A federal district court in West Virginia recently ordered an injunction against single-sex classes at Van Devender Middle School in Parkersburg, West Virginia (for an earlier post about the lawsuit, filed by the ACLU on behalf of a parent, see here). The court determined that the program at Van Deventer violated the requirement in Title IX’s regulations that single-sex programs be “completely voluntary.” This requirement is not satisfied, the court said, when parents can opt out of a program that presumes to otherwise place their child in segregated classes. Rather, schools must allow parents must affirmatively opt in to such programs to satisfy this provision of the regulations. The court explained:
[B]ecause single-sex classes are, by their very nature, a gender classification, it makes perfect sense to require the parent or guardian’s clear and affirmative assent. While a failure to opt out may be a legal substitute for agreement in some other areas of the law, such as membership in class actions, presuming that parents or guardians have enrolled their child in a single-sex class completely voluntarily because they failed to opt out would undermine the purpose of Title IX to prevent discrimination based on gender.
The court also noted that the fact that parents were not notified of the opt-out until a few days before the beginning of the school year also suggests that parents did not have a real opportunity to volunteer for single-sex classes.
For now the court did not reach the question, raised in the ACLU’s complaint, of whether even a voluntary program of single-sex education such Van Devender’s would be unlawful under the Equal Protection Clause. If litigation continues, however, the court would likely address that issue.
Decision: Doe v. Wood County Bd. of Educ., 2012 WL 3731518 (S.D. W. Va. Aug. 29, 2012).