Equal Protection Clause Challenge to Single-Sex Public School Classes Can Go Forward

From today’s long decision in Stepp v. Lockhart, by Tenth Circuit Judge Scott Matheson, joined by Judges Gregory Phillips and Veronica Rossman (there’s a lot going on there besides the single-sex education question as well):

We conclude the SAC [Second Amended Complaint] plausibly alleged an equal protection violation based on the sex segregation policy. The policy classified fifth-grade students on the basis of sex and thus is “subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment.” It is subject to intermediate scrutiny, meaning Defendants must provide an “exceedingly persuasive justification for [the] classification.”

The SAC alleged that “[u]nderpinning Defendants’ decision to segregate [TES’s] fifth grade class based on sex were offensive and outdated stereotypes about boys and girls, their behavior, and the discipline and instruction permissible for or required for each.” The SAC further alleged that “Defendants had no legitimate basis, at law or in fact, to implement a policy of sex segregation at [TES].” The SAC also alleged that defendants acted “knowingly, intentionally, and/or recklessly” in “adopting, implementing, and enforcing” the sex-segregation policy. Thus, we conclude the SAC stated a viable equal protection challenge….

United States v. Virginia (1996) [involved] an equal protection challenge brought by the United States against the Virginia Military Institute (VMI), a state-sponsored military college that admitted only men. In response to a lower-court ruling, the State of Virginia “proposed a parallel program for women: Virginia Women’s Institute for Leadership (VWIL).” “Although VWIL would share VMI’s mission” of producing “citizen-soldiers,” “the VWIL program would differ … from VMI in academic offerings, methods of education, and financial resources.”

Applying intermediate scrutiny, the Court “conclude[d] that Virginia ha[d] shown no ‘exceedingly persuasive justification’ for excluding all women from the citizen-soldier training afforded by VMI” and therefore “had violated the Fourteenth Amendment’s Equal Protection Clause.” The Court also held that “the remedy proffered by Virginia,” i.e., the VWIL program, “d[id] not cure the constitutional violation.” It said “that Virginia ha[d] not shown substantial equality in the separate educational opportunities the [State] support[ed] at VWIL and VMI.” Thus, “Virginia’s remedy d[id] not match the constitutional violation.”

Although Virginia involved college rather than elementary students, it concerned an educational setting and made clear that separate and differential opportunities for women violated the Equal Protection Clause. Defendants in this action argue that the educational opportunities provided to fifth-grade girls at TES were the same as for fifth-grade boys, Aplt. Br. at 34 (arguing that all fifth-graders at TES had “access to the same curriculum and comparable instruction”), but the SAC alleged otherwise—that the segregation policy was “based on … offensive and outdated stereotypes about boys and girls, their behavior, and the discipline and instruction permissible for or required for each.”

Along with Virginia, the Supreme Court’s decision in Brown v. Board of Education (1954), would have placed reasonable persons … on notice that the sex-segregation policy was unconstitutional. The question presented in Brown was: “Does segregation of children in public schools solely on the basis of race, even though physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?” The Supreme Court held “it does,” “conclud[ing] that in the field of public education the doctrine of ‘separate but equal’ has no place” because “[s]eparate educational facilities are inherently unequal,” This landmark “‘[g]eneral statement[ ] of the law’ can clearly establish a right for qualified immunity purposes if [it applies] ‘with obvious clarity to the specific conduct in question.'”

For a different view, see Vorchheimer v. School Dist. of Philadelphia (3d Cir. 1976). Note that, whatever the general theory behind sex-segregated classes, the implementation, as alleged by plaintiffs, seemed rather subpar:

During the first week, Mr. McClain [the boys’ class teacher] “frequently and loudly yelled at the all-boys fifth grade class in general, and at J.S. in particular.” Mr. McClain’s behavior escalated during the second week. He “increasingly singled out J.S. for repeated and excessive discipline,” including yelling at J.S. “in such a loud and violent manner that both J.S. and [another] student were reduced to tears in front of” their class and that children in other “separate classrooms” could hear the yelling; “aggressively berating J.S. until he broke down in tears”; and refusing, in retaliation for J.S. having questioned him about a physical altercation between two students, to permit J.S. “to go to the office or call his dad” when he reported “feel[ing] unwell.” …

During the second week, despite the hall monitor’s presence, Mr. McClain “raised … inappropriate topics with his all-boys class, including at least a discussion about kissing and about drawings of male genitals.” He “used these topics to target J.S. for harassment and bullying—pointing at J.S. and telling J.S.’s classmates that they must not draw male genitals because J.S. is ‘queer.'” “McClain then joined other students in laughing at this comment.” He also, “after witnessing J.S. and other boys playfully roughhousing, … instructed his class that they should yell ‘f** alert!’ any time that another boy unwantedly touched them.”

Other students in J.S.’s class reported that Mr. McClain yelled violently at J.S. Further, “[o]ne or more of J.S.’s classmates expressed to their parents or guardians fears for J.S.’s safety and their own in McClain’s class as a result of his behavior directed at J.S.”

The Stepps contacted Mr. McClain, eventually spoke with him by phone, and “confronted him about his behavior.” He admitted “to using the phrase ‘f** alert,’ and to yelling at J.S. and other boys in the class, but maintained this behavior was all for the purposes of ‘correcting’ their behavior.” Mr. McClain also “admitted to talking with the children about drawing penises in notebooks, but defended the statement by saying that ‘maybe [J.S.] is not mature enough to handle it.'” He suggested to the Stepps that “instead of just yelling to discipline J.S. in the future[,] … he would instead send J.S. to … Anderson’s office … to get ‘paddled.'” Mr. McClain “acknowledged that he knew his conduct was generally inappropriate for a fifth grade class and that he would not have used certain terms or raised certain topics had fifth grade girls been present.” …

The court allowed some claims based on this treatment to go forward as well.

J. Blake Johnson and Kelsey Frobisher Schremmer (Overman Legal Group, PLLC) and Wyatt McGuire (McGuire Law Firm) represent the plaintiffs.