Doe et al v. Wood County Board of Education et al
Filing
51
MEMORANDUM OPINION AND ORDER granting in part and denying in part plaintiffs' 4 MOTION for Preliminary Injunction. The court hereby enjoins the defendants from separating students into single-sex classes at Van Devender Middle School for the remainder of the 2012-13 school year, and unless and until any single-sex program offered meets the requirements of the constitution and Title IX, in particular the Department of Education regulations as interpreted by the court today. This injunction will take effect at the beginning of the school day on Monday, September 3, 2012. Signed by Judge Joseph R. Goodwin on 8/29/2012. (cc: attys; any unrepresented party; posted on the court's website, www.wvsd.uscourts.gov) (jkk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PARKERSBURG DIVISION
JANE DOE, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 6:12-cv-04355
WOOD COUNTY BOARD OF
EDUCATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the plaintiffs’ motion for preliminary injunction [Docket 4]. A
hearing was held on August 27, 2012. The court holds today that the option to opt out of a
single-sex education program does not satisfy the requirement under the 2006 United States
Department of Education regulations that single-sex programs be “completely voluntary.” 34
C.F.R. § 106.34(b)(1)(iii). However, the court also finds that the preliminary relief requested by
the plaintiffs is overly broad. Accordingly and for the reasons set forth below, the court
GRANTS in part and DENIES in part the plaintiffs’ motion for preliminary injunction.
I.
Background and Procedural History
This case arises from the single-sex program adopted by Van Devender Middle School
(“VDMS”) in a commendable attempt to improve the education of its students. The plaintiffs are
a mother, Jane Doe, and her three daughters, Anne Doe, Beth Doe, and Carol Doe.1 The
daughters all attended the sixth grade at VDMS for the 2011-12 school year, and are currently
attending the seventh grade for the 2012-13 school year. Defendant Wood County Board of
1
The plaintiffs are proceeding under pseudonym.
1
Education (“WCBE”) is the entity responsible for the administration of public schools within
Wood County, West Virginia, including VDMS, and has overseen and approved the
implementation of sex-separated classes at VDMS. Defendant J. Patrick Law is the
superintendent of the Wood County Schools, and is responsible for the administration of all
schools within the Wood County School District, including VDMS. Defendants Stephen Taylor
and Penny Coleman are the Principal and Vice Principal, respectively, of VDMS, and have both
overseen and implemented the sex-separated classes at VDMS.
VDMS is one of five public middle schools in Parkersburg, West Virginia. Students from
grades six through eight are assigned to middle schools by WCBE based on the location of their
residence. In 2010, the WCBE approved the single-sex education program at VDMS. The
program was adopted for sixth grade classes in the 2010-11 school year, expanded to the seventh
grade in 2011-12, and expanded to the eighth grade for the 2012-13 school year. Classes for
reading, math, social studies, and science are separated by gender, while classes in other subjects
are coeducational.
In May 2012, the American Civil Liberties Union sent a letter to J. Patrick Law of the
WCBE regarding its opinion that the single-sex program at VDMS violates the Constitution and
Title IX. In July 2012, the ACLU followed up on the letter, stating its intention to bring suit on
behalf of the plaintiffs. On August 15, 2012, the plaintiffs filed this action alleging that the
single-sex classes at VDMS violated the Equal Protection Clause of the Fourteenth Amendment
and Title IX, 20 U.S.C. § 1681, as interpreted by the United States Department of Agriculture
and Department of Education in their respective regulations, 7 C.F.R. § 15a.34 and 34 C.F.R. §
106.34. On the same day, the plaintiffs filed a Motion for a Temporary Restraining Order and
Preliminary Injunction.
2
On August 19, 2012, the court held a hearing on the motion for a temporary restraining
order. During that hearing, significant questions were raised regarding whether the single-sex
classes at VDMS were voluntary, and whether substantially equal coeducational classes were
offered at the school. The court denied the plaintiffs’ motion for a temporary restraining order,
holding that the plaintiffs had not made a “clear showing” that they were likely to succeed on the
merits. The court noted that the issues of voluntariness and substantial equality needed further
development. The court also held that the public interest would not be furthered by granting a
temporary restraining order at the time due to the disruption that it would cause to the students at
VDMS if the school was forced to make a last-minute shift to coeducational classes. However,
the court further noted that:
If the record developed [at the August 27, 2012 preliminary injunction hearing]
shows that the plaintiffs are in fact likely to succeed on the merits, the
Constitution and civil rights law will require [the altering of VDMS’s scheduling
to make it coeducational]. Teachers and schools should be innovative, and should
be encouraged to experiment in their attempts to improve the education; however,
they must do so within the lines drawn by the Constitution and by the law.
[Docket 24, at 2.] On August 27, 2012, the court held a hearing on the instant motion for
preliminary injunction.
II.
Preliminary Injunction
The United States Supreme Court and the United States Court of Appeals for the Fourth
Circuit have provided district courts with a precise analytical framework for determining whether
to grant preliminary relief. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); The
Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other
grounds, 130 S.Ct. 2371 (2010). First, the plaintiffs must make a clear showing that they will
likely succeed on the merits. The Real Truth About Obama, Inc., 575 F.3d at 346. Second, the
plaintiffs must make a clear showing that they are likely to be irreparably harmed absent
3
preliminary relief. Id. Third, the plaintiffs must show that the balance of equities tips in their
favor. Id. Finally, the plaintiffs must show that an injunction is in the public interest. Id. All four
requirements must be satisfied. Id.
A.
Likelihood of Success on the Merits
The plaintiffs assert that the single-sex classes at VDMS violate the Equal Protection
Clause of the Fourteenth Amendment and Title IX, 20 U.S.C. § 1681. In 2006, the United States
Department of Education (“Department of Education”) issued regulations authorizing public
schools to offer single-sex education options under certain, specific conditions:
(i) Each single-sex class or extracurricular activity is based on the recipient’s
important objective—
(A) To improve educational achievement of its students, through a
recipient’s overall established policy to provide diverse educational
opportunities, provided that the single-sex nature of the class or
extracurricular activity is substantially related to achieving that objective;
or
(B) To meet the particular, identified educational needs of its students,
provided that the single-sex nature of the class or extracurricular activity is
substantially related to achieving that objective;
(ii) The recipient implements its objective in an evenhanded manner;
(iii) Student enrollment in a single-sex class or extracurricular activity is
completely voluntary; and
(iv) The recipient provides to all other students, including students of the
excluded sex, a substantially equal coeducational class or extracurricular activity
in the same subject or activity.
34 C.F.R. §§ 106.34(b)(1)(i)-(iv) (emphasis added).2 Moreover, the regulations provide several
factors that the Department considers when determining whether classes or extracurricular
activities are substantially equal. 34 C.F.R. § 106.34(b)(3). Finally, the regulations provide for
periodic evaluations by the school every two years “to ensure that single-sex classes or
extracurricular activities are based upon genuine justifications and do not rely on overly broad
2
The language in the regulations refers to “the recipient,” which is “any educational program or activity
receiving Federal financial assistance” in Title IX. 20 U.S.C. § 1681. The WCBE and its schools,
including VDMS, receive federal funds from, inter alia, the Department of Education, and are thus
recipients subject to the Department of Education regulations.
4
generalizations about the different talents, capacities, or preferences of either sex.” 34 C.F.R.
§ 106.34(b)(4). The Department of Education regulations thus establish some authority
permitting a narrow exception to the general rule of coeducation, to allow schools to experiment
with single-sex programs to improve educational achievement. See Doe ex rel. Doe v. Vermilion
Parish Sch. Bd., 421 F. App’x 366, 369 (5th Cir. 2011) (“The Department of Education and the
Department of Justice have filed an amicus brief . . . describing these regulations as permitting a
narrow exception to the general rule of coeducation.”). The language in these regulations closely
tracks the legal standards established by the United States Supreme Court in United States v.
Virginia, 518 U.S. 515 (1996).
i.
The Plaintiffs are Likely to Succeed on Their Title IX Claim Because
Requiring Parents to Opt Out of Single-Sex Classes does not Make the
Program Completely Voluntary. Rather, Affirmative Assent by the
Parents is Required.
The Department of Education did not define the phrase “completely voluntary” when it
adopted the 2006 regulations. However, the discussion leading up to the adoption of the
regulation, particularly subsection (iii), provides some insight on the meaning of the phrase. The
discussion first states that:
The proposed regulations in § 106.34(b)(1)(ii) were intended to require recipients
to offer single-sex classes only on a completely voluntary basis, by requiring a
recipient to provide a coeducational class in the same subject, in conjunction with
the requirement in § 106.34(a) that a recipient may not require participation in
classes on the basis of sex.
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal
Financial Assistance, 71 Fed. Reg. 62530, 62537 (Oct. 25, 2006). The discussion then states:
In order to ensure that participation in any single-sex class is completely
voluntary, if a single-sex class is offered, the recipient is strongly encouraged to
notify parents, guardians, and students about their option to enroll in either a
single-sex or coeducational class and receive authorization from parents or
guardians to enroll their children in a single-sex class.
5
Id. (emphasis added). The court holds today that the Department of Education regulations require
an affirmative assent by parents or guardians before placing children in single-sex classrooms.
Such affirmative assent would preferably come in the form of a written, signed agreement by the
parent explicitly opting into a single-sex program. An opt-out provision is insufficient to meet
the requirement that single-sex classes be “completely voluntary” for several reasons. First, the
above discussion leading to the addition of the “completely voluntary” language strongly
suggests that this outcome is proper. The regulations closely track the language of United States
v. Virginia, yet the commentators and drafters ultimately felt the need to add an additional
element of voluntariness, “clearly requiring that student participation in a single-sex class must
be completely voluntary.” 71 Fed. Reg. at 62537.
Moreover, because single-sex classes are, by their very nature, a gender classification, it
makes perfect sense to require the parent or guardian’s clear and affirmative assent. While a
failure to opt out may be a legal substitute for agreement in some other areas of the law, such as
membership in class actions,3 presuming that parents or guardians have enrolled their child in a
single-sex class completely voluntarily because they failed to opt out would undermine the
purpose of Title IX to prevent discrimination based on gender.
Finally, this reading of the Department of Education regulations is supported by the
meaning of the word “voluntary.” Black’s Law Dictionary defines “voluntary” as “[d]one by
design or intention.” BLACK’S LAW DICTIONARY 1569 (7th ed. 1999). The first word in the
definition, “done,” indicates that the actor must do something—in other words, an affirmative
act. The phrase “by design or intention” indicates that the actor must have decided upon the act
3
See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (“We reject petitioner’s contention that the
Due Process Clause of the Fourteenth Amendment requires that absent plaintiffs affirmatively ‘opt in’ to
the class, rather than be deemed members of the class if they do not ‘opt out.’”).
6
that was taken. In other words, the definition of the word “voluntary” suggests that one cannot be
said to have agreed to something voluntarily if they have not taken an affirmative act to agree to
it.
The evidence, even as presented by the defendants, shows that the single-sex program at
VDMS was presented solely in an opt-out manner to parents and guardians of the children
attending VDMS. Counsel for the defendants referenced the opt-out form sent to the parents via
mail this year and the opt-out script sent to the parents via telephone this year. Crossexamination of Jane Doe focused in part on her ability to opt out. Direct examination of the
defendant Stephen Taylor focused in part on the opt-out forms sent to parents for the 2010-11,
2011-12, and 2012-13 school years. The defense offered an exhibit entitled “Van Devender
Middle School Opt-out form,” which states, in part: “My signature on this form indicates that I
am requesting that my child be placed in a coed class.” [Def. Ex. 6 (emphasis added).] At no
point do the defendants dispute that the form of notice given to the parents was that of opting
out, rather than opting in.
The court also finds significant the timing of the opt-out notices sent to the parents and
guardians. The record reflects that letters suggesting that parents may opt out of the single-sex
program, and the opt-out forms, were not made available to the parents and guardians until very
close to the beginning of each school year. For the 2012-13 school year, the record establishes
that a meeting was held on August 16, 2012 with a form giving parents the option to opt-out. A
phone recording was sent to parents the night before school began, and a letter was sent on the
day that school began on August 23, 2012. For the 2011-12 school year, the record shows that
forms were mailed out on or about August 18, 2011, while the school year was scheduled to
begin approximately a week later. Testimony from Carol Doe reveals that she had already made
7
the cheerleading team before any option to opt out was presented to the parents. The close
proximity of the notices to the beginning of the school year, after students have already enrolled,
suggest that their choice was not fully voluntary. As the record reflects, students opting out of
single-sex classes would be sent to a different school if not enough students at VDMS opted to
take a coeducational class.
The court does not decide the question of whether single-sex classes violate the Equal
Protection Clause. Rather, the court finds, as discussed, that the defendants have not met their
burden to ensure that single-sex classes at VDMS are “completely voluntary” under the
Department of Education regulations. Thus, the court finds that the plaintiffs are likely to
succeed on the merits of their Title IX claim.
B.
The Plaintiffs are Likely to Suffer Irreparable Harm Absent Preliminary
Relief
The court finds that the plaintiffs’ continued participation in single-sex classes without
having completely voluntarily chosen that option constitutes irreparable harm. Other courts have
found that a violation of Title IX may constitute irreparable harm, and this court agrees. See
McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 301-02 n.25 (2d Cir.
2004); Roberts v. Colo. State Bd. of Agric., 998 F.2d 824, 833 (10th Cir. 1993). Here, the
plaintiffs have shown that their participation in single-sex classes was not completely voluntary,
and having them remain in single-sex classes would be a continuing violation of Title IX. See id.
The court does recognize the conflicting testimony between the plaintiffs and Ms. Hahn,
one of the teachers that testified for the defense. Ms. Hahn’s testimony indicated that she did not
engage in gender stereotyping, but instead taught her classes according to the individual needs of
the children. The court does not suggest that teachers should teach in any particular way, and
appreciates the teachers’ attempts to find new ways to teach and engage their students. The court
8
emphasizes that the irreparable harm in this case is not the way the children at VDMS are
taught—the court does not decide that issue—but rather the lack of a voluntary choice to
participate in single-sex classes as required under the Department of Education regulations.
C.
The Balance of Equities Tips in the Plaintiffs’ Favor
The court finds that the injury to the plaintiffs outweighs the harm to the defendants in
granting a preliminary injunction. The defendants would suffer the administrative inconvenience
of revising course schedules after the school year has already begun to provide for coeducational
classes. This inconvenience will not be a great burden to the defendants. The Principal of
VDMS, Stephen Taylor, testified during the August 18, 2012 hearing that the school already has
a coeducational program ready to be implemented. Furthermore, the WCBE and VDMS certainly
have the experience and ability to run coeducational classes, as they have done for years prior to
the implementation of the single-sex program in 2010. On the other hand, absent a preliminary
injunction, the plaintiffs would continue to suffer from their involuntary placement in single-sex
classrooms. Moreover, the plaintiffs Anne Doe, Beth Doe, and Carol Doe will experience their
middle school years only once during their life.
D.
The Public Interest Favors a Preliminary Injunction
The court finds that a preliminary injunction would be in the public interest. A
preliminary injunction would prevent the continued violation of the plaintiffs’ Title IX rights,
and that of any other parent who may not have opted out, but would not have opted in if they
were properly presented with that option. The public interest is certainly served by promoting
compliance with Title IX. See Barrett v. West Chester Univ. of Pa. of State Sys. of Higher Educ.,
No. 03-cv-4978, 2003 WL 22803477, at *15 (E.D. Pa. Nov. 12, 2003); Cohen v. Brown Univ.,
809 F. Supp. 978, 1001 (D.R.I. 1992).
9
The rationale behind a grant of a preliminary injunction has been explained as preserving
the status quo so that the court can render a meaningful decision after a trial on the merits. Rum
Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991); Feller v. Brock, 802 F.2d
722, 727 (4th Cir. 1986). The status quo, however, does “not consist of a photographic
replication of the circumstances existing at the moment suit was filed, but rather the last
peaceable uncontested status that existed before the dispute arose.” Faulkner v. Jones, 10 F.3d
226, 237-38 (4th Cir. 1993) (Hamilton, J. dissenting). Here, the court finds that the “last
peaceable uncontested status” was when VDMS offered coeducational classrooms, particularly
as coeducational education is still the general rule.
III.
Scope of the Preliminary Injunction
The plaintiffs, in essence, take the position that no single-sex classes would ever
withstand scrutiny under the Constitution or Title IX. The court finds this argument
unpersuasive. Specifically, the court notes that:
No legal authority supports the conclusion that optional single-sex programs in
public schools are ipso facto injurious to the schools’ students. Unlike the
separation of public school students by race, the separation of students by sex
does not give rise to a finding of constitutional injury as a matter of law.
A.N.A. ex rel. S.F.A. v. Breckinridge Cnty. Bd. of Educ., 833 F. Supp. 2d 673, 678 (W.D. Ky.
2011). In fact, the United States Supreme Court has found exactly the opposite of what the
plaintiffs suggest. See United States v. Virginia, 518 U.S. at 533 & n.7 (stating that “[t]he
heightened review standard our precedent establishes does not make sex a proscribed
classification,” and not questioning Virginia’s “prerogative evenhandedly to support diverse
educational opportunities.”). Rather, if the school meets the heightened scrutiny set forth in
United States v. Virginia, single-sex classes can certainly be constitutional. Similarly, the
Department of Education also disagrees with this view: the 2006 regulations explicitly allow for
10
a narrow exception to the general rule of coeducational classes, and schools can certainly avoid
violating Title IX in implementing single-sex classes by complying with these regulations.
Based on this position, the plaintiffs ask for preliminary relief not only to enjoin the
defendants from segregating VDMS based on sex, but also to enjoin the implementation of any
gender-based training techniques at the school. The court is not willing to go this far. The court
sees no reason to enjoin the defendants from implementing single-sex education programs and
single-sex classrooms as long as they are acting within the boundaries set by the Constitution and
Title IX; it is only to the extent that VDMS’s current single-sex program violates the law that the
defendants must be enjoined.
IV.
Conclusion
The court again emphasizes that its decision today rests on the requirement of the
Department of Education regulations that single-sex programs be “completely voluntary.” 34
C.F.R. § 106.34(b)(1)(iii). The court does not substitute its judgment for that of local school
administrators and teachers regarding the benefits or drawbacks of single-sex education.
However, the court does note that the science behind single-sex education appears to be, at best,
inconclusive, and certain gender-based teaching techniques based on stereotypes and lacking any
scientific basis may very well be harmful to students. Even Professor Salomone, the expert
witness called by the defense, agreed with the ACLU on the issue of brain research—that it’s
based on the rationale of pseudoscience—and suggested that many schools were “led astray” by
the teachings of Dr. Leonard Sax. Professor Salomone served as an expert witness for the
defense not because she agreed with the gender-based teaching techniques, but because she felt
that the individual teachers at VDMS were, in fact, not teaching students based on gender
stereotype, despite the training given by Dr. Sax and David Chadwell.
11
The court strongly believes that educators should be in charge of educating, and strongly
encourages teachers and schools to adopt innovative learning techniques to improve our
struggling education system. No one is better suited to develop effective teaching methods than
our public school teachers. The teachers, through their underappreciated service in the
classroom, are in the best position to determine what it takes to reach their students in ways that
no laws or regulations can anticipate. It is admirable that the teachers at VDMS are attempting to
find different ways to connect with their students.
Thus, the court does not wish to interfere with or stifle innovation in our education
system. However, it is the court’s duty to ensure that the government complies with the law.
Without making any findings regarding the evidence heard on the merits of VDMS’s single-sex
classes, or single-sex curricula generally, the court finds that the requirements set forth by the
Department of Education under Title IX that single-sex programs be “completely voluntary”
means that there must be unequivocal assent to participation given by parents of all students
involved. Lacking that assent, a student must have the “substantially equal” alternative promised
by the regulations, although this court declines to define today what that alternative must entail.
Because the court FINDS, for the reasons stated above, that VDMS’s program was not
completely voluntary, the plaintiffs’ motion for preliminary injunction [Docket 4] is GRANTED
in part and DENIED in part. The court hereby ENJOINS the defendants from separating
students into single-sex classes at Van Devender Middle School for the remainder of the 2012-13
school year, and unless and until any single-sex program offered meets the requirements of the
Constitution and Title IX, in particular the Department of Education regulations as interpreted by
the court today. This injunction will take effect at the beginning of the school day on Monday,
September 3, 2012.
12
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party. The court further DIRECTS the Clerk to post a copy of this published
opinion on the court’s website, www.wvsd.uscourts.gov.
ENTER:
13
August 29, 2012
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?