Can separate be equal? Single-sex classrooms, the constitution, and title IX

Notre Dame Law Review

Volumn 83, Issue 1, 2007, Pages 409-442

  Carr, Benjamin P ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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EID: 38449120843     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (204)

1. See James Sterngold, Bush Would Deny Money to Schools Judged as Failing, N.Y. TIMES, Sept. 3, 1999, at A14 ("Mr. Bush... described Federal Education programs as offering 'high hopes and low achievement, grand plans and unmet goals.' One of the most frequent words in his speech was 'failure.'"); see also William Booth, Bush Proposes Giving School Funds to Parents: Opponents of Vouchers Criticize Idea, WASH. POST, Sept. 3, 1999, at A1 ("Bush described a more activist role for the federal government in education than some conservatives embrace.").
2. Inaugural Address, 1 PUB. PAPERS 1, 2 (Jan. 20, 2001).
3. Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified as amended in scattered sections of 20 U.S.C. (Supp. III 2003)).
4. Id. § 1001. After announcing its lofty goal, the Act lists twelve ways in which this goal can be accomplished, including "promoting schoolwide reform and ensuring the access of children to effective, scientifically based instructional strategies." Id. § 1001(9).
5. See id. § 5131 (a)(23).
6. See, e.g., Wendy Kaminer, The Trouble with Single-Sex Schools, ATLANIIC MONTHLY, Apr. 1998, at 22, 24 (noting that, since the early 1990s, applications to all-girls schools had increased twenty-one percent and four new all-girls secondary schools had been established).
7. See generally AM. ASS'N OF UNIV. WOMEN EDUC. FOUND., HOW SCHOOLS SHORTCHANGE GIRLS (1992) (reviewing over 1300 studies of girls in the American education system and exploring how and why these girls are systematically disadvantaged).
8. See Nat'l Ass'n for Single-Sex Pub. Educ., Single-Sex Schools/Schools with Single-Sex Classrooms/What's the Difference?, http://www.singlesexschools.org/schools-classrooms.htm (last visited Oct. 15, 2007) (listing, state-by-state, 345 public schools that offer single-sex opportunities and classifying eighty-four of those schools as single-sex schools).
9. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 34 C.F.R. § 106 (2007).
10. U.S. CONST. amend. XIV, § 1.
11. 347 U.S. 483 (1954).
12. 518 U.S. 515 (1996).
13. See 20 U.S.C. § 1681 (2000).
14. 347 U.S. 483 (1954).
15. 163 U.S. 537 (1896).
16. Brown, 347 U.S. at 495.
17. See id. at 493-94.
18. See Nancy Levit, Embracing Segregation: The Jurisprudence of Choice and Diversity in Race and Sex Separatism in Schools, 2005 U. ILI. L. REV. 455, 498 ("While people knew at the time that the economically deprived black schools often did provide an inferior education, that was not the injury the Brown Court addressed.").
19. Brown, 347 U.S. at 493 (quoting Sweatt v. Painter, 339 U.S. 629, 634 (1950)).
20. Id. at 494.
21. Levit, supra note 18, at 498.
22. The Court recently reiterated this view in Parents Involved in Community Schools v. Seattle. School District No. 1, 127 S. Ct. 2738 (2007), stating that, in Brown, "we held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because government classification and separation on grounds of race denoted inferiority." Id. at 2767.
23. See Levit, supra note 18, at 464-73 (describing subsequent cases that limit the mandates of desegregation in Brown and Green v. County School Board, 391 U.S. 430 (1968)).
24. See, e.g., Williams v. McNair, 316 F. Supp. 134, 138-39 (D.S.C. 1970) (applying a "rational basis" analysis and refusing to enjoin the enforcement of a statute limiting-to women only-admissions to a state-supported college); Kirstein v. Univ. of Va., 309 F. Supp. 184, 187 (E.D. Va. 1970) (holding that the University of Virginia could not deny educational opportunities to women on the basis of sex).
25. 532 F.2d 880 (3d Cir. 1976), aff'd by an equally divided court, 430 U.S. 703 (1977) (mem.).
26. "Academic" high schools were differentiated from "comprehensive," "technical," and "magnet" high schools, each of which had different admissions standards and curricular offerings. See id. at 881. The academic schools were the most selective, as only seven percent of the city's students qualified under the standards of those schools. Id.
27. Id.
28. Id. at 888.
29. Id. at 882.
30. Id. at 888.
31. See id. at 887. One commentator has noted that, interestingly, "the educational disparities between the schools diminish as the [Vorchheimer] opinion progresses," moving from the science facilities of Central High being superior to complete equality between Central and Girls High Schools. Nancy Levit, Separating Equals: Educational Research and the Long-Term Consequences of Sex Segregation, 67 GEO. WASH. L. REV. 451, 457 n.42 (1999).
32. Vorchheimer, 532 F.2d at 887-88.
33. Id. at 888-89 (Gibbons, J., dissenting). Judge Gibbons, writing in dissent, cleverly substituted gender-based words into the majority opinion of Plessy and calls the majority opinion in Vorchheimer "a twentieth-century sexual equivalent to the Plessy decision." Id. Gibbons cautioned that the doctrine "can and will" be used to support gender segregation, much as it was used to support racial segregation prior to Brown, Id. at 889.
34. Id. at 886 (majority opinion).
35. Id. Ruth Bader Ginsburg-then head of the ACLU Women's Rights Project-pursued a strategy in the Vorchheimer case that did not implicate a direct parallel between Brown and Vorchheimer, feeling-correctly-that the courts would not embrace such an argument. Serena Mayeri, The Strange Career- of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse, 18 YALE J.L. & HUMAN. 187, 259-64 (2006).
36. Vorchheimer v. Sch. Dist. of Phila., 430 U.S. 703, 703 (1977) (mem.), aff'g by an equally divided court, 532 F.2d 880 (3d Cir. 1976).
37. 458 U.S. 718 (1982).
38. Id. at 732-33 ("Neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment.").
39. Id. at 720 n.1.
40. The first case to describe the intermediate scrutiny test for gender classifications was Craig v. Boren, 429 U.S. 190 (1976). In Craig, the Court considered a state statute which prohibited the sale of a certain type of alcohol to males under the age of twenty-one and females under the age of eighteen. Id. at 191-92, 210. Striking down the statute, the Court indicated that "[t]o withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Id. at 197 (emphasis added). This test would become known as "intermediate scrutiny." Id. at 218 (Rehnquist, J., dissenting). For a discussion of why a previous Supreme Court case, Frontiero v. Richardson, 411 U.S. 677 (1973), is a more thorough explanation of the "intermediate scrutiny" test, see Denise C. Morgan, Anti-Subordination Analysis After United States v. Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools, 1999 U. CHI. LEGAL F. 381, 402-04.
41. Hogan, 458 U.S. at 723-24.
42. Id. at 724 (citations and internal quotation marks omitted).
43. Id. at 725. Justice O'Connor, writing for the majority, further noted that "if the statutory objective is to exclude or 'protect' members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate." Id.
44. Id. at 725 & n. 10.
45. Id. at 725.
46. Carolyn B. Ramsey, Subtracting Sexism from the Classroom: Law and Policy in the Debate Over All-Female Math and Science Classes in Public Schools, 8 TEX. J. WOMEN & L. 1, 28 (1999); see also Hogan, 458 U.S. at 733 (Burger, C.J., dissenting) (emphasizing that the Court's holding "is limited to the context of a professional nursing school" and that "since the Court's opinion relies heavily on its finding that women have traditionally dominated the nursing profession... it suggests that a State might well be justified in maintaining, for example, the option of an all-women's business school or liberal arts program"); Levit, supra note 31, at 459 ("[T]he Hogan Court was concerned with antisubordination as well as antidiscrimination values.").
47. But see Hogan, 458 U.S. at 733-36 (Blackmun, J., dissenting) (describing the alternatives available to the petitioner in the state of Mississippi and stating that "Mississippi... has not closed the doors of its educational system to males like Hogan").
48. See, e.g., Levit, supra note 31, at 459 ("The specific question in Hogan was not the wisdom of sex-segregated education, but the constitutionality of excluding one sex without providing comparable educational alternatives.").
49. 518 U.S. 515 (1996).
50. Id. at 523.
51. Id. at 556.
52. See id. at 558-59 (Rehnquist, C.J., concurring) (citing Craig v. Boren, 429 U.S. 190, 197 (1976)) (collecting cases).
53. Id. at 531 (majority opinion). The majority specified that the review standard was "heightened," but that sex was not a "proscribed classification." Id. at 533.
54. See id. at 533.
55. Id. at 559 (Rehnquist, C.J., concurring) (quoting Pers. Adm'r v. Feeney, 442 U.S. 256, 273 (1979)).
56. Id. at 566 (Scalia, J., dissenting). Justice Scalia proceeded to decry the majority's willingness to ignore precedent and stated that "[o]nly the amorphous 'exceedingly persuasive justification' phrase, and not the standard elaboration of intermediate scrutiny, can be made to yield this conclusion that VMI's single-sex composition is unconstitutional." Id. at 570-76.
57. See Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 75 (1996); see also Cynthia Harrison, "Heightened Scrutiny": An Alternative Route to Constitu tional Equality for U.S. Women, in WOMEN AND THE UNITED STATES CONSTITUTION 347, 358 (Sibyl A. Schwarzenbach & Patricia Smith eds., 2003) ("The advocates of strict scrutiny in the [Virginia] briefs described a level of review with results very much like that of intermediate scrutiny as the Court was now applying it...."). Professor Harrison did acknowledge differences between the standard applied by the Court in Virginia and the strict scrutiny standard: "[The test in Virginia] permitted compensatory programs for women and separate educational facilities for women and men... it did not touch military limitations placed on women, and it left in place separate public accommodations in the way of sanitary facilities." Id.
58. Morgan, supra note 40, at 409. For a full discussion of why Virginia did not replace intermediate scrutiny with strict scrutiny in gender discrimination cases, see id. at 408-13.
59. See Virginia, 518 U.S. at 531 ("Today's skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history.").
60. See, e.g., Philippa Strum, Women and Citizenship: The Virginia Military Institute Case, in WOMEN AND THE UNITED STATES CONSTITUTION, supra note 57, at 335, 342-43 ("The difference between 'strict' and 'skeptical' scrutiny, then, lay in the delineation of the circumstances under which sex-conscious government policies might be legitimate."). Professor Strum goes on to elaborate under what circumstances governmental sex-classification policies may be struck down: "Policies that kept women out of areas of life open to men [are] unconstitutional; policies that compensated them for past discrimination might be upheld by the courts." Id. at 342.
61. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 720 n.1 ("Mississippi maintains no other single-sex public university or college. Thus, we are not faced with the question of whether States can provide 'separate but equal' undergraduate institutions for males and females.").
62. See Virginia, 518 U.S. at 526.
63. See id. at 551-54 (describing the VWIL program as a "pale shadow" of VMI).
64. Id. at 534 n.7.
65. See Morgan, supra note 40, at 419.
66. Virginia, 518 U.S. at 533-34. One commentator has argued that the antisubordination analysis presented here is "asymmetric"; only applying to single-sex education for women, but not men. See Morgan, supra note 40, at 424-27. Morgan also admits that "the language of the [Virginia] opinion allows for several conflicting interpretations and leaves the constitutional status of single-sex public schools unclear." Id. at 424.
67. See infra Part IV; see also, e.g., Morgan, supra note 40, at 427 ("Under this definition of anti-subordination, single-sex public schools will survive constitutional scrutiny as long as they are voluntary, educationally beneficial, allow alternatives to traditional gender identities and roles, and do not harm women's economic or political interests.").
68. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) ("[W]e hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyled by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.").
69. See, e.g.. New Orleans v. Duke, 427 U.S. 297, 303 (1976) ("Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.").
70. See, e.g., Strum, supra note 60, at 343 ("The new standard in gender equality litigation became 'skeptical scrutiny,' with the burden of proof now on the state to demonstrate that gender-specific laws have been enacted to fulfill an important governmental function, that they are a least-restrictive method of achieving it, and that they are not based on stereotypical notions about 'the way women are' rather than on individual capabilities.").
71. Virginia, 518 U.S. at 533.
72. See id. at 539-40.
73. id. at 533.
74. Id. at 534.
75. Morgan, supra note 40, at 384.
76. See supra notes 64-67 and accompanying text. While Brown is not directly applicable to cases involving gender, it has a great impact upon the movement against sex discrimination in education and the Court's jurisprudence on the subject. See Elizabeth Davenport, Brown and Gender Discrimination, in BROWN v. BOARD OF EDUCATION 77, 77 (Dara N. Byrne ed., 2005) ("Brown and its progeny became the mechanism by which women could work to change sexual misconceptions and achieve equal rights. Brown opened the discussion for inequalities experienced by female students.").
77. 20 U.S.C. § 1681 (2000).
78. See NANCY LEVIT & ROBERT R.M. VERCHICK, FEMINIST LEGAL THEORY 107 (2006) ("While Title IX has wielded enormous impact on American education as a whole, for most people the law is synonymous with sports and recreation, celebrated everywhere, from the girls' track meet to the 'Title Nine' sportswear catalog. Title IX may be the first federal law to have achieved true pop status."); Katherine Hanson, Title IX: Are We Moving from Separate and Sort of Equal to Integrated and Unequal? Perceptions of Title IX Coordinators on the Impact of Twenty Years of Legislation, in 12 READINGS ON EQUAL EDUCATION: CIVIL RIGHTS IN SCHOOLS 113, 116 (Steven S. Goldberg & Kathleen Kelley Lynch eds., 1995) ("In sports, Title IX forced many colleges and universities to restructure completely their approach to women athletes by requiring that women receive scholarships, teams, coaches, and facilities equal to those of male athletes.").
79. Ramsey, supra note 46, at 34.
80. 20 U.S.C. § 1681 (a) (2000).
81. Ramsey, supra note 46, at 34.
82. See 20 U.S.C. § 1681 (a) (3)-(5) (2000). Additionally, Title IX exempts social fraternities and sororities, voluntary youth service organizations, Boys and Girls Conferences, father-son and mother-daughter activities, and beauty pageants. See id. § 1681(a)(6)-(9).
83. Id. § 1681 (a) (1).
84. Garrett v. Bd. of Educ., 775 F. Supp. 1004, 1008-09 (E.D. Mich. 1991). The House version of Title IX would have applied to all elementary and secondary schools, requiring them to become coeducational. See 118 CONG. REC. 5804 (1972) (statement of Sen. Bayh). While Senator Bayh conceded that all coeducational schools "may be a desirable goal," he acknowledged that there was no way of knowing how many single-sex elementary and secondary schools existed "or what special qualities of the schools might argue for a continued single sex status." Id. Senator Bayh seemed to call for further investigation by the Commissioner of Education into the effectiveness of current single-sex elementary and secondary schools. See id.
85. See, e.g., LEVIT & VERCHICK, supra note 78, at 98-99 ("Consider that in 1972, when the act went into effect, only 9 percent of medical degrees and 7 percent of law degrees were earned by women; by 1994 those numbers had risen to 38 percent and 43 percent, respectively."); THE SEC'Y OF EDUC.'S COMM'N ON OPPORTUNITY IN ATHLETICS, "OPEN TO ALL": TITLE IX AT THIRTY 12 (2003), available at http://www.ed.gov/aboUt/bdscomm/list/athletics/ titlc9report.pdf (citing a GAO report which "notes that the percentage of women earning degrees in 'predominately male fields of study' increased significantly from the 1971-72 school year to the 1996-97 school year, and in some, women now outnumber men"). But see generally NAT'L COAL FOR WOMEN & GIRLS IN EDUC., TITLE IX AT 30 (2002), available at http://www.ncwge.org/PDF/ title9at30-6-11.pdf (grading progress under Title IX in ten different areas and finding much room for improvement).
86. See LEVIT & VERCHICK, supra note 78, at 99.
87. Id.
88. Id.
89. See infra Part III.
90. See Ramsey, supra note 46, at 37-42 (describing the tensions between antidifferentiation and antisubordination).
91. Id. at 38.
92. 118 CONG. REC:. 5812 (1972) (statement of Sen. Bayh); see also THE SEC'Y OF EDUC.'S COMM'N ON OPPORTUNITY IN ATHLETICS, supra note 85, at 7 ("'The word quota does not appear... What we were really looking for was equal opportunity for young women and for girls in the educational system of the United States of America. Equality of opportunity. Equality. That shouldn't really be a controversial subject in a nation that now for 200 years has prided itself in equal justice.'" (quoting Sen. Bayh)).
93. See supra Part I.C-D.
94. An Interview on TitLe IX with Shirley Chrisholm, Holly Knox, Leslie R. Wolfe, Cynthia G. Brown, and Mary Kaaren Jolly, in EDUCATIONAL EQUITY 2, 2 (Karen J. Maschke ed., 1997) [hereinafter An Interview on Title IX] (statement of Shirley Chisholm).
95. 118 CONG. REC. 5803 (1972) (statement of Sen. Bayh); see also Ramsey, supra note 46, at 38 ("Not surprisingly, Bayh's speech [introducing Title IX] did not contain a word about men being kept out of anything.").
96. See 118 CONG. REC. 5804 (statement of Sen. Bayh) (noting that a House Special Subcommittee on Education hearing on discrimination in education produced "[o]ver 1,200 pages of testimony documenting] the massive, persistent patterns of discrimination against women in the academic world"); id. at 5804-05 (describing the discrimination against women in faculty hiring practices in higher education and administrative hiring practices in elementary and secondary schools); id. at 5805-06 (describing, with extensive statistical support, the discrimination present in "admissions to undergraduate, graduate, professional, and vocational institutions of education").
97. 775 F. Supp. 1004 (E.D. Mich. 1991).
98. Id. at 1014.
99. See id. at 1006-12.
100. See supra note 84 and accompanying text.
101. See Garrett, 775 F. Supp. at 1008-10. The court based its decision largely on the stance of the Office of Civil Rights of the Department of Education, which "opined that all male public elementary and secondary school programs violate Tide IX." Id. at 1009 (emphasis added). Curiously, the court says nothing about what result would be reached if the academies were female-only, although the strong antisubordination language of the opinion indicates that the result may have been different. See infra notes 103-05 and accompanying text.
102. Garrett, 775 F. Supp. at 1006.
103. Id. at 1007.
104. See id. (warning of possible negative ramifications: "Even more dangerous is the prospect that should the male academies proceed and succeed, success would be equated with the absence of girls rather than any of the educational factors that more probably caused the outcome").
105. See, e.g., Berkelman v. S.F. Unified Sch. Dist., 501 F.2d 1264, 1269-70 (9th Cir. 1974) ("Congress recognized that, because education provides access to jobs, sex discrimination in education is potentially destructive to the disfavored sex.... Lowell High, as a conduit to better university education and hence to better jobs, is exactly that type of educational program with regard to which Congress intended to eliminate sex discrimination when it passed Tide IX.").
106. See Ramsey, supra note 46, at 39 ("While Congress may have intended to allow experimentation by enacting a hodgepodge of exemptions, the incoherence of Title IX with regard to single-sex education gives the court little guidance.").
107. See 20 U.S.C. §§ 7211(a), 7215(a) (Supp. IV 2004).
108. Id. § 7215(a)(23).
109. See id. § 7215(c) ("Not later than 120 days after January 8, 2002, the Secretary shall issue guidelines for local educational agencies seeking funding for programs described in subsection (a) (23)....").
110. See Leonard Sax, The Odd Couple, WOMEN'S Q., Summer 2002, at 14, 14. Senator Hutchinson first introduced a similar amendment in 1998 - over the objections of Senator Ted Kennedy, who believed it would "undermine the whole movement of trying to get equal treatment for women" - but it failed due to a veto by President Clinton. Id.
111. See id. ("With Clinton on board, not a single senator spoke against the amendment").
112. See 147 CONG. REC. S5943 (daily ed. June 7, 2001) (statement of Sen. Kay Bailey Hutchinson) ("We are trying to open more options to public school than are available in private school because we want public schools to be able to tailor their programs to what best fits the needs of students in that particular area."); id. (statement of Sen. Clinton) ("I believe public school choice should be expanded and as broadly as possible.").
113. See id. (statements of Sens. Kay Bailey Hutchinson and Clinton).
114. Anemona Hartocollis, First Graduates at a Haven for Girls, N.Y. TIMES, June 6, 2001, at B8.
115. See id.
116. See, e.g., Levit, supra note 18, at 483-85 (citing an "extremely selective admissions process," an "infusion of economic resources," and the small class size as influential variables beyond sex exclusivity); Hartocollis, supra note 114 (stating that classes at the school only have twelve to fifteen students, less than half the size of a typical New York City high school class, and describing extra sources of funding, including grants and contributions from the school's founder that paid for "extras" such as summer math and science programs).
117. 147 CONG. REC. S5944 (daily ed. June 7, 2001) (statement of Sen. Clinton).
118. Id.
119. Id. (statement of Sen. Collins).
120. See Statement on Signing the Education Amendments of 1972, PUB. PAPERS 701, 701-03 (June 23, 1972).
121. See Karen Zittleman, Teachers, Students, and Title IX: A Promise for Fairness, in GENDER IN THE CLASSROOM 73, 75 (David Sadker & Ellen S. Silber eds., 2007). One observer postulated that the long delay between the passage of Title IX and the final draft of the implementing regulations was institutional fear of the legislation: "The people who ran HEW were afraid of Title IX. They were afraid of the controversies that they knew would arise over Title IX, and, in classic bureaucratic fashion, they buried it in the hope that it might go away." An Interview on Title IX, supra note 94, at 8 (statement of Holly Knox).
122. See LEVIT & VERCHICK, supra note 78, at 99.
123. 34 C.F.R. § 106.34 (2005).
124. Id. § 106.34 (c).
125. Id. § 106.34(e).
126. Id. § 106.34(f).
127. Hanson, supra note 78, at 114. The regulations covered both students and adults. Id.
128. See, e.g., id. (noting that Title IX and its regulations apply to: "kindergartens, elementary and secondary schools, vocational schools, junior and community colleges, four-year colleges, universities, and graduate and professional schools").
129. Id.
130. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 71 Fed. Reg. 62,530 (Oct. 25, 2006) (codified as amended at 34 C.F.R. § 106 (2007)).
131. See 34 C.F.R. § 106.34(b) (1).
132. See id.
133. Id. § 106.34(b)(4).
134. Id. § 106.34(b)(1)(i)(A).
135. Id. § 106.34(b) (1)(i)(B).
136. See supra note 42 and accompanying text.
137. 34 C.F.R. § 106.34(b)(1)(ii).
138. Id. § 106.34(b)(1)(iv).
139. Many factors are listed in the regulations for determining whether a class or activity is "substantially equal": (1) the policies and criteria for admission; (2) the quality, range, and content of the curriculum; (3) the quality and availability of books, instructional materials, and technology; (4) the qualifications of faculty and staff; (5) the geographic accessibility of the program; (6) the quality, accessibility, and availability of facilities and resources; and (7) intangible factors such as the reputation of the faculty. Id. § 106.34(b) (3). This list was not intended to exclude other factors. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 71 Fed. Reg. 62,530, 62,538 (Oct. 25, 2006) ("The list of factors... was not intended to be exhaustive.... "). The Department of Education noted - in response to the concerns that the "substantially equal" requirement was a lower threshold than "equal" - that the separate classes provided need not be "identical in every respect" and claimed that the standard was consistent with the holding of the Supreme Court in United States v. Virginia, 518 U.S. 515 (1996). 71 Fed. Reg. at 62,538.
140. 34 C.F.R. § 106.34(b)(2).
141. See Virginia, 518 U.S. at 534 n.7 ("We do not question the Commonwealth's prerogative evenhandedly to support diverse educational opportunities. We address specifically and only an educational opportunity recognized by the District Court and the Court of appeals as 'unique'....").
142. 34 C.F.R. § 106.34(b)(1)(iv).
143. Id.
144. Id. § 106.34(b)(1)(iii).
145. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 71 Fed. Reg. 62,530, 62,537 (Oct. 25, 2006) (emphasis added).
146. Id.
147. See supra Part I.D.
148. 34 C.F.R. § 106.34(b)(1)(i)(A).
149. Id. § 106.34(b)(1)(i)(B).
150. See JOHN DEWEY, DEMOCRACY AND EDUCATION 81 (Dover 2004) ("[D]iversity of stimulation means novelty, and novelty means challenge to thought.").
151. See generally AMY BENJAMIN, DIFFERENTIATED INSTRUCTION: A GUIDE FOR MIDDLE AND HIGH SCHOOL TEACHERS 1-10 (2002) (describing differentiated instruction and its values).
152. See generally HOWARD GARDNER, FRAMES OF MIND 73-276 (1983) (describing and discussing multiple autonomous "human intelligences").
153. These techniques are sometimes referred to by the pejorative term "tracking."
154. See Kristin S. Caplice, The Case far Public Single-Sex Education, 18 HARV. J.L. & PUB. POL'Y 227, 251 (1994) ("Not only do single-sex schools promote important governmental interests in academic excellence and confident leaders, they also advance diversity in a state's educational system.").
155. Id. at 253.
156. See Levit, supra note 18, at 495 ("Use of the diversify argument in the single-sex schools context to mean variety rests on flawed logic: it is an argument that is labeled as diversity but one that is premised foundationally on a choice among alternatives.").
157. 438 U.S. 265 (1978).
158. Id. at 311-44 (opinion of Powell, J.).
159. 539 U.S. 306 (2003).
160. Id. at 311-22.
161. Id. at 325.
162. See Levit, supra note 18, at 496 (quoting Grutler, 539 U.S. at 330). Several other commentators have exposed similar logical flaws in the diversity rationale. See, e.g., Levit, supra note 31, at 519-20 ("The meaning of diversity in this context, however, refers only to a narrow slice of experience - 'system wide' diversity. Use of the term 'diversity' in the single-sex schools debate thus decontextualizes its meaning."); Morgan, supra note 40, at 398-99 ("Greater choice is only beneficial to the extent that the additional pedagogical choices are themselves desirable. Therefore, the diversity which single-sex schools add to public education systems is good for students only if the schools themselves are educationally beneficial."); Gary J. Simson, Separate but Equal and Single-Sex Schools, 90 CORNELL L. REV. 443, 453 (2005) ("By excluding one sex from the school, it makes for a less diverse student body and narrows the range of available student perspectives.").
163. 127 S. Ct. 2738 (2007).
164. Id. at 2753 (quoting Grutler, 539 U.S. at 328).
165. Id. at 2754.
166. See supra notes 68-70 and accompanying text.
167. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 731 n.17 (1982).
168. See United States v. Virginia, 518 U.S. 515, 539 (1996).
169. Id. at 540.
170. MYRA SADKER & DAVID SADKER, FAILING AT FAIRNESS 58-59 (1994) (contending that within public schools "[t]here are two separate, alien, unequal nations... walled off by gender but left undisturbed").
171. Myra Sadker & David Sadker, Missing in Interaction, in RECONSTRUCTING GENDER 354, 354 (Estelle Disch ed., 4th ed. 2006).
172. See generally LEONARD SAX, WHY GENDER MATTERS (2005) (examining the biologically programmed differences between boys and girls in the education context).
173. LINDA L. LINDSEY, GENDER ROLES 309 (4th ed. 2005).
174. See id.
175. FRED MAEL ET AL., OFFICE OF PLANNING, EVALUATION & POLICY DEV., U.S. DEPT. OF EDUC., DOC.. No. 2005-01, SINGLE-SEX VERSUS COEDUCATIONAL SCHOOLING, at xv (2005), available at http://www.ed.gov/rschstat/eval/other/single-sex/single-sex. pdf. The report did note, however, that the results of the survey were hampered by the fact that most of the studies were conducted at the high school level and that the "preponderance" of the studies were conducted at parochial schools. Id. at 86-87. The report also lamented the "dearth of quality studies." Id. at 87.
176. See id. at 86.
177. Pherabe Kolb, Comment, Reaching for the Silver Lining: Constructing a Nonremedial yet "Exceedingly Persuasive" Rationale for Single-Sex Educational Programs in Public Schools, 96 Nw. U. L. REV. 367, 395 (2001).
178. See id.
179. See, e.g., Levit, supra note 31, at 503-05.
180. Morgan, supra note 40, at 455-56.
181. See supra notes 113-16 and accompanying text.
182. Morgan, supra note 40, at 456.
183. See supra Parts I, II.
184. See Michael S. Kimmel, "What About the Boys?" What the Current Debates Tell Us - and Don't Tell Us-About Boys in School, in RECONSTRUCTING GENDER, supra note 171, at 361, 361-63 ("Boys drop out of school, are diagnosed as emotionally disturbed, and commit suicide four times more often than girls; they get into fights twice as often; they murder ten times more frequently and are 15 times more likely to be the victims of a violent crime."); see also Janine DeFao, Single-Gender Education Gains Ground as Boys Lag, S.F. CHRON., June 18, 2007, at A1 ("Boys are 2.5 times more likely to be suspended from school and 3.4 times more likely to be expelled, according to federal education statistics. Two-thirds of special education students are male. The Centers for Disease Control and Prevention reports that nearly 10 percent of boys have learning disabilities, compared with 6 percent of girls, and boys are 2.5 times more likely than girls to be diagnosed with attention deficit hyperactivity disorder.").
185. See Garrett v. Bd. of Educ., 775 F. Supp. 1004, 1007 (E.D. Mich. 1991).
186. Id.
187. See supra notes 138-41 and accompanying text.
188. See, e.g., Tim Harford, Snips, Snails, and Puppy Dog Tails: There's Finally Proof That Boys Do Ruin Schools for Girls, SLATE, Sept. 1, 2007, http://www.slate.com/id/2173028/.
189. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 71 Fed. Reg. 62,530, 62,537 (Oct. 25, 2006).
190. See Faulkner v. Jones, 51 F.3d 440, 445 (4th Cir. 1995) (finding that the defendant male-only military school failed to present evidence supporting an absence of demand by female students to attend the school).
191. United States v. Virginia, 518 U.S. 515, 534 (1996).
192. See AMANDA DATNOW ET AL., IS SINGLE GENDER SCHOOLING VIABLE IN THE PUBLIC SECTOR? 7 (2001), available at http://www.oise.utoronto.ca/depts/tps/adatnow/final.pdf.
193. Id.
194. Id.; see also id. at. 51-54 (describing how "the fact that teachers taught both boys and girls in most of the single gender academies actually served to create and maintain theories of gender").
195. Id. at 51.
196. See sufra notes 134-36 and accompanying text.
197. See Simson, supra note 162, at 459.
198. See supra Part IV.A.2.
199. Simson, supra note 162, at 459.
200. See LINDSEY, supra note 173, at 296-308.
201. See Simson, supra note 162, at 459.
202. See id. at 460.
203. Id.
204. Id.