Mr. Gerald A. Reynolds
Assistant Secretary for Civil Rights
U.S. Department of Education
400 Maryland Ave SW
Mary E. Switzer Building
Washington, DC 20202-1100
July 8, 2002
RE: Single-sex Notice of Intent Comments
Dear Assistant Secretary Reynolds:
On behalf of the Leadership Conference of Civil Rights, we express our opposition to and grave concerns regarding your May 8 Notice of Intent to Rule (NOIR) on amending the Title IX of the Education Amendments of 1972 regulations. LCCR is the nation’s oldest, largest, and most diverse civil rights coalition, comprised of 180 national organizations representing persons of color, women, persons with disabilities, labor groups, gays and lesbians, older Americans, and religious groups. This coalition?which has worked for civil rights legislation for the past fifty years?views Title IX as vital to the quest for equal opportunity for millions of students.
We are particularly concerned about opening up long-standing civil rights regulations and the precedent such action would set not only for Title IX, but for other civil rights laws that have provided all Americans with equal access in our society. Equality did not exist in 1972 when Title IX was enacted, and while many improvements have been made since that time, there is much to be done before true gender equity in education is achieved. The ongoing problems include rampant sexual harassment in our nation’s schools; under-representation of females in math, science, and high technology programs; female students’ significantly lower scores on a wide variety of standardized tests; highly sex-segregated vocational education programs with female students overwhelmingly in programs that are “traditionally female” and lead to low wage jobs; exclusion of female students from many athletics opportunities, including athletic scholarships worth millions of dollars; and discrimination against pregnant and parenting young women, combined with wholly inadequate educational opportunities, which exacerbate high dropout rates and foster economic dependence.
Historically, single-sex education has deprived women and girls of educational opportunities critical to their advancement in society, relying on harmful stereotypes to limit girls’ opportunities and aspirations. Even where parallel programs have been established for girls, they have tended to be distinctly unequal, with fewer resources and inferior offerings. We are not so far from the days when girls were required to take home economics while boys took shop and where girls were excluded from prestigious academic high schools that were for boys only. For these reasons, Congress and the courts have struck a careful balance, authorizing single-sex programs only where adequate safeguards are in place to ensure that the programs will not reinforce stereotypes or perpetuate discrimination. Both Title IX and the U.S. Constitution permit single-sex education in appropriate circumstances, but also provide careful legal protections so that girls’ opportunities and aspirations are not limited by sex-segregated schools or classes. These safeguards must be maintained, and any attempt to weaken them is unwarranted and ill-advised. Moreover, where the law limits the use of single-sex programs, any Department effort to expand those programs could subject schools to the risk of legal challenge.
On May 8, the Department of Education issued a NOIR expressing the Secretary’s intent to amend the Title IX regulations “to provide more flexibility for educators to establish single-sex classes and schools at the elementary and secondary levels.” Title IX does not explicitly cover admissions policies in non-vocational elementary and secondary institutions, at least in those that were single-sex before Title IX was enacted. However, Title IX explicitly prohibits single-sex education in the context of vocational education, professional education, graduate-level education, and public institutions of higher education. In United States v. Virginia, 518 U.S. 515 (1996), the Supreme Court has held that the Constitution allows for single-sex education programs that are compensatory and operate to overcome barriers. Further, local educational agencies and their public schools are government-run institutions, to which constitutional principles of equal protection apply. As you know, Title IX regulations already permit a wide-array of single-sex programming. The Title IX regulations also allow for the creation of single-sex classrooms in specific circumstances, such as competitive athletics, human sexuality, and choirs. Single-sex classes and schools can be created for compensatory purposes to allow girls and women to overcome barriers to equal education.
There is no need to change the Title IX regulations with respect to single-sex education. After 27 years of public education existing under the current Title IX single-sex regulations, there is no compelling reason to change them. Although, section 5131(a)(23) of P.L. 107-110, the No Child Left Behind Act (NCLBA), allows local education agencies to use innovative programs funding “to provide same-gender schools and classrooms (consistent with applicable law),” the bill did not call for opening up Title IX regulations. Rather, the NCLBA only required the Department of Education to issue guidelines on applicable law to schools seeking funding under section 5131(a)(23). The Office for Civil Rights (OCR) fulfilled this requirement through guidance also issued on May 8. This guidance did not fully address how schools can implement single-sex education consistent with applicable law, which includes not just Title IX, but also all relevant Supreme Court decisions and the Constitution, particularly the Equal Protection clause of the 14th amendment. The Department of Education has received no mandate from Congress, schools, parents, or teachers to amend Title IX regulations in the name of increased flexibility in the arena of single-sex education.
Again, we strongly oppose amendments to Title IX’s implementing regulations that would weaken the current standards, and request that the Administration reconsider its decision to open up the long-standing Title IX regulations. If you have any questions, please call Nancy Zirkin at 202/785-7720, or Wade Henderson at 202/466-3311.
Executive Director, LCCR
American Association of University Women
Co-Chair, LCCR Education Task Force
National Council of La Raza
Co-Chair, LCCR Education Task Force