No Girls Allowed: Single-Sex Education and the U.S. Constitution

On August 13, 2012, the Wake County Public School System offered parents the opportunity to have their children educated in a single-sex learning environment.  The boys-only Wake Young Men’s Leadership Academy and the girls-only Wake Young Women’s Leadership Academy would join the ranks of more than 500 similar single-sex programs throughout the United States.  According to the News and Observer, “[d]emand was high from families attracted by old-fashioned staples such as single-sex education, uniforms, small classes, and a focus on leadership.”  The American Civil Liberties Union of North Carolina, however, has expressed its concerns with Wake County’s new single-sex schools and has additionally noted that “separation of students on the basis of sex raises significant legal concerns and may violate the Constitution.”

ACLU Campaign:  “Teach Kids, Not Stereotypes”

Over the past couple of decades, the nation’s public schools have seen a vast expansion in the offerings of single-sex programs.  In 1990, the United States had only two single-sex public schools, but that number has grown exponentially to more than 500 single-sex programs throughout the nation, according to the ABA Journal.  As the ABA Journal explains, “[t]he growth came partly from a 2006 U.S. Department of Education rule change, which gave public schools more flexibility to offer single-sex classes and schools.  Enrollment must be voluntary with equal, co-ed classes available.”  The rapid expansion in single-sex education has been met with fierce criticism and legal action by progressive rights groups like the American Civil Liberties Union.

Earlier this year, the American Civil Liberties Union (“ACLU”) launched a nation-wide campaign called “Teach Kids, Not Stereotypes.”  This new campaign was aimed at “end[ing] the practice of separating boys and girls in public schools based on discredited ‘science’ that is rooted in outdated gender stereotypes.”  Shortly after the launch of their new campaign, the ACLU sent “demand letters to school districts in Florida, Main, Virginia, West Virginia, Mississippi, and Alabama insisting that they take steps to end single-sex programs that rely and promote archaic and harmful sex stereotypes.”  In addition to their demand letters, the ACLU “filed public records requests with schools in Wisconsin, North Carolina, South Carolina, Washington, Massachusetts, Indiana, Idaho, and Illinois . . . [to] better understand the scope and parameters of the single-sex programs operating in those states.”

On September 19, 2012, the ACLU of North Carolina along with the North Carolina Justice Center and Wake County Choices submitted a letter to the Wake County School Board expressing their concerns about the single-sex leadership academies.  In particular, the ACLU expressed their concern that the single-sex learning environment would “prevent girls and boys from receiving equal educational opportunities, deny students the perspectives brought about by gender diversity to the detriment of all students, and marginalize students who do not conform to gender stereotypes.”  While the ACLU provided extended discussion about their vehement disagreement with the educational philosophy and research driving the implementation of single-sex programs, they also noted that these single-sex programs raise “significant legal concerns and may violate the Constitution.”

Equal Protection and Single-Sex Education

In Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), the United States Supreme Court addressed the issue of “whether a state statute that excludes males from enrolling in a state-supported professional nursing school violates the Equal Protection Clause of the Fourteenth Amendment.”  The Supreme Court observed that “[o]ur decisions also establish that the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification.”  The Court held that the policy failed to achieve the asserted justification of “compensate[ing] for discrimination against women” and was not “‘substantially related to the achievement of those objectives.’”  The equal protection analysis for gender-based government action has retained the standard of proving an “exceedingly persuasive justification” for such action.

More recently, in U.S. v. Virginia, 518 U.S. 515 (1996), the United States brought action against the Commonwealth of Virginia “alleging equal protection violation in maintaining [a] military college exclusively for males [i.e., Virginia Military Institute (VMI)].  As in Hogan, the Supreme Court applied the “exceedingly persuasive justification” and held that “Virginia’s categorical exclusion of women form the educational opportunities VMI provides denies equal protection to women.”  Further, the Court observed any remedial measure “must be shaped to place persons unconstitutionally denied an opportunity or advantage in the position they would have occupied in the absence of discrimination.”  The Hogan and Virginia cases provide the legal framework for conducting an equal protection analysis on gender-based, government action, as prescribed by the U.S. Supreme Court; therefore, single-sex programs in public schools would have to establish an “exceedingly persuasive justification” for their decision to implement single-sex schools.

In addition to providing a sufficient justification, single-sex programs must comply with the U.S. Department of Education’s Title IX by providing equal, coeducational classes.  In Doe v. Wood County Board of Education, for example, the ACLU brought an action against the Van Devender Middle School in Wood County, West Virginia, because “[g]irls and boys were separated . . . for all core curriculum classes and were being taught using different methods based on dangerous sex stereotypes.”  Van Devender’s single-sex classes provided parents with an “opt-out” provision, and the Court ruled that “‘[a]n opt-out provision is insufficient to meet the requirement that single-sex classes be ‘completely voluntary.’”  In other words, coeducation is the “default option” for public schools, and students may voluntarily “opt-in” to alternative, single-sex programs.

Over the past several decades, single-sex programs in public schools have grown exponentially, transforming the educational philosophy of single-sex programs from passé to avant garde.  However, the explosion of single-sex options in public school choice has been welcomed by vehement resistance from progressive rights groups like the ACLU, which assert that these gender-based education choices teach stereotypes and not children.  While the current constitutional framework does not categorically exclude single-sex options for public schools on equal protection grounds, a single-sex program would have to provide an “exceedingly persuasive justification,” and enrollment in such a program must be voluntary with equal, coeducational classes available.  A single-sex learning environment for some students, although certainly not appropriate for everyone, may provide the optimal learning environment to improve their academic achievement and leadership abilities.


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About Thomas O. Robbins, Co-Editor-in-Chief Emeritus (5 Articles)
Thomas (“Thom”) O. Robbins graduated from Campbell Law School in 2013. He was actively involved at Campbell Law, where he served as SBA Vice President, Justice of Phi Alpha Delta, and a member of the Moot Court and Mock Trial National Teams. Thom is a summa cum laude and Phi Beta Kappa graduate of Hampden-Sydney College in Virginia and received his master’s degree from Oxford University (St. Antony’s College). He also holds a specialization in international relations and negotiation from the Universidad de los Andes in Bogotá, Colombia, where he studied as a Fulbright Scholar. In the Summer of 2011, he clerked in the Chambers of the Honorable Wanda Bryant at the North Carolina Court of Appeals and continued clerking throughout the Fall 2011 Semester. Thom clerked in the chambers of the Honorable Linda McGee at the North Carolina Court of Appeals and in the chambers of the Honorable J. Rich Leonard of the U.S. Bankruptcy Court, Eastern Division of North Carolina in Raleigh, as well as serving an intern for the Honorable W. Earl Britt, Senior U.S. District Judge for the U.S. District Court, Eastern Division of North Carolina in Raleigh.
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