From today's long decision in Stepp v. Lockhart, by Tenth Circuit Judge Scott Matheson, joined by Judges Gregory Phillips and Veronica Rossman (there's a lot going on there besides the single-sex education question as well):
We conclude the SAC [Second Amended Complaint] plausibly alleged an equal protection violation based on the sex segregation policy. The policy classified fifth-grade students on the basis of sex and thus is "subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment." It is subject to intermediate scrutiny, meaning Defendants must provide an "exceedingly persuasive justification for [the] classification."
The SAC alleged that "[u]nderpinning Defendants' decision to segregate [TES's] fifth grade class based on sex were offensive and outdated stereotypes about boys and girls, their behavior, and the discipline and instruction permissible for or required for each." The SAC further alleged that "Defendants had no legitimate basis, at law or in fact, to implement a policy of sex segregation at [TES]." The SAC also alleged that defendants acted "knowingly, intentionally, and/or recklessly" in "adopting, implementing, and enforcing" the sex-segregation policy. Thus, we conclude the SAC stated a viable equal protection challenge….
