FR Doc E6-17858
[Federal Register: October 25, 2006 (Volume 71, Number 206)]
[Rules and Regulations]
[Page 62529-62543]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25oc06-7]
[[Page 62529]]
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Part III
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; Final Rule
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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: Final regulations.
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SUMMARY: The Secretary amends the regulations implementing Title IX of
the Education Amendments of 1972 (Title IX), which prohibits sex
discrimination in federally assisted education programs and activities.
These amendments clarify and modify Title IX regulatory requirements
pertaining to the provision of single-sex schools, classes,\1\ and
extracurricular activities in elementary and secondary schools. The
amendments expand flexibility for recipients to provide single-sex
education, and they explain how single-sex education may be provided
consistent with the requirements of Title IX.
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\1\ The requirements for classes and extracurricular activities
are the same. For the sake of simplicity, we generally use the term
``class'' in the preamble analysis of comments and changes. A noted
exception is our discussion of comments from the public regarding
extracurricular activities specifically.
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DATES: These regulations are effective November 24, 2006.
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
(202) 245-6800 or 1-800-421-3481.
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: Title IX prohibits discrimination on the
basis of sex in education programs and activities that receive Federal
financial assistance.\2\ The Department's Title IX regulations
implement Title IX's nondiscrimination requirements in education
programs and activities assisted by the Department.\3\ These amendments
to the regulations establish new standards that OCR will use in
determining \4\ whether recipients that choose to operate single-sex
elementary and secondary classes, extracurricular activities, and
schools \5\ are doing so consistent with their Title IX obligations not
to discriminate on the basis of sex for the purposes of receiving
financial assistance from the Department.
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\2\ 20 U.S.C. 1681(a).
\3\ 34 CFR part 106.
\4\ OCR would make these determinations in resolving any
complaints or compliance reviews related to these issues. See 34 CFR
100.7, made applicable to the Title IX regulations by Sec. 106.71.
\5\ These regulations do not require single-sex classes,
extracurricular activities, or schools.
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On March 9, 2004, the Secretary published a notice of proposed
rulemaking (NPRM) for this part in the Federal Register (69 FR 11276).
We explained that these amendments to the regulations are intended to
provide recipients with additional flexibility in providing single-sex
classes, extracurricular activities, and schools in elementary and
secondary education. At the same time, these amendments ensure for
students that single-sex classes, extracurricular activities, and
schools are provided in a nondiscriminatory manner. In the preamble to
the proposed regulations, on pages 11276 through 11282, we discussed
the major changes needed to accomplish these objectives.\6\ These
changes included the following:
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\6\ The NPRM also discussed minor and technical changes
including:
Amending Sec. 106.34(a) to delete obsolete timeframes;
to move the general prohibition against providing education programs
or activities separately on the basis of sex or refusing or
requiring participation in education programs or activities on the
basis of sex from an undesignated part of the former Sec. 106.34
published in 1980 to Sec. 106.34(a); and, because the proposed
amendments provided for an exception that would permit single-sex
classes in nonvocational elementary and secondary schools of any
type, except for vocational education classes or vocational
extracurricular activities, to delete from Sec. 106.34 the
introductory listing of specific types of classes to which the
general prohibition applies.
Amending Sec. 106.34(a) to move the exceptions to the
general prohibition, relating to physical education, sex education,
and chorus, to Sec. 106.34(a)(1) and (2), (a)(3) and (a)(4),
respectively, and to expand the exception for sex education, Sec.
106.34(a)(3), to include classes in elementary and secondary
education that deal ``primarily'' with human sexuality, rather than
only those that deal ``exclusively'' with human sexuality.
Amending Sec. 106.35 to clarify that the prohibitions
against sex discrimination in admissions to vocational education
schools apply to all recipients, public and private, and to move the
requirements, including the substantive amendments, related to
nonvocational schools operated by local educational agencies (LEAs)
to Sec. 106.34(c).
Adding a new Sec. 106.43 and moving to it, from Sec.
106.34(d) of the former regulations, the provision regarding
standards for measuring skill or progress in physical education.
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Amending Sec. 106.34(b) to add a new exception to the
general prohibition against single-sex classes and extracurricular
activities. The exception applies to nonvocational classes and
extracurricular activities in elementary and secondary coeducational
schools that are not vocational schools.\7\ Under this exception a
recipient would be permitted to offer a single-sex class or
extracurricular activity if (1) the purpose of the class or
extracurricular activity is achievement of an important governmental or
educational objective, and (2) the single-sex nature of the class or
extracurricular activity is substantially related to achievement of
that objective. (Proposed Sec. 106.34(b)(1)(i)). The two important
objectives described in the proposed regulations were to provide a
diversity of educational options to parents and students and to meet
the particular, identified educational needs of students. (Proposed
Sec. 106.34(b)(1)(i)). The proposed amendments also described, for
those recipients that choose to provide single-sex classes or
extracurricular activities under this new exception, requirements
necessary to ensure nondiscrimination. Under these requirements, as
described in the proposed regulations, the recipient must treat male
and female students in an evenhanded manner in implementing its
objective, and it must always provide a substantially equal
coeducational class or extracurricular activity in the same subject or
activity. (Proposed Sec. 106.34(b)(1)(ii), (iii)). The proposed
amendments provided that, in addition to the required substantially
equal coeducational class or extracurricular activity in the same
subject or activity, a substantially equal single-sex class or
extracurricular activity for students of the other sex may be required
to ensure nondiscriminatory implementation. (Proposed Sec.
106.34(b)(2)). The proposed amendment provided a non-exhaustive list of
factors that the Department will
[[Page 62531]]
consider in determining whether classes or extracurricular activities
are substantially equal (Proposed Sec. 106.34(b)(3)), and required the
recipient to conduct periodic evaluations to ensure nondiscrimination
(Proposed Sec. 106.34(b)(4)). The proposed regulations defined
``classes'' to include all education activities provided for students
by a school or sponsored by a school, and it was intended to include
extracurricular activities.\8\ (Proposed Sec. 106.34(b)(5)).
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\7\ As explained in the preamble to the proposed regulations,
the requirements for classes and extracurricular activities apply to
recipients that operate public and private nonvocational
coeducational schools. Private elementary and secondary schools are
subject to the 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 of 1965, as amended, 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. These private schools are not subject to
these amended regulations, but the LEA must ensure that its
programs, including services to private school students, are
consistent with Title IX.
\8\ 69 FR 11276, footnote 1.
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Amending Sec. 106.34(c) to include from former Sec.
106.35, with substantive changes, the nondiscrimination requirements
applicable to the operation of nonvocational single-sex public
schools.\9\ The proposed amendment provided generally that a recipient
that operates a public nonvocational elementary or secondary school may
operate a single-sex school only if it provides substantially equal
opportunities for students of the other sex in another school and that
the other school may be either single-sex or coeducational. (Proposed
Sec. 106.34(c)(1)). As explained in the preamble to the proposed
regulations, this represents a change in interpretation of Title IX.
Under the prior interpretation, if a recipient operated a single-sex
public school for students of one sex, we required it to offer a
comparable single-sex school for students of the other sex.
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\9\ As explained in the preamble to the proposed regulations,
the requirements pertaining to the provision of single-sex schools
do not apply to recipients that operate private, nonvocational
elementary or secondary schools.
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The proposed amendments also exempted nonvocational public charter
schools that are single-school LEAs from the requirement to provide a
substantially equal school for students of the other sex. (Proposed
Sec. 106.34(c)(2)). In addition, the proposed amendments provided a
non-exhaustive list of factors the Department would use in determining
whether the schools are substantially equal and provided that the
Department will use an aggregate approach in making this determination.
(Proposed Sec. 106.34(c)(3)).
Significant Changes Between the Proposed Regulations and the Final
Regulations
Clarification that Sec. 106.34(b)(1) through (5) applies
to extracurricular activities, as well as to classes: We have added the
term ``extracurricular activities'' throughout Sec. 106.34(b)(1)
through (5) to clarify that these provisions apply to both classes and
extracurricular activities. As described later in this section, we are
also clarifying the scope of coverage of paragraph (b)(1) through (4)
of Sec. 106.34.
Clarification that a recipient's objective must be
``important'': Section 106.34(b)(1) of the proposed regulations
specified, in paragraph (i), that each single-sex class or
extracurricular activity must be based on the ``recipient's
objective.'' Recipients that are public entities must have an important
governmental objective and recipients that are private entities must
have an important educational objective. We have clarified this
provision in the final regulations by adding the word ``important'' to
describe the recipient's objective.
Revisions of ``diversity of educational options''
objective: The proposed regulations stated that a ``diversity of
educational options to parents and students'' was an important
objective that may serve as a basis for providing single-sex classes.
(Proposed Sec. 106.34(b)(1)(i)(A)). We have revised the regulatory
language to clarify that this objective is ``to improve educational
achievement of its students, through a recipient's overall established
policy, to provide diverse educational opportunities, provided that the
single-sex nature of the class or extracurricular activity is
substantially related to achieving that objective.''
Clarification that participation in single-sex classes and
extracurricular activities must be completely voluntary: The proposed
regulations in Sec. 106.34(b)(1)(ii) referenced the requirements of
Sec. 106.34(a) to ensure together with the requirement to provide a
coeducational class, that recipients did not assign students
involuntarily to single-sex classes. New paragraph (iii) of Sec.
106.34(b)(1) provides that student enrollment in single-sex classes and
extracurricular activities must be completely voluntary.
To accommodate the addition of this new paragraph, we have
renumbered the other paragraphs in this section. The requirement for
evenhanded treatment of male and female students is now in Sec.
106.34(b)(1)(ii), the requirement that participation in single-sex
classes and extracurricular activities must be completely voluntary is
in Sec. 106.34(b)(1)(iii), and the requirement to provide a
substantially equal coeducational class or extracurricular activity is
in Sec. 106.34(b)(1)(iv). We also have removed the reference to
paragraph (a) in this paragraph because it is no longer needed.
Clarification of aggregate approach regarding the
assessment of substantial equality of classes in Sec. 106.34(b)(3) and
schools in Sec. 106.34(c)(3): We have clarified the description of the
Department's use of an aggregate approach for considering factors in
assessments of substantial equality by deleting Sec. 106.34(c)(ii) of
the proposed regulations, which was misunderstood by commenters, and by
adding the clarifying language, ``either individually or in the
aggregate as appropriate,'' to Sec. 106.34(b)(3), regarding factors
the Department will consider in the assessment of substantial equality
of classes, and to Sec. 106.34(c)(3), regarding factors the Department
will consider in the assessment of substantial equality of schools, in
the final regulations.
Addition of ``intangible features'' to factors in Sec.
106.34(b)(3) and (c)(3); addition of ``geographic accessibility''
factor in Sec. 106.34(b)(3): The proposed regulations provided non-
exhaustive lists of factors in Sec. 106.34(b)(3) and (c)(3) that the
Department will consider in comparing classes or extracurricular
activities and schools, respectively, for the purposes of determining
compliance. We have added ``intangible features'' and ``reputation of
faculty'' as an example of an intangible feature to both lists of
factors in the final regulations. We also have added ``geographic
accessibility'' as a factor in Sec. 106.34(b)(3) because it may be
relevant in certain circumstances in compliance determinations.
Modification of provisions on periodic evaluations: The
proposed regulations in Sec. 106.34(b)(4) required that recipients
conduct periodic evaluations of single-sex classes to ensure, among
other things, that the classes and activities are based on genuine
justifications and do not rely on overly broad generalizations about
the different talents or capacities of either sex. Title IX also does
not permit single-sex classes or extracurricular activities to rely on
overly broad generalizations about the preferences of either sex.
Therefore, we added the word ``preferences'' to Sec. 106.34(b)(4). We
also have added the term ``important'' to clarify that the evaluation
must ensure that the single-sex class or extracurricular activity is
substantially related to the recipient's important objective.
Clarification addressing the frequency of the procedural
requirement for periodic evaluations: In the preamble to the proposed
regulations, we requested comments regarding how often recipients
should conduct the periodic evaluations required by Sec. 106.34(b)(4).
The proposed regulations were silent on this issue. The final
regulations add a new paragraph (ii) to Sec. 106.34(b)(4) that
specifies that evaluations for the purposes of
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Sec. 106.34(b)(4)(i) must be conducted at least every two years.
Scope of coverage of Sec. 106.34(b)(1) through (4): The
proposed regulations in Sec. 106.34(b)(5) defined ``class'' for the
purposes of Sec. 106.34(b)(1) through (4), and that definition was
intended to cover academic classes and extracurricular activities. We
have determined that rather than define ``class,'' it is clearer and
more useful to include a provision on the scope of coverage of
paragraph (b)(1) through (4) of Sec. 106.34. We have revised Sec.
106.34(b)(5) to provide that paragraph (b)(1) through (4) applies to
classes and extracurricular activities provided by a recipient directly
or through another entity, and to clarify that paragraph (b)(1) through
(4) does not apply to interscholastic, club, or intramural athletics,
which are subject to the requirements of Sec. Sec. 106.41 and
106.37(c).
Definition of ``school'' and ``school within a school'':
The proposed regulations in Sec. 106.34(c)(1) referred to a single-sex
education unit. For the purposes of this paragraph, we consider an
``education unit'' to mean a ``school within a school'' and that term
to mean a school that is housed within another school. We believe that
the term ``school within a school'' and this explanation are clearer,
more accurate, and more useful to recipients than the term ``education
unit.'' For this reason we have added a new paragraph (4) to Sec.
106.34(c) that defines the term ``school'' for the purposes of
paragraph (c)(1) through (3) to include a ``school within a school''
and explains that the latter term means ``an administratively separate
school located within another school.'' We have deleted the term
``single-sex education unit'' from Sec. 106.34(c)(1) because it is no
longer necessary in light of the new definition.
Analysis of Comments and Changes
In response to the Secretary's invitation in the preamble to the
proposed regulations, we received approximately 5,860 comments on the
proposed regulations. An analysis of the comments and of the changes in
the regulations since publication of the proposed regulations follows.
We group major issues according to subject under the appropriate
sections of the final regulations. Generally, we do not address
technical or minor changes and suggested changes that the law does not
authorize the Secretary to make.
Section 106.34. Access to Classes and Schools
1. Research
Comments: Some commenters recommended that the Department postpone
amendment of the regulations. Among the comments were recommendations
that we wait until pilot projects were conducted, until completion of a
Department-commissioned study on single-sex schools, or until the
completion of additional scientific research that concludes that
single-sex education is beneficial to students.
Discussion: Title IX has always permitted single-sex schools under
conditions that ensure nondiscrimination. Existing educational research
suggests that single-sex education may provide benefits to some
students under certain circumstances. For an overview of the literature
assessing single-sex schools, see Single Sex Versus Coeducational
Schooling: A Systematic Review, U.S. Department of Education, Office of
Planning, Evaluation and Policy Development, 2005, available on the
Department's Web site. Although there is a debate among educators on
the effectiveness of single-sex education, the final regulations permit
each recipient to make an individualized decision about whether single-
sex educational opportunities will achieve the recipient's important
objective and whether the single-sex nature of those opportunities is
substantially related to achievement of that important objective
consistent with the nondiscrimination requirements of these
regulations.
Changes: None.
2. Legal Standards for Single-Sex Classes (Sec. 106.34(b))
Comments: Some commenters objected to amending the regulations to
permit additional flexibility to provide single-sex education because
they were concerned that sex discrimination may result. Some commenters
were particularly concerned about sex discrimination resulting from
single-sex classes, given that the former regulations had restricted
single-sex classes to very limited circumstances. Some commenters
expressed the view that single-sex public education is generally
illegal, analogizing it to race-segregated public education, which is
unconstitutional. Some commenters expressed the view that the
amendments were inconsistent with standards pertaining to sex
discrimination under the Equal Protection Clause of the 14th Amendment
to the U.S. Constitution (Equal Protection Clause) and that recipients
who implemented programs consistent with these regulations might be
subject to litigation. Some commenters recommended that the final
regulations provide notice about constitutional requirements.
Discussion: The Title IX statute requires equal educational
opportunity regardless of sex, and both Title IX and the regulations
\10\ have always permitted single-sex nonvocational elementary and
secondary schools.\11\ With respect to schools, Congress both required
that recipients that operate public schools conduct their education
program or activity in a manner that does not discriminate on the basis
of sex and permitted these recipients to operate single-sex schools
within their school districts consistent with the nondiscrimination
requirements. In issuing the original Title IX regulations, the former
Department of Health, Education, and Welfare chose to require generally
that classes be coeducational to ensure nondiscrimination. 45 CFR 86.34
(1975). Given that Congress intended for school districts to be
operated in a manner that both prohibits sex discrimination and permits
the operation of single-sex schools under conditions that ensure
nondiscrimination, we believe that it is consistent with the intent of
Congress to permit recipients additional flexibility to offer single-
sex classes as long as they are offered under conditions that ensure
nondiscrimination. These regulations permit recipients to continue to
operate solely coeducational classes and provide the requirements that
will ensure that, if recipients choose to provide single-sex classes,
they will do so in a nondiscriminatory manner.
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\10\ Comments pertaining solely to the legal standards
applicable to schools are discussed in subsequent paragraphs in
connection with Sec. 106.34(c)(1) through (4), which provides
requirements for single-sex schools.
\11\ 20 U.S.C. 1681(a)(1); Sec. 106.15(d) and former Sec.
106.35 published in 1980. Title IX also includes exemptions for
voluntary youth organizations (e.g., Boy Scouts and Girl Scouts),
Boys' and Girls' Nation or State conferences, and father-son and
mother-daughter activities. 20 U.S.C. 1681(a)(6)(B), (7), and (8).
The Title IX regulations historically have permitted sex-separate
athletic teams if selection is based on competitive skill or the
activity involved is a contact sport (Sec. 106.41(b)) and sex-
separate physical education activities involving a contact sport
(former Sec. 106.34(c) or Sec. 106.34(a)(1) in these final
regulations). The Title IX regulations also historically have
permitted sex separation in classes on human sexuality (former Sec.
106.34(e) or Sec. 106.34(a)(3) in these final regulations) and for
pregnant students, on a voluntary basis (Sec. 106.40(b)(1) and
(3)).
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Although the Supreme Court has ruled race-segregated public
education per se unconstitutional,\12\ the Court has
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not struck down the legality of single-sex public elementary or
secondary education \13\ under either Title IX or the Constitution.\14\
In analyzing whether sex-separate admissions policies in public
postsecondary undergraduate institutions were consistent with the
standards of the Equal Protection Clause, the Supreme Court has
indicated that to justify a sex-based classification the public entity
must demonstrate that it is based on an important governmental
objective and that exclusion of students of the other sex is
substantially related to achievement of that objective.\15\ The Supreme
Court has ruled that the ``justification must be genuine, not
hypothesized or invented post hoc in response to litigation'' and that
``it must not rely on overbroad generalizations about the different
talents, capacities, or preferences of males and females.'' \16\
Subsequent paragraphs describe how the Title IX regulations also
prohibit treatment based on overly broad sex-based generalizations.
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\12\ Brown v. Board of Education, 347 U.S. 483 (1954).
\13\ There are no Supreme Court opinions on the issue of single-
sex public elementary and secondary education. In 1977, the Court,
by an evenly divided vote and without an opinion, let stand a
decision allowing, under the Equal Protection Clause, a school
district that also operated coeducational high schools to operate
two comparable single-sex high schools, one for girls and one for
boys. Vorchheimer v. School District of Philadelphia, 532 F.2d 880
(3rd Cir. 1976), affirmed by an equally divided Court, 430 U.S. 703
(1977) (per curiam). More recently, the Court determined in a case
involving the Virginia Military Institute that, by denying females
the educational opportunities provided to males in a single all-male
postsecondary school, the State had denied equal protection to
females. United States v. Virginia, 518 U.S. 515 (1996).
\14\ The Court uses different standards to evaluate
classifications based on race, as compared to sex, to determine if
they are consistent with the U.S. Constitution. Racial
classifications are analyzed under the standard of strict scrutiny,
whereas sex-based classifications are analyzed under the standard of
intermediate scrutiny. Grutter v. Bollinger, 539 U.S. 306, 326-327
(2003); Virginia, 518 U.S. at 532-533.
\15\ Virginia, 518 U.S. at 533, quoting Mississippi University
for Women v. Hogan, 458 U.S. 718, 724 (1982).
\16\ Virginia, 518 U.S. at 533.
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With respect to the comments about consistency of these regulations
with Equal Protection Clause standards, the Department enforces its
Title IX regulations, which prohibit discrimination on the basis of sex
in education programs and activities by public and private recipients
of Federal assistance. The Equal Protection Clause prohibits sex
discrimination by public actors, such as public school districts. If
possible, the regulatory provisions of Title IX are informed by
constitutional principles, but because the scope of the Title IX
statute differs from the scope of the Equal Protection Clause,\17\
these regulations do not regulate or implement constitutional
requirements or constitute advice about the U.S. Constitution. Rather,
they implement Title IX by establishing the nondiscrimination
requirements that the Department will enforce with respect to
recipients that choose to provide single-sex education. These
regulations do not require that recipients implement single-sex
education. Recipients may wish to consult legal counsel regarding how
the Equal Protection Clause or other applicable legal authorities
prohibiting sex discrimination \18\ may affect any particular single-
sex school or class they propose to offer.
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\17\ For example, as explained in the Department's ``Guidelines
on current title IX requirements related to single-sex classes and
schools,'' although recipients that operate public schools are
subject to constitutional requirements pertaining to their
justification for establishing single-sex schools, because the Title
IX statute does not cover admissions to nonvocational elementary and
secondary schools, the Department is generally precluded from
examining the recipient's justification. 67 FR 31101, 31103 (May 8,
2002).
\18\ Recipients that are public entities, such as public school
districts, are subject to the sex discrimination prohibitions of the
Equal Protection Clause. Public elementary and secondary schools are
also subject to the requirements of the Equal Educational
Opportunities Act of 1974, 20 U.S.C. 1701-1721 (EEOA), which, among
other things, contains prohibitions against the involuntary
assignment of students to sex-separate schools on the basis of sex.
20 U.S.C. 1703(c), 1705, and 1720(c). Recipients also are subject to
private litigation under Title IX for intentional discrimination on
the basis of sex. Public school and private school recipients also
may be subject to State or local laws prohibiting single-sex classes
or schools.
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Changes: None.
3. Procedural Safeguards
Comments: Some commenters recommended additional requirements, such
as pre-approval of single-sex classes or schools by the Department,
specific data maintenance requirements in the regulations, reporting
requirements to the Department, and routine review or monitoring by the
Department to ensure nondiscrimination.
Discussion: We believe that these regulations and our current
enforcement requirements and procedures are sufficient to ensure
compliance. These regulations recognize that recipients that implement
single-sex education will have differing objectives addressing
differing student populations and that requiring a particular data set
in the regulations could be both over-inclusive and under-inclusive.
The Department has authority to access recipient records and other
sources of information to determine compliance.\19\ Recipients have an
ongoing responsibility to maintain compliance with Title IX and these
regulations.\20\ Additionally, the amended regulations require a
recipient to periodically conduct self-evaluations. If students and
their parents believe there has been a violation of these regulations,
they may file a complaint alleging discrimination under the recipient's
grievance procedures.\21\ Students, parents, and third parties may also
file complaints with the Department's Office for Civil Rights (OCR) if
they believe discrimination in violation of these regulations has
occurred. See, e.g., 34 CFR 100.7(b), (c), and (d), which are
incorporated by reference in 34 CFR 106.71. In addition, OCR has
authority to conduct periodic compliance reviews of recipients to
ensure compliance.\22\ If OCR finds that a recipient has failed to
comply with the Title IX regulations, OCR will negotiate with the
recipient to secure compliance by voluntary means, and will take action
to enforce \23\ if voluntary compliance cannot be achieved.
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\19\ Section 106.71, incorporating by reference 34 CFR 100.6(c).
\20\ Section 106.4.
\21\ Section 106.8(b).
\22\ Section 106.71, incorporating 34 CFR 100.7.
\23\ Enforcement options include commencement of proceedings to
terminate Federal funds administratively or referral to the
Department of Justice for judicial enforcement. 20 U.S.C. 1682.
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Changes: None.
4. Effect on Other Issues
Comments: Some commenters expressed concern that additional
flexibility for single-sex education might result in a reversion to
sex-based stereotypes or roles. Some commenters indicated concern that
single-sex education may have negative effects on socialization of
children. Another commenter was concerned that recipients might not be
aware that the amendments do not affect Federal law that prohibits
recipient employers from making job assignments on the basis of sex.
Discussion: With respect to commenters who expressed concern that
increased flexibility to provide single-sex education might result in a
reversion to sex-based stereotypes or roles, the regulations establish
substantive and procedural requirements to ensure nondiscrimination.
The regulations make it clear that a recipient's failure to have a
justification, i.e., an important objective and a substantial
relationship between the important objective and the sex-based means to
further that objective, that is genuine would be sex discrimination.
Thus, the regulations also make it clear that a recipient's use of
overly broad sex-based
[[Page 62534]]
generalizations in connection with offering single-sex education would
be sex discrimination. With respect to commenters who were concerned
about the effect of single-sex education on the socialization of
students, we reiterate that these regulations do not require single-sex
education. Rather, they permit a recipient that has determined that
single-sex education may be beneficial for some portion of its student
population to offer single-sex education consistent with the
requirements in these regulations.
These regulations do not change the prohibitions on sex
discrimination in employment, or any other area not specifically
addressed in these amendments, in the Title IX regulations. Among other
things, the Title IX regulations prohibit recipients from making job
assignments on the basis of sex, Sec. 106.51(b)(4), and from
classifying jobs as being for males or females, Sec. 106.55(a). Both
of these provisions would prohibit schools from assigning teachers to
single-sex classes based on their sex.
Changes: None.
5. Important Objective (Sec. 106.34(b)(1)(i))
Comments: Some commenters objected to the description, in the
preamble to the proposed regulations, of the recipient's objective for
establishing a single-sex class as being an important ``educational''
objective because they perceived that the educational objective
requirement imposed a lesser standard than the important
``governmental'' objective requirement.
Discussion: The same Title IX nondiscrimination standards apply to
classes, whether public or private recipients operate them. We used two
terms, ``important educational objective'' and ``important governmental
objective,'' in recognition of the fact that the regulatory provisions
on single-sex classes apply to both private and public recipients.
Recipients that are public actors, such as school districts, must have
an important governmental objective to use any sex-based classification
for the purposes of the Equal Protection Clause. Accordingly, for
public recipients the same important governmental objective that would
satisfy the requirements of the Equal Protection Clause will satisfy
this portion of the regulations for the purposes of Title IX. Private
recipients are not subject to the Equal Protection Clause because they
are not governmental agencies. Thus, it is not appropriate to describe
the objective for private recipients as an important ``governmental''
objective. However, with respect to single-sex classes, unlike single-
sex schools, the same demanding standards apply under Title IX for both
public and private recipients. Thus, the regulations impose a Title IX
requirement on private recipients that is analogous to the requirement
for public recipients that they base any single-sex class on an
``important governmental objective.'' The analogous requirement for
private recipients is that they must base any single-sex class on an
``important educational objective.'' In addition, because some
commenters perceived that the reference to an important ``educational''
objective was a lesser standard than important ``governmental''
objective, we have added the term ``important'' to modify the term
``objective'' in the regulatory language in Sec. 106.34(b)(1)(i).
Changes: The term ``important'' has been added to modify the term
``objective'' in Sec. 106.34(b)(1)(i).
6. Diversity Objective (Sec. 106.34(b)(1)(i)(A))
Comments: Some commenters objected to the diversity of educational
options rationale for single-sex classes. Some of these commenters
expressed the view that providing diverse educational options was not
an important governmental interest for the purposes of the
constitutional test for sex-based classifications. Some commenters
stated that there is not an important governmental interest in a sex-
based educational option as a diverse option without a requirement that
the recipient demonstrate that the single-sex option advances
educational goals, because otherwise the single-sex nature of the class
would always be justified as substantially related to achievement of
the objective, which is circular.
Some commenters argued that implementation of diversity of
educational options was an impermissible justification for single-sex
classes because it might permit classes to be based on sex-based
stereotypes or overly broad generalizations about the different
talents, capacities, or preferences of either sex.
Discussion: The Department continues to believe that, for the
purposes of justifying a single-sex class under Title IX, a recipient
can have an important governmental or educational objective
evenhandedly to provide the opportunity to choose among diverse
educational opportunities, provided that the single-sex nature of the
class is substantially related to achieving that important objective.
Although the Supreme Court has not decided the specific issue of
whether this objective is an important governmental or educational
objective for the purposes of justifying a sex-based classification
under either Title IX or the Equal Protection Clause, the Court has
suggested it would uphold the evenhanded provision of single-sex public
educational opportunities, among a diversity of educational
opportunities.\24\
---------------------------------------------------------------------------
\24\ In considering admissions policies at the postsecondary
level, the Court stated that ``we do not question the State's
prerogative evenhandedly to support diverse educational
opportunities.'' Virginia, 518 U.S. at 534, n.7. Responding to the
Virginia Military Institute's defense that its male-only admissions
policy was established and maintained to further a State policy of
diversity, the court recognized that the reality that ``single-sex
education affords pedagogical benefits to at least some students''
was uncontested in the litigation and that ``it is not disputed that
diversity among public educational institutions can serve the public
good.'' 518 U.S. at 535. See also Virginia, 518 U.S. at 564 (Chief
Justice Rehnquist, concurring.)
---------------------------------------------------------------------------
Given that Title IX encompasses broad nondiscrimination
requirements, with narrow statutory exceptions,\25\ our intent is to
establish regulatory exceptions for single-sex classes consistent with
the statutory approach. We have clarified that a recipient's evenhanded
provision of single-sex classes for the purpose of improving
educational achievement of its students, through a recipient's overall
established policy to provide diverse educational opportunities
consistent with the requirements of these regulations meets the
nondiscrimination requirements of Title IX.
---------------------------------------------------------------------------
\25\ Jackson v. Birmingham Board of Education, 544 U.S. 167, 175
(2005).
---------------------------------------------------------------------------
In this regard, subject to the requirements of these regulations,
some recipients might determine that the diversity of educational
opportunities they provide to students would appropriately include
providing single-sex opportunities in addition to coeducational
opportunities.\26\ The regulations also require that the single-sex
nature of any class offered pursuant to this objective must be
substantially related to achievement of the objective.\27\
---------------------------------------------------------------------------
\26\ For example, a recipient may seek to achieve an educational
benefit for its students such as improvement in class work.
\27\ For example, a recipient may have evidence that some boys
and girls show educational improvement in single-sex classes during
their adolescent years.
---------------------------------------------------------------------------
The purpose of providing diverse educational opportunities is to
engage parents in the education of their children and students in their
own education with the goal of improving student outcomes. This will
provide parents the opportunity to choose single-sex classes as well as
other diverse opportunities because they
[[Page 62535]]
believe that these classes will help their children. In support of this
objective and to further bolster the connection between the diversity
justification and the legitimate interest in providing diverse
educational opportunities, the final regulations clarify that the
provision of single-sex classes must be pursuant to a recipient's
established policy of offering diverse educational opportunities. This
means that the range of choices offered to students and parents is not
limited to single-sex schools and classes and coeducational schools and
classes. A school or school district may not simply establish a single-
sex class and declare that the class by definition promotes diversity
and is therefore consistent with these regulations. This ensures that a
single-sex class in fact must be related to the important objective of
improving educational achievement of its students, through a
recipient's overall established policy to provide diverse educational
opportunities.
At the school district level examples of diverse educational
opportunities that a recipient might offer as part of an overall
established policy include charter schools, magnet schools,
coeducational schools, single-sex schools, coeducational schools that
offer both coeducational and single-sex classes, or other forms of
public school opportunities. At the school level, this policy may
include a range of elective classes or the opportunity to take classes
at other schools.
A recipient's justification, i.e., an important objective and a
substantial relationship between the important objective and the sex-
based means to further the objective, must be genuine. Thus, recipients
are prohibited from determining which classes to offer on a single-sex
basis or providing single-sex classes on the basis of overly broad
generalizations about the different talents, capacities, or preferences
of either sex. However, to the extent that a recipient offers single-
sex classes, consistent with the requirements of these regulations,
among its diverse educational opportunities, these regulations
recognize that a parent or guardian may make an individualized decision
to select from those opportunities regarding enrollment of his or her
child.
Changes: We have revised Sec. 106.34(b)(1)(i)(A) to clarify that
single-sex classes offered under this objective are offered to improve
educational achievement of its students, through an overall established
policy of providing diverse educational opportunities.
7. Needs Objective (Sec. 106.34(b)(1)(i)(B))
Comments: Numerous commenters questioned, on a variety of grounds,
whether the amendments permitting single-sex classes to address
particular, identified educational needs met the requirements of Title
IX or met the test for sex-based classifications under the Equal
Protection Clause. Numerous commenters expressed concern that the
regulations did not require a recipient to articulate the educational
benefit that it would be trying to achieve pursuant to the particular,
identified educational needs objective or to produce evidence that the
class would achieve the benefit described in the objective. Numerous
commenters indicated that the proposed regulations did not require a
recipient to compile evidence that the single-sex nature of its class
is substantially related to the particular, identified educational need
or educational benefit the recipient seeks to provide. Several
commenters were concerned that recipients would establish single-sex
classes based on administrative convenience.
Commenters also objected to the implementation of the particular
educational need objective for single-sex classes because it might
permit classes to be based on sex-based stereotypes or overly broad
generalizations about the different talents, capacities, or preferences
of either sex.
Discussion: The Supreme Court has not decided the issue of whether
the particular, identified educational needs objective is an important
governmental or educational objective for the purposes of justifying a
sex-based classification under either Title IX or the Equal Protection
Clause. However, the Court has indicated in Equal Protection Clause
decisions that an array of ``important objectives'' can support sex-
based classifications, including ``to advance full development of the
talent and capacities of our Nation's people.'' \28\ We believe that a
recipient's evenhanded provision of single-sex classes to meet the
particular, identified educational needs of its students in order to
improve educational outcomes for its students is consistent with the
objective found by the Court of ``advance[ment of] full development of
the talent and capacities of our Nation's people.'' Thus, we continue
to believe that meeting the particular, identified educational need of
students is an important governmental or educational objective for
recipients for the purposes of Title IX, and that, if single-sex
classes are evenhandedly implemented pursuant to this objective and
consistent with the safeguards in these amended regulations, they will
meet the nondiscrimination requirements of Title IX.\29\
---------------------------------------------------------------------------
\28\ Virginia, 518 U.S. at 533 (internal quotations omitted;
citations omitted). See also Hogan, 458 U.S. at 728 (finding that in
limited circumstances, sex-based classifications can be justified.)
\29\ See Virginia, 518 U.S. at 534, n.7.
---------------------------------------------------------------------------
The regulations require a recipient to evenhandedly identify the
particular educational needs of students of both sexes. A student's
particular, identified educational need is evidenced by limited or
deficient educational achievement.\30\ After the needs of its students
have been evenhandedly identified, a recipient then evenhandedly
determines how to meet those needs. This determination must be made on
a nondiscriminatory basis and should include nondiscriminatory
consideration of whether a single-sex class would meet the particular
needs identified for its male and female students. Establishment of a
single-sex class requires a determination, based on an analysis of
evidence, that the single-sex nature of the class would be
substantially related to the achievement of a recipient's important
objective of meeting the particular, identified educational needs of
its students. Administrative convenience cannot justify sex-based
classifications under Title IX.\31\ As discussed previously regarding
single-sex classes, to provide the opportunity to choose among diverse
educational opportunities, under Title IX, a recipient's justification,
i.e., an important objective and a substantial relationship between the
important objective and the sex-based means used to further that
objective, must be genuine and cannot be based on overly broad
generalizations about the different talents, capacities, or preferences
of either sex.\32\
Changes: We have made a nonsubstantive revision to Sec.
106.34(b)(1)(i)(B) to change the term ``meeting those needs'' to
``achieving that objective'' in order to reflect the language used by
the Supreme Court in Virginia. Our previous language was intended to
convey this concept.
---------------------------------------------------------------------------
\30\ For example, limited educational achievement may be shown
when students are not taking higher level courses; deficient
educational achievement may be shown when students have remedial
needs.
\31\ See Wengler v. Druggists Mutual Insurance Company, 446 U.S.
142, 151-52 (1980)(citing cases); Frontiero v. Richardson, 411 U.S.
677, 689-90 (1973).
\32\ See Virginia, 518 U.S. at 533. See also Hogan, 458 U.S. at
726; Craig v. Boren, 429 U.S. 190, 198 (1976) (holding that sex
cannot be used as a proxy for other more germane bases of
classification.)
---------------------------------------------------------------------------
[[Page 62536]]
8. Social Needs (Sec. 106.34(b)(1)(i)(B))
Comments: Two commenters responded to OCR's invitation for comments
on whether there were additional important governmental or educational
objectives that could be the basis for single-sex classes that should
be incorporated into the final regulations. They proposed to add as an
important objective one that addresses social problems affecting
students, i.e., social needs. The types of social needs they mentioned
included pregnancy, discipline problems, drug or alcohol abuse,
delinquency, and criminal activity.
Discussion: We recognize that a recipient's educational mission may
legitimately extend beyond strictly academic objectives and outcomes,
that their classes may provide social benefits, in addition to academic
benefits, to students, and that positive social outcomes for students
can have a positive effect on their educational outcomes. Thus, it may
be consistent with a recipient's broad educational mission to provide
classes and extracurricular activities to meet the types of social
needs described by these commenters. We interpret the regulations
pertaining to a recipient's important objective to meet particular,
identified educational needs as already covering the types of social
needs described by these commenters. For example, under the educational
needs objective a school district that has high school students who are
pregnant or are parents may determine that it is important to help
students address a related particular, identified need, and may offer a
single-sex class \33\ to meet that need consistent with these
regulations as long as the single-sex nature of the class is
substantially related to the objective and the other requirements of
Sec. 106.34(b) are met. For this reason, it is unnecessary to change
the regulations pertaining to a recipient's important objective to add
a separate social needs objective.
---------------------------------------------------------------------------
\33\ Compare with Sec. 106.40(b)(1) and (3), regarding pregnant
students.
---------------------------------------------------------------------------
Changes: None.
9. Evenhanded Implementation (Sec. 106.34(b)(1)(ii))
Comments: In the preamble to the proposed regulations, we invited
specific comments on whether OCR needs more information on how to
assess if a recipient is implementing its objective in an evenhanded
manner. Commenters indicated that they found the evenhanded
implementation standard vague and subjective and found that it did not
provide sufficient guidance.
Discussion: Under Title IX, subject to the other requirements of
these regulations, evenhanded \34\ implementation of the recipient's
important objective means that a recipient that offers single-sex
classes in connection with achieving its important objective must
provide equal educational opportunity to students regardless of their
sex, with the end result that it must provide substantially equal
classes.\35\
---------------------------------------------------------------------------
\34\ In Virginia, 518 U.S. at 534, n.7, the Court noted that
briefs submitted by amici argued that ``diversity in educational
opportunities is an altogether appropriate governmental pursuit and
that single-sex schools can contribute importantly to such
diversity,'' and the Court stated: ``We do not question the
Commonwealth's prerogative evenhandedly to support diverse
educational opportunities.'' The Court indicated that its decision
addressed only the facts presented by the Virginia Military
Institute's program, a unique educational opportunity available only
at one public institution for students of one sex.
\35\ Virginia, 518 U.S. at 554 (Virginia failed to show
``substantial equality in the separate educational opportunities''
offered in the two institutions).
---------------------------------------------------------------------------
A recipient's important objective may be providing diverse
educational opportunities to students pursuant to Sec.
106.34(b)(1)(i)(A). That choice of diverse educational opportunities,
including the single-sex or coeducational class opportunity, must be
provided evenhandedly to male and female students. In this regard,
evenhanded implementation of single-sex opportunities requires an
evenhanded assessment of what to offer. This means that the recipient
must determine, in a manner that provides equal educational opportunity
to male and female students, which classes in which subjects should be
offered as a single-sex opportunity and to whom (i.e., does it have an
obligation to offer a particular single-sex class to students of both
sexes or is it permissible to offer it to students of one sex only; see
the discussion in subsequent paragraphs), and then offer those classes
evenhandedly to students. A recipient may collect pre-enrollment
information from its student and parent populations in an evenhanded
manner as part of its determination of the types of classes in which
students would enroll. In a school in which male and female students
sought to enroll in single-sex classes in the same subjects, the
recipient would be required to accommodate them evenhandedly, absent a
non-discriminatory reason, which would result in male and female
students being provided single-sex classes in the same subjects.
If a recipient's important objective is meeting the particular,
identified educational needs of students pursuant to Sec.
106.34(b)(1)(i)(B), evenhanded implementation requires the recipient's
unbiased assessment, based on evidence, of the educational needs of
students of both sexes within a particular setting. After the needs of
students have been identified, the recipient then determines how to
meet those needs on an evenhanded basis. The regulations permit a
recipient to consider in an evenhanded manner whether a single-sex
class would meet the particular, identified educational needs for male
or female students, or for students of both sexes, and whether the
single-sex nature of such a class would be substantially related to the
achievement of the objective of meeting the particular, identified
need.
For example, if a recipient has evidence that providing a single-
sex class in a particular subject would meet the particular, identified
educational needs of students of one sex and that the single-sex nature
of the class is substantially related to achievement of the objective,
(i.e., meeting the needs of students of that sex), subject to the other
requirements of these regulations, the recipient may offer that class
on a single-sex basis to students of that sex. If the recipient also
has evidence that providing a single-sex class in that same subject
would meet the particular, identified educational needs of students of
the other sex and that the single-sex nature of the class would be
substantially related to meeting those needs, then the requirement that
the recipient implement its objective evenhandedly would require that,
absent a non-discriminatory reason, it provide a single-sex class in
that subject to students of the other sex as well. On the other hand,
if a recipient has evidence that providing a single-sex class in that
subject would not meet the particular, identified needs of students of
the other sex or that the single-sex nature of the class would not be
substantially related to achievement of that objective, the recipient
is not required to provide a single-sex class to students of the other
sex, but would be required to offer a substantially equal coeducational
class in that subject. However, although a single-sex class would not
be required in that subject, evenhanded implementation of the
recipient's objective does require the recipient to determine, based on
its assessment of educational needs of students, whether a class in
another subject should be offered on a single-sex
[[Page 62537]]
basis to meet the particular, identified needs of students of the
excluded sex.
Changes: None.
10. Voluntary Participation (Sec. 106.34(b)(1)(iii))
Comments: Commenters recommended that we clarify the regulations to
require clearly that student participation in single-sex classes must
be voluntary. Some commenters were concerned, unless the regulations
were clear about this requirement, that in situations in which many
students of one sex voluntarily chose a single-sex class that a
recipient might, for administrative convenience, assign or attempt to
``steer'' students of the other sex to a single-sex class, even if they
wanted to enroll in a coeducational class. A commenter recommended that
the regulations be revised to require that recipients notify parents or
guardians of all their options, including the option of enrolling their
child in a single-sex class.
Discussion: The proposed regulations in Sec. 106.34(b)(1)(ii) were
intended to require recipients to offer single-sex classes only on a
completely voluntary basis, by requiring a recipient to provide a
coeducational class in the same subject, in conjunction with the
requirement in Sec. 106.34(a) that a recipient may not require
participation in classes on the basis of sex. We agree with commenters
that the proposed regulations may not have been as clear as we
intended, and we have revised the regulations to require clearly that
participation in single-sex classes must be completely voluntary.
Unless a recipient offers enrollment in a coeducational class in
the same subject, enrollment in a single-sex class is not voluntary. In
order to ensure that participation in any single-sex class is
completely voluntary, if a single-sex class is offered, the recipient
is strongly encouraged to notify parents, guardians, and students about
their option to enroll in either a single-sex or coeducational class
and receive authorization from parents or guardians to enroll their
children in a single-sex class.
Changes: We have added new regulatory language in Sec.
106.34(b)(1)(iii), clearly requiring that student participation in a
single-sex class must be completely voluntary. For the sake of clarity,
we have also deleted the reference in paragraph (b) of Sec. 106.34 to
the requirements of paragraph (a) of that section.
11. Coeducational Class (Sec. 106.34(b)(1)(iv))
Comments: Some commenters expressed concern that if a recipient
provides a single-sex class for students of one sex, the regulations
always require a coeducational class, but they do not always require a
single-sex class for students of the other sex. Some commenters argued
that it would be a denial of equal opportunity to provide a single-sex
class or other benefit, service, or opportunity for students of one
sex, but not for the other. Some commenters expressed the view that a
recipient could legally provide a single-sex class for students of one
sex, without a corresponding single-sex class for students of the other
sex, only if the purpose was to remediate discrimination.
Discussion: The regulations always require a recipient that offers
a single-sex class to offer a substantially equal coeducational class
in the same subject to all students, including students excluded from
the single-sex class. A recipient must provide single-sex classes in an
evenhanded manner when seeking to fulfill its important objectives
either to provide a diversity of educational opportunities or to
address particular, identified educational needs.
Thus, if a recipient's procedure includes obtaining information
from parents and students about interest in enrolling in potential
single-sex classes in order to provide a diversity of educational
opportunities, the recipient must include students of both sexes and
their parents. Similarly, if a recipient is seeking to address
educational needs of students, the recipient must treat male and female
students in an evenhanded manner when identifying particular
educational needs, determining if a single-sex class would meet those
needs, and meeting the educational needs of both sexes. A recipient may
not decide simply to offer single-sex classes only to students of one
sex, but rather may do so only if it can show (1) students of the other
sex are not interested in having the option to voluntarily enroll in a
single-sex class if the recipient is seeking to further its important
objective of providing diverse educational opportunities, or (2)
students of the other sex do not have educational needs that can be
addressed by a single-sex class if the recipient is seeking to meet the
educational needs of its students. Thus, under these circumstances, the
recipient would not be denying students of the other sex a
substantially equal class by providing them only a substantially equal
coeducational class in the same subject as the single-sex class.
Additionally, OCR will examine recipients that provide
significantly more single-sex opportunities to students of one sex than
to students of the other sex to determine if this is the result of sex
discrimination.
Changes: We have added to Sec. 106.34(b)(1)(iv) the words ``to all
other students, including students of the excluded sex'' to clarify the
scope of this requirement.
12. Private Schools (Sec. 106.34(b)(1)(iv))
Comments: Two commenters sought a revision to the regulations to
provide an exemption, under certain circumstances, for coeducational
recipient private schools from the requirement that they provide a
substantially equal coeducational class if they provided a single-sex
class to students of both sexes.
Discussion: Because all recipients are subject to Title IX and
because a substantially equal coeducational class option for students
is essential to prevent involuntary assignment to a single-sex class on
the basis of sex, Title IX does not permit a categorical exception to
this requirement. However, in some cases, parents of all students in a
particular grade in a private school may provide their completely
voluntary consent to the private school to offer a single-sex class
with no coeducational class. If the parents of the affected students in
a class in a private school enroll their children, or the students
themselves enroll, in a single-sex class on a completely voluntary
basis, and there are no students who would choose to enroll in a
coeducational class in that subject, these regulations do not require
the school to provide a coeducational class in that subject.
Changes: None.
13. Substantially Equal Classes (Sec. 106.34(b)(1)(iv) and (b)(2))
Comments: Some commenters stated that the regulations needed to
state specifically that recipients are required to provide students of
both sexes equal educational opportunities. Some commenters objected to
the term ``substantially equal'' in the proposed regulations because it
might be interpreted as a lower standard than a requirement of equal
educational opportunity. Some commenters stated that the term
``substantially equal'' was too vague and that recipients would not
understand what was required for compliance.
Discussion: Section 106.34(b)(1)(ii) of the proposed regulations
provided that a recipient that offered a single-sex class to students
of one sex was required to offer a substantially equal coeducational
class in the same subject, and Sec. 106.34(b)(2) provided that a
recipient that offered a single-sex class to students of one sex also
may be required
[[Page 62538]]
to offer a substantially equal single-sex class for the excluded sex.
Section 106.34(b)(3) of the proposed regulations described factors that
the Department would consider in comparing classes.
We disagree with the comments that the substantially equal standard
for comparing and measuring classes is a lower standard or is too
vague. The substantially equal standard in these regulations is
informed by, and consistent with, the nondiscrimination requirements of
the Equal Protection Clause. The Supreme Court compared two single-sex
postsecondary institutions and used the term ``substantial equality''
in measuring whether the standards of the Equal Protection Clause were
met.\36\ This standard ensures that students who are excluded from a
single-sex class will be provided a class with tangible and intangible
features substantially equal to the corresponding features in the
single-sex class. We recognize, however, that in comparing classes, a
recipient may provide students with a substantially equal class even if
the classes are not identical in every respect.
---------------------------------------------------------------------------
\36\ Virginia, 518 U.S. at 554 (citing Sweatt v. Painter, 339
U.S. 629, 633 (1950)).
---------------------------------------------------------------------------
Changes: None.
14. Factors (Sec. 106.34(b)(3))
Comments: Some commenters suggested that the proposed list of
factors to be used in determining whether a class meets the
requirements of Sec. 106.34(b)(1)(iv) or (b)(2) should include
intangible factors because the Supreme Court considered intangible
features, as well as tangible features, in comparing single-sex
educational institutions to determine if Equal Protection standards had
been met. Some commenters recommended that additional factors be added
to the list including educational methods, single-sex opportunities,
factors that would capture sex-stereotyping, and motive for creating
single-sex classes.
Discussion: Section 106.34(b)(3) of the proposed regulations listed
several factors that the Department proposed to consider in comparing
classes and determining if a class provided to students of the excluded
sex is substantially equal to the single-sex class. The list of
factors, which was not intended to be exhaustive, included-- 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. Under the substantially equal standard, classes are not
required to be identical, and there may be differences in factors that
may be justified for legitimate, nondiscriminatory reasons or because
the differences are not significant enough, alone or aggregated
together, to constitute sex discrimination under these regulations.
Alternatively, a substantial difference (or differences) of an
unjustified nature in the benefits, treatment, services, or
opportunities that constitute one factor in the respective classes, if
significant enough, in and of itself, to cause the classes not to be
substantially equal, is sex discrimination under these regulations.
Also, when factors for determining substantial equality of the
respective classes are considered in the aggregate, if there is a
pattern of differences of an unjustified nature that favors one class
with regard to the benefits, treatment, services, or opportunities
provided to students to the extent that the pattern of differences is
significant enough to cause the classes not to be substantially equal,
this pattern constitutes sex discrimination under these regulations.
Because, as described in a subsequent section on schools, commenters
who objected to a provision in the proposed regulations regarding the
aggregate approach for assessing the substantial equality in schools
misunderstood it, we have clarified the regulatory language for both
classes and schools by adding the term ``either individually or in the
aggregate as appropriate.''
The Supreme Court considered intangible and tangible features in
comparing postsecondary institutions for the purposes of the Equal
Protection Clause.\37\ The Department will consider all relevant
factors in determining whether classes meet the requirements of Sec.
106.34(b)(1)(iv) or (b)(2) and agrees that, for the purposes of
assessing compliance with Title IX, intangible features should be
considered whenever relevant.
---------------------------------------------------------------------------
\37\ Virginia, 518 U.S. at 554, 557.
---------------------------------------------------------------------------
Although we have not listed other factors suggested by commenters,
the Department will consider all relevant factors in any case
investigation. The list of factors is not exhaustive. We note that some
aspects of single-sex education that commenters suggested be included
in the list of factors will be considered in connection with compliance
with other parts of these regulations.
Although we did not receive comments from the public, we are adding
geographic accessibility as a factor pertaining to substantial equality
of classes. In most cases a recipient's substantially equal classes for
a particular school will be in the same school building, and geographic
accessibility will not be relevant to substantial equality. There are,
however, situations in which geographic accessibility will be relevant
for classes. For example, if a recipient operates a consortium of
schools whereby students at three neighboring high schools take some
classes at the school to which they are assigned on the basis of their
residence and are permitted to take certain other classes, which are
not offered at their assigned school, at one of the neighboring
schools, location, i.e., geographic accessibility, of the classes in
the same subject, would be relevant to the issue of substantial
equality. The list of factors described in the regulations is not
exhaustive. However, because the proposed regulations listed geographic
accessibility as a factor for schools, but not for classes, it is
important to ensure that recipients have notice that geographic
accessibility is also a factor for classes.
Changes: We have revised the regulatory language to clarify the
aggregate approach in assessing substantial equality in classes by
adding the clarifying term, ``either individually or in the aggregate
as appropriate.'' Section 106.34(b)(3) of the final regulations
provides in relevant part: ``Factors the Department will consider,
either individually or in the aggregate as appropriate, in determining
whether classes or extracurricular activities are substantially equal
include. * * *''
We have revised the list of factors in Sec. 106.34(b)(3) to be
considered in comparing classes to include ``intangible features'' and
``reputation of faculty'' as an example of an intangible feature. We
have also revised the list of factors to include ``geographic
accessibility.''
15. Periodic Evaluations for Classes (Sec. 106.34(b)(4))
Comments: In the preamble to the proposed regulations we invited
specific comments as to how often a recipient should be required to
conduct periodic evaluations. Comments ranged from yearly, biennially,
or variable depending on the single-sex classes offered. Of the four
comments received on this issue, two commenters recommended biennial
evaluation. In addition, commenters were concerned that the regulations
did not require the evaluation to ensure against reliance on overly
broad generalizations about the different preferences of either sex
consistent with Equal Protection Clause requirements.
[[Page 62539]]
Discussion: Recipients have an ongoing responsibility to comply
with the nondiscrimination requirements of the Title IX regulations.
These regulations require recipients to conduct periodic evaluations to
ensure that their single-sex classes are based on justifications, i.e.,
an important objective and a substantial relationship between the
important objective and the sex-based means used to further that
objective, that are genuine and that do not rely on overly broad
generalizations about either sex. Part of the periodic evaluation
requirement involves an assessment of the degree to which the
recipient's important objective has been achieved and an assessment of
whether the single-sex nature of the class is substantially related to
achievement of the recipient's objective. This procedural provision
requires a recipient to evaluate its own classes so that it can take
appropriate corrective action if it identifies compliance problems. We
have determined that recipients must conduct evaluations at least every
two years in order to meet this procedural obligation. Recipients may
evaluate single-sex classes more often because the substantive
obligation to comply is ongoing or because its own findings have
identified issues that may require a more frequent evaluation. In
addition, if the Department investigates a recipient and identifies
compliance problems, we may require the recipient to conduct more
frequent evaluations. Because Sec. 106.71 of the Title IX regulations,
which incorporates the requirements of 34 CFR 100.6(b) and (c),
requires generally that recipients keep records to show that they are
in compliance with civil rights requirements and requires them to
provide the Department access to information relevant to compliance
determinations, recipients should have appropriate records to show
compliance with the periodic evaluation requirement.
We agree that under Title IX, single-sex classes cannot be based on
overly broad generalizations about the talents, capacities, or
preferences of either sex. As discussed previously, recipients must
make fact-specific determinations.
Changes: We have revised Sec. 106.34(b)(4)(i) to add ``or
preferences'' and to delete ``male and female students'' and substitute
in its place ``either sex.'' We have also added the term ``important''
to clarify that the evaluation must ensure that the single-sex class or
extracurricular activity is substantially related to the recipient's
important objective. In addition we have revised Sec. 106.34(b)(4) to
provide that a recipient must conduct evaluations of its classes at
least every two years (Sec. 106.34(b)(4)(ii)) in order to comply with
the procedural requirement for periodic evaluations (Sec.
106.34(b)(4)(i)).
16. Extracurricular Activities (Sec. 106.34(b)(1) Through (5))
Comments: None.
Discussion: Section 106.34(b)(1) through (5) applies to
extracurricular activities, as well as classes.
Changes: We have added the term ``extracurricular activities''
throughout Sec. 106.34(b)(1) through (5) of the regulations to clarify
that these provisions apply both to classes and extracurricular
activities.
17. Athletics
Comments: Some commenters objected to the coverage of
extracurricular activities in the proposed regulations because they
perceived that the amendments would be applied to athletics, which
would result in undermining the Department's longstanding Title IX
regulations requiring equal athletic opportunity for students of both
sexes and would permit sex discrimination in athletics.
Discussion: The proposed regulations defined ``classes,'' for the
purposes of proposed Sec. 106.34(b), to include ``all education
activities provided for students by a school or in a school'' (proposed
Sec. 106.34(b)(5)), and this definition was intended to cover
extracurricular activities, as well as classes. It was not, however,
intended to affect or change the longstanding Title IX requirements
applicable to athletics, including interscholastic, club, or intramural
athletics.\38\
---------------------------------------------------------------------------
\38\ Sections 106.41 and 106.37(c).
---------------------------------------------------------------------------
Changes: Because some commenters interpreted the proposed
definition as extending the requirements in Sec. 106.34(b)(1) through
(4) to athletics, we have revised Sec. 106.34(b)(5) in the final
regulations. We have determined that rather than define ``class'' and
``extracurricular activity,'' it is clearer and more useful to include
a provision on the scope of coverage of paragraph (b)(1) through (4) of
Sec. 106.34. We have revised Sec. 106.34(b)(5) to provide that
paragraph (b)(1) through (4) applies to classes and extracurricular
activities provided by a recipient covered by Sec. 106.34(b)(1) either
directly or through another entity and to clarify that paragraph (b)(1)
through (4) does not apply to interscholastic, club, or intramural
athletics, which are subject to the provisions of Sec. Sec. 106.41 and
106.37(c).
18. Physical Education Classes
Comments: Commenters objected to these amendments because they
perceived that they would weaken the current Title IX regulatory
standards pertaining to physical education classes in a manner that
would permit sex discrimination. Commenters indicated that separation
in physical activity should be based on differences in skill, size, or
strength, rather than on the sex of the student. Some female commenters
described how playing sports with boys had enhanced their sports
skills.
Discussion: The longstanding regulatory provision that permits
recipients to separate students in physical education classes on the
basis of ability is not affected by these amendments.\39\ Similarly,
the regulatory exception that permits recipients to separate students
by sex within physical education classes or activities during
participation in contact sports \40\ is not affected by these
amendments. The amended regulations provide a recipient the additional
flexibility to offer single-sex classes, including physical education
classes, if all the requirements of Sec. 106.34(b)(1) through (5) are
met. These requirements, which are discussed in previous paragraphs,
require a recipient that provides a single-sex class, including a
physical education class, to provide substantially equal classes to
students of both sexes. These requirements prohibit discrimination on
the basis of sex, including physical education classes, which means
that single-sex classes must be based on a justification, i.e., an
important objective and a substantial relationship between the
important objective and the sex-based means used to further the
objective, that is genuine and not based on overly broad sex-based
generalizations about either sex.
---------------------------------------------------------------------------
\39\ Compare former Sec. 106.34(b) with Sec. 106.34(a)(2) of
these final regulations.
\40\ Compare former Sec. 106.34(c) with Sec. 106.34(a)(1) of
these final regulations.
---------------------------------------------------------------------------
Changes: None.
19. Legal Standards for Single-Sex Schools (Sec. 106.34(c)(1))
Comments: In addition to the general concerns about legal standards
discussed in previous paragraphs, some commenters had specific concerns
about the legal standards applicable to the proposed regulations
regarding single-sex schools. Some commenters objected to permitting
any ``new'' single-sex schools (i.e., after the effective date of Title
IX), citing the reasoning in a Federal district court decision, as
contrary to congressional intent.
[[Page 62540]]
A commenter objected to the proposed regulations on schools on the
basis that sex-segregated schools violate the Equal Educational
Opportunity Act of 1974 (EEOA),\41\ citing a Federal appellate court
decision \42\ holding that a sex-segregated assignment plan violated
the EEOA.
---------------------------------------------------------------------------
\41\ 20 U.S.C. 1701 through 1721.
\42\ United States v. Hinds County Sch. Bd., 560 F.2d 619 (5th
Cir. 1977).
---------------------------------------------------------------------------
Some commenters objected to the proposed provisions on schools
because public recipients are subject to both Title IX and the Equal
Protection Clause, but the regulatory requirements did not require
constitutionally sufficient justifications for sex-based
classifications.
Discussion: The Title IX regulations have permitted single-sex
nonvocational schools since the regulations were issued in 1975. Thus,
it is not a change that these regulations continue to permit single-sex
schools. Both the plain language of the statute and legislative intent
support this interpretation. Section 901 of Title IX covers admissions
only to certain types of educational entities named in the statute.\43\
Because nonvocational elementary and secondary schools are not among
those listed, admission to these schools is not covered. The
legislative history of Title IX shows that Congress was aware of the
existence of public single-sex elementary and secondary schools and
that Congress understood that, by exempting admissions to these schools
from the general prohibitions, single-sex admissions policies could
continue.\44\ Our longstanding and current interpretation that the
Department is precluded from examining a recipient's justifications for
offering single-sex schools is based on the plain language of Title IX
and its legislative history. As the commenter pointed out, involuntary
assignment to single-sex public schools violates the EEOA.
---------------------------------------------------------------------------
\43\ 20 U.S.C. 1681(a)(1). The nondiscrimination provisions of
section 901 of Title IX apply to admissions to institutions of
vocational education, professional education, and graduate higher
education, and to public institutions of undergraduate higher
education.
\44\ 118 Cong. Rec. 5804, 5807, 5812-13 (1972).
---------------------------------------------------------------------------
Changes: We have made a nonsubstantive revision to Sec. 106.34(c)
to add ``General Standard'' to the title of this provision to make it
consistent with Sec. 106.34(b). We also revised the statement of the
general standard for single-sex schools to align it more closely to the
statute. Section 106.34(c)(1) requires, subject to an exception for
certain charter schools, discussed in a later paragraph, a recipient
that operates a public, nonvocational single-sex elementary or
secondary school to provide a substantially equal single-sex school or
coeducational school to students of the excluded sex.
20. Schools for Excluded Sex (Sec. 106.34(c)(1))
Comments: Some commenters objected to amending the regulations to
permit a recipient to offer a single-sex school to students of one sex
and to offer either a coeducational or a single-sex school to students
of the excluded sex, rather than requiring that excluded students also
be offered a single-sex school. Commenters objected to this change in
our previous interpretation of the Title IX statute. They stated that
to provide students of one sex the opportunity to attend a single-sex
school, but not to provide students of the other sex an equal
opportunity to attend a single-sex school, is discriminatory treatment
on the basis of sex in violation of the requirements of Title IX and
the Equal Protection Clause.
Discussion: The Title IX statute does not cover admissions to
nonvocational elementary and secondary schools.\45\ We have determined
that, by excluding these schools from the admissions coverage, Congress
was not only permitting recipients to operate public schools with
single-sex admissions policies without sanction under Title IX,\46\ but
it also was permitting recipients to operate single-sex schools without
requiring them also to provide a corresponding single-sex school for
students of the excluded sex, again without sanction under Title IX. We
no longer interpret Title IX to require that if a recipient offers a
single-sex school for students of one sex, it must offer students of
the other sex a corresponding single-sex school. The regulations now
require, in Sec. 106.34(c)(1), that the recipient must provide a
substantially equal school to students of both sexes,\47\ but the
school may be a coeducational or single-sex school.
---------------------------------------------------------------------------
\45\ 20 U.S.C. 1681(a)(1) (``in regard to admissions to
educational institutions, this section shall apply only to
institutions of vocational education, professional education, and
graduate higher education, and to public institutions of higher
education'').
\46\ 118 Cong. Rec. 5804, 5807, 5812-13 (1972).
\47\ Subject to the exception for certain public charter schools
in Sec. 106.34(c)(2).
---------------------------------------------------------------------------
Changes: None.
21. Substantially Equal Schools (Sec. 106.34(c)(1))
Comments: Many commenters had the same concerns regarding the
regulatory language in Sec. 106.34(c)(1) used to describe the standard
for comparing and measuring schools as they had for classes. As
discussed in previous paragraphs regarding requirements for classes,
commenters were concerned that the term ``substantially equal,'' as
used in the proposed regulations for comparing benefits provided to
students, described a lower standard than the equal educational
opportunity standard required by Title IX and the Equal Protection
Clause.
Discussion: Title IX does not cover admissions to nonvocational
elementary and secondary schools. Title IX does require that a
recipient that operates public schools must not provide a single-sex
school to students of one sex and discriminate against students of the
excluded sex with respect to the educational opportunities the
recipient provides them in another school, regardless of whether the
other school is coeducational or single-sex. Under the original Title
IX regulations, if an LEA chose to provide a single-sex school, the
standard for comparison of benefits and treatment provided to students
in schools was described as ``comparable.'' Under the final regulations
the standard of comparison for schools is described as ``substantially
equal.''
As discussed under the paragraphs on single-sex classes, we
disagree with the comments that the substantially equal standard is a
lower standard for comparing schools than is required under Title IX or
the Equal Protection Clause. This standard ensures that students who
are excluded from a single-sex school will be provided a school with
tangible and intangible features substantially equal to the
corresponding features in the single-sex school. We recognize, however,
that in comparing two schools, a recipient may provide students with a
substantially equal school even if the schools are not identical in
every respect.
Changes: None.
22. School Within a School (Sec. 106.34(c)(1) and (c)(4))
Comments: None.
Discussion: Section 106.34(c)(1) of the proposed regulations
referred to a school or ``education unit.'' We explained in the
preamble to the proposed regulations that ``education unit'' meant a
``school within a school,'' which was a school located within another
school. We believe that it is important for recipients to have this
information included in the regulations.
[[Page 62541]]
Changes: We have deleted the term ``education unit'' from Sec.
106.34(c)(1) and added a new paragraph (4) that defines ``school'' to
include ``school within a school'' and explains what we mean by a
``school within a school.''
23. Limited Charter Schools Exception (Sec. 106.34(c)(2))
Comments: Some commenters objected to the provision in the proposed
regulations that would exempt nonvocational public single-sex charter
schools that are single-school LEAs from the requirements that apply to
other public schools. Many of these commenters stated that public
charter schools, like other public schools that receive Federal funds,
are subject to the requirements of Title IX and the U.S. Constitution.
They believed that all single-sex public schools should be required to
demonstrate an exceedingly persuasive justification for limiting
admission to one sex. One commenter noted that recipients authorizing
the operation of single-sex charter schools, as opposed to the
individual schools themselves, are likewise subject to the
constitutional and Title IX requirements. One commenter stated that the
Department's rationale that it would be unduly burdensome to require
single-sex charter schools that are single-school LEAs to create a
single-sex charter school for students of the excluded sex was not a
valid reason to excuse those schools from the constitutional
requirements of the Equal Protection Clause.
Discussion: The constitutional standard referenced in the comments
is not a Title IX requirement. The Title IX statute does not cover
admissions to nonvocational elementary and secondary schools.\48\ Given
Congress' intent, OCR does not have the authority to require recipients
to provide a justification for single-sex nonvocational elementary or
secondary schools. Accordingly, the regulatory amendment regarding
single-sex schools is consistent with Title IX. Of course, public
schools are subject to constitutional requirements, including the Equal
Protection Clause, which requires that a recipient demonstrate that its
sex-based classification serves an important governmental objective and
that the sex-based classification is substantially related to the
achievement of that objective.
---------------------------------------------------------------------------
\48\ 20 U.S.C. 1681(a)(1).
---------------------------------------------------------------------------
With regard to public charter schools, it would be impracticable to
require either chartering authorities, which are merely approving
applications for--but are not operating--single-sex charter schools, or
the groups of community leaders, developers, or parents who seek to
establish a single-sex charter school that will be a single-school LEA
under State law, to establish and operate an additional substantially
equal school to meet the needs of the other sex. Because it would be
unlikely that those groups would be able to create two substantially
equal charter schools, absent the exception in Sec. 106.34(c)(2) those
groups would be unable to establish a single-sex charter school. Title
IX does not require such a rigid approach. On the other hand, any LEA
that operates multiple schools, including charter schools, must comply
with Sec. 106.34(c)(1). The notion of excepting certain types of
schools from the Title IX requirements is not new. Pursuant to Sec.
106.35 of the former regulations, private schools that received Federal
assistance were permitted to operate single-sex schools without
providing the excluded sex with a comparable school. The requirements
of Sec. 106.34(c)(1) of these regulations do not apply to recipients
that operate private, nonvocational elementary or secondary schools.
Changes: We have made a nonsubstantive revision to describe more
precisely the single-school LEAs that are entitled to this exception.
24. Chartering Authorities
Comments: A commenter noted that a school board that serves as a
chartering authority of public charter schools should not be found to
have violated Title IX if it approves a charter school application for
a single-sex charter school, but does not provide the resources to
establish a single-sex school for students of the excluded sex.
Additionally, the commenter suggested that the final regulations
include a statement clarifying that Title IX does not obligate a
chartering authority that is an LEA to approve an application for a
single-sex charter school.
Discussion: Title IX would require all chartering authorities that
receive Federal financial assistance to review, and approve or reject,
applications in a nondiscriminatory manner. Nothing in Title IX or
these regulations requires that applications for single-sex charter
schools be approved. Title IX simply requires that the same standards
be applied to a proposed single-sex charter school, regardless of which
sex the charter school proposes to serve. An LEA will be considered to
be ``operating'' a charter school that is part of the LEA. Thus, if a
recipient LEA chartering authority approves an application for a
single-sex charter school that will be part of the LEA, the LEA must
comply with the requirements of Sec. 106.34(c)(1) and must provide
students of the excluded sex with a substantially equal single-sex
school or coeducational school. As stated in the discussion of Sec.
106.34(c)(2), however, if a chartering authority's role is merely
approving an application for a single-sex charter school that is a
single-school LEA, the chartering authority will not be required to
provide the students of the excluded sex with a substantially equal
school. State charter school laws govern whether a charter school will
be a public school within the LEA or whether it will be a single-school
LEA.
Changes: None.
25. Factors (Proposed Sec. 106.34(c)(3)(i))
Comments: Several commenters stated that the proposed list of
factors used to compare schools must include intangible factors.
Discussion: Readers should refer to the prior discussion of this
issue under the classes section of this analysis.
Changes: We have removed paragraph designation (i) from Sec.
106.34(c)(3). With respect to the list of factors (in proposed Sec.
106.34(c)(3)(i))), we have revised the regulations to include
``intangible features'' and to list ``reputation of faculty'' as an
example of an intangible feature on the non-exhaustive list of factors.
Further changes with respect to the consideration of these factors
(proposed Sec. 106.34(c)(3)(ii)) are discussed in the next section.
26. Aggregate Approach (Proposed Sec. 106.34(c)(3)(ii))
Comments: Some commenters objected to the proposed ``aggregate''
approach \49\ for comparing the benefits and treatment provided to
students in single-sex schools and the benefits and treatment provided
to students excluded from those schools. Commenters were concerned that
this approach would permit inequities between schools that would
constitute discrimination on the basis of sex against the students in
one of the schools in violation of Title IX and the U.S. Constitution.
A commenter stated that the proposed aggregate approach would condone
inequities between a single-sex and coeducational school as long as the
inequities balanced in some unspecified way.
---------------------------------------------------------------------------
\49\ The proposed amendments in Sec. 106.34(c)(3)(i) provided a
non-exhaustive list of factors that the Department would consider in
determining whether schools were substantially equal, and in Sec.
106.34(c)(3)(ii) provided that ``this determination involves an
assessment in the aggregate of the educational benefits provided by
each school as a whole.''
---------------------------------------------------------------------------
Discussion: Commenters misunderstood the aggregate approach
[[Page 62542]]
in the proposed regulations to permit inequities that would be
prohibited by Title IX. This perception of the proposed provision was
inconsistent with the intent of the proposed provision and of the
substantial equality standard.
We have revised the regulations to provide more clarity on the
aggregate approach. The same regulatory language added in these final
regulations to clarify the aggregate approach for assessing substantial
equality of classes, Sec. 106.34(b)(3), has also been added to the
regulatory language on assessing substantial equality of schools, and
Sec. 106.34(c)(ii) of the proposed regulations has been deleted in the
final regulations. For more information about assessments of
substantial equality, readers should refer to the prior discussion in
this analysis of how compliance with the requirement of substantial
equality will be assessed for classes.
Changes: Section 106.34(c)(3) has been revised to clarify the
aggregate approach in assessing substantial equality of schools, by
adding the term ``either individually or in the aggregate as
appropriate'' so that the regulatory language now provides in relevant
part: ``Factors the Department will consider, either individually or in
the aggregate as appropriate, in determining whether schools are
substantially equal include * * *.'' Section 106.34(c)(3)(ii) of the
proposed regulations has been deleted and the section has been
renumbered to reflect this change.
27. Periodic Evaluations
Comments: Some commenters stated that the regulations should
require recipients to periodically evaluate single-sex schools.
Discussion: As discussed in previous paragraphs, we interpret the
Title IX admissions exception for nonvocational elementary and
secondary schools to prevent the Department from regulating the
justifications for single-sex schools. For that reason we have not
included a requirement for periodic evaluations, similar to the
requirement for single-sex classes. Regardless of the lack of this
additional procedural requirement for schools, recipients continue to
be subject to the substantive requirements of Title IX and our Title IX
regulations, and they continue to be subject to investigation if there
is a complaint or compliance review.\50\ Recipients that voluntarily
monitor their single-sex and coeducational schools for compliance with
these regulations are in the best position to achieve compliance.
---------------------------------------------------------------------------
\50\ 34 CFR 100.6(c); 34 CFR 100.7(a)(b). As discussed in
previous paragraphs, public schools and school districts are also
subject to the Equal Protection Clause.
---------------------------------------------------------------------------
Changes: None.
Executive Order 12250
Pursuant to Executive Order 12250, which provides for the Attorney
General to review regulations implementing Title IX, the Attorney
General has reviewed and approved these final regulations for
publication.
Executive Order 12866
We have reviewed these final regulations in accordance with
Executive Order 12866. Under the terms of the order we have assessed
the potential costs and benefits of this regulatory action.
The potential costs associated with the final 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 of these final
regulations, we have determined that the benefits of the regulations
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 benefit of the final regulations is the expanded flexibility to
provide single-sex schools, classes, or extracurricular activities, if
they are desired. The final regulations do not require recipients to
provide single-sex schools, classes, or extracurricular activities and
thus do not require recipients to incur any additional costs. If
recipients choose to continue to operate schools, classes, or
extracurricular activities under their current policies or practices
and choose not to provide single-sex education, no added costs will be
incurred. Those recipients that choose to provide single-sex schools,
classes, or extracurricular activities may incur additional expenses.
The costs associated with providing single-sex education under the
final regulations will range from minimal to substantial, depending on
what options recipients choose to provide.
Paperwork Reduction Act of 1995
These regulations do not contain any information collection
requirements.
Assessment of Educational Impact
In the NPRM we requested comments on whether the proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
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.
These final regulations also will be available at OCR's Web site on
the Internet at:
http://www.ed.gov/ocr.
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/[fxsp0
]nara/index.html.
(Catalog of Federal Domestic Assistance Number does not apply.)
List of Subjects in 34 CFR Part 106
Education, Sex discrimination.
Dated: October 20, 2006.
Margaret Spellings,
Secretary of Education.
0
For the reasons discussed in the preamble, the Secretary amends 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
0
1. The authority citation for part 106 continues to read as follows:
Authority: 20 U.S.C. 1681 et seq., unless otherwise noted.
0
2. Section 106.34 is revised to read as follows:
Sec. 106.34 Access to classes and schools.
(a) General standard. Except as provided for in this section or
otherwise in this part, a recipient shall not provide or otherwise
carry out any of its
[[Page 62543]]
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) Contact sports in physical education classes. 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) Ability grouping in physical education classes. 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) Human sexuality classes. 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) Choruses. 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) Classes and extracurricular activities. (1) 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 or extracurricular
activities, if--
(i) Each single-sex class or extracurricular activity is based on
the recipient's important objective--
(A) To improve educational achievement of its students, through a
recipient's overall established policy to provide diverse educational
opportunities, provided that the single-sex nature of the class or
extracurricular activity is substantially related to achieving that
objective; or
(B) To meet the particular, identified educational needs of its
students, provided that the single-sex nature of the class or
extracurricular activity is substantially related to achieving that
objective;
(ii) The recipient implements its objective in an evenhanded
manner;
(iii) Student enrollment in a single-sex class or extracurricular
activity is completely voluntary; and
(iv) The recipient provides to all other students, including
students of the excluded sex, a substantially equal coeducational class
or extracurricular activity in the same subject or activity.
(2) Single-sex class or extracurricular activity for the excluded
sex. A recipient that provides a single-sex class or extracurricular
activity, in order to comply with paragraph (b)(1)(ii) of this section,
may be required to provide a substantially equal single-sex class or
extracurricular activity for students of the excluded sex.
(3) Substantially equal factors. Factors the Department will
consider, either individually or in the aggregate as appropriate, in
determining whether classes or extracurricular activities are
substantially equal include, but are not limited to, 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,
geographic accessibility, the quality, accessibility, and availability
of facilities and resources provided to the class, and intangible
features, such as reputation of faculty.
(4) Periodic evaluations. (i) The recipient must conduct periodic
evaluations to ensure that single-sex classes or extracurricular
activities are based upon genuine justifications and do not rely on
overly broad generalizations about the different talents, capacities,
or preferences of either sex and that any single-sex classes or
extracurricular activities are substantially related to the achievement
of the important objective for the classes or extracurricular
activities.
(ii) Evaluations for the purposes of paragraph (b)(4)(i) of this
section must be conducted at least every two years.
(5) Scope of coverage. The provisions of paragraph (b)(1) through
(4) of this section apply to classes and extracurricular activities
provided by a recipient directly or through another entity, but the
provisions of paragraph (b)(1) through (4) of this section do not apply
to interscholastic, club, or intramural athletics, which are subject to
the provisions of Sec. Sec. 106.41 and 106.37(c) of this part.
(c) Schools. (1) General Standard. Except as provided in paragraph
(c)(2) of this section, a recipient that operates a public
nonvocational elementary or secondary school that excludes from
admission any students, on the basis of sex, must provide students of
the excluded sex a substantially equal single-sex school or
coeducational school.
(2) Exception. A nonvocational public charter school that is a
single-school local educational agency under State law may be operated
as a single-sex charter school without regard to the requirements in
paragraph (c)(1) of this section.
(3) Substantially equal factors. Factors the Department will
consider, either individually or in the aggregate as appropriate, in
determining whether schools are substantially equal include, but are
not limited to, 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 extracurricular offerings, the qualifications of
faculty and staff, geographic accessibility, the quality,
accessibility, and availability of facilities and resources, and
intangible features, such as reputation of faculty.
(4) Definition. For the purposes of paragraph (c)(1) through (3) of
this section, the term ``school'' includes a ``school within a
school,'' which means an administratively separate school located
within another school.
(Authority: 20 U.S.C. 1681, 1682)
0
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: 20 U.S.C. 1681, 1682)
0
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: 20 U.S.C. 1681, 1682)
[FR Doc. E6-17858 Filed 10-24-06; 8:45 am]
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