The U.S. Department of Education recently amended the regulations implementing Title IX of the 1972 Education Amendments, which is the federal statute prohibiting discrimination on the basis of sex. The new regulations provide greater flexibility for school districts to offer single-sex public elementary and secondary education. They embrace the recent growth of single-sex education in the United States, but some question their constitutionality. This Note explores how the U.S. Supreme Court should rule on a challenge brought against the regulations under the Equal Protection Clause. It introduces Title IX, the new regulations, and the relevant Equal Protection Clause jurisprudence, and it presents an argument for upholding the regulations' constitutionality. The Note then proceeds by rejecting a previously proposed analogy to the "separate but equal" doctrine prohibiting segregation on the basis of race in education. Instead, it favors an analogy to the athletic field, where segregation by sex has thrived under Title IX, suggesting that the single-sex programs promoted under the new regulations may be able to withstand judicial scrutiny.
Rebecca A. Kiselewich, In Defense of the 2006 Title IX Regulations for Single-Sex Public Education: How Separate Can Be Equal, 49 B.C.L. Rev. 217 (2008), http://lawdigitalcommons.bc.edu/bclr/vol49/iss1/4