Are Blue and Pink the New Brown? The Permissibility of Sex-Segregated Education as Affirmative Action

Abstract

Segregating students on the basis of race and race-based affirmative action are, perhaps, two of the most controversial social and legal issues of the modern era. Single-sex education and gender-based affirmative action, however, do not occupy a prominent place in the American culture wars and do not encounter a legal regime that is nearly as skeptical.

This essay explores whether and to what extent the affirmative action provision of the regulation implementing the Title IX Educational Amendments of 1972 permits institutions to offer sex-segregated education. This essay endeavors to clarify the legal boundaries within which institutions may offer single-sex educational programs as a compensatory measure, and within which the social debate regarding the merits of these educational initiatives may take place.

Current academic literature provides incomplete and inaccurate guidance on single-sex education as affirmative action. Reliable information on single-sex affirmative action in the education context is not only lacking, but is also necessary as recipients attempt to address gender inequality, which persists in American society. This essay attempts to provide comprehensive guidance that reflects, and contains a fresh analysis of, recent jurisprudential and legal developments.

Part I argues that the Equal Protection Clause and Title IX permit recipients to implement single-sex affirmative action educational programs, based on an examination of Title IX, Supreme Court cases in this area, and other sources. Part II offers a list of six requirements that such programs should satisfy in order to withstand a legal challenge.

Keywords: single-sex, segregation, affirmative action, gender, education