You asked for (1) a summary of the new Title IX regulations; (2) some pros and cons of single-sex education; (3) information about existing single-sex-schools or programs, particularly in Connecticut; and (4) possible impediments to introducing or increasing single-sex education in Connecticut.

SUMMARY

In November of 2006, new, less stringent federal regulations on single-sex public education took effect. Previously, with very limited exceptions, classes could not be segregated on the basis of sex. Generally, non-vocational schools could exclude a student from admission based on gender if the excluded students were provided with a comparable single-sex opportunity. The new rules allow single-sex classrooms if it is substantially related to the achievement of an important objective. In some cases, a comparable single-sex class may be required for the excluded sex. Single-sex schools are permitted if the district offers the excluded sex a substantially equal single-sex or coed school.

When the new regulations were announced, the federal education secretary noted that research showed that some students learn better in a single-sex environment. While studies generally show that there are some positive outcomes associated with single-sex education, there are also a number of studies that show there is no quantifiable difference between coed and single-sex learning environments.

While there are about 250 single-sex education schools/programs in the country, only one school in the state currently offers a single-sex learning environment, according to the leading organization for single-sex schools. Possible impediments to increasing this number include our own state law and constitution which require equal protection and prohibit discrimination. The Connecticut State Department of Education has requested a formal opinion on the new regulations from the state Attorney General.

TITLE IX AND FEDERAL REGULATIONS

Federal law generally prohibits individuals from, on the basis of gender, being excluded from participation in, denied the benefits of, or subjected to discrimination under any education program or activity receiving federal funds (Title IX of the Education Amendments of 1972, 20 USCA §§ 1681, 1682). This provision, known as "Title IX," is often cited in relation to sexual harassment or sports, but also relates directly to the question of single-sex schools and classrooms.

The Title IX statute contains some limited exceptions to the general prohibition against excluding a student from a class or activity within a coed school based on gender. (The statute exempts from its coverage the admissions practices of non-vocational elementary and secondary single-sex schools.) Subsection 1681(a)(7)(B) of Title IX exempts any program or activity of any secondary school or educational institution specifically intended for the promotion of any Boys or Girls State conference, Boys or Girls Nation conference, or for the selection of students to attend such a conference. Subsection 1681(a)(8) of Title IX states that the law does not preclude father/son or mother/daughter activities at an educational institution. However, if those activities are provided for students of one sex, opportunities for reasonably comparable activities must be provided for students of the other sex. The federal regulations promulgated under the law provide guidance on proper implementation of Title IX provisions.

Old Regulations

Title IX regulations generally prohibited single-sex classes or activities, stating “a recipient shall not provide any course or otherwise carry out any of its education programs or activities separately on the basis of sex, or require or refuse participation therein by any of its students on such basis...” (34 CFR 106.34 superseded)

The regulations contained two exceptions for specific types of classes that could be segregated by sex: (1) physical education classes during participation in sports the purpose or major activity of which involves bodily contact (34 CFR 106.34(c)) and (2) [p]ortions of classes in elementary and secondary schools which deal exclusively with human sexuality (34 CFR 106.34(e)).

As they are specifically exempted from the statute, the regulations did not prohibit recipients from adopting single-sex admissions policies in non-vocational elementary and secondary schools. However, the regulations specifically provide that a local education agency (LEA) could exclude a student from admission to a non-vocational elementary or secondary school on the basis of sex only if it otherwise made comparable courses, services, and facilities available pursuant to the same policies and criteria of admission (34 CFR 106.35(b) superseded). As an example for LEAs, the United States Department of Education (USDOE) noted that school districts could not establish a single-sex school for one sex that provided a district's only performing arts curriculum. Students of the other sex also must have access to a comparable school with that curriculum. USDOE also noted that it had been its longstanding interpretation, policy, and practice to require that the comparable school must also be single-sex. Finally, the regulations allowed an LEA to offer a single single-sex school if it constitutes remedial or affirmative action (34 CFR 106.3).

The No Child Left Behind Act of 2001 contained two important provisions relating to single-sex education. First, it allowed LEAs to use grants funds to support “same-gender” schools and classrooms consistent with applicable law. It also required the USDOE to issue guidelines (part of which are summarized above) regarding applicable law within 120 days of the law's 2002 enactment date. Shortly after these guidelines were released, USDOE announced its intention to issue new, less stringent regulations on the subject.

New Regulations

The final version of the new Title IX single-sex regulations were published on October 25, 2006 and took effect on November 24, 2006. According to U.S. Secretary of Education Margaret Spellings, the new regulations “give communities more flexibility…to offer single-sex classes, extracurricular activities, and schools at the elementary and secondary levels” and acknowledge that “research shows that some students may learn better in single-sex education environments.”

For classes and activities, the regulations allow non-vocational coeducational elementary or secondary schools to provide non-vocational single-sex classes or extracurricular activities if:

1. they are substantially related to the achievement of an important objective such as improving the educational achievement of students, providing diverse educational opportunities, or meeting the particular, identified needs of students;

2. the objective is implemented in an evenhanded manner, which may require the provision of a substantially equal single-sex class or activity for the excluded sex;

3. student enrollment in the single-sex class or activity is completely voluntary; and

4. the recipient provides to all other students, including students of the excluded sex, a substantially equal coeducational class or extracurricular activity in the same subject or activity.

LEAs must conduct periodic evaluations of single-sex classrooms or activities to ensure compliance (34 CFR 106.34(b)).

For schools, the regulations require an LEA that operates a public non-vocational elementary or secondary school that excludes from admission any students on the basis of sex, to provide students of the excluded sex a substantially equal single-sex school or coeducational school. Under prior USDOE interpretation, the “comparable” school had to be single-sex. Also, here the term “comparable” is replaced with “substantially equal.” For both single-sex classes and schools, the regulations provide factors that may be used to determine if there is “substantial equality,” including the policies and criteria of admission, and the educational benefits provided. A non-vocational public charter school that is a single-school LEA under state law may be operated as a single-sex charter school without regard to these requirements (34 CFR 106.34(c)).

PROS AND CONS OF SINGLE-SEX EDUCATION

In 2005, the American Institutes for Research released a USDOE commissioned study entitled Single-Sex Versus Coeducational Schooling: A Systematic Review. The authors found that the results of the review, as in previous reviews, are equivocal. They found “some support for the premise that single-sex schooling can be helpful, especially for certain outcomes related to academic achievement and more positive academic aspirations.” But they noted that for many outcomes, including classroom treatment and perceptual measures of the school culture that may impact performance, there is no evidence of either benefit or harm. They found little evidence that single-sex schooling may be harmful or that coeducational schooling is more beneficial for students. The authors note that the majority of studies looked at high school students and focused on female-only programs. A cursory review of the literature reveals that the primary argument against single-sex education is the lack of concrete evidence of its benefits in addition to the potential for civil rights issues associated with segregation.

SINGLE-SEX EDUCATION IN CONNECTICUT AND OTHER STATES

According the National Association for Single-Sex Public Education (NASSPE), the leading organization in the country that promotes single-sex education, at least 253 public schools in the United States are offering single-sex educational opportunities. Most of these schools offer single-sex classes but retain at least some coed activities. They estimate that 51 of those 253 schools are completely single-sex. Given that the new regulations were only recently passed, the majority of these organizations were in existence under the old regulations. According to a May 6, 2002 Wall Street Journal article, the then-existing single-sex schools were carefully organized to survive legal challenge with two models prevailing: (1) the all-girls model, which is allowed to exist under the a Title IX exception that allows the redress of past wrongs and (2) the separate-but-equal model, where boys and girls are taught separately but offered the same facilities and educational benefits.

NASSPE currently lists no single-sex schools in Connecticut and only one program. The Lewis Fox Middle school in Hartford houses the Benjamin E. Mays Institute for Boys and the Mary M. Bethune Institute for Girls. The institutes were established in 1996. A 2001 report by the Connecticut Policy and Economic Council, found that students at the institutes outperformed other students in the district in some areas on the 1999 Connecticut Mastery Test. It was reported that 60% of Mays students met or surpassed the state goal in writing, as compared to 32% citywide. In math, 47% of Mays students surpassed the state goal, compared with 27% city-wide. Scores on the reading assessment were six points lower than the city wide score. The girls at the Bethune Institute also scored above the city-wide scores and, in some instances, the Mays students. Updated mastery test data has been requested and will be forwarded upon receipt. As for neighboring states, NASSPE lists no schools or classes in Massachusetts or Rhode Island but lists several of both in New York. The requested article on single-sex schools in Chicago is enclosed for your review.

POSSIBLE IMPEDIMENTS TO SINGLE-SEX EDUCATION IN CONNECTICUT

In addition to Title IX, there are other state and federal protections that may come into play, depending on how the single-sex educational setting is crafted. The Supreme Court has repeatedly declared that state action that closes a door to women or men based on their gender is constitutional under the Fourteenth Amendment only if the proffered justification is "exceedingly persuasive." The state carries the burden of justifying the differential treatment. It must show "that the classification serves important governmental objectives” and that the discriminatory means employed are “substantially related to the achievement of those objectives" (Mississippi University for Women v. Hogan, 102 S. Ct. 3331, 3336 (1982)[citations omitted]; see also United States v. Virginia, 116 S. Ct. 2264, 2275 (1996)).

When the state recites a compensatory purpose as justification, members of the gender benefited by the classification must actually have suffered a disadvantage related to it. In Hogan, for instance, the Court ruled that a state nursing school's limitation of enrollment to women violated the Fourteenth Amendment, reasoning in part that the state's asserted justification of compensating for discrimination against women lacked evidentiary support. The state had made no showing that women lacked training or leadership opportunities in nursing when the school opened its doors or that women currently were deprived of such opportunities (102 S. Ct. at 3338). USDOE encouraged schools to keep both of these decisions in mind in creating single-sex schools under the guise of redressing a past wrong.

The Connecticut Constitution provides that no person can be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because sex (Art I, § 20). Additionally, Connecticut law requires each child to have an equal opportunity to participate in the activities, programs, and courses of study offered in the public schools whenever he or she becomes eligible to do so. It bars discrimination against children on the basis of race, color, sex, religion, national origin, or sexual orientation (CGS § 10-15c). The Connecticut State Department of Education has requested a formal opinion on the new Title IX regulations and how they impact Connecticut. We will forward the opinion when it becomes available.

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