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A Legal Question for Charter Schools: Can We Operate a Single-Gender Charter School in Delaware?

In early January, a federal district court in Delaware was asked to consider a very tricky question: would closing an academically failing all-girls charter school (as the school’s authorizer recommended) violate the federal constitutional ban against gender discrimination? The all-girls school argued it would; the state of Delaware argued it would not and emphasized the state’s authority and obligation to close failing charter schools. The court sided with the school. As a result, the academically failing all-girls charter school will continue to operate for an additional year. This feels like an odd result: A court permits a failing school to continue operating, even though the school’s authorizer says it needs to close. What’s going on? The federal constitution and Title IX require boys and girls to have substantially equivalent access to educational opportunities. Right now, there is an all-boys charter school operating in Delaware. It performs well and continues to be renewed. The failing all-girls charter school in question is the state’s only all-girls charter school.  If it is closed, no equivalent educational option would exist for Delaware girls.  Further complicating matters, new single-gender charter schools cannot open in Delaware because the statutory provision permitting such schools sunset on June 30, 2013. Taken together, the court determined that closing the only all-girls charter school combined with the state’s statutory ban against opening a new all-girls charter school would indefinitely prevent Delaware girls from accessing a substantially equivalent education, as is required under binding Supreme Court precedent interpreting Title IX in this context (established in 1995 in United States v. Virginia). Even though this means Delaware girls may continue choosing and attending a failing school for another year, the federal district court felt its hands were tied.