Constitutional lessons for the next generation of public single-sex elementary and secondary schools.

AuthorJenkins, Kimberly J.

ABSTRACT

Single-sex public elementary and secondary schools are making a comeback. School districts are structuring these schools in a variety of ways, including by providing a single-sex public school for only one sex or by offering single-sex schools for both sexes. These disparate structures of single-sex schools create distinct potential harms, risks, and benefits for students. This Article contends that the constitutional framework applied to single-sex schools should be systematically modified to recognize the different potential harms, risks, and benefits of these single-sex schools in a manner that will create optimal conditions for creating single-sex public schools. The proposed modifications address the shortcomings of other scholarly proposals and minimize the current indeterminacy in the constitutional case law that could create unnecessary barriers to the development of single-sex public schools.

TABLE OF CONTENTS INTRODUCTION I. THE RENAISSANCE OF PUBLIC SINGLE-SEX ELEMENTARY AND SECONDARY SCHOOLS A. Why Single-Sex Public Elementary and Secondary Schools Are Reemerging in the United States B. The Objectives of Single-Sex Public Schools 1. To Improve Educational Outcomes for Students 2. To Offer Diverse Educational Opportunities 3. To Remedy Discrimination 4. To Conduct an Educational Experiment C. The Successes and Failures of Present and Past Single-Sex Public Schools II. THE MANY FACES OF INTERMEDIATE SCRUTINY A. The Most Demanding Interpretation of the Substantial Relationship Test B. The Least Demanding Interpretation of the Substantial Relationship Test C. The Implications of the Court's Disparate Interpretations of Intermediate Scrutiny for Single-Sex Public Schools III. SCHOLARLY INTERPRETATIONS OF INTERMEDIATE SCRUTINY AND WHY THEY SHOULD BE REJECTED IN THEIR CURRENT FORMULATIONS TO DETERMINE THE CONSTITUTIONALITY OF SINGLE-SEX PUBLIC SCHOOLS A. Formal Equality B. Antisubordination IV. CONSTITUTIONAL GUIDEPOSTS FOR THE NEW GENERATION OF PUBLIC SINGLE-SEX ELEMENTARY AND SECONDARY SCHOOLS A. The Supreme Court's Modification of Equal Protection in Grutter v. Bollinger B. Constitutional Guideposts that Determine the Nature of the Potential Harm Created by Single-Sex Public Schools: Voluntary Attendance and Substantially Equal Opportunities for Both Sexes C. How the Guideposts Should Modify the Substantial Relationship Test Applied to Public Single-Sex Elementary and Secondary Schools 1. Analyzing Whether a Single-Sex School Provides Substantially Equal Opportunities for Girls and Boys and Whether Attendance Is Voluntary 2. Dual, Voluntary Single-Sex Public Schools 3. Solitary or Involuntary Single-Sex Public Schools 4. Different Levels of Deference to the Judgments of Educators Should Be Applied to Each Category of Single-Sex Schools V. MODIFYING AND SYSTEMATIZING INTERMEDIATE SCRUTINY TO ACHIEVE OPTIMAL RESULTS FOR PUBLIC SINGLE-SEX ELEMENTARY AND SECONDARY SCHOOLS INTRODUCTION

Public single-sex elementary and secondary schools are experiencing a renaissance that appears likely to continue in the coming years, given the anticipated increased flexibility in the federal laws that regulate such schools. (1) The U.S. Department of Education's Office for Civil Rights (OCR) is scheduled to release new regulations that provide additional flexibility under Title IX of the Education Amendments of 1972 (Title IX) (2) for public single-sex schools and classrooms. (3) The No Child Left Behind Act of 2001 permits local educational agencies to use some funds to support single-sex schools and classrooms consistent with applicable law. (4) In 1995, only three public high schools had all-female student bodies. (5) For the 2005-06 school year, the National Association for Public Single-Sex Education (NASSPE) reports that forty-four public elementary and secondary schools in the United States are single-sex and that thirteen of these schools opened or became single-sex in the 2005-06 school year. (6) In light of these developments and growing public demand for single-sex public schools, educators and scholars are focusing increased attention on this educational option. (7)

The emergence of a new generation of public single-sex elementary and secondary schools raises several novel constitutional questions because some of these schools have unique characteristics that distinguish them from other types of sex (8) classifications, including the potential for voluntary decisions by students (or their parents) to be classified based on sex--by attending the school--and the provision by some schools or districts of similar educational opportunities to both sexes. When looking for answers to these constitutional questions, educators and courts will find mixed signals in the Supreme Court's case law on sex classifications, including its two single-sex public education cases, both of which involved postsecondary schools. (9) On the one hand, in United States v. Virginia (10) and Mississippi University for Women v. Hogan, (11) the Court held, respectively, that the single-sex admissions policies at the Virginia Military Institute (VMI) and the Mississippi University for Women (MUW) were unconstitutional under intermediate scrutiny, which requires a sex classification to be substantially related to an important governmental interest. (12) The Court held in both cases that the State failed to demonstrate a substantial relationship between the State's purported objective and the single-sex admissions policy. (13) On the other hand, Justice Ginsburg, writing for the Court in Virginia, went so far as to state that the Court did "not question the Commonwealth's prerogative evenhandedly to support diverse educational opportunities" in response to arguments from amici that single-sex schools can increase the variety of educational options. (14)

While the Court did not question the State's prerogative to support diverse educational opportunities in an evenhanded manner, the rigor with which intermediate scrutiny was applied in Virginia prompted many to suggest that intermediate scrutiny is becoming increasingly indistinguishable from strict scrutiny. (15) In fact, Justice Scalia found the Court's scrutiny to be so exacting that he proclaimed single-sex education "functionally dead." (16) While some have agreed with Justice Scalia and have contended that public single-sex schools are not likely to survive constitutional scrutiny after Virginia, (17) others have argued that ample room remains under the Constitution for such schools to exist and even thrive. (18) Because new single-sex public schools open each year, the contentious debate continues today over the constitutionality of single-sex public elementary and secondary schools. (19)

Attempting to provide some answers to the constitutional questions surrounding public single-sex schools, scholars have principally turned to two theories of gender equity to address how courts would or should apply intermediate scrutiny to these schools: formal equality and antisubordination. Formal equality determines the constitutionality of single-sex schools by examining whether girls and boys are provided substantially equal opportunities. (20) In contrast, antisubordination focuses on whether the single-sex opportunities harm or perpetuate the inferiority of girls and women. (21) This Article explains why these theories, as currently formulated, should not be adopted as the sole theoretical guideposts for applying intermediate scrutiny to single-sex public elementary and secondary schools.

This Article then proposes a modification and systematization of intermediate scrutiny that, on balance, will achieve results superior to the Court's current intermediate scrutiny jurisprudence and these scholarly approaches. The new generation of single-sex public schools may benefit some students and create pitfalls for others. (22) The optimal constitutional standard applied to these schools should allow educators, parents, and schoolchildren to harvest the benefits while avoiding or minimizing the pitfalls. The new approach outlined in this Article for assessing the constitutionality of single-sex schools seeks to achieve the appropriate balance between the potential advantages and disadvantages of single-sex public schools. It works within the existing intermediate scrutiny framework and case law when doing so would achieve the best possible results. However, this Article also proposes that the Court modify and systematize intermediate scrutiny when the current framework would result in adverse outcomes or where the Court has yet to explore the constitutional ramifications of single-sex public schools.

At the heart of this Article's approach is the contention that two factors determine the nature of the potential harm presented by single-sex public schools: (1) voluntary attendance at the schools and (2) the provision of substantially equal single-sex schools for each sex. Analysis of these two factors results in dividing single-sex public schools into two categories that present distinct potential harms: (1) dual, voluntary schools, in which each sex may attend substantially equal schools, and students attend the schools voluntarily; or (2) solitary or involuntary schools, in which one sex is provided with a single-sex school that the other sex is not provided, or in which students attend a single-sex school involuntarily.

Traditionally, to apply intermediate scrutiny to single-sex schools, a district would have to show that its single-sex admissions policy serves an important governmental interest and that the policy is substantially related to the achievement of that interest. (23) However, the Court has applied the substantial relationship component of intermediate scrutiny in an inconsistent manner, sometimes requiring a very tight fit between means and ends and sometimes permitting a rather loose fit. (24) The variety of possible interpretations of intermediate scrutiny could...

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