Education Law Publications

The firm publishes a monthly "Issue of the Month" on current issues or matters of interest in the education law area.

If you want more information about our education law practice or a copy of any of our articles, contact David Duff at dduff@ddtwb.com

SCHOOL LAW
“ISSUE OF THE MONTH”
January 2007

SINGLE-GENDER EDUCATION

In recent years, school districts around the country, including several in South Carolina, have implemented single-gender educational opportunities. Such programs have demonstrated success in many districts, as evidenced by higher test scores and diminished discipline problems.  As of April 2006, there were 209 school districts in 33 states offering single-sex educational opportunities.  While this innovative approach to public education is encouraged by the availability of funding under the federal No Child Left Behind Act, whether such programs would survive a legal challenge is, at this juncture, an open question.  Recent amendments to Title IX of the Education Amendments of 1972 do, however, provide some guidance on how a reviewing court might decide this issue.

Title IX prohibits discrimination on the basis of sex by any education program or activity receiving federal financial assistance. In general terms, Title IX provides that the programs and activities in which students participate may not provide unequal benefits to males and females.  In March 2004, the U.S. Department of Education proposed amendments to Title IX’s implementing regulations that allow school districts the flexibility to provide single-sex classes, extracurricular activities, and schools, while ensuring that such classes and schools are provided in a nondiscriminatory manner.  The proposed regulations were finalized and went into effect on November 24, 2006.

Under the final regulations, a district may offer a single-sex class or extracurricular activity provided that the district also offers a co-educational class or activity in the same subject.  The regulations further require that the district follow certain specified conditions.   A district also is permitted to offer a single-sex school for one sex as long as the district offers a coeducational school or a single-sex school for the excluded sex.

The specific conditions pursuant to which a district may offer a single-sex class are as follows.  First, the district must be able to show that the purpose of the class is the achievement of an important governmental or educational objective through one of the two following: 1) to improve educational achievement of its students, through the school district’s overall established policy to provide diverse educational opportunities, provided that the single-sex nature of the class or extracurricular activity is substantially related to achieving that objective; or 2) to meet the particular, identified educational needs of its students, provided that the single-sex nature of the class or extracurricular activity is substantially related to achieving that objective. Therefore, in order to survive a challenge under Title IX, a district must be able to demonstrate a policy of offering diverse educational opportunities that are not limited to single-sex classes.  In other words, a district cannot offer a single-sex class and subssequently state that the district is pursuing “diverse educational opportunities.”  Instead, prior to the implementation of a single-sex class, a district must show that its commitment to diverse educational opportunities.  A district may illustrate its commitment to diverse educational opportunities by offering charter schools, magnet schools, and co-educational schools. Furthermore, at the school level, policies illustrating diversity may include a range of elective classes or the opportunity to take classes at other schools.

Second, the objective must be implemented on an even basis by the district.  Under the new regulations, evenhanded implementation of a district’s important objective means that if a district offers a single-sex class, the district also must provide equal educational opportunities to students regardless of their sex, with the end result being that the district provide “substantially equal classes.”  In other words, a district not only must determine which classes to offer as single-sex, it also must determine whether to offer a substantially equal single-sex class to the excluded class

Third, the regulations provide that student enrollment in the single-sex class, extracurricular activity, or school must be voluntary.  The regulations state that unless a district offers enrollment in a co-educational class in the same subject, enrollment in a single-sex class is not voluntary.  The regulations do not require that school districts notify parents of the option of enrolling their child in a single-sex class.  However, the Department “strongly encourages” districts to notify parents, guardians, and students about their options to enroll in either a single-sex or coeducational class, and also to obtain permission from parents or guardians to enroll their children in a single-sex class.

Fourth, there must be a substantially equal coeducational class, extracurricular activity, or school offered by the district to all other students, including students of the excluded sex.  The school district may also offer a single-sex class in the same subject for the excluded sex, but such offering is not required under certain conditions.

Past Issues of the Month may be accessed at www.ddtwb.com.