Comparing Single Sex and Reformed Coeducation: A Constitutional Analysis

Nancy Chi Cantalupo, Temple University

Abstract

2011 has been another busy year in the ongoing debate regarding sex segregated education. On September 22, the New York Times, Washington Post and ABC News reported on a recent study published in Science magazine rejecting “The Pseudoscience of Single-Sex Schooling.” In April 2011, a decision was issued in Doe v. Vermilion Parish School Board, the first federal appellate case on single sex education since 1996, when the United States Supreme Court struck down sex segregation at the Virginia Military Institute. At issue in the case is a school initiative encouraged by Department of Education regulations passed in 2006, explicitly allowing public single sex education.

These recent events are only the latest developments in one of the most enduring educational debates of the past three decades, a debate that can often look confusing, given the number of debaters and the diversity of their perspectives and agendas. More than this diversity, however, the debate is confusing because the debate has been structured as a contest between the “innovation” of sex segregated education and status quo coeducation. Missing from the debate is a comparison between reformed coeducation and a single sex alternative, a comparison that is markedly more useful in determining what ought to be done about the problems animating the debate, particularly problems of gender equity in education and society.

In addition, the reformed coeducation and sex segregated education comparison is the proper one for analyzing the constitutionality of single sex education. The “intermediate scrutiny” test established by the U.S. Supreme Court to determine whether governmental sex classifications violate the Equal Protection Clause of the Constitution asks whether a government is using a sex-based classification to achieve an “important” government objective and whether the classification bears a “substantial relationship” to that objective. The test and the Supreme Court’s application of it over a 30-year line of cases suggest that, when assessing whether a classification substantially advances an objective, it is extremely useful and possibly necessary to consider sex-neutral alternatives for advancing that objective and to compare those alternatives.

Accordingly, this article first looks at the reformed-coeducation-to-sex-segregated-education comparison, reviewing research on gender and coeducation and single sex education, and comparing that research. It then examines Supreme Court jurisprudence regarding state actions that facially classify based on sex, beginning with Reed v. Reed and ending with Nyugen v. INS, paying particular attention to the role comparisons between sex-specific and sex-neutral methods play in judging constitutionality. Finally, the article applies this jurisprudence to the sex-segregated education “solution.” It ultimately concludes that single-sex K-12 public education is destined to be judged unconstitutional and therefore recommends that the Department of Education rescind its 2006 regulations, not only because they are themselves unconstitutional, but also because they are making schools vulnerable to lawsuits.