Constitutional Lessons for the Next Generation of Public Single-Sex Elementary and Secondary Schools
Jenkins, Kimberly J., William and Mary Law Review
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
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. …