Washington Law Review


Single-sex education in public school systems has become increasingly popular in recent years. The Equal Rights Amendment to the Washington State Constitution (ERA) requires that males and females be treated equally where state action, such as public education, is involved. As demonstrated by the ERA's legislative history and Washington case law, the ERA prohibits differentiation on the basis of sex alone, which occurs where an individual would be treated differently in a given situation if that person were of the opposite sex. Legislative history and case law recognize two narrow exceptions to the ERA. Under the first exception, classification based on sex is permissible if it is based on actual physical differences between the sexes. The second exception allows sex-based distinctions in the context of affirmative action programs intended solely to ameliorate the effects of past discrimination. This Comment argues that based on the Amendment's plain meaning and legislative history, as well as both binding and persuasive precedent, single-sex public education contravenes the ERA by differentiating on the basis of sex alone. Single-sex public education violates the ERA based on the plain meaning of the Amendment, which mandates equality between the sexes. Single-sex public education also runs afoul of the ERA by effecting arbitrary sex-based classifications: but for a given student's sex, that student would be allowed into a particular class or school. Moreover, a Pennsylvania court has held that single-sex public education violates Pennsylvania's ERA, which parallels Washington's ERA in language, purpose, and application. Finally, single-sex public education does not currently satisfy either of the two narrow exceptions to Washington's ERA: learning does not involve an actual physical difference between the sexes, and single-sex classes and schools are not affirmative action programs intended solely to mitigate the effects of past discrimination.

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