Opening Statement - Deborah Brake
April 20, 1998 11:35 AM EST

Hi everyone! I am Deborah Brake, senior counsel at the National Women's
Law Center. The following is a discussion of the legal constraints that
Title IX and the U.S. Constitution place on single-sex education, with a
particular focus on the implications of the Supreme Court's decision in
United States v. Virginia, which ruled that Virginia must admit women to
the all-male Virginia Military Institute. Although this opening
discussion is a bit lengthy (just over 7 pages), since the legal
framework is somewhat complex, I think it's useful to gain a general
understanding of how the law views single-sex education programs.


The Supreme Court's June 1996 decision in United States v. Virginia,
holding that the exclusion of women from admission to the Virginia
Military Institute (VMI) was a violation of the Equal Protection Clause
of the 14th Amendment to the U.S. Constitution, makes it clear that any
categorical exclusion of members of one sex from a public educational
institution or program will be met with "skeptical scrutiny" under the
Constitution -- scrutiny that VMI was unable to withstand. The
Constitution requires such skepticism, the Court held, because, as in
the VMI case, such sex-based distinctions often work an injustice on
deserving individuals and perpetuate harmful stereotypes. In addition
to the constitutional limits on public institutions, Title IX of the
Education Amendments of 1972 prohibits sex discrimination in public and
private institutions that receive federal financial assistance.
However, both the Constitution and Title IX recognize that there are
limited circumstances in which single-sex educational opportunities may
be justified. Set forth below is a discussion of the applicable legal
principles and the reasons that underlie them.

I. Legal Principles Applicable to Single-Sex Education

A. The VMI Decision and Constitutional Principles

1. Single-Sex Education Will Not Be Sustained Absent An
Persuasive" Justification

For over 150 years, the Commonwealth of Virginia kept the doors of VMI
closed to women, offering VMI's unique educational experience
exclusively to men. As a justification, VMI argued that the school's
rigorous "adversative" method of training was not suitable for women.
On June 26, 1996, the Supreme Court held that VMI's exclusion of women
is a violation of the Constitution's Equal Protection guarantee. 116
S.Ct. 2264 (1996). Citing an earlier decision in which the Court had
struck down the exclusion of men from a state-run nursing school,
Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), the
Court noted that gender-based government action requires an "exceedingly
persuasive justification" and may not rely on "overbroad generalizations
about the different talents, capacities, or preferences of males and
females." Emphasizing that "official action denying rights or
opportunities based on sex" requires "skeptical scrutiny" under the
Constitution, the Court held that Virginia had failed to sustain its
burden of justifying the wholesale exclusion of women from VMI. The
Court also held that the creation of a separate all-women's program,
which was admittedly unequal to VMI in both tangible and intangible
benefits, was not an adequate remedy for the constitutional violation of
withholding VMI's opportunities and advantages (including its unique
approach to education, the valuable credential of a VMI degree, and
access to its extensive alumni networks after graduation) from women
"who want a VMI education and can make the grade." VMI has subsequently
announced that it will accept applications from women for its 1997
freshman class.

2. Single-Sex Education Can Be Justified To Remedy

The VMI decision did not foreclose all single-sex education. First,
because VMI is a government-run institution (and not just one receiving
government funds), constitutional principles of equal protection apply
to it that do not apply to private institutions. In fact, 26 private
women's colleges filed a brief in the VMI case urging the Supreme Court
to rule against VMI and arguing that such a decision would not affect

Moreover, in the VMI decision the Supreme Court left room even for
public single-sex education that serves to remedy discrimination. While
ruling out programs that serve to "perpetuate the legal, social, and
economic inferiority of women," it also explicitly ruled that sex
classifications are permissible if used "to compensate women for
particular economic disabilities they have suffered . . . to promote
equal employment opprotunity. . . to advance full development of the
talent and capacities of our Nation's people." Indeed, quoting
approvingly from the brief of the 26 private women's colleges, the Court
noted that "it is the mission of some single-sex schools `to dissipate,
rather than perpetuate, traditional gender classifications.'" In this
respect, the Court suggested a basis for distinguishing all-female from
all-male education, in that the latter, much like all-White education,
reinforces a longstanding message branding the excluded group as

This analysis is consistent with the Court's earlier decision in
Mississippi University for Women v. Hogan, in which the Court stated
that "[i]n limited circumstances, a gender-based classification favoring
one sex can be justified if it intentionally and directly assists
members of the sex that is disproportionately burdened." 458 U.S. at
728. In that case the Court determined that an all-female public
nursing school was unconstitutional because it served no compensatory
purpose, since it could hardly be said that women had been deprived of
opportunities in nursing. In fact, the Court held that excluding men
reinforced a stereotype that nursing was a profession only for women --
which actually hurt women.

It is thus clear that a public school or program that excludes all
members of one sex may pass constitutional muster if the school
demonstrates persuasively that it truly serves the objective of
compensating for discrimination and eliminating arbitrary barriers to
advancement. For example, an all-girls math program may be sustainable
if its proponents can demonstrate that it substantially furthers the
goal of remedying past or present discriminatory practices that have
discouraged girls from pursuing an interest in math. If, however, such
a program lacks a compensatory justification, and instead teaches math
in a diluted form based on stereotypes that girls are "bad with
numbers," it would not withstand a constitutional challenge.

B. Title IX of the Education Amendments of 1972: Gender-Based
Exclusions Are Generally Disfavored, With Exceptions

Title IX of the Education Amendments of 1972 prohibits discrimination
on the basis of sex in educational institutions that receive federal
financial assistance. Unlike the Constitution, Title IX thus applies to
many private institutions. Like the Constitution, however, Title IX
does not categorically prohibit single-sex education in institutions it

Title IX provides as follows:

"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). As the original Senate sponsor explained, this was
designed to be "a strong and comprehensive measure [that would] provide
women with solid legal protection from the persistent, pernicious
discrimination which is serving to perpetuate second-class citizenship
for American women." Consequently, Title IX prohibits sex-segregated
programs or activities in the institutions it covers -- including in
academic programs, extracurricular activities or occupational training
operated by such an institution, 34 C.F.R. 106.31 -- unless specific
exceptions apply.

The regulations issued under Title IX do contain certain exceptions
that permit specified separate gender programs. For example, while in
general institutions covered by Title IX may not offer sex-segregated
courses in physical education, they may do so in physical education
classes involving contact sports, 34 C.F.R. 106.34(c). Portions of
classes in elementary and secondary schools which deal exclusively with
human sexuality also may be conducted in separate sessions for boys and
girls. 34 C.F.R. 106.34(e). Institutions may also make requirements
based on vocal range or quality that result in a chorus of one or
predominantly one sex, 34 C.F.R. 106.34(f). In addition, financial
aid may be targeted at members of one sex so long as, overall, the award
of financial aid is not discriminatory, 34 C.F.R. 106.37(b); separate
single-sex programs may be offered in competitive athletics, 34 C.F.R.
106.41; separate housing may be made available for male and female
students so long as it is comparable, 34 C.F.R. 106.32(b); and
separate schools and programs may be offered for pregnant girls, with
requirements of voluntariness and comparability, 34 C.F.R.

In addition, as is true under the Constitution, the Title IX
regulations permit remedial and affirmative action. They provide as

"(a) Remedial action. If the Assistant Secretary finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the Assistant Secretary deems necessary to overcome the
effects of such discrimination.

"(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action to overcome the effects of
conditions which resulted in limited participation therein by persons of
a particular sex. . . ."

34 C.F.R. 106.3.

Finally, Title IX has limited application to admissions. The statute
provides that with respect to admissions, it covers institutions of
vocational education, professional education, and graduate higher
education, and public institutions of undergraduate higher education, 20
U.S.C. 1681(a)(1), while excepting those public institutions of
undergraduate higher education that have traditionally had a policy of
single-sex admission, 20 U.S.C. 1681(a)(5). Thus, Title IX does not
explicitly cover admissions policies in traditionally single-sex public
institutions of undergraduate education, in private institutions of
undergraduate higher education, or in elementary and secondary
institutions (at least those that were single-sex before Title IX was
enacted). These institutions therefore are not barred by Title IX from
maintaining a single-sex admissions policy.

PARTS II & III follow in the next message

Deborah Brake

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