sex classes or schools.

B. The Proposed Changes Fail to Meet the Constitutional Test: They Are Not Substantially Related to Improving Educational Outcomes and Responding to Educational Needs, While Ensuring Against Discrimination

Policies that expressly discriminate based on gender are subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment. When such a policy is challenged under the Constitution, the party seeking to uphold the sex-based classification must establish an “”exceedingly persuasive justification”” for the classification. Virginia, 518 U.S. at 524. To pass constitutional scrutiny, the classification must at least serve an important government objective and it must be substantially related to achieving that objective. Id. “”In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.”” Hogan, 458 U.S. at 728. The Administration states that its objective in changing Title IX regulations to promote single-sex education is “”to support efforts of school districts to improve educational outcomes for children and to provide public school parents with a diverse array of educational options that respond to the educational needs of their children, while at the same time ensuring appropriate safeguards against discrimination.”” In order to satisfy the equal protection test, any changes in Title IX regulations to promote single-sex schools and classes must have an exceedingly persuasive justification, which means that the changes must at least be substantially related to improving educational outcomes and responding to educational needs, while ensuring against discrimination. The proposed amendments fail to meet the test in two distinct ways. First, there is insufficient research to suggest that educational outcomes would improve by creating single-sex education programs. Second, instead of providing a safeguard against discrimination, single-sex education fosters sex discrimination.

1. There is Insufficient Research to Support the Creation of Single-Sex Education Programs

There is no exceedingly persuasive justification for single-sex education; it is not substantially related to achieving the government’s objective because there is no showing that it improves educational outcomes or responds to educational needs. The purpose of the equal protection test is to make sure the “”classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women.”” Hogan, 458 U.S. at 726. There is no clear evidence that reveals that single-sex education itself is better than coeducation. Beyond the unconstitutional nature of single-sex schools, there is a grave danger in promoting single-sex schools as the key to improving public education without sufficient research. In such instances, the changes could produce more harm than good. In the context of education reform, President Bush said:

[W]e’re going to spend more money, more resources, but they’ll be directed at methods that work, not feel-good methods, not sound-good methods, but methods that actually work . . . . [W]e’ve spent billions of dollars with lousy results. So now it’s time to spend billions of dollars and get good results.[14]

Single-sex education is at best a “”sound-good method”” because it is based on misconceptions about the abilities and preferences of girls and boys rather than empirical evidence.

Although supporters of single-sex schools cite social science research in support of their position, properly evaluated, these studies indicate that certain characteristics often present in a single-sex setting – such as small classrooms, extensive resources, well-trained teachers, and advanced educational methods – are in fact the basis for any positive outcomes that may be found. The single-sex factor is not dispositive, and the causative characteristics could be equally available in a coeducational setting. Recent data suggest that once these other variables are controlled for, measurable differences between students’ performance in single-sex and coeducational programs disappear.[15] Despite the lack of evidence that single-sex education improves educational outcomes, the No Child Left Behind Act of 2001 allows public schools to apply for up to $385 million per year in federal funding to use towards single-sex schools and classes.[16] Rather than “”spend[ing] billions of dollars [to] get good results,”” as President Bush suggested, the Department of Education is proposing a multi-million-dollar gamble that would have dire consequences for educational equity and equality between the sexes.

The most comprehensive study on single-sex education examined California’s experiment with public single-sex academies in the late 1990s. Although the California program had been started in pursuit of the hoped-for potential of advancing gender equity, the study found that “”the organizational arrangement alone does not ensure it.””[17] In fact, the authors found that rather than promoting gender equity, the schools often reinforced traditional gender stereotypes about girls’ and boys’ needs and abilities. Equally troubling was the study’s assessment that single-sex public schools can have serious consequences for those not enrolled. In at least two California school districts with single-sex academies, remaining coeducational classes were left with gender imbalances, less motivated students, and/or less experienced teachers.

Research by the American Association of University Women and other organizations reveals that factors such as smaller class size, better teachers, more funding, parental involvement, paying more attention to core academic subjects, and a clear code of behavior and discipline are what lead to educational success.[18] It is these factors – not single-sex dynamics – that result in educational benefits to students. Attention and resources should be focused on making these factors available to all students in coeducational settings. Such avenues clearly have not been exhausted. In fact, the No Child Left Behind Act of 2001 was passed with the intention of addressing many of these issues.

The Supreme Court recognized that gender-based classifications cannot be justified except in limited circumstances where those classifications directly benefit members of a sex that has been unduly burdened. Hogan, 458 U.S. at 728. In certain limited circumstances, the need for effective responses to intractable forms of sex discrimination may justify programs or activities specifically designed for females and males that are closely related to the goal of eradicating or compensating for discrimination. For example, full participation in sports by women may require separate women’s and men’s teams. A school district may not provide single-sex classes unless they are substantially related to achieving the goal of compensating for or remedying sex discrimination in education and sex-neutral options are inadequate to reach this goal. Local school districts already have the flexibility to address sex discrimination in education and remedy the effects of conditions that led to limited participation in education activities by persons of a certain sex.[19] Therefore, it is unnecessary to amend Title IX regulations.

There is no exceedingly persuasive justification for promoting sex-segregated classes and schools. The proposed changes to Title IX regulations would not survive scrutiny under the Equal Protection Clause because there is no proof that single-sex education is substantially related to improving educational outcomes or addressing educational needs. Coed public education should be the primary route to achieving educational success. Researchers have found that coeducation may better prepare students for adult interpersonal and occupational roles, including how to avoid falling into stereotypic roles.[20] Women and men live and work together in a coed world, and schools are smaller reflections of the larger society. The opposite sexes have to deal with each other on a daily basis; single-sex education distorts reality by not preparing students for the fact that they will have to interact and compete with the opposite sex.

2. Single-Sex Education Fosters Sex Discrimination

A change in the regulations that makes it easier to create single-sex programs, and in fact encourages them, is not substantially related to the objective of ensuring appropriate safeguards against discrimination. The test for equal protection must be applied “”free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions.”” Hogan, 458 U.S. at 724-25. Single-sex public education actually advances sex stereotypes, discriminates against women, and builds upon the historic sexism that has denied all students truly equal opportunity, access, and treatment in American education. Despite the Education Department’s claims that it would not be motivated by sex stereotypes in altering Title IX guidelines, the mere creation of single-sex classes and schools would perpetuate such stereotypes.

Educational and other social science research studies support the conclusion that government-sponsored separation on the basis of identity characteristics, such as race or sex, encourages false beliefs about group hierarchy and ostensible innate differences. In striking down the single-sex admissions policy of Mississippi University for Women School of Nursing, the Supreme Court noted that the school’s policy to admit only women “”perpetuate[d] the stereotyped view of nursing as an exclusively woman’s job.”” Hogan, 458 U.S. at 731. The creation of single-sex classes and schools increases gender discrimination in education. Allowing students to choose to segregate themselves by making single-sex classes voluntary does not alleviate the problems associated with the creation of single-sex classes. In fact, research has shown that parents often note that single-sex schools have more traditional mission statements, which rely on gender stereotypes.[21] Single-sex classes and schools reinforce in students stereotypes and negative attitudes about themselves and one another. Sex discrimination and gender reinforcement are more common in single-sex schools than in coeducational schools.[22] Sex segregation is especially detrimental in education because it suggests that skills, abilities, and characteristics are associated with a particular sex. Separating females and males in order to better educate them sends the message that they need to be separated because of innate differences; this has been the primary way to promote sex discrimination, and the encouragement of single-sex education programs will only further such discrimination.

Sex-neutral policies and gender integration are the best methods to ensure educational equality. Discrimination must be excluded from all areas of school life, including assignments of students to classes and classroom programs. The Department of Education should reject the single-sex model in public schools, classes, and curricula because it violates equal protection of the laws. President Bush has dubbed education as “”the next frontier of civil rights”” because he believes that “”the better we educate all our children the more united our society will be, the more equal we’ll become in hope and opportunity and in achievement.””[23] Yet single-sex education is inconsistent with this stance because rather than improving public schools for all students, it promotes inequality by concentrating resources on a select few while leaving others behind in struggling schools with scarce resources and opportunities. Students in single-sex programs will receive the benefit of more funding, smaller classes, and better teachers, which are known to improve educational outcomes regardless of whether they exist in a single-sex or coeducational environment, while the vast majority of students will remain in programs with fewer resources, larger classes, and less well trained teachers. There must be equal opportunity for all students.

III. Conclusion

Any amendments to Title IX regulations could have far-reaching negative consequences. Title IX should be vigorously enforced to continue progress toward the goal of educational equality between girls and boys, not diluted to allow for sex segregation. Amending Title IX regulations to encourage single-sex education is the wrong way to address the problems of public education. We urge the Administration to use funds and resources on methods that are known to improve public education for all students. We appreciate the Department of Education’s request for comments and encourage DOE to keep Title IX intact and refrain from amending Title IX regulations to permit school districts to segregate classes and schools on the basis of sex.

Sincerely,

Laura W. Murphy, Director
Washington National Office – ACLU

Lenora Lapidus, Director
Women’s Rights Project
American Civil Liberties Union

LaShawn Y. Warren, Legislative Counsel
Washington National Office – ACLU

Patricia A. Young, Summer Associate
Washington National Office – ACLU

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