Point of View: Position Papers
Single-Sex, Single-Race Public Schools
June 4, 2002
Gerald A. Reynolds
Assistant Secretary for Civil Rights
U.S. Department of Education
400 Maryland Avenue, S.W., Room 5000
Washington, D.C. 20202-1100
Re: Single-sex Notice of Intent Comments
Dear Secretary Reynolds:
We write to comment on your Office’s Notice of Intent to recast Title IX regulations so as to allow, if not encourage, single-sex public schools and single-sex classes within public schools. We do so in the context of the Title IX complaint our three organizations filed with the Office for Civil Rights some six years ago, in which we challenged the single-sex organization of The Young Women’s Leadership School (TYWLS), a public school in East Harlem, New York.
The above-referenced school has a mostly (99%) racial minority student body enrollment: 59% Latina, and 40% African-American. It is now, and has always been since its opening in 1996, an all-girls school. Indeed, in purpose, design, scope, and nomenclature this public school at the outset was organized in ways that excluded boys. All planning, recruitment, and public information about the school specified that this was a public school intended to serve an exclusively all-girls student body, a segment of the student population the New York City Board of Education deemed better suited to be educated in a single-sex environment, outside the allegedly distractive presence of (mostly minority) boys. As such, the public school’s organization immediately became a civil rights issue, both in terms of sex and race, because, we felt, and continue to believe, that both minority boys and minority girls were being stereotyped. Moreover, a public school that separates girls from boys, boys who may share the same neighborhood, and indeed maybe even the same households as the girls, is, to us, inherently and patently discriminatory against the boys, and the girls.
When the government blocks a child?s enrollment at a public school solely on the basis of his/her sex, such state action is injurious to the children of both sexes, because it communicates to the children, and to the community at large, that the state believes there is something intrinsically different and unequal about the children as human beings simply because of their gender.
While our complaint was brought against the all-girls schools, our organizations would have objected, as well, if the public school had been organized for boys only, even if it were done so on the premise that minority boys are educationally “at risk” and therefore require separate schooling. Indeed, we objected on both Title VI and Title IX grounds, to a plan of the New York City Board of Education in 1991 to establish a public high school for minority boys (“The Ujamaa School”). We were joined in our opposition to such a public school for (minority) boys by a bevy of civil rights groups, national and local.
The educational, psychological, and legal reasons for our opposition to such a single-sex public school was aptly captured by leading authorities in civil rights law and equal opportunity work. Here, we quote favorably from a speech by Federal Judge Robert L. Carter, the former General Counsel of the NAACP, who addressed this issue at an NAACP education conference:
“The advocates of [single-sex; one-race] schools present only a superficial picture of the social pathology that makes black males an endangered species. These pathologies, however, stem from causes imposed by the larger society: discrimination, differentiation, denial, neglect and dismissal as worthless. These problems must be tackled by the society. They will not be alleviated merely by placing the children in another setting to which they will bring the same psychological baggage the society has forced upon them.”
The harm that sex segregation does to children is further articulated in a position paper of the NOW Legal Defense and Education Fund on single-sex schools for minority boys:
“Creating ‘male only’ educational activities and programs implies that it is the presence of females, rather than economic and social condition founded on poverty, race and sex discrimination, which has led to the present failure of schools to educate the majority of children in urban schools. Moreover, single-sex pre-college education is inconsistent with the combination of academic achievement and intergroup/interpersonal skills development goals of the public education system.”*
Likewise, we believe that single-sex classes within public schools are to be avoided whenever possible. Title IX’s current exceptions are just that–exceptions to the rule, and narrowly limited to allowing single-sex classes in instances of the teaching of human sexuality; for separate glee clubs; and for single-sexed contact sports. As such, these limited Title IX exceptions to the mandate for co-ed public educational settings have been broadly supported since 1972. We see no rational justification much less a compelling state interest to alter such a well-settled public policy. We strongly object to the recasting of the most basic requirements of Title IX that now commands non-discrimination on the basis of sex in education programs or activities receiving federal financial assistance.
The National Board of the ACLU as recently as 2000, revisited the policy question of whether single-sex public schools or single-sex classes were ever permissible constitutionally or desirable as a matter of ACLU public policy. The ACLU reiterated strongly and overwhelmingly its longstanding opposition to single-sex public education as an insidious form of sex discrimination in education:
“The ACLU opposes single-sex public schools, classes, and curricula even if proposed as an ostensible means or temporary way station to the goal of educational equity. The ACLU does not regard such sex segregation as a benefit to students or as an effective means to equality, because it [sex segregation] can perpetuate rigid sex roles and stereotypes, thus actually fostering the sexism that it purports to remedy. The ACLU believes that public schools have the obligation to ensure that both females and males can obtain an education free from sex discrimination in a coeducational setting.” (emphasis added)
The three undersigned organizations wholeheartedly endorse the ACLU’s views, as well as its legal analysis as to the impermissibility of government-aided single-sex discrimination in education. In this connection, we offer the following legal analysis of current Title IX law, and why we therefore object to your attempt to change Title IX regulations even before you decide our complaint against The Young Women’s Leadership School:
We are certain that Title IX does not allow government to sponsor new single-sex schools or to deny admission or participation in any government-run or financed school that invidiously discriminates on the basis of sex. Here, the Garrett decision (775 F. Supp. 1004, E.D. Mich 1991) is instructive, and convincing. In Garrett, the U.S. District Court prevented the Detroit Board of Education from excluding girls from its “male academies.” The Court cited the Equal Protection Clause of the 14th Amendment, and found that Detroit’s all-male schools also violated Title IX of the Educational Amendments of 1972. Notably, the Court in Garrett opined:
“Title IX specifically prohibits educational programs receiving federal funds from treating students unequally on the basis of sex. The regulations implementing Title IX provide students may not be given “different aid, benefits, or services” because of their sex.”
In particular, the Court in Garrett specifically rejected the defendants’ argument that Title IX permits the selection of prospective students on the basis of sex, the argument that all things being equal, a school could be created which would admit only one sex of students. The Court spoke plainly, viewing this [Title IX] exemption for admissions as applicable only to historically pre-existing single-sex schools; it is not viewed as authorization to establish new single-sex schools. No case has ever upheld the existence of a sex-segregated public school that has the effect of favoring one sex over another. As simple as that.” (emphasis added)
The Office for Civil Rights’ own decision-making bolsters Title IX’s prohibition of single-sex schools and single-sex classes. As you know, when [then] New York City Schools Chancellor Joseph Fernandez was contemplating establishing an all-male public school back in 1991, he was reminded of an OCR ruling against a similar plan when he was Superintendent of Schools in Dade County Public Schools, a plan to establish a single-sex and race segregated class in a public school. OCR’s Regional Civil Rights Director had written to Superintendent Fernandez declaring his single race, single-sex class proposal illegal. Such a plan violated Title VI on race grounds. And, he was told by OCR Regional Director Jesse High,
“Your proposal to assign students on the basis of sex, even though voluntary on the part of the boys who would participate, is not an exception allowed for by the [Title IX] regulation, and does not fit the rationale for the stated exceptions in the regulation.” (emphasis added)
It is against the weight of this considerable legal authority that OCR has stalled, and frankly, refused to render a decision as to the YWLS’s legality under Title IX regulations. We have long suspected the delay was due to your Office’s awareness of these precedents, and legal authority, and its knowing, therefore, of the dubious legality of TYWLS. We know for a fact, because OCR told us, that OCR, years ago, had Title IX “concerns” about the YWLS and that for the past several years OCR has been in “talks” with New York City School Chancellor(s) about the school. Those [private] conversations have run their course, without any resolution. It appears you now want to change the law so as to permit this school to continue as a single-sex institution.
OCR offered the pitiable explanation that the VMI decision of the U.S. Supreme Court had intervened and interposed constitutional standards on applicable Title IX precedents. Our own view of the VMI decision supports our position that Title IX does not allow for, much less encourage, sex discrimination in education in the form of new single-sex public schools and/or single-sex classes within public schools.
The Supreme Court’s VMI decision was not an endorsement but a blow to a historically single-sex military institution. It opened up VMI to women; it did not close it to anyone on the basis of their sex. Indeed, under VMI, and in keeping with Justice Ginsberg’s concurring opinion, the government must, in order to justify a state-sponsored gender classification in education, show that that classification “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” In the matter of TYWLS, there has never been any such showing by the New York City Board of Education. Instead, it purposefully, and clandestinely, organized a public school for girls only. Still, OCR has refused to decide the complaint we brought to you, and now, proposes to change Title IX regulations to, in effect, avoid upholding and enforcing the rule of law.
Your proposed changes in Title IX actually flout equal protection law. It carves out ill-advised, educationally unsound, academically insupportable, and blatantly unconstitutional exceptions to non-discrimination principles. That OCR attempts to do so in the guise of, and with the paternalistic rhetoric of, combating sex discrimination is, to us, sheer Orwellian doubletalk.
A recasting of Title IX in the specific ways that you propose would gut anti-discrimination principles and practices in federally-financed education, and would make the U.S. Department of Education an accessory to the flagrant flouting and inversion of civil rights laws. It will make a mockery of the 1972 Education Amendments and of OCR’s duty to enforce non-discrimination principles.
Rest assured that we will contest any such diminution of civil rights protections in education.
New York Civil Liberties Union
National Organization for Women, New York City
New York Civil Rights Coalition