Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education

56 Pages Posted: 1 Oct 2013 Last revised: 10 Apr 2014

See all articles by David S. Cohen

David S. Cohen

Drexel University Thomas R. Kline School of Law

Nancy Levit

University of Missouri at Kansas City - School of Law

Date Written: September 30, 2013

Abstract

Since federal regulations authorized single-sex education in 2006, there has been an explosion of single-sex schools and classes. Although the Supreme Court has not ruled, three federal court decisions have addressed the constitutionality of single-sex classes, and the issue will percolate toward Supreme Court review soon. The arguments are that parents should have choices and “diversity” of educational options, that “brain research” shows that boys and girls are so biologically different to need sex-specific educational environments, that educational outcomes are better, and single-sex learning environments allows boys and girls to break through gender stereotypes. This article dissects these arguments within the context of the constitutional doctrine of sex classifications, concluding that none is an “exceedingly persuasive justification” for the pernicious harms that are associated with sex segregation.

The article demonstrates that “diversity” was never intended to support segregation. It explains that parental choice does not eliminate the problem of state-sponsored segregation based on sex. Courts must address whether single-sex education is supported empirically before allowing it as a publicly funded option. The article reviews studies showing that most sex-differentiated behavior is learned, and biological differences do not justify sex-specific teaching methods. The article also examines studies of academic and emotional outcomes in single-sex and coeducational environments which confirm that the vast majority of outcomes do not support single-sex education.

The article then explores the formation of gendered behaviors and attitudes. The way that schools have been implementing single-sex education promote gender essentialism. Sex-segregation increases students’ and teachers’ stereotypes about sex and gender, gives them outlets for expressing those beliefs, and creates opposition between the groups. In short, sex segregated education violates the Equal Protection Clause, it has no “exceedingly persuasive justification” and instead exacerbates “outdated stereotypes” while “create[ing] [and] perpetuate[ing] the legal, social, and economic inferiority of women.”

Keywords: education, same-sex, single-sex, sex-segregation, diversity, child-development, brain-research, equal protection, choice

JEL Classification: I20, I21, I28, I29, K10, K30

Suggested Citation

Cohen, David S. and Levit, Nancy, Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education (September 30, 2013). 44 Seton Hall Law Review 339 (2014); Drexel University Earle Mack School of Law Research Paper No. 2013-A-06. Available at SSRN: https://ssrn.com/abstract=2333861

David S. Cohen

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
215-571-4714 (Phone)

Nancy Levit (Contact Author)

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

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