Feeling Blue (Not Pink!) About Gender Stereotypes in Education

by Lara S. Kaufmann, Senior Counsel, 
National Women’s Law Center 

Last Friday, we filed an amicus (“friend of the court”) brief in the appeal of an ACLU case challenging the legality of single-sex classes in a public school in Vermilion Parish, Louisiana. Hopefully the brief—submitted on behalf of NWLC and 38 other organizations and individuals who signed on in support—will help to convince the U.S. Court of Appeals for the Fifth Circuit to reverse the harmful decision handed down by the district court.

The Supreme Court has made it very clear, for decades, that the U.S. Constitution’s Equal Protection Clause safeguards the rights of all children to equal educational opportunities and a public education free of gender stereotypes. Because state actions that classify students by sex are so often based on overbroad generalizations about the different abilities and interests of males and females—thus limiting the opportunities available to members of both sexes—the Court reviews such classifications with heightened, "skeptical" scrutiny. 

To survive heightened scrutiny, schools must show that they have an "exceedingly persuasive justification" for separating students by sex. And the Supreme Court has explicitly said that the justification must be "genuine," not "hypothesized or invented post hoc in response to litigation," and that it cannot be based on stereotypes about males and females. It is a tough standard to meet, and the state has the burden of proving the justification for its program. 

This is not to say that single-sex classes are never permissible, but there are limited circumstances under which the government can take the drastic measure of separating boys and girls for public education, and under the Constitution they have to meet the heightened scrutiny standard. Title IX also limits the circumstances in which single-sex education is allowed in schools that receive federal funding. Unfortunately, the Department of Education under President Bush issued broad regulations trying to roll back the safeguards Title IX and the Constitution provided, prompting many schools across the country to adopt single-sex programs based on harmful gender stereotypes that do not provide equal educational opportunities to boys and girls.

And unfortunately, in this case the district court totally overlooked the well-established constitutional standard. The court found that the school principal's dissertation—on which the single-sex program was based—was full of data errors and factual misrepresentations. Such flawed evidence cannot support an exceedingly persuasive justification, yet the district court permitted the program to continue and found no violation of the law. The court did not even address the fact that the program is obviously based on gender stereotypes that limit opportunities for both boys and girls.

For example, the school developed the class syllabi based on the assumed interests and abilities of boys and girls. In one class, the boys were given a quiz about bikes, while the girls were given a quiz about bracelets. Boys in one English class read Where the Red Fern Grows, while the girls were assigned The Witch of Blackbird Pond, and the teacher explained her selection of different books: "boys are more interested in sports and fishing and hunting and . . . girls were interested in princesses and magic and fairy tales." 

Does this make you as uncomfortable as it makes me? Do you know boys and girls who do not fit gender stereotypes who would not benefit from this? Do you think there is value in exposing boys and girls to a variety of subjects and learning styles as they grow up, instead of denying certain opportunities to boys and others to girls based on overbroad generalizations that all girls are one way and all boys are another way? Well, it's also illegal, so stay tuned. This case is on an expedited schedule, so we expect the oral argument will be held pretty soon. We will keep you posted!