DC Public Schools is launching a new initiative that will focus on males of color, but some critics say the plan is unfair to black and Latino girls, and possibly illegal.

As part of its Empowering Males of Color initiative, DCPS plans to recruit 500 volunteer tutors for black and Latino males. It will also award grants to schools that devise their own programs to help those students. And, in its flashiest move, in the fall of 2016 it will open a new boys-only high school east of the Anacostia River.

After DCPS unveiled its plans with great fanfare a few weeks ago, Councilmember Mary Cheh sent a letter to DC Attorney General Karl Racine, asking for an opinion on whether the planned $20 million initiative would violate DC or federal anti-discrimination laws. And this week the ACLU of the National Capital Area wrote to Mayor Muriel Bowser raising the same question.

Three other councilmembers are defending EMOC, citing statistics showing that black and Latino boys lag behind white students on many academic measures. Bowser and DCPS Chancellor Kaya Henderson have chimed in to defend the initiative as well.

Cheh doesn’t dispute that boys of color have it worse than white students. But she and the ACLU-NCA say that black and Latino girls face problems just as serious as their male counterparts.

The DCPS initiative is part of a broader movement focusing on black and Latino males. Last year, President Obama announced a program called My Brother’s Keeper designed to improve the lives of minority boys. Sixty urban school districts have joined the effort.

Critics say girls of color have it just as bad

But, like Cheh and the ACLU, some observers have questioned why the initiative targets only males. They argue that minority girls also live in poverty, come from single-parent homes, drop out of school in large numbers, and get arrested. Not only that, they say, girls of color face high rates of sexual assault and are at risk for teen pregnancy.

And a recent study suggests that school discipline affects black girls more disproportionately than their male counterparts. Across the country, black girls are six times more likely to be suspended than white girls, according to the study. Black boys are only three times more likely to be suspended than white boys.

Still, it’s clear that in some ways black and Latino males fare worse than their female counterparts. Within DCPS, test scores and attendance rates are lower, particularly for black boys. More broadly, incarceration rates are higher for black and Latino men, and fewer of them enroll in college.

Perhaps, as a matter of policy, those statistics do warrant a special focus on males of color. But do they justify a boys-only high school?

“Studies show that separating boys and girls does not improve academic performance,” wrote the ACLU-NCA’s executive director, Monica Hopkins-Maxwell, in the letter to Bowser. “It simply increases gender stereotyping.”

Single-sex schools raise special legal issues

Still, some maintain that single-sex environments actually help break down gender stereotypes, and you could argue that DC should be able to experiment even in the absence of hard data. But there may be legal obstacles to doing that.

In defending the initiative, Councilmember David Grosso argued that lots of government programs target funds to populations with particular needs, such as low-income students and those with learning disabilities. “The EMOC initiative, in my opinion, is no different,” he said.

But in the eyes of the law, the EMOC initiative actually is different. That’s because the Constitution, and the federal law referred to as Title IX, impose special restrictions on the government when it discriminates on the basis of gender.

Federal regulations interpreting Title IX say that school districts offering single-sex schools have to provide a substantially equal school to the excluded gender. That doesn’t mean DCPS would have to set up an all-girls school, but it’s not clear that it could even offer a coed equivalent to the urban prep school it’s planning.

And the Title IX regulations aren’t the last word. There’s also the Equal Protection Clause of the Constitution. The Supreme Court has relied on that provision to require an all-female nursing school to admit men and an all-male military school to admit women. But it hasn’t ruled on the question in 20 years, and it’s far from clear how it would come out on a school like the one DC is planning.

In fact, these days there are many single-sex public schools—particularly charter schools—operating across the country. DC has an all-girls charter school, and until recently it had one that was all-boys.

But, says the ACLU’s Hopkins-Maxwell, the fact that single-sex public schools exist doesn’t mean they’re legal. It just means no one has challenged them yet. The ACLU has challenged a number of single-sex programs around the country, but it doesn’t have the resources to challenge them all.

Single-sex classes could be a problem too

In addition to single-sex schools, the ACLU has focused nationally on single-sex classes within coed public schools, which are actually regulated more closely than single-sex schools.

Under Title IX, a school must provide a rationale for the single-sex class, ensure that enrollment is voluntary, offer a coed class in the same subject, and avoid gender stereotyping. Every two years, the school must conduct a review to ensure that the rationale is still valid.

There are a number of public schools with single-sex classes in the DC area. While they don’t necessarily reinforce stereotypes, I happened to visit one DCPS elementary school that had such classes, and I noticed that schedules for boys appeared in blue and those for girls in pink.

A spokesperson for DCPS failed to respond to questions about how many other single-sex classes the system offers and whether the district is complying with the federal regulations that govern them.

The EMOC initiative has attracted a lot of attention, and whatever its merits it makes sense to get an opinion on its legality before investing millions of dollars in it. But perhaps someone should look into whether DCPS is already in danger of violating Title IX because of its single-sex classes.

Natalie Wexler is a DC education journalist and blogger. She chairs the board of The Writing Revolution and serves on the Urban Teachers DC Regional Leadership Council, and she has been a volunteer reading and writing tutor in high-poverty DC Public Schools.