While all students are vulnerable to assaults on their rights, girls and women face a distinct set of challenges. This article examines three trends illustrating obstacles to an equal education for girls and women. The first section addresses the current popularity of sex-segregated programs in public schools, in which boys and girls are taught differently in curricula based on gender stereotypes that traditionally have been used to limit girls’ opportunities. The next section discusses the growing use of a federal educational equity statute as a tool to combat colleges’ inadequate response to sexual violence on campus. Finally, the last section exposes the inadequate and unequal education provided to society’s most marginalized girls— those imprisoned in youth correctional facilities.
The New Push for Sex-segregated Schools
Our society is not based on your gender, and the schools are supposed to prepare us for when we enter the real world. How does separating students by sex prepare us for society when society is not segregated that way?
Nikki Anthony, 9th grade, Coming to Washington to Talk about Equality (posted May 20, 2008)
Today, more and more public school districts separate girls from boys. According to the National Association for Single-Sex Public Education (NASSPE), a leading proponent of sex-segregated programs, while only four sex-segregated public schools existed in the country a decade ago, today there are approximately four hundred. A sex segregation movement is successfully pushing to increase this number, recently amending laws in Michigan, Wisconsin, Delaware, and Florida to foster the creation of sex-segregated programs in public schools. This trend is accelerating in the wake of the federal Department of Education’s (DOE) 2006 revision of a long-standing regulation to permit sex-segregated classes in coeducational schools receiving federal funding.
An increasingly popular rationale for separating boys and girls in school is the notion that boys’ and girls’ brains are so different that they cannot both succeed in the same classroom. Two influential proponents of this theory are the writers Leonard Sax and Michael Gurian. Sax is a psychologist and the director of NASSPE; Gurian is a counselor and corporate consultant with a graduate degree in creative writing, as well as founder of the Gurian Institute, which conducts trainings on brain differences between the sexes. Both Sax and the Gurian Institute are in the business of training teachers from public school districts across the country. Many of those teaching single-sex classes rely on their theories and methods.
While Sax and Gurian concede that not all boys or all girls are the same, they attempt to prove that, as the title of one of Gurian’s books proclaims, Boys and Girls Learn Differently!, and they argue that teachers should treat boys and girls differently as a result. For example, Sax claims that teachers should smile at girls and look them in the eye but must not look boys directly in the eye or smile at them. Leonard Sax, Why Gender Matters: What Parents and Teachers Need to Know About the Emerging Science of Sex Differences 86 (2005) . He claims that boys do well under stress, while girls do badly. As a result, according to Sax, girls should never be given time limits on tests and should be encouraged to take their shoes off in class because this helps them relax and think. Id. at 88-92. Sax also claims that girls will do better in school if they are allowed to bring blankets from home to cuddle in during class time. See Carol E. Tracy & Terry Fromson, Single-Sex Schools Don’t Work, Phila. Daily News, at 21 (Feb. 3, 2006) (describing Leonard Sax training for public school teachers in Philadelphia) . Sax argues that any boy who likes to read, does not enjoy contact sports, and does not have a lot of close male friends should be firmly disciplined, required to spend time with “normal males,” and made to play sports. Sax, supra, at 218-28. Gurian propounds similar theories, including that boys are better than girls in math because their bodies receive daily surges of testosterone, while girls have equivalent mathematics skills only during the few days in their menstrual cycle when they have an estrogen surge. Michael Gurian, The Boys and Girls Learn Differently Action Guide for Teachers 100 (2003) .
These theories have a real world impact in schools. David Chadwell, a member of the board of directors of NASSPE, directs the Office of Single-Gender Initiatives in the South Carolina Department of Education. South Carolina has more sex-segregated schools and classes than any other state in the country, a trend Chadwell encourages by publicizing sample lesson plans emphasizing physical activity, competition, and technology in classes for boys and friendship, team building, decorating assignments and projects, and stress reduction in classes for girls.
Most proponents of single-sex education argue that segregation leads to greater academic achievement. Yet no compelling, consistent evidence supports this conclusion. Some studies find that students in coeducational schools do better than students in single-sex schools. Other studies find the opposite. The bulk of studies show no difference between the two in terms of student achievement. In fact, in 2005 the DOE published an extensive review of existing studies and characterized the data as “equivocal.” U.S. Dep’t of Education, Single-Sex versus Coeducational Schooling: A Systematic Review at x (2005) . In other words, it found no clear evidence showing that, in general, students are more likely to succeed in single-sex schools. Id.
Few cases have yet challenged sex segregation in public elementary and secondary schools, probably because, until recently, such segregation was rare in the thirty-six years since the passage of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, the federal law prohibiting sex discrimination in federally funded education. With narrow exceptions for activities such as father-son activities and beauty pageants, Title IX states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). For more than thirty years, DOE regulations implementing Title IX had interpreted the statute to prohibit coeducational schools from segregating students by sex in almost all circumstances, with exceptions for sex education and contact sports. 34 C.F.R. § 106.34 (2005). (Because Title IX includes an exception for admissions to elementary and secondary schools, 20 U.S.C.A. § 1681(a)(1) (2007), it generally has not been understood to prohibit single-sex schools , as opposed to classrooms, although the Equal Protection Clause limits school districts’ ability to create such programs. In addition, current Title IX regulations require that—with some important exceptions for charter schools—if a district operates a single-sex school, it must provide a substantially equal educational opportunity to the excluded sex. 34 C.F.R. § 106.34(c).)
In 2006, however, the DOE revised its Title IX regulations to permit coeducational schools to offer sex-segregated classes. 34 C.F.R. § 106.34 (2007); see also 71 Fed. Reg. 62,530 (Oct. 25, 2006). The new regulations allow a school to create sex-segregated classes or extracurricular activities either to provide “diverse” educational options to students or to address what the school has judged to be students’ particular educational needs. 34 C.F.R. § 106.34(b)(i). The regulations make clear, however, that participation in a sex-segregated class must be completely voluntary and explain that participation is not completely voluntary unless a “substantially equal” coeducational class is offered in the same subject. Id. § 106.34(b)(iii), (iv).
The DOE’s regulatory change, however, does not affect other laws limiting sex segregation in public schools. First, other federal agencies funding educational programs and activities have regulations prohibiting sex-segregated classes; thus, for example, school districts that receive U.S. Department of Agriculture funding for school lunch programs are presumably bound by its regulations prohibiting sex segregation. 7 C.F.R. § 15a.34. Second, the U.S. Supreme Court has made clear that at least some single-sex programs violate the Equal Protection Clause of the U.S. Constitution, striking down both the Virginia Military Institute’s men-only policy and Mississippi University for Women’s women-only policy as unconstitutionally discriminatory. United States v. Virginia, 518 U.S. 515 (1996); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) . The Court warned that public schools attempting to justify sex-segregated programs shoulder a heavy burden of persuasion and made clear that generalizations about average differences in the pedagogical needs of women and men do not justify excluding members of one sex from a unique educational opportunity. Virginia, 518 U.S. at 525, 533. Third, the federal Equal Educational Opportunities Act prohibits assigning students to single-sex schools. 20 U.S.C.A. § 1703(c) (2007).
Based on conflicts between the 2006 DOE regulations and the requirements of Title IX and the Constitution, the American Civil Liberties Union has recently challenged the validity of these regulations in federal court; the legality of the regulations likely will be litigated in coming months. Despite the continuing uncertainty of the legal status of single-sex programs in public schools, many school districts nationwide have read the new Title IX regulations as a green light to segregate. As a result, more and more programs are being crafted throughout the country based on the notion that boys and girls require very different kinds of education—a theory that by definition will introduce sharp sex-based inequalities to the public schools.
Sexual Assault on Campus
During the mediation, [University of Washington student] S.S. expressed her desire that Alexander [a football player who allegedly raped her] be suspended from participation in several football games. Alexander denied S.S.’s rape allegation and threatened that he would leave the UW if he were suspended from any football games. Tuite [an athletics administrator] refused to consider suspending Alexander, stating that the media “would ask why he was not playing. ”
S.S. v. Alexander , 177 P.3d 724 (Wash. App. 2008).
Title IX has long been known as the federal law that guarantees equal access for girls and women in education, including equal opportunity to participate in athletics and higher education. In the past decade, however, Title IX has also become known as a tool for guaranteeing equal access to education in another way: by holding schools and colleges accountable for discrimination against female students who are sexually harassed or assaulted. When Tiffany Williams, a student at the University of Georgia, was gang-raped by campus football and basketball players, she became more than a rape victim. Williams, who dropped out of the university after the rape, brought a Title IX lawsuit against her former school. She alleged that the university’s basketball coach, athletic director, and president recruited and admitted one of the men despite knowing that he had been kicked out of other schools because of sexual harassment, and that the university had failed to train its students on its sexual assault policies. The U.S. Court of Appeals for the Eleventh Circuit agreed that Williams had stated a claim that the University of Georgia and its athletics association were deliberately indifferent to the alleged discrimination. Williams v. Board of Regents of the University of Georgia, 477 F.3d 1282 (11th Cir. 2007) .
Such lawsuits have become increasingly common since the Supreme Court held that schools receiving federal funding can be held liable for discrimination arising out of teacher-student or student-student sexual harassment. In Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Court held that schools receiving federal funding may be held liable for a teacher’s sexual harassment of a student where the school knows of the harassment and responds to it with deliberate indifference. The next year, in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court held that schools receiving federal funding may be liable for damages for student-on-student sexual harassment if the victim can show that the school acted “with deliberate indifference to known acts of harassment in its programs or activities.” Id . at 633. The harassment must be severe enough to effectively bar the victim’s access to equal education. These protections emerge from Title IX’s guarantee that no person may be “subjected to discrimination under any educational program or activity receiving federal” funds on the basis of sex. 20 U.S.C. § 1681(a).
Since Gebser and Davis , many cases have highlighted the problems that victims of sexual violence face when they come forward. In one case, a former University of Washington student alleging that she was raped by a well-known football player claimed that athletics administrators at the university responded to her complaints by suggesting that she leave her job as an assistant equipment manager with the football team. S.S. v. Alexander , supra . A state court found that the victim had provided enough evidence for a jury to hear her Title IX claims. Other cases similarly emphasize colleges’ responsibility to respond to victims and put effective policies and response measures in place, rather than sweeping sexual violence under the rug and turning a blind eye to sexual harassment and assault. See, e.g., Simpson v. University of Colorado Boulder, 500 F.3d 1170 (10th Cir. 2007) (sending to jury the question of whether the university was deliberately indifferent to a risk of sexual assault in its football recruiting program) .
The message for schools and universities is clear: campus rape can violate victims’ federally guaranteed rights to equal access to education. Human rights organizations have recognized that sexual violence violates women’s right to be free from sex discrimination under such human rights conventions as the International Covenant on Civil and Political Rights (ICCPR) (ratified by the United States in 1992), the Convention on the Elimination of All Forms of Racial Discrimination (CERD) (ratified by the United States in 1994) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (signed by the United States in 1980 but not yet ratified), as well as the American Declaration on the Rights and Duties of Man (adopted in 1948). Now, appeals courts around the country are increasingly willing to hold colleges accountable under domestic law for failures to ensure that female students are not subject to discrimination in the form of sexual violence or harassment. While Title IX does not require schools to prevent every incident of sexual violence committed by a student or faculty member, it does require schools to avoid denying and covering up sexual violence where it occurs.
Girls in Conflict with the Law
School was a setup. They teach you all this kindergarten or easy work. You’ll come back in the world and not be able to survive in regular schools. Part of school was crochet! Come on, we’re fourteen, fifteen, sixteen years old, that should not be part of our curriculum. I think it was every day, a significant amount of time was crochet, beading, or making blankets to sell.
American Civil Liberties Union & Human Rights Watch, Custody and Control: Conditions of Confinement in New York’s Juvenile Prisons for Girls 82 (2006) (excerpt from an interview with a formerly incarcerated teenage girl).
Girls represent a small but growing proportion of children entering the juvenile justice system. A disproportionate number of these girls are African American and Latina; most are poor. Along with difficult family lives and gaps in the social safety net, the failure of schools in many communities to nurture girls’ intellectual development is one factor responsible for girls’ delinquency. This failure is especially significant in light of research suggesting that, for girls in particular, academic engagement can mitigate the effects of abuses like sexual assault, leading to less aggressive and antisocial behavior, and therefore to a lower likelihood of juvenile justice involvement.
International human rights instruments, including the Convention on the Rights of the Child (CRC) (signed by the United States in 1995 but not yet ratified), art. 3 ¶ 3 & art. 37, and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (adopted in 1985 by General Assembly Resolution 40/33), contain numerous provisions protecting girls in the juvenile justice system. The standards regulate the adjudicative process for youths, as well as conditions of confinement in youth prisons. With respect to education, human rights norms guarantee incarcerated children the right to services, including education and vocational training, with the goal of helping them achieve “socially constructive and productive roles in society.” Beijing Rules, ¶¶ 26.1, 26.2. Human rights standards, such as those established by the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (adopted in 1990 by General Assembly Resolution 45/113), ¶ 77, also stress the provision of quality education in youth prisons so that children may continue to pursue their education without difficulty upon release. Other multilateral international agreements such as the International Covenant on Civil and Political Rights (ratified by the United States in 1992); CRC, CERD, CEDAW, and the American Declaration on the Rights and Duties of Man, for example, also contain multiple provisions prohibiting discrimination based on sex more generally.
Nevertheless, once enmeshed in the juvenile justice system, both girls and boys suffer violations of these basic rights. Among the problems facing children regardless of gender are interruptions in schooling during court processing and incarceration. Once locked up, children are starved of basic educational resources. Budgetary constraints can make books, computers, and other tools scarce, and the remote, rural location of many youth prisons leaves teaching vacancies unfilled. In addition, incarcerated children are often steered away from high school coursework and toward the General Education Diploma because juvenile justice agencies find general education preparation easier and less expensive to administer than a high school curriculum. Children’s schooling is also sacrificed to exaggerated security concerns; for example, children may be barred from taking school materials out of classrooms or having more than a small number of books in their cells.
In addition to these shared deprivations, girls bear an extra, gender-linked burden of educational deprivation. Because the number of girls locked up is much smaller than the number of boys, the girls confined within a single building or wing of a youth prison are often of different ages, grade levels, and degrees of educational aptitude. A single custody unit may confine an intellectually precocious sixteen-year-old who aspires to attend college alongside a twelve-year-old who can barely read. Because there are not enough girls at the same educational level, such girls, despite their widely divergent academic needs, may be crowded into a single classroom. In such circumstances, the single classroom teacher often takes a “lowest common denominator” approach to instruction, frustrating older and more academically talented girls. Or educational staff may abandon classroom instruction, whether entirely or in part, in favor of self-directed study. When this happens, girls are denied the human connection crucial to learning. Moreover, many incarcerated girls are unprepared to pursue self-study and, when left sitting alone with a book or worksheet, learn little or nothing. Custody and Control, supra at 81-82 .
Although the future economic independence of incarcerated girls depends on their ability to find and keep a job, vocational and career training for girls in prison is seldom adequate. Many youth prisons provide little or no such training. In those that do, the range and quality of the training offered to incarcerated girls embody archaic gender stereotypes and do not measure up to the training offered to boys. Courses commonly offered to girls include cooking, hairdressing, and clerical work, or even crocheting and other economically valueless crafts. Boys, in contrast, may be offered classes in automobile repair, building trades such as carpentry and plumbing, and other fields that are both stereotypically male and far more lucrative than traditionally female vocations. The juvenile justice system thereby helps perpetuate the cycle of economic dependence and vulnerability suffered by women and girls, especially those from economically and racially marginalized communities.
The trend toward sex-segregated educational programs and the inadequate educational programs for girls in the juvenile justice system are two examples of ways in which girls are deprived of equal educational opportunities, in part because of pernicious and outdated gender stereotypes about what and how it is appropriate for girls to learn. Similarly, girls and women continue to be deprived of educational opportunities as a result of sexual violence and institutionalindifference to that violence on the part of schools—an indifference that is, itself, rooted in stereotypes about the seriousness of sexual harassment and violence. Gender biases in all three scenarios operate to deprive girls and women of the equal educational opportunities to which they are entitled under both domestic law and internationally recognized human rights norms.
Ariela Migdal is a staff attorney at the Women’s Rights Project of the ACLU whose work includes litigation and advocacy for educational equity, particularly concerning sexual harassment and violence in schools. Emily J. Martin is the deputy director of the Women’s Rights Project of the ACLU and is lead counsel in a case challenging the validity of the 2006 DOE sex segregation regulations and their implementation in one Kentucky school district. Mie Lewis is a staff attorney at the Women’s Rights Project of the ACLU, where she works on behalf of women and girls in the criminal and juvenile justice systems. Lenora M. Lapidus is the director of the Women’s Rights Project of the ACLU, where she focuses on economic justice for low-income women of color, equal educational opportunities, violence against women, and women and girls in the criminal and juvenile justice systems. The authors gratefully acknowledge the assistance of Joshua David Riegel, the paralegal for the Women’s Rights Project of the ACLU.