FR Doc 04-23290
[Federal Register: October 19, 2004 (Volume 69, Number 201)]
[Proposed Rules]
[Page 61555-61562]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc04-13]
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Part II
Department of Education
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34 CFR Parts 75, 76, and 108
Equal Access to Public School Facilities for the Boy Scouts of America
and Other Designated Youth Groups; Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Parts 75, 76, and 108
RIN 1870-AA12
Equal Access to Public School Facilities for the Boy Scouts of
America and Other Designated Youth Groups
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to add a new part to title 34 of the
Code of Federal Regulations and to amend 34 CFR parts 75 and 76 to
implement the provisions of the Boy Scouts of America Equal Access Act.
This Act directs the Secretary of Education, through the Office for
Civil Rights, to ensure compliance with this new law. The proposed
regulations would address equal access to public school facilities by
the Boy Scouts of America and other designated youth groups.
DATES: Your comments must be postmarked or sent through the Internet on
or before December 3, 2004.
ADDRESSES: Address all comments about these proposed regulations to
Kenneth L. Marcus, Delegated the Authority of Assistant Secretary for
Civil Rights, U.S. Department of Education, 400 Maryland Avenue, SW.,
room 6095 Potomac Center Plaza, 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: boyscoutscomments@ed.gov.
For all comments submitted, you should specify the subject as ``Boy
Scouts Proposed Regulations Comments.''
If you want to comment on the information collection requirements,
you must send your comments to the Office of Management and Budget
(OMB) at the address listed in the Paperwork Reduction Act section of
this preamble. You may also send a copy of these comments to the
Department representative named in this section.
FOR FURTHER INFORMATION CONTACT: Sandra G. Battle, U.S. Department of
Education, 400 Maryland Avenue, SW., room 6125 Potomac Center Plaza,
Washington, DC 20202-1100. Telephone: (202) 245-6767.
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
1-800-421-3481. This notice of proposed rulemaking will also be
available at the Department's Web site on the Internet at:
http://www.ed.gov/news/fedregister/proprule/index.html.
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. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the 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 6128 Potomac Center
Plaza, 550 12th Street, SW., Washington, DC, between the hours of 9:30
a.m. and 4 p.m., Eastern time, Monday through Friday of each week
except Federal holidays. If you are interested in reviewing the
comments, we encourage you to contact the person listed under FOR
FURTHER INFORMATION CONTACT in advance to schedule an appointment for
inspecting the comments.
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 the 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.
Background
These proposed regulations would implement the Boy Scouts of
America Equal Access Act. On January 8, 2002, the President signed into
law the No Child Left Behind Act of 2001 (NCLB), Public Law 107-110,
amending the Elementary and Secondary Education Act of 1965 (ESEA).
Included in the amendments to the ESEA is the Boy Scouts of America
Equal Access Act (Boy Scouts Act). The Boy Scouts Act applies to any
public elementary school, public secondary school, local educational
agency (LEA), or State educational agency (SEA) that has a designated
open forum or limited public forum and that receives funds made
available through the Department of Education (Department). Under this
law, those entities may not deny equal access or a fair opportunity to
meet to, or discriminate against, any group officially affiliated with
the Boy Scouts of America or any other youth group listed in title 36
of the United States Code (as a patriotic society) that wishes to
conduct a meeting within the covered entity's designated open forum or
limited public forum.
The Boy Scouts Act authorizes the Secretary to implement this law
by issuing and securing compliance with rules or orders with respect to
any covered public elementary school, public secondary school, LEA, or
SEA that denies equal access or a fair opportunity to meet to, or
discriminates against, any group officially affiliated with the Boy
Scouts of America or any other youth group listed in title 36 of the
United States Code (as a patriotic society) that wishes to conduct a
meeting within the covered entity's designated open forum or limited
public forum. The Boy Scouts Act also directs the Secretary, through
OCR, to enforce this law in a manner consistent with the procedure used
under section 602 of the Civil Rights Act of 1964 with respect to these
covered entities. If the covered public school or agency does not
comply with the Boy Scouts Act, it would be subject to the Department's
enforcement actions.
On November 15, 2002, we published an advance notice of proposed
rulemaking (ANPRM) in the Federal Register (67 FR 69456) requesting
comments from interested parties to assist us in developing proposed
regulations. The comment period for the ANPRM closed on December 16,
2002. In response to the Secretary's invitation in the ANPRM,
approximately two dozen parties submitted comments on issues to be
considered in developing proposed regulations. The comments expressed a
variety of opinions on the Boy Scouts Act and what should be included
in regulations implementing this law. We considered these comments in
developing this notice of proposed rulemaking.
[[Page 61557]]
Significant Proposed Regulations
We discuss substantive issues under the sections of the proposed
regulations to which they pertain. Generally, we do not address
proposed regulatory provisions that are technical or otherwise minor in
effect.
Section 108.3 Definitions
a. Covered Entity
Statute: Section (b)(1) of the Boy Scouts Act (section 9525(b)(1)
of the ESEA, as amended by NCLB) provides that this law applies to any
public elementary school, public secondary school, LEA, or SEA that has
a designated open forum or limited public forum and that receives funds
made available through the Department.
Proposed Regulations: Proposed Sec. 108.3 would create the term
``covered entity'' and define it to mean any public elementary school,
public secondary school, LEA, or SEA that has a designated open forum
or limited public forum and that receives funds made available through
the Department.
Reason: Proposed Sec. 108.3, for simplification, provides one term
to be used when referring to the entities to which the Boy Scouts Act
applies.
b. Designated Open Forum
Statute: Section (b)(1) of the Boy Scouts Act (section 9525(b)(1)
of the ESEA, as amended by NCLB) uses the terms ``designated open
forum'' and ``limited public forum.'' Section (d)(2) of the Boy Scouts
Act defines ``limited public forum'' but does not define ``designated
open forum.''
Proposed Regulations: Proposed Sec. 108.3 would define
``designated open forum.''
Reason: The statute applies to public schools, LEAs, and SEAs that
have a designated open forum or limited public forum. The statute
defines when an elementary or secondary school has a limited public
forum, but does not define when an elementary or secondary school has a
designated open forum. For purposes of clarification, the proposed
regulations contain a definition of ``designated open forum.''
Under this definition, a school retains control over its
educational benefits and services, and does not create a designated
open forum simply by inviting an outside group in to present
information to the students. For instance, if a school, as part of its
character education program, invites an outside group to put on a
school assembly on saying no to drugs, that does not mean that the
school has created a designated open forum and must allow any group
officially affiliated with the Boy Scouts of America, or any other
youth group listed in title 36 of the United States Code (as a
patriotic society), to come into the school to do a presentation
related to character education.
c. Limited Public Forum
Statute: Section (b)(1) of the Boy Scouts Act (section 9525(b)(1)
of the ESEA, as amended by NCLB) uses the term ``limited public
forum.'' Section (d)(2) of the Boy Scouts Act defines ``limited public
forum.''
Proposed Regulations: Proposed Sec. 108.3 would incorporate the
statutory definition of ``limited public forum.''
Reason: By incorporating the statutory definition of this term, the
regulations accurately reflect the requirements of the statute.
d. Outside Youth or Community Group
Statute: Section (d)(2) of the Boy Scouts Act (section 9525(d)(2)
of the ESEA, as amended by NCLB) uses the term ``outside youth or
community groups'' in the definition of ``limited public forum.''
Proposed Regulations: Proposed Sec. 108.3 would define the term
``outside youth or community group,'' as the term appears in the
definitions of ``designated open forum'' and ``limited public forum,''
to mean a group that is not affiliated with the school.
Reason: For purposes of clarification, the proposed regulations
would define ``outside youth or community group'' to mean a youth or
community group that is not affiliated with the school.
e. To Sponsor Any Group Officially Affiliated With the Boy Scouts of
America; To Sponsor Any Group Officially Affiliated With Any Other
Youth Group Listed in Title 36 of the United States Code (as a
Patriotic Society)
Statute: Under section (b)(2) of the Boy Scouts Act (section
9525(b)(2) of the ESEA, as amended by NCLB), no school, agency, or a
school served by an agency to which the Boy Scouts Act applies is
required to sponsor any group officially affiliated with the Boy Scouts
of America or any other youth group listed in title 36 of the United
States Code (as a patriotic society).
Proposed Regulations: Proposed Sec. 108.3 would define the term
``To sponsor any group officially affiliated with the Boy Scouts of
America'' as meaning to possess a community organization charter issued
by the Boy Scouts of America. Proposed Sec. 108.3 would define the
term ``To sponsor any group officially affiliated with any other youth
group listed in title 36 of the United States Code (as a patriotic
society)'' to mean choosing to take whatever actions are required by
that title 36 group to become a sponsor of that group.
Reason: The statute does not define either of these terms.
Accordingly, proposed Sec. 108.3 clarifies what it means to sponsor
any group officially affiliated with the Boy Scouts of America or any
other youth group listed in title 36 of the United States Code (as a
patriotic society). The first definition is supported by the
legislative history of the Boy Scouts Act. During the legislative
debate of the Boy Scouts Act, Senator Smith of Oregon stated: ``The Boy
Scouts is a national institution with a national charter with this
Government, and it is put out for any group that wants to sponsor it.
They are called chartering institutions. Most of the chartering
institutions are churches and synagogues. Some are police stations.
Some may even be a school district.'' 147 Cong. Rec. 6259 (2001). We
specifically request comment on these proposed definitions.
f. Youth Group
Statute: Section (d)(1) of the Boy Scouts Act (section 9525(d)(1)
of the ESEA, as amended by NCLB) defines the term ``youth group.''
Proposed Regulations: Proposed Sec. 108.3 incorporates the
statutory definition of ``youth group.''
Reason: By incorporating the statutory definition of this term, the
regulations would accurately reflect the requirements of the statute.
Section 108.4 Effect of State or Local Law
Statute: Under section (b)(1) of the Boy Scouts Act (section
9525(b)(1) of the ESEA, as amended by NCLB), no covered entity,
notwithstanding any other provision of law, shall deny equal access or
a fair opportunity to meet to, or discriminate against, any group
officially affiliated with the Boy Scouts of America or any other youth
group listed in title 36 of the United States Code (as a patriotic
society).
Proposed Regulations: Proposed Sec. 108.4 would explain that
neither State nor local law would obviate or alleviate a covered
entity's obligation to comply with the Boy Scouts Act and its
implementing regulations.
Reason: Proposed Sec. 108.4 reflects the statutory provision that
covered entities must comply with the equal access and non-
discrimination requirements without regard to any State or local law. A
public school, LEA, or SEA that receives funds made available through
the Department must comply with the
[[Page 61558]]
Boy Scouts Act, even if State or local law conflicts with the Boy
Scouts Act.
Section 108.5 Compliance Obligations
Statute: Section (b)(2) of the Boy Scouts Act (section 9525(b)(2)
of the ESEA, as amended by NCLB) provides that this law applies to any
public elementary school, public secondary school, LEA, or SEA that has
a designated open forum or limited public forum and that receives funds
made available through the Department.
Proposed Regulations: Proposed Sec. 108.5 would provide that the
obligation of public elementary schools, public secondary schools,
LEAs, and SEAs to comply with the Boy Scouts Act is not limited by the
nature or extent of their authority to make decisions about the use of
school facilities.
Reason: The Secretary recognizes that public schools, LEAs, or SEAs
may not always have the independent authority to make decisions
concerning the use of school facilities, and that other entities may be
responsible for making those decisions. The statute, however, holds
public schools, LEAs, and SEAs responsible for compliance with the Boy
Scouts Act and does not condition their compliance obligation on
whether they have the authority to make decisions about use of their
school facilities. Proposed Sec. 108.5 clarifies that the statute
applies to covered public elementary schools, public secondary schools,
LEAs, and SEAs regardless of their authority to make decisions about
the use of school facilities.
Section 108.6 Equal Access
Statute: Under section (b)(1) of the Boy Scouts Act (section
9525(b)(1) of the ESEA, as amended by NCLB), no covered entity shall
deny equal access or a fair opportunity to meet to, or discriminate
against, any group officially affiliated with the Boy Scouts of America
or any other youth group listed in title 36 of the United States Code
(as a patriotic society) that wishes to conduct a meeting within that
covered entity's designated open forum or limited public forum for
reasons including the membership or leadership criteria or oath of
allegiance to God and country of the Boy Scouts of America or of the
youth group listed in title 36 of the United States Code (as a
patriotic society).
Proposed Regulations: Proposed Sec. 108.6 would restate the
statutory requirement. Proposed Sec. 108.6(a) through (c) would
clarify that the statutory requirement means that any group officially
affiliated with the Boy Scouts of America or any youth group listed in
title 36 of the United States Code (as a patriotic society) that wishes
to conduct a meeting within that covered entity's designated open forum
or limited public forum must be provided with--(a) Access to school
premises and school facilities to conduct meetings; (b) the ability to
communicate through the use of school-related means such as, but not
limited to, bulletin board notices and literature distribution; and (c)
access to students, and student information, for recruitment purposes.
That access and ability to communicate must be provided on terms that
are no less favorable than the most favorable terms provided to one or
more outside youth or community groups. Proposed Sec. 108.6(d) would
clarify that any group officially affiliated with the Boy Scouts of
America or any youth group listed in title 36 of the United States Code
(as a patriotic society) may be charged fees in connection with their
use of school facilities provided the fees are based on terms that are
no less favorable than the most favorable terms provided to one or more
outside youth or community groups.
Reasons: We have sought to clarify the nature of the access
required by the statute. That access includes not only access to school
facilities for meetings before, during, or after school, but also
access to other school activities related to an intention by any group
officially affiliated with the Boy Scouts of America or any other youth
group listed in title 36 of the United States Code (as a patriotic
society) to conduct a meeting within a covered entity's designated open
forum or limited public forum. The types of access include, but are not
necessarily limited to, means of communication and recruitment.
However, in order to provide equal access under the Boy Scouts Act, any
group officially affiliated with the Boy Scouts of America or any other
youth group listed in title 36 of the United States Code (as a
patriotic society) that wishes to conduct a meeting at the school must
be provided such access and use of school-related means of
communication on terms that are no less favorable than the most
favorable terms provided to one or more outside youth or community
groups. We specifically request comment on this proposed standard.
We recognize the need to regulate in such a way as to ensure that
public schools, LEAs, and SEAs continue to have flexibility to
establish fees based on certain distinctions; for example, distinctions
made between non-profit community groups and for-profit groups.
However, in order to provide equal access under the Boy Scouts Act, any
fees charged to any group officially affiliated with the Boy Scouts of
America or any other youth group listed in title 36 of the United
States Code (as a patriotic society) must be charged on terms that are
no less favorable than the most favorable terms provided to one or more
outside youth or community groups.
The Boy Scouts Act does not require access, but rather equal
access. Thus, if one or more outside youth or community groups are
given access to a school activity, then any group officially affiliated
with the Boy Scouts of America or any other youth group listed in title
36 of the United States Code (as a patriotic society) must be given
access to that school activity. However, if a school or agency decides
to deny access to a particular school activity to all outside youth or
community groups, that decision would not violate the Boy Scouts Act.
For instance, if a school decides that no outside youth or community
groups that wish to hold meetings at the school may hold recruitment
assemblies during school hours so that school hours can be devoted to
instruction, then the Boy Scouts Act does not force that school to make
an exception for any group officially affiliated with the Boy Scouts of
America or any other youth group listed in title 36 of the United
States Code (as a patriotic society).
Access for recruitment under the Boy Scouts Act is not the same as
NCLB's access for armed forces recruitment, provided under section 9528
of the ESEA, as amended by NCLB. We do not think the Boy Scouts Act
authorizes the Department to incorporate these armed forces recruitment
requirements into the Boy Scouts Act regulations. The armed forces
recruitment requirements and the Boy Scouts Act are in two separate
sections of NCLB, and nothing in NCLB indicates that one section
applies to the other. Moreover, the armed forces recruitment
requirements concern unique access by military recruiters or
institutions of higher education to certain information about secondary
school students. In contrast, the Boy Scouts Act concerns equal access
by groups officially affiliated with the Boy Scouts of America and
certain other patriotic youth organizations to public school
facilities.
Of course, outside youth or community groups, including any group
officially affiliated with the Boy Scouts of America or any other youth
group listed in title 36 of the United States Code (as a patriotic
society), would not have access to education records (or personally
identifiable information
[[Page 61559]]
contained therein), as defined by the Family Educational Rights and
Privacy Act (FERPA), other than in accordance with the provisions of
the FERPA. That law generally prohibits schools from disclosing
personally identifiable information in a student's education record,
unless the school obtains the consent of the student's parent or the
eligible student (a student who is 18 years old or older or who attends
a postsecondary institution).
Section 108.7 Voluntary Sponsorship
Statute: Under section (b)(2) of the Boy Scouts Act (section
9525(b)(2) of the ESEA, as amended by NCLB), no school, agency, or a
school served by an agency to which the Boy Scouts Act applies is
required to sponsor any group officially affiliated with the Boy Scouts
of America or any other youth group listed in title 36 of the United
States Code (as a patriotic society).
Proposed Regulations: Proposed Sec. 108.7 would repeat the
statutory requirement.
Reasons: Proposed Sec. 108.7 incorporates the statutory
requirement. The proposed regulations, in Sec. 108.3, would define the
terms ``to sponsor any group officially affiliated with the Boy Scouts
of America'' and ``to sponsor any group officially affiliated with any
other youth group listed in title 36 of the United States Code (as a
patriotic society).'' Reasons for these definitions are discussed
previously under Sec. 108.3 Definitions.
Section 108.8 Compliance Procedures
Statute: Section (c)(1) of the Boy Scouts Act (section 9525(c)(1)
of the ESEA, as amended by NCLB) directs the Secretary, through OCR, to
enforce this law in a manner consistent with the procedure used under
section 602 of the Civil Rights Act of 1964.
Proposed Regulations: Proposed Sec. 108.8 would adopt the
procedural provisions applicable to title VI of the Civil Rights Act of
1964 (Title VI).
Reason: OCR uses the regulations found in 34 CFR parts 100 and 101
in enforcing Title VI. Rather than repeating the relevant sections of
these Title VI regulations in the proposed regulations for the Boy
Scouts Act, proposed Sec. 108.8 simply adopts those relevant sections.
Sections 75.500 and 76.500 Federal Statutes and Regulations on
Nondiscrimination
Statute: Under section (b)(1) of the Boy Scouts Act (section
9525(b)(1) of the ESEA, as amended by NCLB), no covered entity shall
deny equal access or a fair opportunity to meet to, or discriminate
against, any group officially affiliated with the Boy Scouts of America
or any other youth group listed in title 36 of the United States Code
(as a patriotic society) that wishes to conduct a meeting within that
covered entity's designated open forum or limited public forum for
reasons including the membership or leadership criteria or oath of
allegiance to God and country of the Boy Scouts of America or of the
youth group listed in title 36 of the United States Code (as a
patriotic society).
Proposed Regulations: Sections 75.500 and 76.500 list the Federal
statutes and regulations on nondiscrimination with which grantees,
under Sec. 75.500, and States and subgrantees, under Sec. 76.500,
must comply. These regulations do not include the Boy Scouts Act among
the listed Federal statutes and regulations on nondiscrimination.
Proposed Sec. Sec. 75.500(b) and 76.500(b) would provide that a
covered entity as defined in Sec. 108.3 also must comply with the
nondiscrimination requirements of the Boy Scouts Act.
Reason: The proposed amendments to Sec. Sec. 75.500 and 76.500
would add the Boy Scouts Act and the regulations in part 108 to the
list of Federal statutes and regulations on nondiscrimination with
which grantees and States and subgrantees that are covered entities
under Sec. 108.3 must comply.
Executive Order 12250
Pursuant to Executive Order 12250, which provides for the Attorney
General to review proposed regulations implementing any provision of
Federal statutory law that provides, in whole or in part, that no
person in the United States shall, on the ground of race, color,
national origin, handicap, religion, or sex, be excluded from
participation in, be denied the benefits of, or be subject to
discrimination under any program or activity receiving Federal
financial assistance, the Assistant Attorney General for Civil Rights
has reviewed this notice of proposed rulemaking and approved it for
publication.
Executive Order 12866
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. Elsewhere in this SUPPLEMENTARY INFORMATION section we
identify and explain burdens specifically associated with information
collection requirements. See the heading Paperwork Reduction Act of
1995.
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.
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 would not impose any specified costs. If
recipients have to change their practices in order to meet the equal
access and nondiscrimination requirements of the statute, they may
incur some costs. Any costs, including costs to comply with information
collection requirements, likely would be minimal. The potential
benefits of this proposed regulatory action are that stakeholders would
have easily accessible, codified, published regulations that clarify
both the substantive obligations of the law and how the Department
would enforce the law. The Boy Scouts Act provides for new obligations
and requirements regarding access to school facilities. By engaging in
rulemaking, we would be able to obtain input from stakeholders
(including public schools, LEAs, SEAs, the Boy Scouts of America or any
other youth group listed in title 36 of the United States Code (as a
patriotic society), and parents) and other interested parties that will
help us to develop clear and accessible regulations that advance the
purpose of the statute and sufficiently inform stakeholders of their
rights and responsibilities under the law. By developing regulations
for use in enforcing the Boy Scouts Act, we also would be complying
with the directive in the Boy Scouts Act to enforce the law in a manner
consistent with the procedures used to enforce Title VI. The proposed
regulations would incorporate the existing procedural sections of the
Title VI regulations and, like the Title VI regulations, would clarify
the substantive obligations of covered entities.
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.
[[Page 61560]]
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 interferes 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. 108.6 Equal Access.)
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. The proposed regulations address equal access to school
facilities and activities for the Boy Scouts of America and other
specified youth organizations and would not have a significant economic
impact on any entities.
Paperwork Reduction Act of 1995
Section 108.8 contains an information collection requirement. Under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department
has submitted a copy of this section to OMB for its review.
Collection of Information: Assurances of Compliance
The collection of information consists of assurances that
applicants for Federal financial assistance will comply with the
requirements of the Boy Scouts Act. These proposed regulations would
affect the following types of entities applying to the Department for
Federal financial assistance: SEAs, LEAs, public elementary schools,
and public secondary schools.
The Boy Scouts Act directs the Secretary, through OCR, to enforce
this law in a manner consistent with the procedure used under Title VI.
This procedure includes obtaining assurances of compliance with Title
VI, under 34 CFR 100.4. Section 108.8 would adopt this Title VI
regulatory provision.
This assurance would be collected on applications for Federal
financial assistance, including formula and discretionary grants, from
the Department. Because this assurance would simply be added to
existing assurances already contained on applications for Federal
financial assistance from the Department, we estimate that the annual
reporting and recordkeeping burden for this collection of information
will be negligible.
If you want to comment on the information collection requirements,
please send your comments to the Office of Information and Regulatory
Affairs, OMB, room 10235, New Executive Office Building, Washington, DC
20503; Attention: Desk Officer for U.S. Department of Education. You
may also send a copy of these comments to the Department representative
named in the ADDRESSES section of this preamble.
We consider your comments on this proposed collection of
information in--
Deciding whether the proposed collection is necessary for
the proper performance of our functions, including whether the
information will have practical use;
Evaluating the accuracy of our estimate of the burden of
the proposed collection, including the validity of our methodology and
assumptions;
Enhancing the quality, usefulness, and clarity of the
information we collect; and
Minimizing the burden on those who must respond. This
includes exploring the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology; e.g., permitting electronic submission of
responses.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, to ensure that OMB gives your comments full consideration,
it is important that OMB receives the comments within 30 days of
publication. This does not affect the deadline for your comments to us
on the proposed regulations.
Intergovernmental Review
This program is not subject to Executive Order 12372 and the
regulations in 34 CFR part 79.
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 Sec. 108.4 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.
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List of Subjects
34 CFR Part 75
Accounting, Administrative practice and procedure, Education, Grant
programs--Education, Private schools, Reporting and recordkeeping
requirements.
34 CFR Part 76
Administrative practice and procedure, Compliance, Eligibility,
Grant administration, Reporting and recordkeeping requirements.
34 CFR Part 108
Boy Scouts of America, Education, Equal access, Reporting and
recordkeeping requirements.
[[Page 61561]]
Dated: October 7, 2004.
Rod Paige,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend parts 75 and 76 of, and to add a new part 108 to, title 34 of
the Code of Federal Regulations to read as follows:
PART 75--DIRECT GRANT PROGRAMS
1. The authority citation for part 75 continues to read as follows:
Authority: 20 U.S.C. 1221e-3 and 3474, unless otherwise noted.
2. Section 75.500 is amended by designating the existing text as
paragraph (a) and adding a new paragraph (b) to read as follows.
Sec. 75.500 Federal statutes and regulations on nondiscrimination.
* * * * *
(b) A grantee that is a covered entity as defined in Sec. 108.3 of
this title shall comply with the nondiscrimination requirements of the
Boy Scouts of America Equal Access Act, 20 U.S.C. 7905, 34 CFR part
108.
* * * * *
PART 76--STATE-ADMINISTERED PROGRAMS
3. The authority citation for part 76 continues to read as follows:
Authority: 20 U.S.C. 1221e-3, 3474, 6511(a), and 8065a, unless
otherwise noted.
4. Section 76.500 is amended by designating the existing text as
paragraph (a) and adding a new paragraph (b) to read as follows:
Sec. 76.500 Federal statutes and regulations on nondiscrimination.
* * * * *
(b) A State or subgrantee that is a covered entity as defined in
Sec. 108.3 of this title shall comply with the nondiscrimination
requirements of the Boy Scouts of America Equal Access Act, 20 U.S.C.
7905, 34 CFR part 108.
* * * * *
5. Add part 108 to read as follows:
PART 108--EQUAL ACCESS TO PUBLIC SCHOOL FACILITIES FOR THE BOY
SCOUTS OF AMERICA AND OTHER DESIGNATED YOUTH GROUPS
Sec.
108.1 Purpose.
108.2 Applicability.
108.3 Definitions.
108.4 Effect of State or local law.
108.5 Compliance obligations.
108.6 Equal access.
108.7 Voluntary sponsorship.
108.8 Compliance procedures.
Authority: 20 U.S.C. 7905, unless otherwise noted.
Sec. 108.1 Purpose.
The purpose of this part is to implement the Boy Scouts of America
Equal Access Act (Boy Scouts Act).
(Authority: 20 U.S.C. 7905)
Sec. 108.2 Applicability.
This part applies to any public elementary school, public secondary
school, local educational agency, or State educational agency that has
a designated open forum or limited public forum and that receives funds
made available through the Department.
(Authority: 20 U.S.C. 7905)
Sec. 108.3 Definitions.
(a) The following definitions apply to this part:
Boy Scouts Act means the Boy Scouts of America Equal Access Act,
section 9525 of the Elementary and Secondary Education Act of 1965, as
amended by section 901 of the No Child Left Behind Act of 2001, Public
Law 107-110, 115 Stat. 1425, 1981-82 (20 U.S.C. 7905).
Boy Scouts of America means the organization named ``Boy Scouts of
America,'' which has a Federal charter and which is listed as an
organization in title 36 of the United States Code (Patriotic and
National Observances, Ceremonies, and Organizations) in Subtitle II
(Patriotic and National Organizations), Part B (Organizations), Chapter
309 (Boy Scouts of America).
Covered entity means any public elementary school, public secondary
school, local educational agency, or State educational agency that has
a designated open forum or limited public forum and that receives funds
made available through the Department.
Designated open forum means the following for the purposes of these
regulations: An elementary school or secondary school has a designated
open forum whenever the school involved designates a time and place for
one or more outside youth or community groups to meet on school
premises or in school facilities, including during the hours in which
attendance at the school is compulsory, for reasons other than to
provide the school's educational benefits or services.
Elementary school means an elementary school as defined by section
9101(18) of the Elementary and Secondary Education Act of 1965, as
amended by section 901 of the No Child Left Behind Act of 2001, Public
Law 107-110, 115 Stat. 1425, 1958 (20 U.S.C. 7801).
Limited public forum means the following for purposes of these
regulations: An elementary school or secondary school has a limited
public forum whenever the school involved grants an offering to, or
opportunity for, one or more outside youth or community groups to meet
on school premises or in school facilities before or after the hours
during which attendance at the school is compulsory.
Local educational agency means a local educational agency as
defined by section 9101(26) of the Elementary and Secondary Education
Act of 1965, as amended by section 901 of the No Child Left Behind Act
of 2001, Public Law 107-110, 115 Stat. 1425, 1961 (20 U.S.C. 7801).
Outside youth or community group, as that term appears in the
regulatory definitions of designated open forum and limited public
forum, means a youth or community group that is not affiliated with the
school.
Secondary school means a secondary school as defined by section
9101(38) of the Elementary and Secondary Education Act of 1965, as
amended by section 901 of the No Child Left Behind Act of 2001, Public
Law 107-110, 115 Stat. 1425, 1965 (20 U.S.C. 7801).
State educational agency means a State educational agency as
defined by section 9101(41) of the Elementary and Secondary Education
Act of 1965, as amended by section 901 of the No Child Left Behind Act
of 2001, Public Law 107-110, 115 Stat. 1425, 1965 (20 U.S.C. 7801).
Title 36 of the United States Code (as a patriotic society) means
title 36 (Patriotic and National Observances, Ceremonies, and
Organizations), Subtitle II (Patriotic and National Organizations).
To sponsor any group officially affiliated with the Boy Scouts of
America means to possess a community organization charter issued by the
Boy Scouts of America.
To sponsor any group officially affiliated with any other youth
group listed in title 36 of the United States Code (as a patriotic
society) means choosing to take whatever actions are required by that
title 36 group to become a sponsor of that group.
Youth group means any group or organization intended to serve young
people under the age of 21.
(b) The following terms defined in 34 CFR 100.13 apply to this
part.
Department
Facility
(Authority: 20 U.S.C. 7905)
[[Page 61562]]
Sec. 108.4 Effect of State or local law.
The obligation to comply with the Boy Scouts Act and this part is
not obviated or alleviated by any State or local law or other
requirement.
(Authority: 20 U.S.C. 7905)
Sec. 108.5 Compliance obligations.
The obligation of public elementary schools, public secondary
schools, local educational agencies, and State educational agencies to
comply with the Boy Scouts Act is not limited by the nature or extent
of their authority to make decisions about the use of school
facilities.
(Authority: 20 U.S.C. 7905)
Sec. 108.6 Equal access.
No covered entity shall deny equal access or a fair opportunity to
meet to, or discriminate against, any group officially affiliated with
the Boy Scouts of America or any other youth group listed in title 36
of the United States Code (as a patriotic society) that wishes to
conduct a meeting within that covered entity's designated open forum or
limited public forum. No covered entity shall deny that access or
opportunity or discriminate for reasons including the membership or
leadership criteria or oath of allegiance to God and country of the Boy
Scouts of America or of the youth group listed in title 36 of the
United States Code (as a patriotic society). Activities covered
include, but are not necessarily limited to, the following:
(a) Meetings. Any group officially affiliated with the Boy Scouts
of America or any other youth group listed in title 36 of the United
States Code (as a patriotic society) must be given access to school
premises and school facilities to conduct meetings on terms that are no
less favorable than the most favorable terms provided to one or more
outside youth or community groups.
(b) Means of communication. Any group officially affiliated with
the Boy Scouts of America or any other youth group listed in title 36
of the United States Code (as a patriotic society) must be allowed to
use school-related means of communication on terms that are no less
favorable than the most favorable terms provided to one or more outside
youth or community groups. These means of communication include, but
are not limited to, bulletin board notices and literature distribution.
(c) Recruitment. Any group officially affiliated with the Boy
Scouts of America or any other youth group listed in title 36 of the
United States Code (as a patriotic society) must be allowed access to
students, and student information, for recruitment purposes on terms
that are no less favorable than the most favorable terms provided to
one or more outside youth or community groups.
(d) Fees. Any group officially affiliated with the Boy Scouts of
America or any other youth group listed in title 36 of the United
States Code (as a patriotic society) may be charged fees in connection
with conducting meetings on school premises or in school facilities,
using school-related means of communication, or conducting recruitment
activities, but only if the fees are charged on terms that are no less
favorable than the most favorable terms provided to one or more outside
youth or community groups.
(Authority: 20 U.S.C. 7905)
Sec. 108.7 Voluntary sponsorship.
Nothing in this part shall be construed to require any school,
agency, or a school served by an agency to sponsor any group officially
affiliated with the Boy Scouts of America or any other youth group
listed in title 36 of the United States Code (as a patriotic society).
(Authority: 20 U.S.C. 7905)
Sec. 108.8 Compliance procedures.
The procedural provisions applicable to title VI of the Civil
Rights Act of 1964 apply to this part. Those procedures are found in 34
CFR 100.4, 100.6 through 100.11, 100.13(a) through (f), and (h) through
(k), and 34 CFR part 101.
(Authority: 20 U.S.C. 7905)
[FR Doc. 04-23290 Filed 10-18-04; 8:45 am]
BILLING CODE 4000-01-P