Comparing Single Sex and Reformed Coeducation: A Constitutional Analysis

Abstract

One of the most enduring educational debates of the past three decades has dealt with the legality and advisability of sex-segregated education. This debate can often look confusing, given a large number of debaters and the diversity of their perspectives and agendas. More than this diversity, however, the debate is confusing because the debate has been structured as a contest between the “innovation” of sex-segregated education and status quo coeducation. Missing from the debate is a comparison between reformed coeducation and a single-sex alternative; a comparison that is markedly more useful in determining what ought to be done about the problems animating the debate, particularly problems of gender equity in education and society. Also missing from the debate are comprehensive constitutional analyses applying the U.S. Supreme Court’s equal protection “intermediate scruitiny” test to sex-segregated education, a test characterized by much debate as to its application and consistency. These two gaps ultimately come together because the comparison between reformed coeducation and sex-segregated education is also the proper one for analyzing the constitutionality of single-sex education. Therefore, this Article seeks both to address the lack of comprehensive analyses regarding the constitutionality of sex-segregated K-12 public education and to untangle the underlying debate regarding the Court’s application of the intermediate scrutiny test. In undertaking this analysis, it posits a new way to look at the Court’s jurisprudence regarding legislation that facially classifies based on sex, one that suggests that the Court’s jurisprudence may be more consistent and predictable than most commentators have suggested up to this point. It then applies this jurisprudence to sex-segregated, K-12 public education. In doing so, it pays particular attention to the reformed coeducation and sex-segregated education comparison as the proper one for analyzing the constitutionality of single-sex education. It concludes that, when assessing whether a sex classification substantially advances an important government objective, under the Supreme Court’s thirty-year-plus line of cases, it is extremely useful and possibly necessary to compare the sex classification with sex-neutral alternatives for advancing that objective.