February 27th, 2021


'For your own good' discrimination fails the test

Noah Feldman

By Noah Feldman Bloomberg View

Published August 1, 2016

The Closing of the American Mouth

A student at the University of Cincinnati is suing her physics professor for assigning all-female study clutches. The twist is that the professor, a male, says he wants more women in science, and that there's evidence women do better in all-female groups.

Who's right? Should it be illegal for a college teacher to try to advance women's interests by grouping students of the same sex together? Or should we encourage experiments in learning if the goal is to enable women to succeed in the classroom?

The University of Cincinnati student, Casey Helmicki, is a pre-med student who was assigned to a physics lab taught by Larry Bortner and administered by a teaching assistant of his. According to Helmicki, when she showed up for class she was told she would be assigned to a study group with other female students, whether she liked it or not.

She didn't. After raising the issue with the teaching assistant, Helmicki went to the university's office overseeing Title IX, the federal law that prohibits discrimination based on sex, to complain.

The university official responded by starting a confidential investigation and speaking confidentially to the professor, which is the normal process under Title IX at most universities. The goal of university Title IX offices is two-sided. On the one hand, they want to eliminate sex discrimination. On the other hand, they want to protect the university against liability. Confidentiality serves the second of those interests pretty consistently; it sometimes serves the first goal too.

According to the university, the Title IX coordinator told the professor that it was a bad idea to assign females to all-female or mostly-female study groups without giving them a choice. The professor replied that there is some evidence that women in science classes do better when they are assigned to such study groups. He cited a study to that effect.

The Title IX coordinator was willing to consider the advantages of single sex study groups. But she advised Professor Bortner that he should make such groups voluntary, and explain his reasoning in advance to the students. As far as it is possible to determine, Bortner took the advice. It seems that he still assigned students to single-sex study groups, but only if they wanted.

Helmicki was not satisfied with the compromise. She's filed suit in federal court and has sought an order against the professor and the university to stop the practice.

Helmicki claims that the practice is unlawful segregation even if it's voluntary. She adds that the Title IX coordinator's guidance was drawn from federal guidelines that are intended for elementary and high schools, not universities.

To figure out the right answer, it's worth starting with the evidence. The single study that the professor offered is suggestive, but it's by no means definitive proof that putting women into their own study groups works consistently. The positive effects of avoiding male chauvinist students may be counterbalanced by the stigma of being told that women need to study together because they are at a disadvantage.

If the professor's policy is justified, then, it wouldn't be because we know that it works, but rather because we think there's a chance that it might. When it comes to a pressing social problem like the dearth of women in science, it seems reasonable to pursue a range of different strategies. That's the strongest argument for the compromise that the university reached with the professor.

On the other side is the legal principle of non-discrimination. Imagine there was a study finding that students do better in science class if they're grouped with members of the same racial category. Even if this were certainly true, we'd balk at grouping students together on the basis of race, even voluntarily. A better solution might be for a professor to allow students to choose their own study partners while simultaneously making them aware of the research that arguably supports same-sex groups. The solution isn't perfect, because students tend to group themselves with people they already know and those grouping may not be educationally ideal. Nevertheless, the specter of faculty-assigned groups based on a generally prohibited criterion is unsettling enough to demand a better fix.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."