Single-Sex Proposed Regulations Comments

Recipient: Kenneth L. Marcus, Esq.

Dear Mr. Marcus:

On behalf of the Leadership Conference on Civil Rights (LCCR), we express our opposition to the Department’s proposed amendments to the regulations implementing Title IX of the Education Amendments of 1972 (“Title IX”) governing single-sex classes and schools. 69 Fed. Reg. 11276 (March 9, 2004). 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. Our coalition – which has worked for the enactment and effective enforcement of civil rights legislation for five decades – views Title IX and its regulations as vital to the quest for equal opportunity for millions of students. We believe that the Department’s proposed amendments violate both Title IX and the Equal Protection Clause of the United States Constitution and set a deeply troubling precedent that discrimination is acceptable in federally funded activities. As a result, we urge the Department to withdraw its proposed regulations and to keep current regulatory standards intact.

Fifty years ago this spring, in Brown v. Board of Education, the Supreme Court announced the fundamental principle that, when it comes to the education of our nation’s young people, separation on the basis of race is inherently unequal. 347 U.S. 483 (1954). Just last year, the Court reaffirmed the proposition that diversity – exposing students to those different from themselves – is a critically important educational value. Grutter v. Bollinger, 539 U.S. 306 (2003).

Unlike the constitutional standards explicated in Brown, Title IX and the Equal Protection Clause of the United States Constitution permit single-sex programs in certain circumstances, recognizing that such programs can remedy discrimination against women or address gender-based barriers they have faced. But significantly, both Title IX and the Constitution erect safeguards to ensure that single-sex education does not reinforce stereotypes or perpetuate discrimination – in short, to ensure that single-sex programs do not undermine equal educational opportunity.

The lessons of Brown and Grutter demonstrate why it is critical to maintain these strong legal protections against sex discrimination where single-sex programs are undertaken. As the Brown case illustrates, separating children on the basis of immutable characteristics can create stigmatizing stereotypes and generate feelings of inferiority in those children as to their status in the community. These feelings in turn undermine children’s motivation to learn and impede their educational and mental development. Brown, 347 U.S. at 494. As the Court recognized in Grutter, moreover, diversity within a classroom or a school produces numerous educational benefits, including breaking down stereotypes; promoting learning outcomes; preparing students for an increasingly diverse workforce and society; and ensuring that all individuals have “confidence in the openness and integrity of the educational institutions” that train future leaders of our country. Grutter, 539 U.S. at 244. Similar principles of inclusion have led to efforts to integrate children with disabilities into mainstream classrooms.

The safeguards currently incorporated into Title IX and the Constitution both guard against the results of segregation as outlined in Brown and protect the benefits of diversity in educational institutions. But because the Department’s proposed amendments obliterate these basic protections against sex discrimination, the amendments pose precisely the sorts of danger set forth in Brown. The amendments further undermine the principles of Grutter by authorizing schools to use gender as a means to limit diversity within a classroom or a school. They thus endanger the gains that girls and women have made in the classroom over the last three decades, open the door to further discrimination in the future, and lead to questions about the Department’s commitment to fundamental principles of civil rights and equal protection.

Among the reasons that LCCR opposes the proposed regulations are the following:

– Schools’ civil rights responsibilities cannot be premised on stereotypes or parent or student preferences. The proposed regulations authorize the creation of sex-segregated programs based on nothing more than untested beliefs, stereotypes and assumptions – or even just the desire to accommodate parents or students in their views – that sex-segregation would bring some unspecified educational benefit. See, e.g., 69 Fed. Reg. at 11278 (schools may establish sex-segregated classes where “students and parents would prefer the option of single-sex classes because they believe they would provide a benefit not available in coeducational classes”). Nothing in the regulations bars a school from acting on invidious stereotypes – such as, for example, the notion that boys learn best only where they are given plenty of breaks, or that girls are fragile creatures who can only achieve in environments in which they are protected from their male peers. Moreover, the regulations would permit the preferences of parents and students to dictate the scope of a school’s civil rights responsibilities. This is simply and wholly unlawful. United States v. Virginia, 518 U.S. 515, 533 (1996) (gender-based classifications may not rely on “overbroad generalizations about the different talents, capacities or preferences of males and females”); Brown v. Board of Education, 349 U.S. 294, 300 (1955) (“the vitality of . . . constitutional principles cannot be allowed to yield simply because of disagreement with them”).

– Schools may not deny equal opportunities to individuals excluded from educational programs solely because of their gender. The proposed regulations explicitly refuse to require that there be equal single-sex programs for the gender initially excluded from a single-sex offering. See, e.g., 69 Fed. Reg. at 11279 (“a single-sex class for each sex, in the same subject, generally is not required”). But if single-sex programs in fact provide an educational benefit (outside of compensating for discrimination or barriers faced by one gender) sufficient to meet applicable legal standards, that benefit must be provided equally to both genders and cannot, by definition, be provided in a coeducational environment.

Moreover, as Brown makes clear, segregation stands to deprive excluded children of equal educational opportunities even where separate programs are equal “with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors,” Brown, 347 U.S. at 492. The Court has echoed this understanding in the context of gender, noting that “[m]ore important than the tangible features are those qualities which are incapable of objective measurement but which make for greatness in a school,” such as faculty reputation, alumni standing in the community, and traditions and prestige. Virginia, 518 U.S. at 554 (citations omitted). Even assuming that schools could lawfully establish “separate but equal” gender-based programs in some circumstances – a proposition on which the Court has not yet ruled – the regulations entirely omit consideration of these critical “intangible” factors.

– Improvements in equal educational opportunity are no grounds for abandoning legal protections that have promoted those improvements. LCCR strongly disagrees with the Department’s assertion that it is appropriate to relax anti-discrimination protections because educational options for women and girls have improved. 69 Fed. Reg. at 11276. While women and girls have made great strides in education in the last three decades, the safeguards set in Title IX and the Constitution are as critical today as they were when Title IX was enacted 30 years ago. Gender dis