FR Doc 04-5156
[Federal Register: March 9, 2004 (Volume 69, Number 46)]
[Proposed Rules]
[Page 11275-11285]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr04-23]
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Part VII
Department of Education
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34 CFR Part 106
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance; Proposed Rules
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DEPARTMENT OF EDUCATION
34 CFR Part 106
RIN 1870-AA11
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the regulations implementing
Title IX of the Education Amendments of 1972 (Title IX), which
prohibits sex discrimination in federally assisted education programs.
These proposed amendments would clarify and modify Title IX regulatory
requirements pertaining to the provision of single-sex schools and
classes \1\ in elementary and secondary schools. The proposed
amendments would expand flexibility for recipients that may be
interested in providing single-sex schools or classes, and they would
explain how single-sex schools or classes may be provided consistent
with the requirements of Title IX.
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\1\ The current regulations use the terms ``class,'' ``course,''
``course offering'', and ``extracurricular activity.'' For the sake
of simplicity, we solely use the term ``class'' in this preamble.
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DATES: We must receive your comments on or before April 23, 2004.
ADDRESSES: Address all comments about our proposed regulations to
Kenneth L. Marcus, U.S. Department of Education, 400 Maryland Avenue,
SW., room 5000, Mary E. Switzer Building, Washington, DC 20202-1100. If
you prefer to send your comments through the Internet, you may address
them to us at the U.S. Government Web site: http://www.regulations.gov.
Or you may send your Internet comments to us at the following
address: singlesexcomments@ed.gov.
For all comments submitted, you should specify the subject as
``Single-Sex Proposed Regulations Comments.''
FOR FURTHER INFORMATION CONTACT: Sandra G. Battle, U.S. Department of
Education, 400 Maryland Avenue, SW., room 5036, Mary E. Switzer
Building, Washington, DC 20202-1100. Telephone: (202) 205-5526.
If you use a telecommunications device for the deaf (TDD), you may
call 1-877-521-2172. For additional copies of this document, you may
call the Customer Service Team for the Office for Civil Rights (OCR) at
(202) 205-5413 or 1-800-421-3481. This notice of proposed rulemaking
will also be available at OCR's Web site on the Internet at:
http://www.ed.gov/ocr.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments regarding these proposed
regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations.
During and after the comment period, you may inspect all public
comments about these proposed regulations in room 5036, 330 C Street,
SW., Washington, DC 20202-6132, between the hours of 9:30 a.m. and 4
p.m., Eastern time, Monday through Friday except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT. (If you use a TDD, you
may call 1-877-521-2172.)
Overview
Title IX prohibits discrimination on the basis of sex in education
programs and activities that receive Federal financial assistance.\2\
The statute and existing regulations contain specific provisions
regarding single-sex classes, schools, and extracurricular activities.
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\2\ 20 U.S.C. 1681(a).
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After almost 30 years of progress under Title IX and our
regulations, we have reexamined our regulatory provisions applicable to
single-sex elementary and secondary education. For the reasons
described in this preamble, we are proposing amendments to our
regulations that would provide additional flexibility in permitting
single-sex schools and classes at the elementary and secondary
education levels consistent with the requirements of Title IX. The
proposed regulations would provide the framework for determining under
what circumstances single-sex schools and classes may be provided in
elementary and secondary education and for ensuring that, when they are
provided, they are provided in a manner that ensures nondiscrimination
on the basis of sex consistent with recipients' Title IX obligations.
When Title IX was enacted in 1972 and when the current regulations
were issued in 1975, discrimination against female students was
widespread at all levels of education, including elementary and
secondary education. Since then, the educational opportunities for
young women and girls, and the commitment of educators to those
opportunities, have increased.
Thus, at the time that the current regulations were issued, it was
not unreasonable to base the regulations on a presumption that, if
recipients were permitted to provide single-sex classes beyond the most
limited of circumstances, discriminatory practices would likely
continue.
Over the past 30 years, the situation has changed dramatically.
While there are still more gains to be made, schools are now far more
equitable in their treatment of female students. Those changes are due
in no small measure to Title IX and our regulations. In the meantime,
educational research has suggested that in certain circumstances,
single-sex education provides educational benefits for some
students.\3\ Therefore, we have determined that
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amendments permitting additional flexibility in providing single-sex
educational options, while incorporating appropriate safeguards, are
appropriate. When the current regulations were issued, it may have been
appropriate to provide limited flexibility for single-sex educational
opportunities, as discriminatory practices were still prevalent.
However, given the current environment, we believe that additional
flexibility is warranted, and that this flexibility will not compromise
equal educational opportunities for male and female students. In fact,
these amendments will help provide educational benefits to some
students.
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\3\ See, e.g., U.S. Department of Education, Office of
Educational Research and Improvement, Single-Sex Schooling:
Perspectives From Practice and Research (1993) (stating that ``[t]he
research synthesis produced for this conference and the summary of
the conference proceedings suggest that single-sex education
provides educational benefits for some students''). We recognize
that there is presently a debate among researchers and educators
regarding the effectiveness of single-sex education. Compare
Cornelius Riordan, What Do We Know About the Effects of Single-Sex
Schools in the Private Sector?: Implications for Public Schools, in
Gender in Policy and Practice: Perspectives on Single-Sex and
Coeducational Schooling, 10, 13-22, 24-28 (Amanda Datnow & Lea
Hubbard eds., 2002) (stating that ``[s]ingle-sex schools remain an
effective form of school organization for disadvantaged students'');
Herbert W. Marsh, Effects of Attending Single-Sex and Coeducational
High Schools on Achievement, Attitudes, and Sex Differences, Journal
of Educational Psychology, 1989, Vol. 81, No. 1, 70, 80 (finding in
study of Catholic schools that when outcomes for seniors were
controlled for background characteristics in their sophomore year
``almost no school-type effects were statistically significant* * *
[and] there was no tendency favoring students from single-sex or
coed schools''). See also American Association of University Women,
Separated by Sex: A Critical Look at Single-Sex Education for Girls
2 (1998) (stating ``[t]here is no evidence that single-sex education
in general `works' or is `better' than coeducation'' but also
stating that ``[s]ingle-sex educational programs produce positive
results for some students in some settings'').
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These proposed amendments reflect our analysis of the Title IX
statute, its legislative history, and the current regulations, as well
as relevant case law under Title IX.\4\ The proposed amendments
describe standards that, if adopted, would be used by the Office for
Civil Rights of the U.S. Department of Education (Department) in making
determinations about whether recipients' single-sex schools and classes
are consistent with our Title IX regulations for the purposes of
continued receipt of Federal financial assistance.\5\ OCR would make
these determinations in resolving any complaints related to these
issues.\6\ The proposed amendments do not require single-sex schools or
classes but provide additional flexibility to offer them, and they
require that recipients continue to ensure that their policies and
practices do not result in discrimination on the basis of sex.
Recipients that chose to operate single-sex schools or classes would be
required to comply with our final regulations, but we are not proposing
to require recipients to apply to OCR for approval of a proposed
single-sex school or class. OCR will provide technical assistance to
recipients, upon request, when the Department approves final
regulations.
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\4\ Because the requirements of the Equal Protection Clause of
the 14th Amendment to the U.S. Constitution also protect the rights
of public school students who may be subject to sex-based
classifications, in developing the proposed amendments, we have also
considered Supreme Court decisions involving constitutional
challenges to single-sex education. The Supreme Court has issued no
opinions regarding single-sex programs in elementary and secondary
school education. Soon after the original Title IX regulations were
adopted in 1975, the Court, by an evenly divided vote and without an
opinion, let stand a decision of the Third Circuit Court of Appeals
allowing, under the Equal Protection Clause, a school district that
also operated coeducational high schools to have two comparable
single-sex high schools. Vorchheimer v. School District of
Philadelphia, 532 F.2d 880 (3d Cir. 1976), affirmed by an equally
divided Court, 430 U.S. 703 (1977) (per curiam). We also considered
the Court's decisions in two more recent constitutional challenges
in the context of single-sex postsecondary education, United States
v. Virginia (Virginia), 518 U.S. 515 (1996), and Mississippi
University for Women v. Hogan (Hogan), 458 U.S. 718 (1982).
\5\ In addition, recipients that are public entities, such as
public school districts, are subject to the sex discrimination
prohibitions of the Equal Protection Clause of the 14th Amendment to
the U.S. Constitution. Public elementary and secondary schools are
also subject to the requirements of the Equal Educational
Opportunities Act of 1974 (EEOA), 20 U.S.C. 1701-1721, which, among
other things, contains prohibitions against the involuntary
assignment of students to schools on the basis of sex. 20 U.S.C.
1703(c), 1705, and 1720(c). Public school and private school
recipients may also be subject to State or local laws prohibiting
single-sex classes or schools. Recipients may wish to consult legal
counsel regarding how these additional legal authorities may affect
any particular single-sex schools or classes they propose to offer.
\6\ Similarly, OCR would make these determinations if OCR were
to initiate a compliance review on these issues. See 34 CFR 100.7,
made applicable to Title IX by 34 CFR 106.71.
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Pursuant to a provision of the No Child Left Behind Act of 2001,\7\
on May 8, 2002, the Department published guidelines on the existing
regulatory requirements in a document entitled ``Guidelines on current
Title IX requirements related to single-sex classes and schools''
(Guidelines).\8\ Simultaneously, we published a notice of intent to
regulate (NOIR), indicating that the Secretary intends to propose
amendments to our Title IX regulations in order to provide more
flexibility to educators to establish single-sex schools and classes at
the elementary and secondary levels and to provide additional public
educational choices to parents.\9\ The purpose of the NOIR was to begin
the process of obtaining early input from the public on this issue
prior to amending the regulations.
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\7\ On January 8, 2002, the President signed into law the No
Child Left Behind Act of 2001 (``No Child Left Behind'' or
``NCLB''), which reauthorized the Elementary and Secondary Education
Act of 1965 (ESEA). Section 5131(c) of the ESEA required the
Department to issue guidelines for local educational agencies (LEAs)
regarding the applicable law on single-sex classes and schools
within 120 days of the enactment of NCLB. Section 5131(a) of the
ESEA describes permissible uses for Innovative Assistance Programs
funds, and the guidelines were required because section 5131(a)(23)
permits ``programs to provide same-gender schools and classrooms
(consistent with applicable law).''
\8\ 67 FR 31102-03 (2002).
\9\ 67 FR 31098-99 (2002).
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In response to this invitation we received approximately 170
comments. We are pleased with this response and the public interest
expressed regarding this issue. We have found that the comments
fulfilled the aim of the NOIR to focus public attention and comment on
key issues. In summary, the comments reflected a spectrum of opinion,
ranging from enthusiastic support for amending the regulations to
permit recipients more flexibility in providing single-sex schools and
classes to opposition against any additional flexibility. In preparing
these proposed regulations, we considered comments on both the critical
issues raised in the NOIR and on other issues raised by commenters.
Application
In summary, and unless otherwise noted, the proposed amendments for
classes and schools would apply to elementary and secondary education
and to both public or private \10\ recipients. The proposed amendments
exempt certain charter schools from certain proposed requirements
related to single-sex schools. Furthermore, under the proposed
amendments public and private recipients would be prohibited from
operating single-sex elementary and secondary vocational institutions
and from offering single-sex vocational education classes in
coeducational elementary and secondary schools.
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\10\ Private elementary and secondary schools are subject to the
proposed requirements pertaining to classes if they receive a grant
or subgrant of Federal funds from the Department. Private schools
with students who participate in programs conducted by LEAs that are
funded under Federal programs such as Title I of the Elementary and
Secondary Education Act or the Individuals with Disabilities
Education Act are not considered recipients of Federal funds unless
they otherwise receive a grant or subgrant of Federal funds. Such
private schools are not subject to these regulations, but the LEA
must ensure that its programs, including services to private school
students, are consistent with Title IX. Also, the proposed
amendments pertaining to single-sex schools do not apply to
recipients that operate private, nonvocational elementary or
secondary schools.
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We discuss the substantive issues under the sections of the
proposed amendments to which they pertain. We discuss our proposed non-
substantive changes in the technical amendments section at the end of
the preamble.
Current Requirements and Proposed Substantive Changes for Single-Sex
Classes
Current Regulations (34 CFR 106.34) Generally Prohibit Single-Sex
Classes
There are limited exceptions to the general prohibition on single-
sex classes and activities in the current regulations in 34 CFR
106.34.\11\ For coeducational
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elementary and secondary schools, the existing regulations in 34 CFR
106.34 prohibit recipients from conducting single-sex classes or
activities or requiring or refusing participation in classes or
activities on the basis of sex.
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\11\ These exceptions allow (1) single-sex groupings within
physical education classes that result from the application of
objective standards of physical ability, 34 CFR 106.34(b); (2)
separation of students by sex in physical education classes during
participation in contact sports, 34 CFR 106.34(c); (3) separation of
students by sex for portions of classes in elementary and secondary
schools dealing exclusively with human sexuality, 34 CFR 106.34(e);
or (4) choruses based on vocal range or quality, which may result in
a single-sex or predominantly single-sex grouping, 34 CFR 106.34(f).
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Application of Proposed Single-Sex Class Amendments (Proposed 34 CFR
106.34(b))
Except for specified exceptions, the prohibitions against excluding
any student from classes on the basis of sex as set out in the current
regulations apply to all classes and activities, including
extracurricular activities, and to all coeducational recipient
institutions at all levels of education. Our proposed substantive
changes would apply both to elementary and secondary public \12\ and
private \13\ recipients. The proposed amendments also would specify
that the recipient that operates the school is responsible for ensuring
compliance with the proposed provisions for single-sex classes.
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\12\ Proposed 34 CFR 106.34(b) applies to recipients that
operate coeducational nonvocational public charter schools.
\13\ See footnote 10.
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Proposed 34 CFR 106.34(b) would not apply to postsecondary
education. Coeducational postsecondary schools would continue to be
subject to the requirements of the general prohibition contained in the
existing regulations, and they would not be permitted to offer single-
sex classes pursuant to the provisions of these proposed amendments.
The existing general prohibition is in 34 CFR 106.34(a) of the proposed
regulations.
Since vocational education schools were the only type of elementary
and secondary schools to which Congress specifically applied Title IX
admissions requirements, we have limited the prohibition on single-sex
classes to vocational education.
Recipients operating vocational schools would continue to be
subject to the general prohibition against excluding students from
classes on the basis of sex, and, thus, would not be permitted to offer
single-sex classes pursuant to the proposed amendments.
Some school districts offer their vocational education curriculum
in comprehensive coeducational schools, rather than in separate
vocational schools. Even in these elementary and secondary schools that
are not vocational schools, the proposed amendments do not change the
applicability of the current general regulatory prohibition against
single-sex vocational education classes. These schools would be able to
apply the proposed substantive amendments to their nonvocational
classes, but the proposed amendments would not apply to vocational
classes.
Recipient's Important Governmental or Educational Objective (Proposed
34 CFR 106.34(b)(1)(i))
The proposed amendments would require that a single-sex class be
based on a recipient's important governmental or educational
objective,\14\ which may be either--(1) to provide a diversity of
educational options to students and parents, provided that the single-
sex nature of the class is substantially related to achievement of that
objective; or (2) to meet the particular, identified educational needs
of its students, provided that the single-sex nature of the class is
substantially related to meeting those needs.\15\ In either case, the
recipient's important governmental or educational objective in
providing a single-sex class must be implemented evenhandedly. We have
identified and incorporated into the proposed regulations these two
important objectives--diversity of educational options and meeting the
particular, identified needs of its students--either of which could be
the basis for single-sex classes. Because there may be differences in
the way achievement of these two important objectives work, we discuss
them separately in paragraphs that follow. In our discussion of the
proposed procedural requirement to conduct periodic evaluations of
single-sex classes, we provide suggestions as to the types of
information that a recipient might use to determine whether a single-
sex class could be created or maintained consistent with these proposed
amendments.
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\14\ In two cases, under the 14th Amendment to the Constitution,
in the public postsecondary education school context where there
were allegations of denial of equal opportunity because of sex, the
Supreme Court has required that the proponent of a sex-based
classification demonstrate that the classification serves an
important governmental objective and that the sex-based
classification is substantially related to the achievement of that
objective. Virginia, 518 U.S. at 532-533; Hogan, 458 U.S. at 724.
\15\ Our proposed amendments for classes differ in this regard
from those for schools due to differences in the Title IX statute.
Classes in recipient elementary and secondary schools are covered by
the statute and our existing regulations. As explained further in
the following section on schools, admissions to a recipient's
nonvocational elementary and secondary schools are not covered by
the Title IX statute.
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We invite specific comments on whether there may be additional
important governmental or educational objectives that could also be the
basis for single-sex classes that should be incorporated into our final
regulations.
Diversity of Educational Options (Proposed 34 CFR 106.34(b)(1)(i)(A))
A recipient may have an important governmental interest to
evenhandedly support diverse educational options. Thus, the proposed
amendments would permit a recipient to offer single-sex classes based
on its objective to provide a diversity of educational options from
which individual students and their parents may choose.\16\ For
example, a recipient may determine that students and parents would
prefer the option of single-sex classes because they believe they would
provide a benefit not available in coeducational classes. A recipient
may also determine that it would be appropriate to offer single-sex
classes because it has reliable information that single-sex classes
would meet its educational objective.
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\16\ This process includes a determination that the single-sex
nature of the class is substantially related to meeting the
objective identified.
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These proposed amendments, as further described in the following
paragraphs, also require that a recipient that operates a nonvocational
coeducational elementary or secondary school may not authorize or offer
a nonvocational single-sex class unless it provides a substantially
equal coeducational class \17\ in the same subject pursuant to 34 CFR
106.34(b)(1)(ii).
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\17\ In Virginia, in response to a lower court ruling that an
institution's policies restricting admission to males unlawfully
discriminated against females, the State attempted to remedy the
discrimination by establishing a separate program for females at a
neighboring women's college. There was no substantially equal
coeducational program. The Court found that the women's program was
not substantially equal to the men's program. Virginia, 518 U.S. at
554. In Hogan the male plaintiff was denied admission on the basis
of his sex, and the State did not offer either an all-male or a
coeducational nursing program within a reasonable traveling distance
from his residence. The only option available was a coeducational
institution at a considerable distance. The Court stated: ``A
similarly situated female would not have been required to choose
between forgoing credit and bearing that inconvenience.'' Hogan, 458
U.S. at 723, n.8. The U.S. Supreme Court has not addressed the issue
of whether for constitutional purposes substantial equality would
require a public entity to provide a substantially equal single-sex
school or class for students of the excluded sex or whether
providing those students the opportunity to attend a substantially
equal coeducational school or class would be sufficient.
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A recipient may also provide a substantially equal single-sex class
in the same subject for the other sex. Furthermore, as discussed in the
following paragraphs under proposed 34 CFR 106.34(b)(1)(iii) and (2),
to provide a diversity of options in an evenhanded manner, a
substantially equal single-sex class may be required in some
circumstances.
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The recipient must provide a diversity of educational options in an
evenhanded manner. However, a single-sex class for each sex, in the
same subject, generally is not required. For example, if the rationale
for a single-sex class is the school's desire to provide a diversity of
options based on parental or student preference and the school uses
surveys of parents and students to determine which options would be
desirable, the survey must include parents and students of both sexes.
If the results of the survey show a strong preference for a single-sex
class in chemistry for girls, while for boys there is no expressed
interest in any single-sex classes, the school in this example would
not violate these proposed provisions by creating a single-sex
chemistry class for girls without creating a single-sex class for boys.
However, the school would be required to provide a substantially equal
coeducational chemistry class.
As discussed in later paragraphs, consistent with the requirement
that single-sex classes be provided in an evenhanded manner, OCR will
examine situations in which recipients offer significantly more single-
sex class opportunities to students of one sex than to students of the
other sex to determine if they are the result of discrimination. A
recipient that offers single-sex classes solely in the context of
evenhandedly providing substantially equal single-sex classes, as well
as coeducational classes, to both boys and girls is not likely to
experience compliance problems with proposed 34 CFR 106.34.
Meeting Students' Particular, Identified Educational Needs (Proposed 34
CFR 106.34(b)(1)(i)(B))
The proposed amendments would also permit a recipient, under
appropriate circumstances, to offer single-sex classes based on its
objective to meet the particular, identified educational needs of its
students. In order to carry out this objective a recipient may, using
reliable information and sound educational judgment, determine that a
single-sex class in a given subject is likely to provide some students
educational benefits.\18\ A recipient must treat male and female
students in an evenhanded manner in the process of identifying
particular educational needs, determining if a single-sex class would
be substantially related to meeting those needs, and meeting the
educational needs of both sexes.
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\18\ See footnote 16.
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The proposed amendments provide that a single-sex nonvocational
class may be provided only if a substantially equal coeducational class
is provided to the other sex in the same subject. (See 34 CFR
106.34(b)(1)(ii) of the proposed amendments.) A recipient may also
choose to provide a substantially equal single-sex class for the other
sex in the same subject. Furthermore, under proposed 34 CFR
106.34(b)(1)(iii), a recipient must provide a substantially equal
single-sex class for the other sex if such a class is necessary to
implement its objectives in an evenhanded manner.\19\
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\19\ See also 34 CFR 106.34(b)(2).
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Under the proposed amendments, if the particular, identified
educational needs of both sexes are the same, and a single-sex class is
substantially related to meeting those needs for each sex, then
students of both sexes must be provided substantially equal single-sex
classes in the same subject if a single-sex class is provided for one
sex. However, there may be legitimate differences in particular,
identified educational needs between some male and female students, as
well as legitimate differences in whether those needs may best be
addressed in single-sex classes. Thus, depending on a recipient's
evenhanded assessment of the particular, identified educational needs
of male and female students, a recipient may provide a different
single-sex class to girls, as compared to boys. Thus, the result might
be differences in subject area or in numbers of single-sex classes
offered to girls, as compared to boys.
For example, a school decides to identify and address the highest
priority need of sixth grade male and female students who are working
below grade level and to determine if single-sex classes may be
substantially related to meeting the identified need. The school makes
a supportable determination that the highest priority educational need
of these girls is in science and that a single-sex science class would
best address that need. If, as part of its evenhanded assessment
process, the school also makes a supportable determination that a
subject other than science is the highest priority need of the male
students working below grade level, the proposed amendments would not
require the school to offer a single-sex science class for these boys.
The school would be required to offer a substantially equal
coeducational science class. The school also would, however, be
required to address the highest priority educational need of these
boys, to consider whether a single-sex class would best address that
need, and to address that need appropriately.
Finally, although different results for boys and girls, in some
instances, may be permissible under the proposed amendments, a
recipient must treat male and female students equally in identifying
whether they have particular educational needs that may be met by
providing single-sex classes and in responding to those needs.
As discussed in later paragraphs, OCR will examine situations in
which a recipient provides significantly more single-sex class
opportunities to students of one sex than to students of the other sex
to determine if they are the result of discrimination. A recipient that
offers single-sex classes solely in the context of evenhandedly
providing substantially equal single-sex classes, as well as
coeducational classes, to both boys and girls is not likely to
experience compliance problems with proposed 34 CFR 106.34.
Substantially Equal Coeducational Class Required (Proposed 34 CFR
106.34(b)(1)(ii))
The proposed amendment to the regulations in 34 CFR
106.34(b)(1)(ii) would require that student participation in single-sex
classes be on a voluntary basis. This provision clarifies for
recipients that the general prohibition in the existing regulations
against assigning students to single-sex classes continues to apply and
is not substantively affected by these proposed amendments.\20\ Unless
a substantially equal coeducational class is provided, enrollment in a
single-sex class is not voluntary. Thus, the proposed amendments
require that if a recipient provides a single-sex class, it must also
provide students with the opportunity to enroll in a coeducational
class in the same subject that is substantially equal to the single-sex
class. For example, if a high school provided a single-sex Advanced
Placement Calculus class for boys, it would need to provide a
coeducational Advanced Placement Calculus class for boys and girls.
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\20\ The current regulations, in 34 CFR 106.34(a), state, in
part: ``A recipient shall not provide any course or otherwise carry
out any of its education program or activity separately on the basis
of sex, or require or refuse participation therein by any of its
students on such basis.'' The proposed amendments include this
provision in proposed 34 CFR 106.34(a) without substantive
revisions.
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In order to ensure that participation in any single-sex class is
voluntary, a recipient should notify parents or guardians of their
option to enroll their children in a single-sex class on a voluntary
basis and receive authorization from parents or guardians
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to place their children in a single-sex class.
Implementing the Recipient's Objective in an Evenhanded Manner
(Proposed 34 CFR 106.34(b)(1)(iii))
As mentioned previously, under proposed 34 CFR 106.34(b)(1)(iii), a
recipient must implement its objective in an evenhanded manner.
Evenhandedness requires the recipient to provide each sex an equal
opportunity to benefit from the important governmental or educational
objective it seeks to achieve by providing single-sex classes. As the
examples in the section on educational needs illustrate, this provision
generally does not require a single-sex class for each sex in the same
subject. However, a recipient must provide a substantially equal
single-sex class for the other sex if such a class is necessary to
implement its objectives in an evenhanded manner. Even if a
substantially equal single-sex class is not required for the other sex,
the recipient may choose to provide such a class consistent with Title
IX and the proposed amendments.
If a recipient provides significantly more single-sex opportunities
to students of one sex than to students of the other sex, OCR will
examine whether this is the result of discrimination, taking into
account the reasonable period of time needed to plan and establish
single-sex classes. A recipient that offers single-sex classes solely
in the context of evenhandedly providing substantially equal single-sex
classes, as well as coeducational classes, to both girls and boys is
not likely to experience compliance problems with proposed 34 CFR
106.34(b)(1)(iii).
We invite specific comments on whether OCR needs more information
on how to assess if a recipient is implementing its objective in an
evenhanded manner.
Single-Sex Class for Excluded Sex (Proposed 34 CFR 106.34(b)(2))
Proposed 34 CFR 106.34(b)(2) clarifies that in some circumstances
the requirements of proposed paragraph (b)(1) of this section may
require a recipient to provide a substantially equal single-sex class
for the excluded sex.
Factors for Determining Substantially Equal (Proposed 34 CFR
106.34(b)(3))
The proposed amendments in 34 CFR 106.34(b)(1) permit a recipient
to provide a single-sex class as long as the recipient provides
students who are excluded from that class on the basis of sex a
substantially equal class. This requirement to have substantially equal
classes does not mean that the classes would need to be identical; the
proposed amendment requires that policies applicable to the classes and
benefits provided in them be substantially equal. The proposed
amendments in 34 CFR 106.34(b)(3) outline the types of factors that the
Department will consider in comparing single-sex classes to each other
and to coeducational classes in making the determination of whether
they are ``substantially equal.'' That is, we will use these factors to
evaluate whatever combination of single-sex and coeducational classes a
recipient is providing in a given subject to determine if they are
substantially equal. The list of factors is not intended to be
exhaustive and other relevant factors that affect the educational
benefits provided in these classes will be considered on a case-by-case
basis. The list includes the following factors:
Admissions policies and criteria.\21\
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\21\ This factor covers prerequisites to admission such as prior
course requirements or grade point average.
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Educational benefits provided, including the
quality, range, and content of curriculum and other services and the
quality and availability of books, instructional materials, and
technology.\22\
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\22\ The factors describe the types of educational benefits that
the Department will compare in determining whether recipients are
treating male and female students in a nondiscriminatory manner. The
assessment is solely to determine whether equality of opportunity in
access to curricular offerings is provided in compliance with Title
IX and is not intended to require any particular curricular
offerings by a school district. Thus, the provision is consistent
with the Department of Education Organization Act (as well as
similar provisions in the Elementary and Secondary Education Act, as
amended by the No Child Left Behind Act of 2001), which provides in
relevant part: ``No provision of a program administered by the
Secretary or by any other officer of the Department shall be
construed to authorize the Secretary or any such officer to exercise
any direction, supervision, or control over the curriculum, program
of instruction, administration, or personnel of any educational
institution, school, or school system * * * except to the extent
authorized by law.'' 20 U.S.C. 3403(b).
---------------------------------------------------------------------------
Qualifications of faculty and staff.
Quality, accessibility, and availability of
facilities and resources provided for the class.
Under the proposed standard, each factor evaluated does not need to
be identical, but each must be substantially equal.
Procedural Safeguard: Periodic Evaluations (Proposed 34 CFR
106.34(b)(4))
Proposed 34 CFR 106.34(b)(4) would require that recipients
periodically evaluate their single-sex classes to ensure
nondiscrimination. Specifically, this proposed section would require
that evaluations of all single-sex classes be conducted to ensure that
single-sex classes are based upon genuine justifications and that they
do not rely on overly broad generalizations about the different talents
or capacities of male and female students. In addition, this proposed
section would require that evaluations be conducted to ensure that any
single-sex classes offered are substantially related to achievement of
the objective for the classes as required by proposed 34 CFR
106.34(b)(1)(i).
The proposed amendments do not prescribe the type of information
that a recipient must use in making decisions to provide single-sex
classes or in conducting evaluations, but the following are types of
information that may be useful and appropriate. For example, a
recipient may identify particular educational needs using district or
school-based data including standardized test scores; class grades;
attendance; suspension and expulsion rates; incidence of pregnancy;
\23\ and low levels of participation among members of one sex in
certain curriculum areas. Research or other reliable evidence may be
the basis for determining that a single-sex class is substantially
related to meeting the particular, identified needs. Research,
developed by an agency, organization, social scientist, or by another
school district, may assist a recipient in making that determination if
it is reliable and applicable to the recipient's circumstances.
Similarly, the recipient may conduct its own district or school-based
research. In addition, a recipient may have other reliable evidence
such as teacher, parental, or student feedback.
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\23\ Cf. 34 CFR 106.40, which is not affected by the proposed
amendments.
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We invite specific comments as to how often a recipient should be
required to conduct periodic evaluations pursuant to proposed 34 CFR
106.34(b)(4).
Current and Proposed Requirements for Single-Sex Schools
Current Regulations (Current 34 CFR 106.35)
The current regulations describe requirements related to admissions
to elementary and secondary schools operated by LEAs.\24\ Paragraph (a)
of 34 CFR 106.35 of the current regulations specifies that recipients
that are LEAs are prohibited from discriminating on the basis of sex in
admissions to
[[Page 11281]]
vocational education institutions.\25\ Consistent with the Title IX
statute as discussed later, we are proposing to amend this portion of
the regulations to make clear that all public and private vocational
institutions that receive Federal financial assistance are prohibited
from discriminating on the basis of sex in admissions.
---------------------------------------------------------------------------
\24\ 34 CFR 106.35.
\25\ This provision implements the Title IX statute, which
provides specifically that admissions to certain types of
educational entities, including institutions of vocational
education, are covered by Title IX. 20 U.S.C. 1681(a)(1).
---------------------------------------------------------------------------
Paragraph (b) of the current 34 CFR 106.35 describes requirements
applicable to recipients that are LEAs that operate single-sex public
schools. The current regulations do not prohibit recipients from having
single-sex admissions for these types of schools.\26\ The Title IX
statute, which only covers admissions to specified types of educational
institutions, does not include elementary and secondary schools among
the types of institutions with covered admissions (except with respect
to those that are also institutions of vocational education, for which
admissions are covered as discussed in previous paragraphs).\27\ As a
result, our current regulations do not prohibit single-sex admissions
to public nonvocational elementary and secondary schools. The equal
protection requirements of the 14th Amendment to the Constitution apply
to admissions to public entities, such as school districts and State
educational agencies (SEAs). \28\
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\26\ See 34 CFR 106.15(d).
\27\ 20 U.S.C. 1681(a)(1).
\28\ See footnote 14 for information about the equal protection
requirements that apply to admissions requirements for public
entities.
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The current regulations require that, in the event that an LEA
provides a nonvocational elementary or secondary school or educational
unit for students of one sex, then it must provide students of the
other sex, under the ``same policies and criteria of admission,
courses, services, and facilities comparable to each course, service,
and facility offered in or through such schools.'' \29\
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\29\ 34 CFR 106.35(b).
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Proposed Amendments for Single-Sex Schools (Proposed 34 CFR 106.34(c)
and 34 CFR 106.35)
We are proposing to amend the current compliance provisions
applicable to admissions to elementary and secondary vocational schools
in 34 CFR 106.35(a), which will be redesignated as 34 CFR 106.35, to
remove the reference to LEAs. Recipients of Federal financial
assistance, including private schools, may not offer single-sex
institutions of vocational education.\30\
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\30\ Our interpretation is based on the Title IX statute, which
covers admissions to vocational schools. 34 CFR 106.15(c) and (d).
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We are proposing to amend existing 34 CFR 106.35(b) to remove from
that section the requirements pertaining to nonvocational schools
operated by LEAs and to move those requirements, with substantive
amendments, to proposed 34 CFR 106.34. Under the proposed amendments,
subject to conditions and requirements described in the following
paragraphs, a recipient that operates public nonvocational elementary
or secondary schools may not operate a single-sex nonvocational
elementary or secondary school unless it provides students of the other
sex substantially equal opportunities in a single-sex school, single-
sex educational unit,\31\ or a coeducational school. The proposed
amendments also provide for an exception to this requirement for
certain charter schools. The requirements pertaining to single-sex
elementary and secondary schools are in paragraph (c) of proposed 34
CFR 106.34.
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\31\ Both the current regulations and the proposed amendments
use the phrase ``education unit.'' For the purposes of these
provisions we interpret the term ``education unit'' to mean a
``school within a school,'' and we are specifically referring to a
school that is housed within another school. For the sake of clarity
and simplicity, we will generally use the term ``school'' instead of
either ``school within a school'' or ``education unit'' in
explaining the requirements of the proposed amendments.
---------------------------------------------------------------------------
While Title IX does not prohibit a district from assigning students
to single-sex schools because admissions to nonvocational elementary
and secondary schools are exempt from Title IX coverage, recipients are
cautioned that assigning students to single-sex schools--rather than
allowing students to voluntarily select between those schools and
substantially equal coeducational schools--could violate the
Constitution and the requirements of the Equal Educational
Opportunities Act of 1974 (EEOA),\32\ which prohibits the assignment of
students to schools on the basis of sex.
---------------------------------------------------------------------------
\32\ 20 U.S.C. 1703(c); see footnote 5 on consulting legal
counsel.
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Substantially Equal Educational Opportunities Required (Proposed 34 CFR
106.34(c))
The proposed amendments do not regulate admissions to public
nonvocational elementary and secondary schools.\33\ Thus, unlike our
proposed amendments for single-sex classes, they do not propose to
require a recipient to justify establishing a single-sex school. The
proposed amendments permit a recipient to provide a single-sex public
school as long as the recipient provides students who are excluded from
that school on the basis of sex substantially equal opportunities in
another school.
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\33\ 20 U.S.C. 1681(a)(1).
---------------------------------------------------------------------------
The proposed amendments substitute the phrase ``substantially
equal'' for the term ``comparable'' used in the existing regulations
for comparing the policies applicable to and benefits provided to
students in a single-sex school and students excluded from the school
on the basis of sex. The Supreme Court applied a ``substantially
equal'' standard in the context of evaluating the constitutionality of
single-sex postsecondary institutions,\34\ and we have adopted this
standard here. We intend to convey the concept that although the
policies and benefits compared do not need to be identical, they do
need to be substantially equal. As discussed in the next section, the
proposed amendments would expand the list of factors to be considered
in making a determination as to whether the benefits provided are
substantially equal.
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\34\ In evaluating educational benefits and opportunities
provided to male and female students in single-sex postsecondary
education institutions for 14th Amendment equal protection purposes,
the Supreme Court has required a standard of ``substantial
equality.'' Virginia, 518 U.S. at 554.
---------------------------------------------------------------------------
The proposed amendments specifically provide that the substantially
equal opportunities may be provided in a single-sex school or in a
coeducational school.\35\ Thus, the proposed amendments would change
our interpretation of 34 CFR 106.35(b) of the current regulations that
the benefits provided to students excluded from a single-sex school
must be provided in a single-sex setting.\36\ Our prior interpretation
was based upon the premise that Title IX required recipients to provide
a single-sex school for each sex to ensure that students of both sexes
were provided an equal opportunity to attend a single-sex school.
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\35\ See footnote 15.
\36\ 67 FR 31103 (2002).
---------------------------------------------------------------------------
Upon further analysis, we have determined that, since Title IX is
silent regarding its application to admissions to nonvocational
elementary and secondary schools, creation of an unequal number of
single-sex schools for girls and boys does not implicate Title IX. The
basis for this interpretation is Congress's decision not to cover
admissions to nonvocational elementary and secondary schools in Title
IX.\37\
[[Page 11282]]
Because Title IX does not cover admissions to these types of
educational institutions, we have determined that Title IX does not
impose an obligation on these recipients to avoid sex-based disparities
in providing the opportunity to attend a single-sex nonvocational
elementary or secondary school.
---------------------------------------------------------------------------
\37\ The legislative history of Title IX supports this
interpretation. When admissions coverage under Title IX was being
considered, Congress was aware that single-sex nonvocational
elementary and secondary schools existed. Because information about
these schools was not sufficient to support a decision regarding
admissions coverage, at least one member of Congress urged the
Department of Health, Education and Welfare (HEW) to conduct a study
and indicated that Congress then could make an informed decision.
92nd Cong., 118 Cong. Rec. 5804, 5807, 5812-13 (1972). HEW did not
conduct such a study. Moreover, although several substantive
amendments to Title IX have been enacted since that time, Congress
has not amended this provision of the statute.
---------------------------------------------------------------------------
The lack of coverage of admissions to public nonvocational
elementary and secondary schools does not relieve recipients from all
obligations to students of the excluded sex. Consistent with Title IX,
students of both sexes must be provided nondiscriminatory access to
substantially equal educational benefits. This means that students
excluded from a single-sex school, on the basis of sex, must be
provided substantially equal educational benefits in another school.
However, based on our analysis of the Title IX statute, under the
proposed amendments the other school may be coeducational or single-
sex.
Factors for Determining Substantially Equal (Proposed 34 CFR
106.34(c)(3))
The current regulations provide a description of the types of
factors that OCR would consider in determining whether two schools, a
single-sex school and a school available to students excluded on the
basis of sex from that school, are substantially equal. The proposed
regulations, in 34 CFR 106.34(c)(3)(i), expand upon the current
description of factors that OCR would consider in comparing schools for
this purpose.\38\ Furthermore, the list of factors is not intended to
be exhaustive, but it is intended to provide recipients with a more
specific set of criteria. Other relevant factors that affect the
educational benefits provided in these schools will be considered on a
case-by-case basis. The list includes the following factors:
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\38\ We have added additional factors consistent with the
Court's opinions addressing single-sex education at postsecondary
institutions. See Virginia, 518 U.S. at 547-54; Hogan, 458 U.S. at
723 n.8.
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Admissions policies and criteria.\39\
---------------------------------------------------------------------------
\39\ This factor covers prerequisites to admission such as prior
course requirements or grade point average.
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Educational benefits provided, including the
quality, range, and content of curriculum and other services and the
quality and availability of books, instructional materials, and
technology.\40\
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\40\ See footnote 22.
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Quality and range of extra-curricular offerings.
Qualifications of faculty and staff.
Geographic accessibility.
Quality, accessibility, and availability of
facilities and resources.\41\
---------------------------------------------------------------------------
\41\ The new factors in the proposed amendment are--the
educational benefits provided; the quality and range of extra-
curricular offerings; the qualifications of faculty and staff;
geographic accessibility; and the availability of classroom
facilities and resources.
---------------------------------------------------------------------------
Each factor does not have to be identical in order for two schools
to be substantially equal. As specified in proposed 34 CFR
106.34(c)(3)(ii), OCR will assess the aggregate of benefits provided by
each school as a whole in making these determinations.
Exception for Certain Charter Schools (Proposed 34 CFR 106.34(c)(2))
Title IX does not apply to admissions to nonvocational elementary
and secondary schools under 20 U.S.C. 1681(a)(1); therefore, these
types of single-sex charter schools are not prohibited by Title IX. If
a public, nonvocational single-sex charter school is part of a school
district or LEA that includes other schools, the proposed amendments
would hold the LEA that operates the schools responsible for ensuring
that students in the LEA who are excluded on the basis of sex from the
single-sex charter school are provided substantially equal
opportunities and benefits consistent with proposed 34 CFR 106.34(c)(1)
and (c)(3). An LEA will be considered to be ``operating'' a charter
school that is part of the LEA. Accordingly, the LEA must ensure that
it provides the sex excluded from a charter school substantially equal
educational opportunities in a single-sex school or coeducational
school.
The proposed amendments exempt nonvocational charter schools that
are single-school LEAs from the requirements that apply to other
recipients that operate public nonvocational elementary and secondary
schools. A chartering authority that receives Federal funds, and that
charters a nonvocational, single-sex public charter school that is its
own LEA, may charter a single-sex charter school for one sex without
ensuring that the other sex is provided substantially equal educational
opportunities in a single-sex school or coeducational school. A
chartering authority that receives Federal financial assistance, of
course, must review and approve or reject proposed charter school
applications on a non-discriminatory basis. Such a chartering authority
is not required to provide substantially equal educational
opportunities to the other sex if the chartering authority is merely
reviewing and approving charter school applications and is not
independently operating those schools itself. Moreover, the chartering
authority may have no control over what types of programs are proposed
as charter schools, including whether they are single-sex. Therefore,
requiring a chartering authority to provide the other sex substantially
equal educational opportunities in a single-sex school or coeducational
school would require the chartering authority to find an additional
group of community leaders, developers, or parents who would meet the
required application criteria and would be willing to provide to the
other sex substantially equal educational opportunities in another
charter school. Similarly, a group of community leaders, developers, or
parents who wish to establish a single-sex charter school that is its
own LEA should not be required to establish two schools in order to
meet Title IX requirements.
Given the Title IX exemption for admissions to nonvocational
elementary and secondary schools and the functions some chartering
authorities perform, we have determined that Title IX does not impose
such an obligation on these chartering authorities and that such an
obligation on chartering authorities would unduly burden and inhibit
the creation of single-sex charter schools that are their own LEAs.
Therefore, the proposed amendments exempt nonvocational charter schools
that are single-school LEAs from the requirements that apply to other
recipients that operate public nonvocational elementary and secondary
schools. We note that the obligations of public chartering authorities,
including LEAs and SEAs, may differ under the U.S. Constitution, since
admissions policies are covered under the 14th Amendment.\42\
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\42\ See footnote 5 on consulting legal counsel.
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Current Requirements Related to Classes and Proposed Technical Changes
General Requirements and Other Modifications (Proposed 34 CFR 106.34(a)
and 34 CFR 106.43)
With respect to classes and activities in physical education, the
existing regulations in 34 CFR 106.34(a) provided transition periods
for
[[Page 11283]]
recipients to comply with the regulations. Recipients at the elementary
school level had to comply within one year from the effective date of
the regulations, and recipients at the secondary level and
postsecondary level had to comply within three years. Because these
timeframes for compliance expired many years ago, this provision is
obsolete. Existing paragraph (a) of 34 CFR 106.34 will be removed when
final regulations are issued, and the regulations will be renumbered.
Some of the existing provisions of 34 CFR 106.34 apply to
postsecondary, as well as elementary and secondary, coeducational
schools. Our proposed amendments would not affect the continued
applicability of those existing provisions to postsecondary
institutions. However, because we are proposing other amendments, the
numbering of these existing exceptions would change, as discussed in
the following paragraphs.
We are proposing to retain the general prohibition against
separation on the basis of sex, which applies to coeducational schools
at all levels of education, that is in the existing regulations prior
to paragraph (a) of 34 CFR 106.34. Due to other modifications that we
are proposing, the general prohibition would be renumbered and become
paragraph (a) of 34 CFR 106.34. Because our proposed amendments provide
an exception to allow for single-sex classes in nonvocational
elementary and secondary schools that may apply to classes of any type,
except for vocational education classes, we are also proposing to
delete the introductory listing of specific types of classes to which
the general prohibition applies.
Recipients are generally prohibited from separating students on the
basis of sex within coeducational physical education classes or
activities by 34 CFR 106.34(a). We are proposing to retain in 34 CFR
106.34(a)(1) the exception currently provided in 34 CFR 106.34(c) that
permits separation of students by sex within physical education classes
or activities during participation in wrestling, boxing, rugby, ice
hockey, football, basketball, and other sports the purpose or major
activity of which involves bodily contact. Other physical education
classes in elementary and secondary schools would be covered by
proposed 34 CFR 106.34(b) regardless of whether the purpose or major
activity involves bodily contact. These classes may be offered on a
single-sex basis consistent with the requirements of our proposed
amendments.
Similarly, the exception provided in the proposed amendments in 34
CFR 106.34(a)(2) is the same exception provided in the current
regulations in 34 CFR 106.34(b). This provision permits grouping of
students in physical education classes by ability as assessed by
objective standards of individual performance developed and applied
without regard to sex. This exception would also continue to apply to
elementary and secondary education and postsecondary education.
The exception provided in the proposed amendment to the regulations
in 34 CFR 106.34(a)(3) is similar, but not identical, to the exception
provided in the current regulations in 34 CFR 106.34(e). The proposed
amendment permits separation by sex in classes or portions of classes
in elementary and secondary schools that deal ``primarily'' with human
sexuality. The current regulations require that ``portions of the
classes'' in elementary and secondary schools must deal ``exclusively''
with human sexuality in order to separate students by sex. The proposed
amendment changes ``exclusively'' to ``primarily'' because we recognize
that issues of human sexuality that may require privacy may be raised
in situations that are not devoted exclusively to human sexuality, such
as sexual assault or harassment counseling or defense classes. In
addition, we recognize that recipients may choose to offer classes that
focus on issues of human sexuality that may require privacy. This
provision continues to apply only to elementary and secondary
education, and it is based on issues of privacy.\43\
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\43\ 92nd Cong., 118 Cong. Rec. 5803 (1972).
---------------------------------------------------------------------------
We are also proposing to retain in 34 CFR 106.34(a)(4) the
exception currently provided in 34 CFR 106.34(f), which permits
grouping students for chorus based on vocal range or quality even if it
results in a single-sex or predominantly single-sex chorus. This
exception continues to apply to elementary and secondary education and
postsecondary education, and it is based on real differences between
the sexes.
Paragraph (d) of existing 34 CFR 106.34 does not address access to
classes, but rather addresses nondiscrimination in assessments of
skills or progress in physical education classes. It applies to
elementary, secondary, and postsecondary physical education classes,
and it applies to both single-sex and coeducational physical education
classes in coeducational schools. In order to avoid confusion about the
application of this provision, we are proposing to move it, with no
modifications, to Subpart D of our regulations, as a separate
provision, proposed 34 CFR 106.43, entitled ``Standards for measuring
skill or progress in physical education classes.''
Executive Order 12250
Pursuant to Executive Order 12250, which provides for the Attorney
General to review proposed regulations implementing Title IX, the
Acting Assistant Attorney General for Civil Rights has reviewed this
notice of proposed rulemaking and approved it for publication.
Executive Order 12866
This rule is considered by the Department to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. Accordingly, this rule has been
submitted to the Office of Management and Budget (OMB) for review.
1. Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those we have
determined to be necessary for administering this program effectively
and efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of this regulatory action, we have determined that the
benefits would justify the costs for those recipients that would choose
to provide single-sex schools or classes.
We have also determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Summary of Potential Costs and Benefits
The proposed regulations do not require recipients to provide
single-sex schools or classes and thus do not require recipients to
incur any additional costs. Rather, the benefit of the proposed
regulations is the expanded flexibility to provide single-sex schools
or classes, if such classes are desired. If recipients choose to
continue to operate schools or classes under their current policies or
practices and choose not to provide single-sex schools or classes, no
added costs will be incurred. Those recipients that choose to provide
single-sex schools or classes may incur the additional expense to
administer them. The costs associated with
[[Page 11284]]
providing single-sex schools or classes under the proposed regulations
will range from minimal to substantial, depending on what options
recipients choose to provide.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations
clearly stated?
Do the proposed regulations contain technical
terms or other wording that interfere with their clarity?
Does the format of the proposed regulations
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce their clarity?
Would the proposed regulations be easier to
understand if we divided them into more (but shorter) sections? (A
``section'' is preceded by the symbol ``Sec. '' and a numbered
heading; for example, Sec. 106.35 Access to institutions of vocational
education.)
Could the description of the proposed
regulations in the SUPPLEMENTARY INFORMATION section of this preamble
be more helpful in making the proposed regulations easier to
understand? If so, how?
What else could we do to make the proposed
regulations easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities. These proposed regulations do not require recipients to
provide single-sex classes or schools, but rather expand flexibility
for recipients that may be interested in doing so.
Paperwork Reduction Act of 1995
These proposed regulations do not contain any information
collection requirements.
Intergovernmental Review
This program is not subject to Executive Order 12372 and the
regulations in 34 CFR part 79 because it is not a program or activity
of the Department that provides Federal financial assistance.
Assessment of Educational Impact
The Secretary particularly requests comments on whether these
proposed regulations would require transmission of information that any
other agency or authority of the United States gathers or makes
available.
Federalism
Executive Order 13132 requires us to ensure meaningful and timely
input by State and local elected officials in the development of
regulatory policies that have federalism implications. ``Federalism
implications'' means substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. The proposed regulations in 34 CFR 106.34 and 34 CFR 106.35
may have federalism implications, as defined in Executive Order 13132.
We encourage State and local elected officials to review and provide
comments on these proposed regulations.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
"http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html
.
(Catalog of Federal Domestic Assistance Number does not apply.)
List of Subjects in 34 CFR Part 106
Education, Sex discrimination.
Dated: March 3, 2004.
Rod Paige,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend part 106 of title 34 of the Code of Federal Regulations as
follows:
PART 106--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
1. The authority citation for part 106 continues to read as
follows:
Authority: 20 U.S.C. 1681 et seq., unless otherwise noted.
2. Section 106.34 is revised to read as follows:
Sec. 106.34 Access to classes and schools.
(a) Except as provided for in this section or otherwise in this
part, a recipient shall not provide or otherwise carry out any of its
education programs or activities separately on the basis of sex or
require or refuse participation therein by any of its students on the
basis of sex.
(1) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without
regard to sex.
(3) Classes or portions of classes in elementary and secondary
schools that deal primarily with human sexuality may be conducted in
separate sessions for boys and girls.
(4) Recipients may make requirements based on vocal range or
quality that may result in a chorus or choruses of one or predominantly
one sex.
(b)(1) Classes. General standard. Subject to the requirements in
this paragraph, a recipient that operates a nonvocational coeducational
elementary or secondary school may provide nonvocational single-sex
classes, if--
(i) Each single-sex class is based on the recipient's objective--
(A) To provide a diversity of educational options to parents and
students, provided that the single-sex nature of the class is
substantially related to meeting that objective; or
(B) To meet the particular, identified educational needs of its
students, provided that the single-sex nature of the class is
substantially related to meeting those needs;
(ii) In accordance with the requirements of paragraph (a) of this
section, the recipient provides a substantially equal coeducational
class in the same subject; and
[[Page 11285]]
(iii) The recipient implements its objective in an evenhanded
manner.
(2) Single-sex class for excluded sex. A recipient that provides a
single-sex class may be required, subject to the requirements of
paragraph (b)(1) of this section, to provide a substantially equal
single-sex class for the excluded sex.
(3) Substantially equal. Factors that the Department will consider
in determining whether classes are substantially equal include the
following: the policies and criteria of admission; the educational
benefits provided, including the quality, range, and content of
curriculum and other services and the quality and availability of
books, instructional materials, and technology; the qualifications of
faculty and staff; and the quality, accessibility, and availability of
facilities and resources provided to the class.
(4) Periodic evaluations. The recipient must conduct periodic
evaluations to ensure that single-sex classes are based upon genuine
justifications and do not rely on overly broad generalizations about
the different talents or capacities of male and female students and
that any single-sex classes are substantially related to achievement of
the objective for the classes.
(5) Definition. For purposes of this paragraph, the term
``classes'' includes all education activities provided for students by
a school or in a school.
(c)(1) Schools. Except as provided in paragraph (c)(2) of this
section, a recipient that operates a public nonvocational elementary or
secondary school shall not, on the basis of sex, exclude any person
from admission to any school that it operates unless it provides the
other sex substantially equal educational opportunities in a single-sex
school, single-sex education unit, or coeducational school.
(2) Exception. A nonvocational public charter school that is not
part of a local educational agency with other schools may be operated
as a single-sex charter school without regard to the requirements in
paragraph (c)(1) of this section.
(3) Substantially equal. (i) Factors that the Department will
consider in determining whether schools or education units are
substantially equal include the following: The policies and criteria of
admission; the educational benefits provided, including the quality,
range, and content of curriculum and other services and the quality and
availability of books, instructional materials, and technology; the
quality and range of extra-curricular offerings; the qualifications of
faculty and staff; geographic accessibility; and the quality,
accessibility, and availability of facilities and resources; and
(ii) This determination involves an assessment in the aggregate of
the educational benefits provided by each school as a whole.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
3. Section 106.35 is revised to read as follows:
Sec. 106.35 Access to institutions of vocational education.
A recipient shall not, on the basis of sex, exclude any person from
admission to any institution of vocational education operated by that
recipient.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
4. Section 106.43 is added to subpart D to read as follows:
Sec. 106.43 Standards for measuring skill or progress in physical
education classes.
If use of a single standard of measuring skill or progress in
physical education classes has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have that
effect.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat.
373, 374; 20 U.S.C. 1681, 1682)
[FR Doc. 04-5156 Filed 3-8-04; 8:45 am]
BILLING CODE 4000-01-P