The Impact of Implementation: ACLU, Rollback, and Easy Neg Wins

The structure of Public Forum Debate incentivizes debaters to gravitate towards the most intuitive and simple set of arguments. Both the brief time limits and lay audience make complicated arguments — or arguments that require substantial amounts of explanation to win — typically less strategic than the core of the topic. As a result, many debaters systematically miss strategic argumentative options that are not immediately apparent. This post will examine one such option — rollback arguments. In short, the argument is that schools that implement single-gender classes are likely to face legal threats, and will ultimately cancel (or "rollback") implementation of those classes before they ever begin.

Litigation Liability as a Prior Question

It's impossible to consider single-gender classes abstractly, or absent their social context and logistical implementation details. The question of whether or not single-gender classes improve the quality of education is necessarily shaped by the cost and consequences that stem from their implementation. Single-gender classrooms do not instantaneously materialize; they result from a long, technical process. The American Civil Liberties Union (ACLU) has publicly committed to taking advantage of that process to deter schools from implementing such classrooms. It has an ongoing strategy of bringing lengthy litigation against public schools that implement single-gender classes through its "Teach Kids, Not Stereotypes" Campaign. Their explicit purpose, according to their staff attorney, is to use litigation to "send a message to other schools that this type of experiment is not worth the risk"¹. Dr. Erin Buzuvis, a professor of law at Western New England University, notes that the "ACLU is attacking the problem in a manner designed to have an impact in states across the country"². They have been quite successful. Schools are often not willing to risk the litigation liability by implementing single-gender classes, so even the mere threat of litigation is often enough to end single-gender programs. Supreme Court Justice Antonin Scalia effectively summarizes why the existing legal requirement structure makes schools structurally unlikely to fight litigation threats regarding single-gender classrooms³:

"The costs of litigating the constitutionality of a single-sex education program, and the risks of ultimately losing that litigation, are simply too high to be embraced by public officials. Any person with standing to challenge any sex-based classification can haul the State into federal court and compel it to establish by evidence (presumably in the form of expert testimony) that there is an 'exceedingly persuasive justification' for the classification. Should the courts happen to interpret that vacuous phrase as establishing a standard that is not utterly impossible of achievement, there is considerable risk that whether the standard has been met will not be determined on the basis of the record evidence-indeed, that will necessarily be the approach of any court that seeks to walk the path the Court has trod today. No state official in his right mind will buy such a high-cost, high-risk lawsuit by commencing a single-sex program. The enemies of single-sex education have won; by persuading only seven Justices (five would have been enough) that their view of the world is enshrined in the Constitution, they have effectively imposed that view on all 50 States."

Talk about a money quote. Here's another one⁴:

"Most public schools - and even most smaller school districts - do not employ their own legal counsel. Instead they hire outside attorneys on an hourly rate, as needed. Just hiring an attorney to read a letter from the ACLU, determine which claims are legally valid, and respond to the letter, can cost a school hundreds of dollars in legal fees - at a time when schools are having to cut programs, and let good teachers go, because of lack of funds."

Litigation Successes, Classroom Failures?

In 2013, the ACLU was involved in "legal action against as many as a dozen school districts from Maine to Mississippi" regarding "single-sex classes"5 — a number which jumped to a full fifteen different states this year⁶ — and they're winning. Though there is not a credible list of all public schools offering single-gender classes⁷, the ACLU has sued schools in every single state with documented single-gender classes⁸, and schools in every one of those states have dropped their single-gender classes — or ended plans to implement them — because of ACLU threats, including schools in California⁹, Maine¹⁰, Massachusetts¹¹, Missouri¹², New Jersey¹³, North Carolina¹⁴, Pennsylvania¹⁵, Texas¹⁶, Virginia¹⁷, and Wisconsin¹⁸. These wins are likely to have a snowball effect in curtailing the development of single-gender classes, as Dr. Buzuvis noted, because the effect of winning litigation against state increases the likelihood that schools in that state — and other states — will not even attempt single-gender classrooms.

Topic Tie-In

There are two ways this argument warrants a negative ballot. First, the affirmative has the burden of proof. Specifically, the affirmative must prove that single-gender classrooms would improve the quality of public education in the United States. If the negative proves that these classrooms never materialize a benefit because school districts roll them back prior to implementation, the affirmative has failed to meet its burden. Because of the phrasing of the topic, the affirmative alone has the burden of proof — if classrooms have no effect or a detrimental effect then the negative should win. Negative teams arguing this style of case should include an observation at the top of their case emphasizing the burden of proof rests on the shoulders of the affirmative, exclusively. Second, implementing single-gender programs and then scrapping them is an expensive, wasteful process. Single-gender classrooms explode the administrative and overhead costs of maintaining a school because of complicated legal requirements to ensure compliance with sex equality legislation. As Justice Scalia noted, schools must conduct biannual equality reviews to ensure substantive equality between types of classrooms — that's an added cost. Schools must also provide "a coeducational class in the same subject at a geographically accessible location"¹⁹, essentially doubling the amount of resources (teachers, course materials, physical space) required to teach the same subject. These classes are chronically under-enrolled²⁰, meaning that not only are more resources being used, they're being used less efficiently. The administrative overhead required to run schools is also exponentially increased, as proportional oversight to monitor the expanded facilities becomes necessary to ensure compliance with the law, and managed the increased number of classrooms and expenditures. Even if the classrooms are canceled before they begin, the process of preparing for single-gender classrooms is expensive. The costs of single-gender classrooms are frontloaded — schools must hire teachers, purchase materials, and ensure regulatory compliance before those classes actually begin to teach students. Further, educational return on those investments — meaning a measurable impact on student educational quality — does not happen until long after the resources themselves have been purchased. Partially developed single-gender classes — or single-gender classes whose duration is short lived — are worse than simply not attempting those classes in the first place. Single-gender programs only have a return if fully implemented — for example, if teachers are trained on best practices, but never allowed to implement them, there is no partial return. The risk of short lived programs also answers an important affirmative argument, because some affirmatives may argue that schools will prevail in spite of the ACLU's pressure. That may be true in the short term, but the Scalia evidence says that structural litigation incentives will cause all schools to abandon single-gender programs in the long-term even if they double down in the short term. That proves the wasted resources argument — the more resources poured into short-term programs, the more the school district ultimately wastes money and time into a fundamentally unsustainable program. That's why there is no documentation or evidence of a single-gender public school program in the country that lasted a decade. As a cross-examination strategy, I'd ask affirmative debaters to name a single program that's has lasted in the face of ACLU pressure — it's unlikely they'll be able to name one, which strengthens the apparent credibility of the argument in the eyes of the judge.

Emphasizing the Wasted Resources Disadvantage

Strategic negatives will compare the probability of brief benefits from single-gender schools to the probability of harms that stem from the wasteful expenditure of limited resources. That analysis is aided in part by emphasizing the importance of efficient spending. That public schools are underfunded is an uncontroversial statement²¹. Teacher funding is particularly abysmal. Teachers are already undertrained on education technology²², classroom management²³, and continuing education and curriculum development²⁴. School administrators have a strong incentive to spend their limited funds wisely, as mismanagement of their funds not only implicates their job, but also implicates the ability of their school to function. In fact, less than 6% of all students attend schools that are well funded²⁵, while 20%²⁶ of students nationally attend schools whose education is so poor it violates the Constitution²⁷.

"In Connecticut and around the country, courts have consistently ruled that underfunded schools amount to constitutional violations of children's right to an education. In New York, Colorado, Wyoming, Kansas, Washington and many other states, courts have determined that there is 'a causal connection between the poor performance of … students and the low funding provided their schools.' [ellipses in original]"

The largest threat to educational quality — and the greatest determinant of the same — is funding. Single-gender classrooms threaten funding both directly in terms of increases costs and indirectly in terms of litigation liability. Rolled back programs have no benefit, and a substantial cost. To effectively win this argument, the negative should frame the choice between the affirmative and negative as a choice between wasteful spending for no benefit and smart investment of limited finances. The negative should emphasize that the rollback argument means the affirmative gets zero benefit from their case — unlike other arguments which merely decrease the degree of benefit, a rolledback program has exactly no benefit. Emphasizing the uselessness of halfway or transient programs while simultaneously emphasizing the high risk of wasteful resources will make for easy negative wins.

Works Cited

1. American Civil Liberties Union. "Louisiana School Board to Halt Single-Sex Classes After ACLU Intervention" October 13, 2011. https://www.aclu.org/womens-rights/louisiana-school-board-halt-single-sex-classes-after-aclu-intervention
2. Buzuvis [Dr. Erin, professor of law @ Western New England University] "ACLU Demands Schools 'Teach Kids, Not Stereotypes'" May 23, 2012 http://title-ix.blogspot.com/2012/05/aclu-demands-schools-teach-kids-not.html
3. Scalia [Antonin, Justice of the Supreme Court of the United States of America] Dissent: United States v. Virginia et. al. June 26, 1996. http://ethics.sandiego.edu/Applied/Gender/VMI_dissent.html
4. Buzuvis [Dr. Erin, professor of law @ Western New England University] "ACLU Demands Schools 'Teach Kids, Not Stereotypes'" May 23, 2012 http://title-ix.blogspot.com/2012/05/aclu-demands-schools-teach-kids-not.html
5. McLure [Jason, journalist with the Center for Public Integrity and Thompson Reuters] "US schools with single-sex classrooms may face ACLU lawsuit" Thompson Reuters, reprinted in the Chicago Tribute. May 22, 2012. http://articles.chicagotribune.com/2012-05-22/business/sns-rt-usa-acluclassrooml1e8gmjl6-20120522_1_single-gender-leonard-sax-language-test-scores
6. Davis [John, writer and broadcaster for NPR's Florida Division] "Single Sex Classroom Bill Sparks Controversy". NPR. December 23, 2013. http://news.wgcu.org/post/single-sex-classroom-bill-sparks-controversy
7. Single-gender classes are not registered by the Department of Education, and single-gender class advocates deliberately hide schools with single-gender classes to avoid scrutiny. See, for example: http://www.singlesexschools.org/schools-schools.htm
8. Ibid.
9. Suit pending*: American Civil Liberties Union. "ACLU Seeks Investigation of Single-Sex Programs Rooted In Stereotypes at School Districts Across the Country" March 28, 2013 https://www.aclu.org/womens-rights/aclu-seeks-investigation-single-sex-programs-rooted-stereotypes-school-district
10. Wells [Tammy, writer for the Journal Tribune, a Maine newspaper]."Sanford school suspends single-gender classes after ACLU threatens to sue". The Journal Tribune, reprinted in the Bangor Daily News. June 20, 2012 http://bangordailynews.com/2012/06/20/education/sanford-school-suspends-single-gender-classes-after-aclu-threatens-to-sue/
11. Kimmel [Dr. Michael, Ph.D Sociology from UC-Berkeley, Distinguished Professor of Sociology @ Stony Brook University in New York] "Don't segregate boys and girls in classrooms" CNN News. Last Updated: February 3, 2014. http://www.cnn.com/2013/08/09/opinion/kimmel-single-sex-classes/
12. Murphy [Kevin, Writer for Thompson Reuters] "Under ACLU pressure, Missouri school drops single-sex classes". Thompson Reuters. November 23, 2011. http://www.reuters.com/article/2011/11/23/us-education-aclu-missouri-idUSTRE7AM25O20111123
13. Suit Pending*: American Civil Liberties Union. "ACLU Seeks Investigation of Single-Sex Programs Rooted In Stereotypes at School Districts Across the Country" March 28, 2013 https://www.aclu.org/womens-rights/aclu-seeks-investigation-single-sex-programs-rooted-stereotypes-school-district
14. Kimmel [Dr. Michael, Ph.D Sociology from UC-Berkeley, Distinguished Professor of Sociology @ Stony Brook University in New York] "Don't segregate boys and girls in classrooms" CNN News. Last Updated: February 3, 2014. http://www.cnn.com/2013/08/09/opinion/kimmel-single-sex-classes/
15. McLure [Jason, writer for Thompson Reuters] "U.S. schools with single-sex classrooms may face ACLU lawsuit". Thompson Reuters. May 22, 2012. http://www.reuters.com/article/2012/05/23/us-usa-aclu-classroom-idUSBRE84M01020120523
16. Suit concluding* Whittaker [Richard, writer for the Austin Chronicle] "Three Plans for Four Eastside Schools" The Austin Chronicle. February 7, 2014. http://www.austinchronicle.com/news/2014-02-07/three-plans-for-four-eastside-schools/ and American Civil Liberties Union. "ACLU Seeks Investigation of Single-Sex Programs Rooted In Stereotypes at School Districts Across the Country" March 28, 2013 https://www.aclu.org/womens-rights/aclu-seeks-investigation-single-sex-programs-rooted-stereotypes-school-district
17. American Civil Liberties Union. "Court Approves Settlement Reached in Challenge to West Virginia Single-Sex School Program Rooted in Stereotypes". July 8, 2013. https://www.aclu.org/womens-rights/court-approves-settlement-reached-challenge-west-virginia-single-sex-school-program
18. Kimmel [Dr. Michael, Ph.D Sociology from UC-Berkeley, Distinguished Professor of Sociology @ Stony Brook University in New York] "Don't segregate boys and girls in classrooms" CNN News. Last Updated: February 3, 2014. http://www.cnn.com/2013/08/09/opinion/kimmel-single-sex-classes/
19. Department of Education, October 2006 regulations for single-sex classrooms, as cited in "Single-Gender Schools and the Inner-City; Can They Work?" by Mateen Diop. http://books.google.com/books?id=o98K3QRw1a0C&pg=PA18&lpg=PA18&dq=%22a+coeducational+class+in+the+same+subject+at+a+geographically+accessible+location.%22&source=bl&ots=uH2-sYVq0y&sig=EUr_OzggUBbNV3gFhPfIDfL9gZQ&hl=en&sa=X&ei=a40OU8XkGZHOkQe7h4DABg&ved=0CDYQ6AEwAg#v=onepage&q=%22a%20coeducational%20class%20in%20the%20same%20subject%20at%20a%20geographically%20accessible%20location.%22&f=false
20. Hubbard et al. [Lea, PhD Sociology from UC San Diego, Professor @ UC-SD since 2002] "Is Single Gender Schooling Viable in the Public Sector? Lessons from Californias Pilot Program. Final Report". The Ford Foundation. May 20, 2001. http://eric.ed.gov/?id=ED471051
21. Strauss [Valerie, Educational Analyst for the Washington Post] "How grossly underfunded are public schools?" The Washington Post. November 25, 2012. http://www.washingtonpost.com/blogs/answer-sheet/wp/2012/11/25/how-grossly-underfunded-are-public-schools
22. Carlson [Sam, former Educational Economist with the World Bank, presently Executive Director of World Links, an international non-profit dedicated to increasing global access to technology] "The Missing Link in Educational Technology: Trained Teachers." The International Journal of Technologies for the Advancement of Knowledge and Learning. October-December 2002 Issue. http://www.techknowlogia.com/TKL_Articles/PDF/435.pdf
23. Sawchuck [Stephen, assistant editor for Education Week] "Teacher Training in Classroom Management Is Insufficient, NCTQ Finds" Education Week. December 10, 2013. http://blogs.edweek.org/edweek/teacherbeat/2013/12/teacher_training_in_classroom_management.html
24. Greenley [Brian, interviewer for Education News] "Under-funded Public Schools Hire More Unprepared 'Emergency Teachers'" Reposted at the Free Republic. December 2, 2005. http://www.freerepublic.com/focus/f-news/1532914/posts
25. Biddle and Berliner [Bruce, Professor Emeritus of Psychology and of Sociology @ University of Missouri, Columbia and David, Regents' Professor of Psychology in Education, @ Arizona State University] "A Research Synthesis / Unequal School Funding in the United States" The Journal of Educational Leadership, Vol. 59. No. 8. pp48-59. http://www.ascd.org/publications/educational-leadership/may02/vol59/num08/Unequal-School-Funding-in-the-United-States.aspx
26. Ibid.
27. Strauss [Valerie, Educational Analyst for the Washington Post] "How grossly underfunded are public schools?" The Washington Post. November 25, 2012. http://www.washingtonpost.com/blogs/answer-sheet/wp/2012/11/25/how-grossly-underfunded-are-public-schools