Single-Sex Education in Public Schools: the Question of Constitutionality

Given the theoretical arguments and the empirical evidence that single-sex schooling can be advantageous, it is important to address the constitutionality of single-sex education to determine if segregating students by sex is a legal and acceptable practice. If we have reason to believe that single-sex education is the best way to eliminate gender inequity in the classroom, can government legitimately fund single-sex education in public schools?

This section of the site presents a sampling of Congressional acts and landmark cases that demonstrate how Congress and the court system have dealt with the issue of single-sex education. These cases involve the Fourteenth Amendment's Equal Protection Clause, which declares that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Many of the cases described in this section deal with racial segregation and not sex-segregation. This is because the notion of separate but equal, a concept integral to the support of racially segregated public education, applies to single-sex education as well. Decades ago, proponents of racially segregated public schooling claimed that separate schooling could be equal, thus black and white students did not have to attend school together. Several court cases trace the decline of racially segregated public schooling beginning in the late 1940s, a result of many factors such as the Civil Rights movement. The decline of racially segregated public education had consequences for single-sex education as well. If racially separate schools could not be equal, then how could single-sex public schools be equal? Interestingly, the court system has demonstrated a willingness to accept the argument that single-sex schools can be separate but equal. This section will demonstrate, among other issues, that racial segregation and sex segregation are not as comparable as they appear to be.

In addition to the concept of separate but equal, it is important to understand the concept of judicial scrutiny as it applies to single-sex education court cases. The court system does not apply the same scrutiny to cases dealing with race as it does to cases dealing with gender. Scrutiny ranges from what is known as a "rational relationship" to strict scrutiny. Ordinary cases of classification must demonstrate a rational relationship between a government agency's actions and its purpose. In cases dealing with race, ethnicity, and religion, the agency must provide a compelling reason for its use of classification. Between these two extremes lies intermediate scrutiny, which an agency using gender-based classifications to achieve its purpose must face in court. For example, a public all-male school (the agency) involved in a law suit would face intermediate scrutiny: the court would demand persuasive reasons why the school needs to exclude women to achieve its purpose. However, if a public school began to deny admission to African-American students, it would face strict scrutiny in court: the court would demand especially persuasive justification for the school's exclusion of blacks. The concepts of intermediate scrutiny and strict scrutiny appear throughout the following court cases (Jacobson, 1995, p. 10-11; Fischer, 1991, p. 45).

Finally, a third concept that the following court cases address is the diversity argument. Single-sex schools often use the diversity argument in defense of their exclusionary policies. The logic behind the argument is that single-sex education promotes diversity by offering a unique type of education that provides each sex with the opportunity to grow and learn in a segregated environment.

The following section of "A Citizen's Guide to Education Reform" will demonstrate that cases regarding single-sex education come to contradictory conclusions. There has yet to be a court decision or a piece of legislation that rules firmly on the legality of sex-segregation in public primary and secondary schools.

Sweatt v. Painter, 1947
The Case: The case involved an all-black school in Austin, Texas, that the state created to accommodate ten students. The school even offered the black students access to the capitol'ss law library. Herman Sweatt, a black applicant, complained about the school's supposed comparability to other law schools with respect to physical facilities. The Court not only found that the physical facilities of the all-black school were less adequate than those at the University of Texas Law School, but it found that other immeasurable aspects of the school rendered it unequal to the University of Texas. These immeasurable aspects included "reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige" (Saferstein, 1993, p. 644-645).

The Implications: In deciding in favor of the plaintiff, the Court demonstrated its ability to examine factors of educational equality that are neither tangible nor associated with physical facilities. This was an unprecedented stride toward educational equality as well as an indication that in the future, the court system would address cases dealing with race with stricter scrutiny. In other words, the court system would have to examine more than just the superficial physical equality of schools when dealing with racial segregation (Saferstein, 1993).

McLaurin v. Oklahoma State Regents for Higher Education, 1950
The Case: George McLaurin, a black teacher, was admitted to the all-white University of Oklahoma to pursue a graduate degree in education. The University attempted to maintain its all-white policies by giving McLaurin his own sections of the library, cafeteria, and classrooms. The Court ruled that excluding McLaurin in this manner prevented him from engaging in thoughtful discussion with his peers and consequently, taking full advantage of his educational opportunities (Saferstein, 1993).

The Implications: This case was a companion case to Sweatt v. Painter. It was further evidence of the decline of separate but equal education, as the Court once again demonstrated its willingness to scrutinize more than the physical equality of schools (Saferstein, 1993).

Brown v. Board of Education, 1954
The Case: The case of Brown v. Board of Education is perhaps the most famous U.S. Supreme Court case dealing with segregated schooling. The Court ruled that schools segregated by race are not equal and are therefore against the law, specifically the Fourteenth Amendment's Equal Protection Clause. Wrote Chief Justice Earl Warren, "we conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal" (Saferstein, 1993; The Hartford Courant, 1994).

The Implications: Brown v. Board was a landmark case because of its place in the decline of separate but equal. It held that the intangible effects of education could never be separate and equal. The Court argued that the psychological effects of segregation hurt black elementary and high school students as the effects hurt McLaurin in law school and that racial segregation "bred a sense of psychological inferiority at this [lower school] level" (Saferstein, 1993, p. 645-646).

Since the intangible aspects of segregated schooling could in no way be equal, separate but equal public schooling could not exist. Brown v. Board dictated that the only acceptable way of segregating children in school was by intelligence and ability. Segregation by race had no clear governmental objective and was therefore a violation of the Fourteenth Amendment (Saferstein, 1993).

If one follows Brown v. Board's argument when dealing with all types of segregation, then it would appear that schools segregated by sex cannot be considered equal either. Because of Brown v. Board, public single-sex schooling should have a weaker chance of standing up in court. However, the cases that follow demonstrate that the argument of separate but equal does hold up in court for single-sex public schools (Saferstein, 1993).

Heaton v. Bristol, 1958
The Case: The case involved Lena Ann Bristol, who sued for admission to the all-male Texas A & M University for the sake of convenience and for its prestigious reputation. A trial court ruled in favor of Bristol, but then a Texas Court of Civil Appeals reversed that ruling, stating that Bristol could studied biology, her concentration of choice, at many other coeducational or all-female schools in the state. The Court of Civil Appeals decided that since the state's higher education system was for the most part coeducational, including only one all-female school and one all-male school, the two single-sex schools were a source of diversity (Jacobson, 1995; Saferstein, 1993).

The Implications: This was the first case to deal with the argument that single-sex education promotes diversity within the educational system. The court held that "we need to view the [school] system as a whole in order to ascertain whether there is discrimination between the sexes, the entire system must be viewed, and not a single institution standing alone." In using this diversity argument for its ruling, the court clearly maintained the concept of separate but equal that seemed to have declined with previous court cases. Also in using this diversity argument, the court ignored the fact that the most academically prestigious school within the state's higher education system was the all-male school, Texas A & M University. This case showed that the separate but equal argument still held some footing in sex discrimination cases (Jacobson, 1995; Saferstein, 1993, p. 647-648).

Williams v. McNair, 1970
The Case: In this case, a male student sued for admission to the state-supported all-female Winthrop College, which also included "normal coeducational facilities," an all-male engineering school, and a school for the training of "young ladies." The Court upheld the college's decision to deny the man admission based on expert testimony claiming that a single-sex environment significantly enhanced learning and promoted diversity (Jacobson, 1995, p. 10-11).

The Implications: Once again, we see the diversity argument present in Heaton v. Bristol. The Court decided that there was not "any special feature connected with Winthrop that will make it more advantageous educationally to [the plaintiffs] than any number of other state-supported institutions...It is not intimated that Winthrop offers a wider range of subject matter or enjoys a position of outstanding prestige over the other State-supported institutions in this State whose policies are coeducational." In Williams v. McNair the Court sent the message that single-sex institutions do not promote diversity simply in their existence. These institutions only promote diversity if they offer an educational environment above and beyond other coeducational state-supported institutions (Jacobson, 1995; Saferstein, 1993, p. 649-650).

The case is also significant for the distinction that it draws between race-based and gender-based discrimination. The Court showed in Williams v. McNair that it would not apply the same strict scrutiny to claims of gender discrimination that it would apply to claims of race discrimination.

Title IX of the Educational Amendments of 1972
The Act: Title IX prohibits sex discrimination in those educational institutions which receive federal funds. Two particular clauses of Title IX are especially relevant to single-sex education in public schools. The Anti-Discrimination Clauses declare that "equal education opportunities cannot exist in an environment which is marred with sex based discrimination. Such discrimination might come in the form of different treatment of boys and girls, sexual harassment or curriculum which reflects sex-based stereotypes and reinforces traditional gender roles." However, the Anti-Discrimination Clauses exempt from Title IX regulations "educational institutions that are under religious auspices and those whose primary purpose is the training of individuals for military services and the merchant marine of the United States" (Jacobson, 1995, p. 6-7).

The Admissions Clause of Title IX differs from the Anti-Discrimination Clause. The sponsoring Senator of Title IX, Birch Bayh (D-IN), considered higher educational institutions to be the most in need of policy reform with respect to sex segregation. Thus, concerning sex classifications in schools' admissions policies, Title IX applies only to institutions of vocational education, professional education, graduate higher education, and public undergraduate higher education. This means that all primary and secondary public and private schools are exempt from Title IX with respect to their admissions policies. Each school's admissions policy is not considered discriminatory because it is related to the goal of the school. Interestingly, at the time of Title IX's creation, Senator Bayh fully intended to address the issue of primary and secondary single-sex schools. However, the U.S. Office of Education was not prepared to offer a full report about the status of these schools. Thus, Senator Bayh exempted these schools from Title IX until a study of the schools was conducted, which it never was (Jacobson, 1995, p. 7).

The Implications: Title IX was not created to prohibit the development of single-sex institutions, but to eliminate sex discrimination at existing coeducational institutions. Single-sex primary and secondary schools established before Title IX's passage are not threatened by the act, and new single-sex schools of this level will not necessarily face violations of Title IX either (Jacobson, 1995, p. 7).

The Equal Educational Opportunities Act (EEOA) of the Elementary and Secondary Education Amendments of 1974
The Act: The act addresses equal educational opportunities in primary and secondary public schools. It declares that a state cannot deny equal educational opportunity to an individual on account of race, color, sex, or national origin. An educational agency cannot assign a student to a school based on any of the above factors (Jacobson, 1995).

The Implications: The act does not firmly state whether or not sex segregation is a denial of educational opportunity. In a legislative and historical context, Congress created the EEOA with the specific purpose of cleaning up what remained of intentional racism in public schooling, especially with respect to busing. However, the inclusion of the word "sex" in the act is inconsistent, making it difficult to judge exactly what Congress had in mind for single-sex education when it created the act. Section 1701 of the act reads as follows:

"No state shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin by -
(a) the deliberate segregation by an educational agency of students on the basis of race, color, or national origin among or within schools;
(c) the assignment of an educational agency of a student to a school, other than the one closest to his or her place of residence within the school district in which he or she resides, if the assignment results in a greater degree of segregation of students on the basis of race, color, sex, or national origin."

Note that the word "sex" only appears in 1701(c) (Jacobson, 1995, p. 9-10).

Congressional discussion of sex-segregation as it related to EEOA arose mainly due to racial discrimination manifested in sex-segregation. More simply, the decision of Brown v. Board caused many public school systems to institute sex-segregation in schools to keep black boys and teachers away from white girls. Thus, Congress's concern with sex-segregation when creating the EEOA stemmed from such covertly racist practices. If Congress's problem with sex-segregation in public schools stemmed from racism hidden in sex-segregation, then we still do not know how Congress intended the act to work on single-sex schooling (Saferstein, 1993).

Thus, the EEOA puts forth no solid federal legislation about sex-segregated education and leaves the court system to rule on the equity of single-sex education. "Many individuals interested in gender equity issues thought that the legislation would serve to sharpen the intent of Title IX with respect to primary and secondary admissions policies," but the EEOA does not do this. (Jacobson, 1995, p. 9)

Vorcheimer v. School District of Philadelphia, 1977
The Case: The case involved Philadelphia's public high school system, which included both single-sex and coeducational high schools. A choice to enroll at either of the single-sex schools was voluntary and not assigned. The single-sex schools offered only college preparatory courses and had high admissions standards. Susan Lynn Vorcheimer was denied admission to the all-male Central High School, and she filed a class action suit. A trial court ruled that the school system violated the Fourteenth AmendmentÕs Equal Protection Clause, but an appeals court overturned the ruling, stating that Title IX and the EEOA did not apply directly to primary and secondary single-sex education. Both courts noted that the two single-sex schools were found to be comparable in quality, thus the plaintiff could not claim she was being denied a "substantially equal" education. The case was the first one dealing with single-sex education in a public secondary school to reach the Supreme Court, which ultimately split 4-4 on the decision, rendering the appeals court's decision final (Jacobson, 1995, p. 11; Saferstein, 1993).

The Implications: The case is significant because it set a precedent that Title IX and the EEOA do not apply to public primary and secondary schools. The case also exemplified the intermediate scrutiny standard applied to gender-based classifications. The court found that the district's goal in having two single-sex high schools worked toward an important governmental objective (Jacobson, 1995).

Mississippi University for Women v. Hogan, 1982
The Case: The case involved Joe Hogan, a student auditing nursing classes at all-female Mississippi University for Women School of Nursing. The School of Nursing told Hogan that he could not earn credits toward a degree from the School due to its all-female status. In order to complete his degree, Hogan would have to attend one of Mississippi's coeducational nursing schools. The Supreme Court decided in favor of Hogan and ruled that the School of Nursing must allow Hogan to complete his degree (Saferstein, 1993).

The Implications: MUW needed to prove that it had a specific, significant purpose and need to retain its all-female status. It did not prove this to the Court. MUW's claim that a single-sex nursing school was a form of affirmative action did not stand up to the fact that nursing has always been a traditionally female profession. Nor could MUW say that the presence of males affected the female students' learning, because the school had already allowed Hogan to audit courses there (Saferstein, 1993).

This case is interesting because there were comparable coeducational nursing schools available to Hogan, although not within reasonable commuting distance. The Court demonstrated that it was willing to force a school to be coeducational for the sake of a plaintiff's convenience, especially since the nursing school did not offer exceedingly persuasive justification for its single-sex status. The case is also significant because it set the precedent for ten years of court decisions on single-sex education, during which time the number of single-sex higher education institutions decreased significantly. Finally, it is interesting to ponder why the Court only insisted that MUW's School of Nursing become coeducational, while it left the rest of the university alone (Saferstein, 1993).

Garret v. Board of Education, 1991
The Case: The case involved a plan by Detroit's Board of Education to open three all-male academies that would serve about 250 boys from kindergarten through the eighth-grade. There was no companion plan for all-female academies. The Board's intention was to address the special needs of inner-city males. The Michigan Federal District Court that handled the case ruled in favor of a female plaintiff, stating that the BoardÕs plan violated her Fourteenth Amendment equal protection rights. The court argued that the Board did not prove that removing girls from the boys' educational settings would address their special needs. In fact, stated the court, the school system was failing girls as much as it was failing boys (Jacobson, 1995).

The Implications: The court relied mainly on state codes which declared that "A separate school or department shall not be kept for a person on account of race, color, or sex" in order to make its decision. However, the court did refer to Title IX to show that a newly established single-sex school should not receive the same exemption from Title IX as a traditionally single-sex school does. This case contradicted Vorcheimer v. School District of Philadelphia, which held that Title IX should not apply to public primary and secondary schools (Jacobson, 1995, p. 12).

The Danforth Amendment, 1994
The Act: In August of 1994, Senator John C. Danforth (R-MO) proposed an amendment to Title IX called the Educational Opportunity Demonstration Program. The Senate was in the midst of debate on the Improving America's Schools Act. Had the Danforth Amendment passed, the program would have granted discretion to the Secretary of Education to wave Title IX. It also would have allowed the establishment of ten school programs to serve as experiments in alternatives to coeducation. The programs would have been targeted at educationally disadvantaged students. Applicant schools would then have been able to set up single-sex classrooms on a voluntary basis, so parents who did not want their children in single-sex classrooms would have had a coeducational alternative (Jacobson, 1995).

The Implications: The Danforth Amendment passed with some opposition in the Senate, but it faced enough opposition in the House to prevent it from passing. The amendment was removed from the Improving America's Schools Act. As a result, we still do not have a clear reading of Title IX's effect on single-sex education (Jacobson, 1995).

United States v. Virginia, 1996
The Case: In this well-known Supreme Court case, a female high-school student filed a complaint that the males-only admissions policy of the Virginia Military Institute violated the Fourteenth Amendment's Equal Protection Clause. The complainant ultimately won the case and the right to attend V.M.I. (Saferstein, 1993).

The Implications: The state of Virginia argued that V.M.I. provided diversity in the educational system. However, the Supreme Court ruled that V.M.I. lacked "exceedingly persuasive justification" for excluding women, thus it did not stand up to the intermediate scrutiny standard. Justice Ruth Bader Ginsberg, who wrote the majority opinion of the Court, stated that the majority was not questioning the authority of states to provide even-handed support for diverse educational opportunities. In other words, there can be separate but equal schooling. However, in the case of V.M.I., there was no equal institution. According to the co-president of the National Women's Law center, "in looking at single-sex programs on any level, school boards and states need to have an exceedingly persuasive justification. If, in the end, they reinforce old stereotypes or close doors of opportunity, then they are on shaky ground" (Saferstein, 1993).

The state also argued that a comparable military educational institution for women was available in the Virginia Women's Leadership School at Mary Baldwin College. The Court ruled that V.W.I.L. was not a sufficient attempt to provide a physically rigorous, prestigious military education for women. An October 1, 1993 article from The New York Times argues that "the [V.W.I.L.] plan [was] a scrawny imitation of the V.M.I. program" and "full of solicitude for women because V.M.I.'s program was 'unsuitable' for them" (Saferstein, 1993).

Finally, the state presented a number of other reasons why V.M.I. was simply not suited for coeducation. For example, the state argued that cadets have little to no privacy in barracks and that the physical training typically endured by male cadets was simply too much for women to handle. However, these arguments were not enough for V.M.I. to maintain its all-male status. It is unlikely that even if V.W.I.L. had offered comparably rigorous military training for women that the Court would have considered V.W.I.L. equal to V.M.I. Asking any new military school to measure up to the tradition and prestige associated with V.M.I. is an impossible task. It was the last remaining single-sex public in the state of Virginia (Saferstein, 1993).

What Happens Now?

Single-sex education experiments in public schools do exist even though their legality is questionable. There are or have been experiments in Detroit, MI, Philadelphia, PA, Milwaukee, WI, Miami, FL, Baltimore, MD, Rochester, NY, Ventura County, CA, Aurora, NY, and Presque Isle, ME. It is safe to say that a majority of experiments arise due to a school districtÕs desire to help minority students, particularly inner-city African-American males (Jacobson, 1995).

Many of these experiments have survived simply because school districts keep a low profile and therefore have not faced any complaints or court cases. For example, the principal of Dr. Martin Luther King, Jr. Elementary School in Rochester, NY, started single-sex class experiments in 1989. The student body of the school is 97 percent minority and low income. The experiments continued for four years before the school district interfered and transferred the principal to another school (Jacobson, 1995).

For another example, the principal of Baltimore's Robert W. Coleman Elementary School began experimenting with single-sex classes in 1990, and gradually shifted all of the schoolÕs classes to single-sex in 1993. The school has not attempted to keep a low profile, but the support of BaltimoreÕs mayor seems to have prevented the American Civil Liberties Union (ACLU) from suing the school (Jacobson, 1995).

This is not to say that all single-sex experiments escape public attention. An example of a case that is facing a great deal of opposition is the Young Women's Leadership Institute in Harlem. The institute opened in September 1996. It is the city's first single-sex public school in a decade, The school is based on research which shows that girls, especially disadvantaged girls, exhibit greater achievement in single-sex classes. Presently, the school is facing opposition from three New York civil rights groups. The groups have filed a complaint with the U.S. Department of Education stating that the school discriminates against boys under Title IX. The school is technically open to boys, although no boys have applied for admission. Thus, no law suit is pending because no boy has failed to gain admission to the school because of his sex. The ACLU argues that public schools cannot discriminate on the basis of race or gender, stating that, "We do not accept the notion that separate is equal, and feminist groups such as NOW suggest that the school would set the girls back in preparing for a coeducational environment." (Mann,1996)

The founders of the Young Women's Leadership School hope that the absence of boys will help girls build self-esteem, become more assertive, and take on new leadership roles. Besides limiting class size to eighteen students, the school has introduced some innovative teaching styles. The school's math teacher uses props to help teach mathematics. The humanities teacher tells the students stories about girls who lived in medieval Europe. Interviews with students have shown that most of them are happy with their new environment, but it will take years of testing to determine if the school has measurable effects on girls' achievement.

In order to avoid further "separate but equal" complaints and possible lawsuits, public officials plan to open the city's first all-boys academy for middle and high school students. The officials predict that federal investigators will agree to the all-girls school if the city presents an equivalent for boys. Until the court system rules consistently on the issue of single-sex education and the legislature changes ambiguities in existing legislation regarding sex-segregation, the issue of the constitutionality of single-sex education will not be resolved in the near future. Therefore it is difficult to predict how the courts will rule on the Young Women's Leadership Institute or any other single-sex experiment.

Government 375: Educational Reform and Ideology