Doe v. Wood Cnty. Bd. of Educ.

• Decision Date: 29 August 2012
• Docket Number: Civil Action No. 6:12–cv–04355.
• Citation: 888 F.Supp.2d 771
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Jane DOE, et al., Plaintiffs, v. WOOD COUNTY BOARD OF EDUCATION, et al., Defendants.

888 F.Supp.2d 771

Jane DOE, et al., Plaintiffs,

v.WOOD COUNTY BOARD OF EDUCATION, et al., Defendants.

Civil Action No. 6:12–cv–04355.

United States District Court, S.D. West Virginia.

Aug. 29, 2012.

Amy Lynn Katz, Christina Brandt-Young, Galen Sherwin, Lenora M. Lapidus, American Civil Liberties Union Foundation, Womens Rights Project, New York, NY, Joshua A. Hartman, Marissa P. Harris, Roxann E. Henry, Morrison & Foerster, Washington, DC, Roger D. Forman, Law Offices of Roger D. Forman, Sarah Rogers, American Civil Liberties Union Foundation of West Virginia, Charleston, WV, for Plaintiffs.

Aaron C. Boone, Robert J. Kent, Bowles Rice McDavid Graff & Love, Parkersburg, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, Chief Judge.

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 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.

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, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346–47 (4th Cir.2009), vacated on other grounds,––– U.S. ––––, 130 S.Ct. 2371, 176 L.Ed.2d 764 (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 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 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 Fed.Appx. 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, 116 S.Ct. 2264, 135 L.Ed.2d 735 (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...