¹ The structure of ownership and funding of schools in Israel is complex. While many public elementary schools are state schools, there are few state post elementary-schools. Public high schools are thus usually run by municipalities, although they receive a substantial amount of their budget from the state through the Ministry of Education. For additional details and review, see Asher Maoz, ‘Religious Education in Israel’ (2006) 83 University of Detroit Mercy Law Review 679.

² State Education Law, 1953 (Israel), s 1.

³ ibid, s 13(a).

⁴ Maoz (n 1) 688–89.

⁵ State Education Regulations (Recognized Institutions), 1953 (Israel).

⁶ ibid, s 9. Failure to admit students from diverse socio-economic backgrounds may result in a reduction of state support.

⁷ According to Israel's Compulsory Education Law, parents are required to enrol their children in a recognised educational institution, and are subject to criminal penalty for failing to do so. The Minister of Education may provide an exemption for students enrolled in types of institution, as specified: see Compulsory Education Law, 1949 (Israel), s 5. For additional information, see Maoz (n 1) 699.

⁸ HCJ 4805/07 Center for Jewish Pluralism v Ministry of Education (not published, judgment delivered on 27 July 2008). While the decision directly concerned the reality in which the Ministry of Education continued to fund unofficial recognised institutions that failed to teach the Core Programme, the Court emphasised the need to allocate state resources based on clear criteria and stressed the importance of a common educational programme in all state schools.

⁹ Unique Cultural Educational Institutions Law, 2008 (Israel).

¹⁰ The Law defined a ‘unique cultural educational institution’ as an institution that serves a ‘unique cultural group’ and provides education compatible with the lifestyle of such group. A ‘unique cultural group’ is defined as either ‘the ultra-orthodox sector whose students study religious studies in accordance with the Jewish Halacha [Jewish Law]’ or ‘another sector of the population as determined by the Minister in an order approved by the Knesset's Education, Culture and Sports Committee’. To date, no such groups have been designated. It should be noted that all of the institutions that have applied for an exemption serve male students. Since it is only men who study Halacha in ultra-orthodox schools, the definition itself excludes schools that serve female students. According to information provided by the Ministry of Education, as of September 2011, 335 institutions have applied to receive recognition as unique cultural educational institutions which are exempt from the study of the Core Programme. During the 2011–12 school year, 8,111 students will study in 85 institutions that have completed the approval process (data is on file with author).

¹¹ For a table tracking the status of an incomplete list of schools in the 2011–12 academic year, see the website of Neemanei Torah Va'Avoda, ‘Tracking Table of Separation Between Boys and Girls in Primary State Religious Schools’ (in Hebrew), available at http://toravoda.org.il/node/3350.

¹² ‘Procedure for Sex-Based Separation in State Religious Schools’ (on file with the author).

¹³ I do not elaborate on this point here as the system for school funding has changed several times since 1999. The current funding system is discussed below.

¹⁴ Several struggles revolving around separation in public schools have received media attention in the past years. For coverage of some of these struggles, see Talila Nesher, ‘Within a Decade: Sharp Rise in the Number of State Religious Schools that Separate Between the Sexes’ (in Hebrew), available at http://www.haaretz.co.il/news/education/1.1583094; Tuli Fikresh, ‘Givat Shmuel: a Struggle Around the Issue of Separate Education’ (in Hebrew), available at http://www.datili.co.il/index.php?id=45778; ‘Petition: Against Gender Based Separation in School’ (in Hebrew), available at http://www.ynet.co.il/articles/0,7340,L-4109206,00.html.

¹⁵ See, for example, Solomon, Barbara Miller, In the Company of Educated Women: A History of Women and Higher Education in America (Yale University Press 1985)Google Scholar.

¹⁶ Although this statement is still true as a general observation, there is, of course, much debate – at least within less conservative segments of the three main monotheist religions – on whether the exclusion of women from religious and political leadership is truly warranted by religion or is simply an expression of the historical exclusion of women in pre-modern societies. For further discussion see, for example, Ingrid Matteson, ‘Can a Woman be an Imam? Debating Form and Function in Muslim Women's Leadership’, available at http://macdonald.hartsem.edu/muslimwomensleadership.pdf; Nadell, Pamela S, Women Who Would Be Rabbis: A History of Women's Ordination, 1889–1985 (Beacon Press 1998)Google Scholar.

¹⁷ Although the notion of modesty does not refer exclusively to sexual modesty, sexual modesty has occupied a growing place in orthodox Judaism. For a discussion of the relevance of the justification for separation to the legitimacy of separation, see Noya Rimalt, ‘Separation Between Men and Women as Gender Discrimination’ (2003) 3 Alei Mishpat 99 (in Hebrew).

¹⁸ Aviner, Shlomo, ‘Education to Modesty’, in Kutanot Or, Berur Emuni Besugiyat Ha Zniut (Mofet 2000)Google Scholar 413 (in Hebrew).

¹⁹ See Yaacov Ariel, ‘Modesty as an Ideal Look’, ibid 61, 63 (in Hebrew).

²⁰ It is notable that similar concepts exist in other religions: see Mark A Guterman, Payal Mehta, Margaret S Gibbs, ‘Menstrual Taboos Among Major Religions’ (2008) 5(2) Internet Journal of World Health and Societal Politics, available at http://www.ispub.com/journal/the-internet-journal-of-world-health-and-societal-politics/volume-5-number-2/menstrual-taboos-among-major-religions.html.

²¹ ibid.

²² In the US, the most prominent of these women is perhaps Hillary Clinton, a graduate of Wellesley College.

²³ Salomone, Rosemary C, Same, Different, Equal: Rethinking Single-Sex Schooling (Yale University Press 2003)Google Scholar 36.

²⁴ ibid 35.

²⁵ ibid 37.

²⁶ Fred Mael and others, ‘Single-Sex Versus Coeducation Schooling: A Systematic Review’ (2005), available at http://www2.ed.gov/rschstat/eval/other/single-sex/index.html. Of the 2,221 studies initially retrieved by the review team, only 40 studies were statistically valid and could be included in the review; even their inclusion required relaxing the regular What Works Clearinghouse (WWC) standards since, as the authors noted, ‘under the WWC criteria for inclusion, virtually all single-sex studies would have been eliminated from the review process’(xi). The authors noted that many of the studies that were included in the review included no descriptive statistics or effects sizes, and many lacked well-developed hypotheses or included hypotheses that were not linked directly to the outcomes being studied (xvii). This is a testament, perhaps, to the difficulty of conducting quality research that isolates and measures the effect of single-sex education.

²⁷ ibid xvii.

²⁸ ibid xv.

²⁹ ibid xv.

³⁰ ibid xv.

³¹ ibid xvii.

³² ibid xvii.

³³ Diane F Halpern and others, ‘The Pseudoscience of Single-Sex Schooling’ (2011) 333 Science 1706, 1706–07, ‘No Evidence from Brain Research’.

³⁴ ibid 1706, ‘Little Evidence of Academic Advantage’.

³⁵ ibid, ‘No Evidence from Brain Research’.

³⁶ ibid 1707, ‘Negative Impacts of Highlighting Gender’.

³⁷ ibid.

³⁸ See, for example, Equality Act 2010 (UK), sch 11, s 1, discussed below at Section 4.1, which exempts single-sex schools from the general prohibition against discrimination with regard to admission imposed by s 85(1) to the extent that the discrimination is on the basis of sex. The Act does not refer to the possibility of separation between male and female students in the same school.

³⁹ United States v Virginia 518 US 515 (1996).

⁴⁰ Brown v Board of Education of Topeka 347 US 483 (1954).

⁴¹ In order to withstand strict scrutiny, a classification must be ‘narrowly tailored’ to further a ‘compelling governmental interest’: Grutter v Bollinger 539 US 306, 326–27 (2003). In order to withstand intermediate scrutiny, a classification must be ‘substantially related’ to the achievement of an ‘important governmental objective’: Craig v Boren 429 US 190, 197 (1976).

⁴² One of the most well-known and influential books written on the differences between boys and girl is Gilligan, Carol, In a Different Voice: Psychological Theory and Women's Development (Harvard University Press 1993)Google Scholar. Gilligan's work was actually cited by Virginia as supporting the establishment of the VWIL as an alternative to the VMI. An amicus curiae brief signed by Gilligan argued that her work was based not on inherent differences between the sexes, as Virginia argued, but on differences in the experiences between the sexes: see MacKinnon, Catherine A, Sex Equality (Foundation Press 2001)Google Scholar.

⁴³ See, for example, the opinion of Justice Thomas in Missouri v Jenkins 515 US 70 (1995). Justice Thomas specifically criticises the reliance on subjective ‘feelings of inferiority’ without conducting adequate research.

⁴⁴ 34 Code of Federal Regulations, Pt 106 (US) (2006 Regulations).

⁴⁵ There are currently no US Supreme Court cases on the constitutionality of separation on the basis of sex in elementary and secondary schools, which is why US v Virginia serves as a point of reference for the issue of separation in schools.

⁴⁶ 62534 Federal Register, Vol 71, No 206, 25 October 2006, Rules and Regulations (US).

⁴⁷ 20 USC 1681, 1682 (US). The No Child Left Behind Act applies to elementary and secondary schools and therefore did not apply to the VMI.

⁴⁸ Responding to claims that there is not enough evidence to support the advantages of single-sex education, the Department responded that, since evidence suggests that ‘single-sex education may provide benefits to some students under certain circumstances’, each recipient should be able to make an individualised decision on whether single-sex education promotes its educational goals in accordance with the standards and restrictions determined in the Regulations: see Education Department, ‘Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance’, Federal Register, 25 October 2006, available at http://www.federalregister.gov/articles/2006/10/25/E6-17858/nondiscrimination-on-the-basis-of-sex-in-education-programs. It is important to note that, despite the claims of supporters of single-sex education that such education is ‘good for girls’ (see above), the major women's organisations in the US, as well as other civil rights organisations such as the American Civil Liberties Union (ACLU), took an unequivocal stance against single-sex education. The National Organization for Women, for example, has stated that ‘so-called “separate but equal” policies rarely treat girls equally, often relying on outdated sex stereotypes about girls’ and boys' interests and abilities. Further, studies show that all-boy schools increase sexism and exacerbate feelings of superiority toward women. To promote workplace equality in future years, we believe collaborative interaction between girls and boys in primary and secondary schools should be fostered, not eliminated': see National Organization for Women, ‘NOW and Single-Sex Education’, available at http://www.now.org/issues/education/single-sex-education.html. The ACLU published a similar statement and, in 2008, represented the petitioner in a suit against a single-sex school programme in Louisiana, arguing that the programme violates the equal protection requirements of Title VII as well as the US Constitution. The case is still ongoing. See the latest petition at http://www.ca5.uscourts.gov/opinions/unpub/10/10-30378.0.wpd.pdf. For additional discussion, see also Amy R Rigdon, ‘Dangerous Data: How Disputed Research Legalized Single-Sex Education’ (2007–08) 37 Stetson Law Review 527; Vivian Berger, ‘Sex-Segregated Public Schools: Illegal and Unwise’, National Law Journal, 16 January 2012, available at http://www.law.com/jsp/nlj/PubArticlePrinterFriendlyNLJ.jsp?id=1202538339145&slreturn=1.

⁴⁹ 2006 Regulations (n 44), s 106.34(b)(1)(i).

⁵⁰ ibid, s 106.34(b)(1)(i)(A).

⁵¹ 62534 Federal Register (n 46).

⁵² 2006 Regulations (n 44), s 106.34(b)(1)(iv) and (b)(2).

⁵³ ibid, s 106.34(b)(3).

⁵⁴ ibid, s 106.34(b)(1)(iii).

⁵⁵ The requirement of equality in intangible factors is thus of immense importance, as it is through these factors that the actual effect of single-sex education can be measured. Notably, intangible factors initially were not included in the Regulations as one of the factors that the Department will consider when examining the equality between educational arrangements, but was added following comments from women's organisations: see Education Department (n 48).

⁵⁶ Salomone (n 23).

⁵⁷ In a number of instances, legal challenges were raised with regard to the premises upon which separation was based. The ACLU, for example, sent a letter to a school district in Missouri claiming that the separation that was based on ‘the different ways boys and girls learn’ was de facto based on stereotypes. The programme was cancelled by the school: see ‘ACLU Challenges Single-Gender Classrooms in Missouri District’, 20 November 2011, available at http://www.stltoday.com/news/state-and-regional/missouri/aclu-challenges-single-gender-classrooms-in-missouri-district/article_579e8fe6-03b2-5558-bf98-162e80b34757.html.

⁵⁸ Since the 2006 Regulations deal with elementary and secondary education, the notion of choice regards, first and foremost, the choice of parents rather than the choice of the students themselves. The potential conflict between parents' and students' preference with regard to enrolment in single-sex classes was not explicitly addressed in the Supplementary Material.

⁵⁹ For reports of schools that impose involuntary single-sex education, see Mie Lewis, ‘Turning the Tide Against Unlawful Sex Segregation in Public Schools’, American Civil Liberties Union Blog of Rights, 23 October 2011, available at http://www.aclu.org/blog/womens-rights/turning-tide-against-unlawful-sex-segregation-public-schools.

⁶⁰ Many argue that the requirements are flawed and at least some of their components are likely to be subject to judicial review. For critique and comments of a version of the regulations see, for example, ACLU, ‘Single-Sex Proposed Regulations Comments’, 23 April 2004, available at http://www.aclu.org/files/images/asset_upload_file26_30126.pdf.

⁶¹ HCJ 6427/02 2006 Movement for Quality Government v the Knesset (not published, judgment delivered on 11 May 2006). The dispute regarding which elements of the right to equality fall within the scope of the Basic Law is still ongoing. The right to equality is also explicitly recognised in a number of specific relevant laws that will be discussed in length below.

⁶² In the US, it is only recipients of federal assistance that are subject to the 2006 Regulations, which results in religious schools being exempt from the requirements. Charter schools are also exempt from the 2006 Regulations because their obligations and the conditions for their operations are explicitly stated in the schools' charters.

⁶³ For this view regarding separation in other areas of life, see Rimalt (n 17).

⁶⁴ Equality Act 2010 (UK), sch 11, s 1.

⁶⁵ HCJ 1067/08 Noar Kahalacha v Ministry of Education (not published, judgment delivered on 6 August 2009).

⁶⁶ The term ‘Ashkenazi’ is used to describe descendants of Jews from European origin.

⁶⁷ The term ‘Sephardic’ is used to describe descendants of Jews from the Balkan states and North Africa, as well as other Islamic states.

⁶⁸ HCJ 7426/08 Tebekah v Minister of Education (not published, judgment delivered on 31 August 2010).

⁶⁹ ibid.

⁷⁰ Noar Kahalacha (n 65).

⁷¹ ibid.

⁷² The test presented by Justice Levy has many flaws and Justice Levy himself acknowledges that it will not be applicable in every case – for example, where racism is an essential part of a religious belief. The decision, however, does not address the question of when, how and where the line should be drawn when a discriminating practice is argued to be an essential part of a religious belief. Interestingly, the defendants chose to phrase their arguments in liberal terms of behaviour and lifestyle choices, insisting that immutable characteristics such as ethnic origin were not the basis of the separation. To a certain extent, this is an example of how the ultra-orthodox in Israel have internalised the liberal rhetoric and have learned to use it in their arguments.

⁷³ Prohibition of Discrimination in Products, Services, and Entry into Places of Entertainment and Public Places Law, 2000 (Israel).

⁷⁴ ibid.

⁷⁵ For critique of this distinction, see Rimalt (n 17).

⁷⁶ HCJ 746/07 Ragen v Ministry of Transportation (not published, judgment delivered on 5 January 2011).

⁷⁷ Under the 2006 Regulations, this requirement will apply to a school but may also apply to a chain of schools or other recipients that have more than one school.

⁷⁸ Feminist scholars of multiculturalism, for example, have critiqued the notion of ‘exit’ and questioned whether it is indeed a viable option for members of cultural minorities. They have argued that even if it is, the price it requires members to pay is often so high that it is unjust to expect them to be willing to pay it: see, for example, Susan Moller Okin, ‘Mistresses of Their Own Destiny: Group Rights, Gender, and the Realistic Rights of Exit’ (2002) 112 Ethics 205.

⁷⁹ The right of parents to educate their children in accordance with their beliefs is also part of the freedom of religion and belief in international law. Art 18(4) of the International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171, for example, states that ‘[t]he States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’.

⁸⁰ This does not mean, of course, that it will remain so in the future.

⁸¹ Ragen (n 76).

⁸² ibid 13–15.

⁸³ ibid 7–8, 31–32.

⁸⁴ The situation is quite different in religious state schools, discussed below at Section 4.3.

⁸⁵ Such as Maayan Hachinuch HaTorani, established by the Shas movement.

⁸⁶ HCJ 4805/07 Center for Jewish Pluralism v Ministry of Education (not published, judgment delivered on 27 July 2008).

⁸⁷ This reality may need to be taken into consideration when examining whether to impose upon networks a duty to allocate resources equally, as ultra-orthodox networks may argue that they have a right to invest more resources in boys' schools to compensate for the lower state support.

⁸⁸ Ministry of Education, ‘Education Towards Gender Equality in the Education System’, 1 December 2002 (in Hebrew), available at http://cms.education.gov.il/EducationCMS/applications/mankal/arc/sc4dk9_4_4.htm (Gender Equality Memorandum).

⁸⁹ ‘Response of Town Rabbis regarding Cancelling Separation Between Boys and Girls in the School Moreshet Zvulun’, 28 September 2008 (on file with the author).

⁹⁰ ‘Why Separation Should not be Cancelled: Points for Thought’ (on file with the author).

⁹¹ See Shakdiel, Leah, ‘Separation is Desirable, But Why, Really?’ in Ilan, Nachum (ed), Sefer Hayovel for Tova Ilan (1999)Google Scholar (in Hebrew).

⁹² As indicated above, the pedagogical advantages of single-sex education are highly contested: see Halpern and others (n 33).

⁹³ Shakdiel (n 91).

⁹⁴ ibid.

⁹⁵ ibid.

⁹⁶ ‘Procedure for Sex-Based Separation in State Religious Schools’ (n 12).

⁹⁷ Although there have been reports of cases in which separation was imposed by the Ministry of Education: see, for example, Shlomo Puterkovsky, ‘Does the Ministry of Education Impose Gender Segregation?’, Channel 7, 19 May 2011 (in Hebrew), available at http://www.inn.co.il/News/News.aspx/219969. A recent petition was filed with the Court for Administrative Matters in Petach Tikva on the grounds that the Ministry of Education is imposing separation in a school in Petach Tikva against the parents' will.

⁹⁸ Ne'emanei Torah Va'Avodah, ‘Link to Correspondence Made in State Religious Schools: “Buchman” in Modi'in’ (in Hebrew), available at http://toravoda.org.il/he/node/1665.

⁹⁹ For discussion of the need to retain religious students in religious state schools, see the Protocol of the Knesset Education, Culture and Sports Committee, 16 August 2011 (in Hebrew), available at http://oknesset.org/committee/meeting/4731.

¹⁰⁰ Since 2008, the allocation of school funding to elementary and secondary education is based on a per class basis with additional funding granted for every student above the 20^th student in a class: see Nahum Blass, Noam Zussman and Shai Tzur, ‘Funding of Elementary Education, Bank of Israel Research Paper’, December 2010 (in Hebrew), available at http://www.bankisrael.gov.il/deptdata/mehkar/papers/dp1018h.pdf. Since separation often results in a school having more (although smaller) classes, it affects the school's funding. Requests for additional funding required for single-sex education can also be made.

¹⁰¹ Ministry of Education, ‘Financing the Elementary School System: Transition to a Student Differential Standard’, 1 June 2003 (in Hebrew), available at http://cms.education.gov.il/EducationCMS/applications/mankal/arc/sc10ck3_7_34.htm.

¹⁰² Ministry of Education (n 88).

¹⁰³ Shakdiel indicates that there are schools in which only the boys study the Gemara, while only girls receive lessons in preventing sexual harassment. She also notes that there were cases in which in theory the curriculum was identical, but in reality the boys studied more: Leah Shakdiel, ‘Should Boys and Girls be Separated in State Religious Schools? Necessary Supplements’ (in Hebrew), available at http://toravoda.org.il/node/2206.

¹⁰⁴ The Gemara is a portion of the Talmud which includes analysis of the Mishna. It is considered the more sophisticated portion of the Talmud. In most religious state schools the religious curriculum for girls includes the Mishna but not the Gemara.

¹⁰⁵ See, for example, Malka Puterkovsky, ‘The Importance of Women Studying Gemara’, 29 October 2008 (in Hebrew), available at http://www.kolech.com/show.asp?id=29913.

¹⁰⁶ In an interview by the author with a parent who objected to separation, it was explained that parents who object to separation are careful not to rely on or quote ‘secular’ opponents of separation because they fear that it may be perceived within the community as an indication that the objection is a ‘secular scheme’ to intervene in religious education (transcripts on file with the author).

¹⁰⁷ The state has a duty to ensure that children belonging to religious minorities have equal opportunities in mainstream society, a duty which it is arguably violating by failing to impose the study of the Core Programme in ultra-orthodox schools. A more complex question, however, is whether the state has a duty to ensure equal opportunities within the community. In general, the answer should be that the state has a duty to ensure equality in every aspect that is not clearly defined as being within the community's autonomy.

¹⁰⁸ The petition was declared moot following the Ministry of Education's announcement that separation will not take place in the 2011–12 school year. See 25714-8-11 Grossman v Ministry of Education (2011) (a copy of the petition is on file with the author).

¹⁰⁹ The Ministry of Education's response during the proceedings, Court Protocol of 18 August 2011 (on file with the author).