Constitutional Lessons for the Next Generation of Public Single-Sex Elementary and Secondary Schools

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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. …

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