The legal status of single-sex public education

On October 25 2006, the United States Department of Education published new regulations governing single-sex education in public schools. These new regulations were required by a provision in the No Child Left Behind Act (NCLB), a provision intended by its authors to legalize single-sex education in public schools (specifically, sections 5131(a)(23) and 5131(c) of the NCLB). The new regulations allow coeducational public schools (elementary and secondary schools) to offer single-sex classrooms, provided that the schools:
1) provide a rationale for offering a single-gender class in that subject. A variety of rationales are acceptable, e.g. if very few girls have taken computer science in the past, the school could offer a girls-only computer science class;
2) provide a coeducational class in the same subject at a geographically accessible location. That location may be at the same school, but the school or school district may also elect to offer the coeducational alternative at a different school which is geographically accessible. The term "geographically accessible" is not explicitly defined in the regulations.
3) conduct a review every two years to determine whether single-sex classes are still necessary to remedy whatever inequity prompted the school to offer the single-sex class in the first place.

The new regulations also cleared away the confusion surrounding the legal status of single-sex schools -- schools which are all-girls or all-boys. In fact, the new regulations provide some incentive for school districts to offer single-sex schools rather than single-sex classrooms within coed schools. Single-sex schools are specifically exempted from two of the three requirements above. They don't have to provide any rationale for their single-sex format, and they don't have to conduct any periodic review to determine whether single-sex education is "necessary" to remedy some inequity. They do have to offer "substantially equal" courses, services, and facilities, at other schools within the same school district -- but those other schools can be single-sex or coed. In other words, a school district may offer a single-sex high school for girls without having to offer a single-sex high school for boys. A school district can offer an all-boys elementary school without having to offer an all-girls elementary school.

Charter schools are exempt from all three of the requirements: they don't have to provide a rationale for single-gender classes, they don't have to offer comparable coed classes or schools, and they don't have to do periodic follow-up to justify their single-sex format.

The complete regulations may be downloaded in HTML format, by clicking here. The regulations may be downloaded in Adobe PDF format by clicking on the PDF logo: PDF Version

NASSPE supports the new regulations, although we regret that the Department of Education - both under President George W. Bush and under President Barack Obama - has failed to communicate effectively with the general public or concerned stakeholders regarding 1) the evidentiary basis motivating this change in the regulations, and 2) the fact that single-gender education is now legal in the United States, provided that administrators comply with these regulations. We continue to hear of school administrators who are advised by school district legal counsel that "you can't have single-sex classes in public schools."

2012 Update

Two federal court rulings - the Breckinridge ruling issued in June 2011, and the Wood County ruling issued in August 2012, significantly clarify some of the ambiguities remaining in the application of 34 CFR 106.34. The Breckinridge ruling affirms the constitutionality of the 2006 regulations. The Wood County ruling, while also affirming the constitutionality of the 2006 regulations, interprets "voluntary" to mean "with written consent." The Wood County ruling states that students may be enrolled in single-gender classrooms in coed public schools ONLY IF THE PARENT(S) OR GUARDIAN(S) HAVE SIGNED A CONSENT FORM DIRECTING THAT THE CHILD BE ENROLLED in a single-gender classroom.

The Wood County ruling is technically binding only in the West Virginia circuit. However, we recommend that all schools in the United States which offer single-gender classrooms bring their program into compliance with the Wood County ruling. In other words: "opt out" policies are now out-of-bounds (and indeed are now prohibited in the West Virginia circuit). Parents must "opt in": if parents do not "opt in", the child may not be enrolled in the program.

One ironic and perhaps unintended consequence of these rulings: single-gender public SCHOOLS in the United States now enjoy a much simpler legal status, and are much less vulnerable to legal challenge, than single-gender CLASSROOMS in coed schools. This result is counter-intuitive to many administrators who are not familiar with 34 CFR 106.34, the Breckinridge ruling, and the Wood County ruling. Many administrators assume that it is less problematic for a school district to offer single-gender classrooms in a coed school than to offer, say, a school just for girls. But that is not the case. There is no bar to a public school district offering a girls' school. No rationale need be provided. No comparable alternative must be offered to boys. Title IX does not apply to girls' SCHOOLS (or to boys' schools) - only to COED schools.
If any of this information is confusing, please contact us.


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