September 22, 2019
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Reject flawed bill on same-sex classes

Carroll Hall | BDN
Carroll Hall | BDN
Members of the girls' swimming class at the YMCA pool watch attentively as student helper Barbara McEvoy works with one of her pupils in this photo dated March 14, 1960. The pupils are were members of the freshman class at Bangor High School who were enrolled in the program as part of the physical education course.

Federal law already largely prohibits segregation by sex in schools, so it’s unclear why one bill proposes to allow single-sex classes. The Committee on Education and Cultural Affairs should throw out LD 699, “An Act to Allow Public Schools to Offer Classes Limited to Students of a Single Gender.” It could give districts a false sense of legality and encourage them to establish programs that are not supported by either science or law.

If the measure passes, it will likely only create more conflict around whether public school students should be split up based on their sex. That’s because it would not override federal law, specifically Title IX, which states that no person 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.”

The supremacy clause in the U.S. Constitution establishes that federal laws generally take precedence over state laws. And on the issue of single-sex classrooms, the federal law is strong. Title IX does not prohibit all sex-specific programs, but it does require that no one be excluded from participating in them. And if students are separated for reasons of sex, it must be for a good reason, such as for remedial or affirmative action purposes. There are exceptions for types of classes that may be broken up by sex, including some physical education classes and human sexuality courses.

The law also exempts certain programs, like a Boys’ State conference or Girls’ State conference, and it does not preclude father-son or mother-daughter activities. But if those activities exist for students of one sex, there must be comparable activities for students of the other sex.

The bill, sponsored by Sen. John Tuttle, D-Sanford, is a faulty attempt to possibly revive a single-sex classroom program in Southern Maine. It was put together in response to events last May when the American Civil Liberties Union threatened to sue the Sanford School Department if it didn’t eliminate four single-sex classrooms at Willard Elementary School. The school had good intentions: Students chose voluntarily to enroll in the fifth- and sixth-grade classes of all girls or all boys, and many said the single-sex classrooms made them feel more comfortable.

The ACLU countered, though, that the classrooms violated federal law because they segregated students on the basis of sex without any strong, scientifically supported reason. We don’t know how a court would have ruled because the Sanford School Committee decided to drop the program – though members said they did so to avoid tangling the district in a costly lawsuit, not because they thought the program was discriminatory.

What is clear is that a bill at the state level would do nothing to affect the legality or illegality of the Sanford school program.

If a school wants to develop a single-sex program or class, it must have a strong reason, and it cannot prohibit a person of the opposite sex from participating. Presque Isle High School, for instance, survived a court challenge of its all-female section of its Algebra I class, which was developed to address a documented disparity in math test scores between girls and boys. It was carefully designed to address low female self-esteem about math skills and encourage girls to pursue more math classes, and it’s open to anyone.

There are ways to develop successful school programs that have a sex-specific component, but they must be justified within the requirements set out by federal law. The U.S. Supreme Court ruled on the issue in United States v. Virginia, which struck down the Virginia Military Institute’s male-only admission policy because it violated the 14th Amendment’s equal protection clause. The opinion announcement reads, “Defenders of sex-based government action must demonstrate an exceedingly persuasive justification for that action to make that demonstration.”

LD 699 would do nothing to help determine whether the Sanford classes met that “exceedingly persuasive justification” because state law doesn’t have authority here. If anything, the bill could give schools a false sense of what is legal, cause them to unwittingly start a single-sex classroom and then be sued. The education committee should toss it.

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