Breaking Down OCR’s Recent Guidance on the Permissibility of Single-Sex Education

December 10, 2014

By Anthony Scariano III

As you may know, the United States Department of Education’s Office of Civil Rights (“OCR”) recently issued general guidance on the acceptability of offering single-sex classes and extracurricular activities in schools that receive federal financial assistance. In its guidance, the OCR reminds educators that Title IX does allow the intentional separation of students by sex in: (1) contact sports in physical education classes; (2) classes or portions of classes that deal primarily with human sexuality; and (3) non-vocational classes and extracurricular activities within a coeducational, non-vocational elementary or secondary school (i.e. the majority of course offerings in traditional K-12 public schools). However, the guidance overwhelmingly focuses on number (3) above; importantly, the criteria that need to be met in order to comply with Title IX when establishing single- sex classes and extracurricular activities.

In order to offer a single-sex class or activity, a school must meet a somewhat demanding two-part justification for doing so before offering the class or activity. First, each single-sex class must be based on an exceedingly persuasive objective to either: (1) improve educational achievement through diverse educational opportunities (the “diversity objective”); or (2) meet the particular, identified educational needs of its students (the “needs objective”). Second, the school must: (1) implement its objective in an evenhanded manner; (2) ensure that student enrollment in the single-sex class or activity is completely voluntary; (3) provide a substantially equal coeducational class in the same subject; and (4) periodically evaluate the class to ensure Title IX compliance.

Regardless of the objective that is asserted as justifying the gender separation, a school must show that the single-sex nature of the class is substantially related to meeting the identified objective. This, the OCR warns, must be directly supported by evidence. Such evidence may include the well-documented success of single-sex classes and activities in schools that are similar in population and setting, and research evidence that proves the effectiveness of single-sex classes and activities in similar circumstances.

Additionally, the OCR issued specific guidance on how to comply with the other aforementioned requirements. For example, the OCR details: (1) how to obtain “voluntary enrollment” in single-sex classes and activities; (2) what factors the OCR will consider when determining if a coeducational class is “substantially equal” to the single-sex class; and (3) how detailed the periodic evaluations must be, how often they must be issued, and to whom.

The OCR’s guidance regarding this issue is quite lengthy. It also provides numerous examples of how to comply with Title IX when offering these single-sex classes or activities. Before your District embarks to provide single-sex educational offerings, both we and the OCR recommend contacting your attorney to discuss the concept and strategize the appropriateness of the offerings. Similarly, if your district already provides single-sex offerings and you would like us to review compliance with Title IX, we stand ready to assist you. Since the OCR strongly recommends articulating a school’s justification for these classes and activities in writing and before offering the class or activity, please do not hesitate to inquire of your attorney at Scariano, Himes and Petrarca to complete this task for you.