Sorting X and Y: Single Sex Schools And Classes

1. Sorting X and Y: Single Sex Schools And Classes AGELE Conference July 8, 2007 Maree Sneed Hogan & Hartson 555 13th St. NW Washington, DC 20004 202-637-6416 mfsneed@hhlaw.com

2. Why? Why do school districts want to implement single sex schools and classes?

3. Research What does the research say about single sex schools and programs?

4. The Research The research regarding single sex education and its effectiveness is widely considered to be incomplete, partial, and inconclusive.

5. The Research continued • In 2005, the U.S. Department of Education authorized and published a review of the existing research concerning single sex schools. • Step 1: Literature Review = 2,221 topically germane studies • Step 2: Apply standards for scientific research (as dictated by What Works Clearinghouse) = 0 applicable quantitative studies; 4 qualitative studies. • Step 3: Relax standards so as to include all correlational studies that employed statistical controls = 88 quantitative studies. • Step 4: Code for elements of sound quantitative studies = 40 quantitative studies. • Final: 40 quantitative and 4 qualitative studies reviewed.

6. The Research continued • The USDOE’s conclusion: • The results are equivocal. • Some support for the premise that single sex schooling can be helpful, especially for certain outcomes. • For many outcomes, there is no evidence of either benefit or harm. • There is limited support for the view that single sex schooling may be harmful or that coeducational schooling is more beneficial for students.

7. The Research continued • Some have critiqued the Department’s review (notably the National Association for single sex Public Education), saying • The review does not account for the number of students in each study. • The review is not exhaustive and does not include readily available, pertinent studies. • “The paradox of single sex and co-education is that the beliefs are so strong and the evidence is so weak.” Smithers, A., & Robinson, P. (2006, September). The paradox of single sex and coeducational schooling. Buckingham, England: Carmichael Press, University of Buckingham.

8. “Pros” and “Cons” What are the pros and cons of single sex schools and programs?

9. The “Pros” Proponents argue that; • Broadens educational opportunities and experiences • Students are more likely to enroll in courses, play instruments, and participate in extracurricular activities they would otherwise not have. • Removes distractions. • Improves classroom performance. • Improves behavior in and outside of the classroom. • Improves post-K12 academic performance. • Allows teachers to adapt their curriculum and pedagogy to gender-specific learning styles. • Alters and improves self-concept and self-esteem. • Diminishes the strength of harmful youth culture values.

10. The “Cons” Opponents argue that: • Separate but unequal is inherently unequal. • single sex education is segregation, and it has the same harmful effects as racial segregation. • Is inconsistent with societal and educational goal of diversity. • Does not prepare students to interact meaningfully in a mixed-gender society. • Does not prepare students to interact meaningfully with the opposite sex. • Any claims to superiority by single sex programs can be traced back to pedagogical factors one could find in any effective school, single sex or coed.

11. Where We Were: Single Sex Education Pre-2006 • Title IX of the Education Amendments of 1972 • single sex schools • Both Title IX and its regulations have always allowed single sex nonvocational elementary and secondary schools (because admission to nonvocational elementary and secondary schools is not covered by Title IX). 20 U.S.C. 1681(a)(1). • Under pre-2006 regulations, school districts could only operate single sex schools if they provided comparable single sex schools for both sexes and if enrollment was voluntary. • single sex classes • No single sex classes were permitted. The original Title IX regulations required that classes be coeducational to ensure nondiscrimination. 45 CFR 86.34 (1975).

12. Where We Were: Single Sex Education: Pre-2006

13. Where We Were: Single Sex Education Pre-2006 • Under Title IX of the Education Amendments of 1972, single sex education exceptions traditionally existed for: • voluntary youth organizations • Boys’ and Girls’ Nation or State conferences • father-son and mother-daughter activities • contact sports • portions of classes dealing “exclusively” with human sexuality • classes for pregnant students, on a voluntary basis • the separation of students by sex if it constituted remedial or affirmative action • physical education classes and activities grouped by ability as assessed by objective standards of individual performance developed and applied without regard to sex • choruses, if admission was based on vocal range or quality.

14. Where We Are: The Law Today

15. Where We Are: The Law Today • Federal Statutes • The text of the Title IX statute remains the same. • No Child Left Behind Act of 2001 • Reauthorized the Elementary and Secondary Act of 1965 (ESA) • Allowed school districts pursuant to Section 5131(a)(23) to use Innovative Programs funds to support same-gender schools and classrooms consistent with applicable law.

16. Where We Are: The Law Today • New Federal Regulations • The Department issued new regulations, which went into effect in November 2006. These are codified at 34 CFR § 106. • Most importantly, the new Title IX regulations have expanded opportunities for single sex classes, extracurricular activities, and schools by making two primary changes: • Old regulations required all classes to be coeducational to ensure nondiscrimination  new regulations allow single sex classes and extracurricular activities, if they meet additional requirements. • Old regulations required school districts that offered one single sex school to offer a substantially equal single sex school to the other sex  new regulations allow school districts to offer a single sex school to only one sex, if the excluded sex has a substantially equal single sex OR coeducational school to attend.

17. Where We Are: The Law Today • New Federal regulations continued: • No change to athletics. • Old exceptions (contact sports, chorus, etc.) still apply. Note: The sex education exception has been changed to allow single sex classes for portions of classes that deal “primarily” (rather than “exclusively”) with human sexuality.

18. Where We Are: The Law Today • Federal Case Law • There are no Supreme Court opinions on the issue of single sex public elementary and secondary education. • In 1977, the Supreme Court, by an evenly divided vote and without an opinion, let stand a decision allowing, under the Equal Protection Clause, a school district that also operated coeducational high schools to operate two comparable single sex high schools, one for girls and one for boys. Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (3rd Cir. 1976), affirmed by an equally divided Court, 430 U.S. 703 (1977).

19. Where We are: The Law Today • Federal Case Law continued • Higher Education • In 1982, the Court held that a State-sponsored, female-only nursing school violated the Equal Protection Clause. Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). • In 1996, the Court determined that, by denying females the educational opportunities provided to males in a single all-male postsecondary school, the State had denied equal protection to females. United States v. Virginia, 518 U.S. 515 (1996).

20. Where We Are: The Law Today • State Law • State laws may still contain provisions prohibiting single sex schools, classes, or activities.

21. New Regulations for Single Sex Schools Under the new regulations and existing law, a single sex elementary or secondary school needs to: 1. Be nonvocational 2. Have completely voluntary student enrollment 3. Have a substantially equal single sex or coeducational school for all other students, including students of the excluded class.

22. New Regulations for Single Sex Classes or Extracurricular Activities Under the new regulations, a single sex class or extracurricular activity needs to: • Be nonvocational • Be based on the federal fund recipient’s important objective • Have its objective implemented in an evenhanded manner • Have completely voluntary student enrollment • Have a substantially equal coeducational class or extracurricular activity for all other students, including students of the excluded class • Be periodically evaluated by the recipient.

23. New Regulations: Single Sex Programs: An Overview Based on 34 CFR § 106.34 and 71 FR 62530.

24. New Regulations: “Completely Voluntary” • For schools: Voluntary enrollment requirement is not imposed by Title IX regulations. Rather, the voluntary enrollment requirement grows out of the sex discrimination prohibitions of the Equal Protection Clause, the Equal Educational Opportunities Act of 1974 (20 U.S.C. sec. 1701-1721), and perhaps Title IX’s general prohibition on intentional discrimination. 69 FR 11276. • For classes and extracurricular activities: Title IX regulations specify that all enrollment in single sex classes or extracurricular activities must be completely voluntary. • Note: A school cannot offer two single sex classes, one for each sex, and no corresponding coeducational class, unless all of the students in the school enroll voluntarily in the single sex classes.

25. New Regulations: “Substantially Equal” • Applies to both schools and classes/activities. (Does not apply to nonvocational public charter schools that are single-school school districts. 71 FR 62530.) • Ensures that students who are excluded from a single sex program will be provided with tangible and intangible features substantially equal to the corresponding features in the single sex program.

26. New Regulations: “Substantially Equal,” continued • The U.S. Department of Education has specified a nonexhaustive list of factors that it will consider, either individually or “in the aggregate as appropriate,” in order to determine whether or not programs are substantially equivalent. These factors are • Policies and criteria of admission • Educational benefits provided, including • Quality, range, and content of curriculum and other services • Availability of books, instructional materials, and technology • Qualifications of faculty and staff • Geographic accessibility • Quality, accessibility, and availability of facilities and resources provided to the class • Intangible features, such as the reputation of the faculty • For schools only: quality and range of extracurricular offerings. • The compared programs do not need to be identical in every respect.

27. New Regulations: “Important [Educational/Governmental] Objective” • Applies only to single sex classes and extracurricular activities, not to schools. • Can be either • to improve educational achievement of its students, through a recipient’s overall established policy; OR • to meet the particular, identified educational needs of its students.

28. New Regulations: “Important [Educational/Governmental] Objective” continued • The single sex nature of the class or extracurricular activity must be substantially related to achieving that objective. • Because private schools are not government entities, the federal regulations use “important educational objective” rather than “important governmental objective” to describe the requisite objective for private school single sex classes. However, the Department has noted that there is no meaningful difference between the two phrases, other than this private/public distinction. 71 FR 62530.

29. New Regulations: “Evenhanded” • Applies to classes/activities, not to schools. • Evenhandedness requires the recipient to provide each sex an equal opportunity to benefit from the important governmental or educational objective it seeks to achieve by providing single sex classes. 69 FR 11276. • The language grows out of the Supreme Court’s language in the VMI case: “we do not question the State’s prerogative evenhandedly to support diverse educational opportunities.” 71 FR 62530.

30. New Regulations: “Evenhanded” continued • Evenhandedness applies to the manner in which a recipient identifies particular educational needs, determines if a single sex class would be substantially related to meeting those needs, and meets the educational needs of both sexes. 69 FR 11276. • The evenhandedness requirement may require that a recipient provide a substantially equal single sex class or extracurricular activity for students of the excluded sex. Sec. 106.34(b)(2). • OCR will examine situations in which recipients offer significantly more single sex class opportunities to students of one sex than to students of the other sex to determine if they are the result of discrimination. 69 FR 11276.

31. New Regulations: Ongoing Obligation but Periodic Evaluations • The recipient has an ongoing obligation to comply with the nondiscrimination requirements of the Title IX regulations. [[does this apply to schools?]] • single sex schools do not have to conduct periodic evaluations because Title IX carves out an exception for admissions to nonvocational elementary and secondary schools. 71 FR 62530. • single sex classes: School districts must conduct evaluations every two years to ensure that • their single sex classes are based on justifications that are genuine and that do not rely on overly broad generalizations about either sex, and • Any single sex classes or extracurricular activities are substantially related to the achievement of the important objective for the classes and extracurricular activities. (Does not apply to interscholastic, club, or intramural athletics.)

32. New Regulations: Ongoing Obligation but Periodic Evaluations continued • If the Department investigates a recipient and identifies compliance problems, the Department may require the recipient to conduct more frequent evaluations. • Recipients should keep records to show that they are in compliance with civil rights requirements and must give the Department access to the information relevant to compliance determinations. (sec 106.71 (incorporating 34 CFR 100.6(b) and (c).)

33. Possible Legal Challenges to Single Sex Programs

34. Possible Legal Challenges to Single Sex Programs • Possible Constitutional Challenge • Equal Protection Clause • Sex discrimination prohibitions still apply. However, in the VMI case, the Supreme Court indicated that single sex education may meet the requirements of the Equal Protection Clause, if it is implemented in certain ways. The new Title IX regulations have specifically adopted the language of the Court in VMI to prevent against successful Equal Protection Clause challenges.

35. Possible Legal Challenges to Single Sex Programs continued • Possible federal law challenges • Equal Educational Opportunities Act of 1974 (EEOA) • Public elementary and secondary schools are also subject to the requirements of the EEOA, which, among other things, contains prohibitions against the involuntary assignment of students to sex-separate schools on the basis of sex. • Title IX • Students, parents, and third parties may file complaints with the U.S. Department of Education’s Office of Civil Rights (OCR) if they believe discrimination in violation of the Title IX regulations has occurred. • Additionally, the OCR has authority to conduct periodic compliance reviews of recipients to ensure compliance. • Note: Title IX prohibits the assignment of teachers and other employees based upon their sex.

36. Possible Legal Challenges to Single Sex Programs continued • Possible state law challenges • Public school and private school recipients of federal funds also may be subject to State or local laws prohibiting single sex classes or schools.

37. Concern Re Gender v. Race • Voluntary segregation by gender is not constitutionally equivalent to segregation by race. • Courts use different standards to evaluate classifications based on race, as compared to sex, to determine if they are consistent with the U.S. Constitution.

38. Public v. Private • Private schools are only subject to Title IX and its regulations if they receive a grant or subgrant of Federal funds from the US Department of Education. • Private schools with students who participate in programs conducted by school districts that are funded under federal programs (e.g. Title I or the IDEA) are not considered recipients of federal funds unless they otherwise receive a grant or subgrant of federal funds. • Public school districts must ensure that their programs, including services to private school students, are consistent with Title IX. • Private school recipients are not subject to the Equal Protection Clause, however, because they are not governmental agencies.

39. Conclusion • The question remains whether or not single sex education is, ultimately, a good idea. • The USDOE’s conclusion: “Although there is a debate among educators on the effectiveness of single sex education, the final regulations permit each recipient to make an individualized decision about whether single sex educational opportunities will achieve the recipient's important objective and whether the single sex nature of those opportunities is substantially related to achievement of that important objective consistent with the nondiscrimination requirements of these regulations.” 71 FR 62530.

40. Resources • Bracey, Gerald W., Educational Policy Research Unit, Arizona State University. Separate but Superior? A Review of Issues and Data Bearing on single sex Education. 2006. • National Association of Single Sex Public Education. www.singlesexschools.org • U.S. Dep’t of Education. single sex Versus Coeducational Schooling: A Systematic Review. 2005. • Also see Salomone, Rosemary C. Same, Different, Equal. 2003.

41. MaMareeMaree Maree Sneed Hogan & Hartson 555 13th St. , NW Washington, DC 202-637-6416 mfsneed@hhlaw.com Baltimore Beijing Berlin Boulder Brussels Caracas Colorado Springs Denver Geneva Hong Kong London Los Angeles Miami Moscow Munich New York Northern Virginia Paris Shanghai Tokyo Warsaw Washington, DC