As you may recall, the ACLU earlier this year sent letters to all public
schools in West Virginia which offer single-gender classrooms, demanding
that the school cease offering this choice. All districts acquiesced to the
ACLU's demand without a fight, with the exception of Wood County West
Virginia. On August 15, the ACLU filed suit against the Wood County Board of
Education. Just two weeks later, this past Wednesday August 29, the federal
court "granted in part and denied in part" the ACLU's request for an
injunction against the Board of Education. The ACLU had requested an
injunction against the Board on the grounds that 1) the parents did not
properly consent to their children being enrolled in the program, and 2)
that single-gender classrooms in coed public schools are inherently unlawful
and unconstitutional, "separate but equal."
The court ruled in favor of the ACLU on the first point and against the ACLU
on the second point. The court noted that the updated federal regulations
governing single-gender education in public schools, 34 CFR 106.34, require
that the assignment of students to single-gender educational formats must be
"completely voluntary", although the regulations do not define what
constitutes "completely voluntary." The Wood County Board of Education
allowed parents to opt out of the single-gender format for their children.
This past Wednesday, August 29, the federal court ruled that any opt out
provision cannot be "completely voluntary"; instead, the court ruled that
parents must opt in to the single-gender format in order to ensure that it
is "completely voluntary." As a result of the court's ruling, the Wood
County Board of Education will not offer single-gender classrooms this
school year (which began on August 23).
The court emphatically ruled against the ACLU on the second point. Here's a
quote from the ruling issued on August 29:
The plaintiffs, in essence, take the position that no single-sex classes
would ever withstand scrutiny under the Constitution or Title IX. The court
finds this argument unpersuasive. Specifically, the court notes that:
No legal authority supports the conclusion that optional single-sex programs
in public schools are ipso facto injurious to the schools' students. Unlike
the separation of public school students by race, the separation of students by
sex does not give rise to a finding of constitutional injury as a matter of law.
A.N.A. ex rel. S.F.A. v. Breckinridge Cnty. Bd. of Educ., 833 F. Supp. 2d
673, 678 (W.D. Ky. 2011). In fact, the United States Supreme Court has found
exactly the opposite of what the plaintiffs suggest [emphasis added]. See
United States v. Virginia, 518 U.S. at 533 & n.7 (stating that "[t]he
heightened review standard our precedent establishes does not make sex a
proscribed classification," and not questioning Virginia's "prerogative
evenhandedly to support diverse educational opportunities."). Rather, if the
school meets the heightened scrutiny set forth in United States v. Virginia,
single-sex classes can certainly be constitutional.
Brenda Green, executive director of the ACLU of West Virginia, told
reporters that "Obviously we are pleased the injunction was granted, though
the judge did not comment on the merits of our case. . ." I don't agree with
Ms. Green. The judge did comment on the merits of the ACLU's case, when he
stated that "the United States Supreme Court has found exactly the opposite
of what the plaintiffs suggest." You can read the full text of the judge's
opinion at
http://lawprofessors.typepad.com/files/6-12-cv-4355-ord---grant-pi-in-part.p
df
Dr. Patrick Law, superintendent of Wood County public schools, told
reporters "I want to thank the judge for his careful and thoughtful
examination of all the evidence presented. . .While we would have liked to
have won on all counts, that didn't happen." He added that the district
might "possibly" reintroduce the option of single-gender classrooms at some
unspecified time in the future. I'm not holding my breath. The Wood County
school district greatly undermined its own case by hiring an "expert
witness" for the defense who actually agreed with the ACLU on every point -
damaging testimony which the school district could have anticipated if they
had done their homework regarding the "expert witness." By spending money to
fly in an expert witness who sided with the ACLU on every point, the
district simultaneously appeared to suggest 1) that the district had not
done its homework (it would have been better to have no expert witness at
all rather than the witness hired by the district), and 2) that no expert
witness could be found who would support what the district was doing. In
fact, there is no lack of expert witnesses (i.e. tenured university
professors) whom the district might have hired who might have vigorously
defended what the district was doing, based on their own observation and
research: I'm thinking of people like Professors Bette Heins or Kathy
Piechura at Stetson University; Professor Margaret Ferrara at the University
of Nevada - Reno; or Professor Nancy Genero at Wellesley College. The
district failed to do its homework. As a result of the district's failure to
bring in a competent witness, both sides in this case agreed that
single-gender education is based on "pseudoscience" and outdated gender
stereotypes; a stipulation which doomed the district's case. In view of the
district's lack of preparation, it's remarkable that the judge's ruling was
as even-handed as it was. I explore this issue at greater length at
www.singlesexschools.org/wrongwitness.html (case sensitive, all lower case)
but I won't bore you with it here.
I hope to see you at the conference in Houston!
Leonard
Leonard Sax MD PhD
64 East Uwchlan Avenue
Exton, Pennsylvania 19341
Telephone: 610 296 2821