Federal court issues ruling in ACLU v. Wood County West Virginia [US] [2012]


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




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 Sax MD PhD

64 East Uwchlan Avenue

Exton, Pennsylvania  19341

Telephone:  610 296 2821