ACLU of Kentucky

This case is a direct challenge to the federal Dept. of Education's 2006 regulations that expand the ability of public schools to segregate students on the basis of gender. 

Prior to 2006, the Dept. of Education's regulations interpreted Title IX as strictly prohibiting the implementation of educational programs on the basis of gender (except in very limited circumstances).  The Dept. of Education issued new regulations in 2006, however, that allow schools to operate single-sex classes if: (1) their implementation is based upon an "important objective"; (2) they are administered in an "even-handed manner"; and (3) participation is completely voluntary.

At Breckinridge County Middle School, school officials began implementing single-sex classes in 2003 but allowed parents to "opt-out" of the classes and instead have their children attend co-ed classes.  At the beginning of the 2007-2008 school year, however, school officials implemented the single-sex classes without notifying parents or providing them an opportunity to "opt-out."  The parents initially retained private counsel and filed suit but subsequently discontinued their relationship with private counsel and sought ACLU assistance.

In cooperation with the Women's Rights Project, the ACLU of Kentucky assumed representation of the plaintiffs in April, 2008.  The plaintiffs filed an Amended Complaint that added the Dept. of Education as a defendant and directly challenged the constitutionality of the 2006 regulations.  The plaintiffs' primary claims are: (1) that the Dept. of Education's 2006 regulations are unconstitutional because they allow schools to segregate students on the basis of gender without showing an "exceedingly persuasive justification" as required by the Equal Protection clause, (2) even if the regulations are constitutional, Breckinridge County Middle School's single-sex plan does not comply with the 2006 regulations because students are not afforded a "substantially equal coeducational alternative" to the single-sex classes, and (3) because Breckinridge Middle receives federal funding from other governmental agencies (e.g. Dept. of Agriculture, Dept. of Health and Human Services), it is bound to follow those agencies' regulations prohibiting sex-based discrimination (those agencies' regulations mirror the Dept. of Education's pre-2006 regulations and thus prohibit single-sex classes).

Representing the plaintiffs in this case are David A. Friedman and William E. Sharp of the ACLU of Kentucky and Emily Martin, Lenora Lapidus and Araceli Martinez-Olguin of the national ACLU Women's Rights Project.