Changes in State Law to Allow Single-Sex Schools and Courses

November 2006

TO:District Administrators, CESA Administrators, CCDEB Administrators, Directors of Special Education and Pupil Services, and Other Interested Parties
FROM:Carolyn Stanford Taylor, Assistant State Superintendent
Division for Learning Support: Equity and Advocacy
SUBJECT:Changes in state law to allow single-sex schools and courses

On April 14, 2006, the Governor approved Act 346, which allows school boards and charter schools to establish single-sex schools and courses. Act 346 amended §§ 118.13(1), 118.40(4)(b)2, 119.04(1), and 119.22, Wisconsin Statutes, and created §§ 118.40(4)(c) and 120.13(38), Wisconsin Statutes. You can access Act 346 online at http://www.legis.state.wi.us/2005/data/acts/05Act346.pdf.

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Questions

1. When did the state statute take effect?
2. What does the new state statute say?
3. What does “comparable” school or course mean?
4. What additional factors may a district wish to consider when determining whether and/or how to offer single-sex courses or schools?
5. Is the Department of Public Instruction required to review school board or charter decisions to offer single-sex education?
6. Wouldn't single-sex schools or classes violate § 118.13, Wis. Stats., or § 118.40(4)(b)2, Wis. Stats., by discriminating on the basis of sex?
7. What does research tell us about single-sex education?

Answers

  1. When did the statute take effect?

    April 29, 2006.

  2. What does the new state statute say?

    § 120.13(38), Wis. Stats., allows school boards to operate one or more schools that enroll only one sex or provide one or more courses that enroll only one sex if the school board makes available to the opposite sex, under the same policies and criteria of admission, schools or courses that are comparable to each such school or course. Thus, the statute creates an exception to the general prohibition against sex discrimination by school districts as identified in § 118.13(1), Wis. Stats., and revises § 118.13(1), Wis. Stats., accordingly.

    § 118.40(4)(c), Wis. Stats., allows school boards to contract under § 118.40(2r), Wis. Stats., with the University of Wisconsin (UW)-Milwaukee, Milwaukee Area Technical College, City of Milwaukee, and the UW-Parkside to establish, or contract for the establishment of, a charter school (referred to as a (2r) charter or independent charter school) that enrolls only one sex or provides one or more courses that enroll only one sex if the school board or (2r) chartering entity makes available to the opposite sex, under the same policies and criteria of admission, schools or courses that are comparable to each such single-sex school or course. Thus, the statute creates an exception to the general prohibition against sex discrimination by charter schools as identified in § 118.40(4)(b)2, Wis. Stats., and revises § 118.40(4)(b)2, Wis. Stats., accordingly.

  3. What does “comparable” school or course mean?

    The statute does not define "comparable." Districts may find some guidance by reviewing the U.S. Department of Education analyses under Title IX of the Education Amendments of 1972 (prohibiting sex discrimination in education programs that receive federal funds). On October 25, 2006, the Federal Register published amended regulations implementing Title IX.1 These amendments, effective November 24, 2006, clarify and modify Title IX regulatory requirements pertaining to the provision of single-sex schools, classes, and extracurricular activities in elementary and secondary schools.2 The amendments expand flexibility for recipients to provide single-sex education, and they explain how single-sex education may be provided consistent with the requirements of Title IX. In the amended regulations, single-sex classes or schools are allowed when, among other requirements, students of the opposite sex have educational opportunities that are "substantially equal."3 The factors considered – either individually or in the aggregate4 – in determining whether courses or schools are "substantially equal" include:

    • Policies and criteria of admission; and
    • Educational benefits provided, including the quality, range, and content of curriculum and other services and the quality and availability of books, instructional materials, and technology; and
    • Quality and range of extracurricular offerings (schools only); and
    • Qualifications of faculty and staff; and
    • Geographic accessibility; and
    • Quality, accessibility, and availability of facilities and resources provided to the class; and
    • Intangible features, such as reputation of faculty.5

    Federal courts and Wisconsin state courts may review single-sex classes or schools under multiple legal theories and are not bound to use the "substantially equal" factors in their analysis.

  4. What additional factors may a district wish to consider when determining whether and/or how to offer single-sex courses or schools?

    Districts may wish to consider research regarding single-sex education (see question 7), discuss single-sex education with parents and community organizations, and review district- and building-level data, disaggregated by sex.

    Laws that may bear on a district's decision to offer single-sex courses or schools include:

    • Equal Protection Clause of the 14th Amendment to the U.S. Constitution
    • Title IX of the Education Amendments of 19726 and implementing regulations7
    • Title VII of the Civil Rights Act of 19648 and implementing regulations9
    • No Child Left Behind Act of 200110
    • Equal Educational Opportunities Act of 197411
    • Carl D. Perkins Career and Technical Education Improvement Act of 200612
    • Article I § 1 of the Wisconsin Constitution

  5. Is the Department of Public Instruction required to review school board or charter decisions to offer single-sex education?

    No.

  6. Wouldn't single-sex schools or classes violate § 118.13, Wis. Stats., or § 118.40(4)(b)2, Wis. Stats., by discriminating on the basis of sex?

    No. Act 346 amends § 118.13(1), Wis. Stats., to except single-sex classes and schools from the general prohibition against sex discrimination by public school districts and amends § 118.40(4)(b)2, Wis. Stats., to except single-sex classes and schools from the general prohibition against sex discrimination by charter schools. Single-sex schools and classes may, however, be subject to challenge in Wisconsin circuit courts, U.S. District Courts, and through the U.S. Department of Education, Office for Civil Rights.

  7. What does research tell us about single-sex education?

    Advocates have advanced a number of theoretical advantages to both coeducational and single-sex schools and classes, with significant attention on the potential benefits of single-sex schooling for disadvantaged male pupils who have poor success rates in the traditional public education system. The interpretation of results of previous studies in the private sector or the public sectors of other countries has been hotly debated, resulting in varying policy recommendations based on the same evidence.

    Research in the United States on the question of whether public single-sex education might be beneficial to males, females, or a subset of either group (particularly disadvantaged youths) has been limited.

    To systematically organize and review existing research, the U.S. Department of Education funded Single-Sex Versus Coeducation Schooling: A Systematic Review. Beginning with 2,221 studies, the research project excluded all studies but those correlational studies that employed statistical controls. The research project concluded that the results are equivocal: "There is some support for the premise that single-sex schooling can be helpful, especially for certain outcomes related to academic achievement and more positive academic aspirations. For many outcomes, there is no evidence of either benefit or harm. There is limited support for the view that single-sex schooling may be harmful or that coeducational schooling is more beneficial for students." (U.S. Department of Education (2005), p. x)

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134 CFR § 106 et seq.
2The amendments are available online at http://www.ed.gov/legislation/FedRegister/finrule/2006-4/102506a.pdf.
3The amendments do not change the applicability of the current general regulatory prohibition against single-sex vocational education classes and schools.
434 CFR § 106.34(b)(3) and (c)(3)
534 CFR § 106.34(b)(3) and (c)(3)
620 USC § 1681 et seq.
734 CFR § 106 et seq.
842 USC § 2000e et seq.
929 CFR § 1600 et seq.
10§ 5131(a)(23) of Public Law 107-110
1120 USC §§ 1703(c), 1705, and 1720(c)
12§ 316 of Public Law 109-270