Yesterday the Department of Education released new guidance clarifying the extent to which Title IX permits public elementary and secondary schools to offer single-sex classes and extracurricular activities. In 2006, after Congress passed the No Child Left Behind Act, the agency promulgated regulations that attempted to reconcile the new law’s permissive stance on single-sex education with Title IX’s prohibition on sex discrimination. While Title IX regulations already permitted schools to offer single-sex classes in physical education and human sexuality, the 2006 regulations authorized additional single-sex K-12 classes (nonvocational) when the single-sex nature of the class is “substantially related” to achieving one of two “important objectives:” (1) providing a diverse array of educational opportunities for students overall; or (2) meeting the educational needs of individual students. In addition, the regulations require that such single-sex classes be implemented in an evenhanded manner, offered on a voluntary basis, be paired with a substantially equal coed class in the same subject, and be subject to continued monitoring for effectiveness.
As many as 750 public schools segregated some classes and activities by sex in the wake of these new regulations, and there are at least as many schools that are entirely single-sex. Many of the school districts that have implemented single-sex classes have provoked litigation (or threat of litigation) for exceeding the scope of the Title IX regulations and other laws like the Equal Protection Clause. The Department’s new “Q&A” style document appears to be aimed at promoting compliance by raising awareness and offering clarification as to exactly what the regulations permit with regards to single-sex classes. (Single-sex schools are not covered by the new guidance document because they are subject to a different regulations).
Here are some highlights from the guidance:
- The school’s “important objective” for single-sex classes must be identified prior to implementation; the agency will not accept a rationalization offered after the fact. If the objective is not in writing, a school district may have difficulty proving to the Department of Education that it satisfied this requirement in the event of a compliance review.
- The “diversity array of opportunities” objective cannot be satisfied if the school’s single-sex offering are the only thing that creates diversity in the curriculum. On the other hand, if — for example — a school offers a variety of electives, coop and externship opportunities, a STEM track, and/or the option to take classes at another school, adding single-sex classes may be related to the objective of offering a diverse curriculum.
- The “meeting individual students needs” objective requires schools to identify a demonstrated educational need (or possibly a social need) to justify separating classes or activities by sex. For example, if a school finds that boys at a certain grade are scoring lower on a state assessment text in a particular area, it could justify a single-sex class option as an intervention aimed at addressing that need.
- The school must rely on evidence that the single-sex nature of the class will promote the identified objective. For example, a school like the one previously mentioned could rely on evidence form a comparitor school or from published research findings that separating boys helped raised test scores in a particular area.
- However, such evidence may not include “overbroad generalizations about the talents, capacities, and preferences of either sex,” including claims that a particular teaching method works well for most members of a particular sex. This clarification is important because it forecloses many examples we have read about, in which schools attempt to justify segregation based on claims that boys and girls in general respond differently to things like the level of classroom activity, the sex of the teacher, the content of teaching examples, the structure of assignments, or environmental factors like the noise levels, lighting, and temperature of the classroom. As the guidance recognizes, these claims, even if reliable, only justify separating students based on their preferences regarding the variable in question. They do not justify using sex as a rough proxy for that variable. For example, a school may believe that girls in general learn better in warmer environments. This does not justify offering a separate class for girls, though a school may offering two different classrooms at different temperatures and allowing students of either sex to choose the warmer or the cooler of the two based on their comfort level.
Based on recent past examples of Department of Education guidance under Title IX, I predict that the release of this guidance document is the first step towards stronger Title IX enforcement to rein in unlawful single-sex classes. By clarifying the narrowness of circumstances in which such classes are permitted, as well as the requirements for implementation, the Department makes it easier for teachers, parents, students, and other stakeholders to identify those classes that do not comply with Title IX and to file complaints accordingly that could prompt investigation and enforcement proceedings. It also signals that the Department is turning its attention to this issue, and may suggest that its next step is to initiate compliance reviews of its own.