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Letter to Secretary Of Education About Amendments To Title IX Single Sex Classes And Schools

July 3, 2002 Gerald A. Reynolds Assistant Secretary for Civil Rights U.S. Department of Education Washington, DC Re: Comments Regarding Proposal to Revise Title IX Regulations Dear Secretary Reynolds: On May 8, 2002, the Secretary of Education announced an intention “to propose amendments to the regulations implementing Title IX of the Education Amendments of 1972 to provide more flexibility for educators to establish single-sex classes and schools at the elementary and secondary levels.” The Secretary has further invited comments with respect to this proposal. The undersigned submit this letter in response to that invitation. In so doing, we address two matters. First, we note that gender-based exclusions from public schools are an invidious form of discrimination. In this regard, the Equal Protection Clause of the Fourteenth Amendment erects an exceedingly strong presumption against gender-based classifications and this presumption operates to impose a general prohibition against single-sex education. Any administrative retreat by regulation or policy from this constitutional standard would itself be unconstitutional. And this would be the case because in funding and approving practices that amount to illegal gender discrimination under the Fourteenth Amendment, the federal government would itself be engaged in discriminatory conduct. Second, we address a Title IX Administrative Complaint that the three undersigned organizations filed with the Office for Civil Rights some six years ago in which we challenged the creation of a single-sex public school in East Harlem, New York. We further describe the dilatory treatment of that Administrative Complaint and offer a regulatory proposal that emerges out of that experience. Each of these matters will be addressed, in turn. I. When the government blocks a child’s enrollment at a public school solely on the basis of gender, such state action is injurious to the children of both sexes, because it communicates to the children and to the society at large that the state believes that there are intrinsic differences between boys and girls requiring separate and unequal treatment. Stated simply, such separation and disparate treatment reinforces offensive and debilitating stereotypes about boys and girls. The harm that gender-based segregation does to children has been articulated in a position paper of the NOW Legal Defense and Education Fund on single-sex schools for minority boys:

“Creating ‘male only’ educational activities and programs implies that it is the presence of females, rather than economic and social conditions founded on poverty, race and sex discrimination, which has led to the present failure of schools to educate the majority of children in … urban schools. Moreover, single-sex pre-college education is inconsistent with the combination of academic achievement and intergroup/interpersonal skills development goals of the public education system ….”

In this regard, United States District Court Judge Robert L. Carter, the former General Counsel of the NAACP, has similarly observed that,

“[t]he advocates of schools [for exclusively young black males] present only a superficial picture of the social pathology that makes black males an endangered species …. These pathologies, however, stem from causes imposed by the larger society — discrimination, differentiation, denial, neglect and dismissal as worthless …. These problems must be tackled by the society. They will not be alleviated merely by placing the children in another setting to which they will bring the same psychological baggage the society has forced upon them.”

Constitutional doctrine fully supports these views. In United States v. Virginia, 518 U.S. 515 (1996), the Supreme Court held unconstitutional and violative of the Equal Protection Clause Virginia’s attempt to maintain a state school that admitted only men. In reaching this conclusion, the Court announced that a gender-based classification can survive constitutional scrutiny only if its proponents can demonstrate an “exceedingly persuasive justification.” Id., 518 U.S. at 534. Such a demonstration requires not only that the classification serve an “important governmental objective” but also that “the discriminatory means employed are substantially [related] to the achievement of those objectives.” Id., 518 U.S. at 533. (emphasis supplied). So understood, the proponents of a gender-based classification must demonstrate that such discrimination will substantially achieve the important objective that is posited. No such showing can support single-sex schools. The social science studies that have been presented in support of single-sex schools have been significantly discredited. At most, such studies are inconclusive and not even remotely adequate to support single-sex schools with the rigor required by the constitutional standard. For example, the research and writing of Carol Gilligan — and particularly her book In A Different Voice (1982) — which described the “crisis in confidence” experienced by adolescent girls and which has served as support for the creation of single-sex schools has been seriously criticized for its methodology and lack of academic rigor. New York Times, March 30, 2002. In a 1983 article in the journal Social Research, Professor Deborah Nails described In A Different Voice, as “social science at sea without an anchor.” Id. Notably, a 1998 Study of the American Association of University Women (AAUW) found that “there is no evidence that single-sex education in general ‘works’ or is ‘better’ than coeducation.” A Critical Look at Single-Sex Education for Girls, AAUW Educational Foundation (1998) at 2. Other studies and observers have also offered powerful reasons for concern with respect to single-sex schools. For example, in 1996 testimony before the Congressional Caucus on Women’s Issues, Kathryn J. Rodgers and Martha F. Davis of the NOW Legal Defense and Education Fund noted that “research shows that boys in the male-only academies may get special opportunities because of their gender, but their ability to deal with girls in competitive real-life settings may be stymied.” See also Levit “Separating Equals: Educational Research and the Long-Term Consequences of Sex Segregation,” 67 Geo. Wash. L. Rev. 451, 489 (1999). As a matter of law, single-sex educational programs and classes within public schools must be measured by the same constitutional test. The “exceedingly” strong constitutional presumption against gender classifications will permit only narrow exceptions for such matters as single-sex contact sports. And, clearly, single-sex classes in connection with mathematics or science cannot possibly survive constitutional scrutiny. Title IX of the Education Amendments of 1972 as set forth at 20 U.S.C. § 1681 embraces this constitutional standard. By its terms the statute provides:

“No person in the United States, shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.”

In prohibiting “discrimination” the statute must be understood as prohibiting, at the least, conduct that under the Equal Protection Clause would be regarded as discriminatory. So understood, if single-sex schools violate the Equal Protection Clause they must also be found to be discriminatory in violation of the Title IX statute. It further follows that any Title IX regulations or administrative policies that support conduct that would be found unconstitutional under the Equal Protection Clause and discriminatory under Title IX must themselves be found impermissible. This is the case for two reasons. First and foremost, if the federal government were to fund and support entities that engage in conduct that constitutes discrimination under the Equal Protection Clause, the federal government would itself be engaged in unconstitutional discrimination. In Norwood v. Harrison, 413 U.S. 455 (1973), the Supreme Court reviewed a financial arrangement under which schools that engaged in racial discrimination were provided with textbooks by the State. The Court found such financial assistance to schools that practiced racial discrimination to be an unconstitutional violation of the Equal Protection Clause. In reaching this conclusion, the Court held that under the Equal Protection Clause “[a] State may not grant … tangible financial aid … if that aid has a significant tendency to facilitate, reinforce and support private discrimination.” Id. at 413 U.S. at 466. Under the principle established in Norwood, the federal government cannot fund institutions that engage in discriminatory conduct. And it certainly follows that the federal government cannot, pursuant to its funding authority, adopt regulations that specifically or even generally approve such discrimination. Second, as a matter of separation of powers principles, administrative agencies cannot promulgate regulations that are inconsistent with statutes and such inconsistent regulations must be regarded ultra vires and void. Chrysler Corp. v. Brown,, 441 U.S. 281, 302 (1979). In sum, the impulse toward “flexibility” may be a virtue in a great many circumstances. But, in this case, it is a mistake. The flexibility envisioned by the Secretary would create inconsistencies with constitutional and statutory mandates. Such flexibility would weaken the strong presumption against gender classifications. As a matter of policy, the Department of Education should not do this. As a matter of law, it cannot do this. II. In 1994, the Young Women’s Leadership School (YWLS) was formed as a public school in East Harlem, New York. The school has a mostly (99%) racial minority student body enrollment – 59% Latina and 40% African-American. It is now, and has always been since its opening, an all-girls school. Indeed, in purpose, design, scope and nomenclature this public school at the outset was organized in ways that effectively excluded boys. All planning, recruitment and public information about the school specified that this was a public school intended to serve girls. Upon the creation of YWLS, the undersigned organizations filed an Administrative Complaint with the Office for Civil Rights asserting that the school violated Title IX. While our Complaint was brought against the all-girls schools, our organizations would have objected, as well, if the public school had been organized for boys only, even if it were done so on the premise that minority boys are educationally “at risk” and therefore require separate schooling. Indeed, we objected on both Title VI and Title IX grounds, to a plan of the New York City Board of Education in 1991 to establish a public high school for minority boys (“The Ujamaa School”). We were joined in our opposition to such a public school for (minority) boys by a great many other civil rights groups, national and local. We were also supported in our Administrative Complaint by a federal District Court decision in Michigan. In Garrett v. Board of Education, 775 F.Supp. 1004 (E.D. Mich. 1991), the District Court prevented the Detroit Board of Education from excluding girls from its “male academies.” The Court cited the Equal Protection Clause of the Fourteenth Amendment and found that Detroit’s all-male schools also violated Title IX of the Educational Amendments of 1972. Notably, the Court in Garrett opined:

“Title IX specifically prohibits educational programs receiving federal funds from treating students unequally on the basis of sex. The regulations implementing Title IX provide students may not be given ‘different aid, benefits, or services’ because of their sex ….”

In particular, the Court in Garrett specifically rejected the defendants’ argument that Title IX permits the selection of prospective students on the basis of sex and the argument that, all things being equal, a school could be created which would admit only one sex of students. In filing the Administrative Complaint, we were further supported in our position by earlier positions taken by OCR. When former New York City Schools Chancellor Joseph Fernandez was contemplating establishing an all-male public school in 1991, he was reminded of an OCR ruling against a similar plan when he was Superintendent of Schools in Dade County – a plan to establish a single-sex and race segregated class in a public school. OCR’s Regional Civil Rights Director had written to Superintendent Fernandez declaring the single race, single-sex class proposal illegal. Such a plan violated Title VI on race grounds. And, he was told by OCR Regional Director Jesse High,

“Your proposal to assign students on the basis of sex, even though voluntary on the part of the boys who would participate, is not an exception allowed for by the [Title IX] regulation and does not fit the rationale for the stated exceptions in the regulation.” (emphasis added).

Six years have passed since that Administrative Complaint was filed. Nevertheless, OCR has stalled and refused to render a decision as to the YWLS’s legality under Title IX. We know for a fact — because OCR told us — that OCR, years ago, had Title IX “concerns” about the YWLS and that for the past seven years, OCR has been in “talks” with New York City School Chancellors about the school. Those conversations have apparently run their course, without any resolution. But, still no decision has been reached with respect to the Complaint. In defense of its dilatory conduct, OCR offered the pitiable explanation that the Virginia decision of the U.S. Supreme Court regarding the Virginia Military Institute (VMI) has intervened and interposed new constitutional standards that bear upon applicable Title IX precedent. Indeed, the VMI decision may have generated new constitutional standards but, as discussed above, those standards are even more rigorous than the previously articulated doctrine. Thus, the VMI decision supports our position that Title IX does not allow for, much less encourage, sex discrimination in education in the form of new single-sex public schools. The Supreme Court’s VMI decision was not an endorsement but a blow to an historically single-sex military institution. It opened up VMI to women. It did not close it to anyone on the basis of their gender. Indeed, as also noted above, under the VMI decision, the government must, in order to justify a state-sponsored gender classification in education, show that that classification “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” In the matter of YWLS, there has never been any such showing by the New York City Board of Education. Still, OCR has refused to resolve the Administrative Complaint challenging TYWLS. The lesson conveyed by this delay is that new Title IX regulations are needed. But, they are not the regulations that the Secretary apparently contemplates proposing. Instead, in the interests of administrative efficiency and responsibility and in the further interest of simple courtesy, the Secretary should consider new regulations to impose time limits on the resolution, by OCR, of Administrative Complaints. The phrase “justice delayed is justice denied” may well be trite. But, it is also true. Administrative regulations in this regard would prevent future injustice of this very real sort. Signed, Michael Meyers Executive Director New York Civil Rights Coalition Matthea Marquart, President Alexandra Leader, Executive Director National Organization for Women – NYC Donna Lieberman, Executive Director Arthur Eisenberg, Legal Director New York Civil Liberties Union Anne Connors, Past President National Organization for Women – NYC Norman Siegel NYCLU Cooperating Attorney

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