[Federal Register: May 8, 2002 (Volume 67, Number 89)]
[Notices]
[Page 31101-31103]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my02-186]
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Part VI
Department of Education
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Office for Civil Rights; Single-Sex Classes and Schools: Guidelines on
Title IX Requirements; Notice
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DEPARTMENT OF EDUCATION
Office for Civil Rights; Single-Sex Classes and Schools:
Guidelines on Title IX Requirements
AGENCY: Department of Education.
ACTION: Guidelines on current title IX requirements related to single-
sex classes and schools.
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SUMMARY: On January 8, 2002, the President signed into law the No Child
Left Behind Act of 2001, which reauthorized the Elementary and
Secondary Act of 1965. Section 5131(a)(23) of the Elementary and
Secondary Education Act allows local educational agencies (LEAs) to use
Innovative Programs funds to support same-gender schools and classrooms
consistent with applicable law. It also requires the Department, within
120 days of enactment, to issue guidelines for LEAs regarding the
applicable law on single-sex classes and schools. This notice fully
implements Congress's mandate by describing and explaining the current
statutory and regulatory requirements relating to single-sex classes
and schools.
FOR FURTHER INFORMATION CONTACT: Jeanette J. Lim, Office for Civil
Rights, U.S. Department of Education, 400 Maryland Avenue, SW., room
5036, Mary E. Switzer Building, Washington, DC 20202-2899. Telephone:
(202) 205-8635 or 1-800-421-3481.
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 OCR's Customer Service Team at (202) 205-5413 or 1-800-421-3481.
These Guidelines will also be available at OCR's site on the Internet
at: www.ed.gov/ocr.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: This notice implements Congress's mandate in
the No Child Left Behind Act of 2001 (NCLB Act) to provide guidelines
to LEAs regarding the applicable law on single-sex classes and schools.
See Pub. L. 107-110, Sec. 5131(a)(23), 5131(c).
Elsewhere in this issue of the Federal Register is a notice of
intent to regulate (NOIR), which invites comment on our intention to
amend the current regulations implementing Title IX of the Education
Amendments of 1972 (Title IX) related to elementary and secondary
single-sex classes and schools to provide more flexibility to
educators. The purpose of these amendments would be to support efforts
of school districts to improve educational outcomes for children and to
provide public school parents with a diverse array of educational
options that respond to the educational needs of their children, while
at the same time ensuring appropriate safeguards against
discrimination. The NOIR is intended to begin this process and ensure
adequate public input on these important and sensitive issues.
Guidelines on Current Title IX Requirements
Single-sex classes: The Title IX statute generally prohibits sex-
based discrimination in education programs or activities receiving
Federal financial assistance. Specifically, it states that no person in
the United States, on the basis of sex, can be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance. 20 U.S.C. 1681.
Section 1681(a) of Title IX contains two limited exceptions
relating to classes or activities within primary and secondary schools
that otherwise are coeducational. Subsection 1681(a)(7)(B) of Title IX
exempts any program or activity of any secondary school or educational
institution specifically intended for the promotion of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference or for the selection of students to attend such a
conference. Subsection 1681(a)(8) of Title IX states that the law does
not preclude father-son or mother-daughter activities at an educational
institution. However, if those activities are provided for students of
one sex, opportunities for reasonably comparable activities must be
provided for students of the other sex. Accordingly, these activities
are permitted on a single-sex basis if the requirements of the statute
are met.\1\
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\1\ The statue also exempts activities of educational
institutions controlled by religious organizations to the extent
that the application of Title IX would be inconsistent with the
religious tenets of the organizations 20 U.S.C. 1681(a)(3).
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Our current Title IX regulations generally prohibit single-sex
classes or activities. The regulations in 34 CFR 106.34 state--
A recipient shall not provide any course or otherwise carry out
any of its education program or activity separately on the basis of
sex, or require or refuse participation therein by any of its
students on such basis, including health, physical education,
industrial, business, vocational, technical, home economics, music,
and adult education courses.
Our regulations contain two categorical exceptions for specific
types of classes or portions of classes that may be segregated by sex.
Those exceptions are: (1) Physical education classes during
participation in sports ``the purpose or major activity of which
involves bodily contact'' (34 CFR 106.34(c)); and (2) ``[p]ortions of
classes in elementary and secondary schools which deal exclusively with
human sexuality.'' (34 CFR 106.34(e)). In addition separation of
students by sex is permitted if it constitutes remedial or affirmative
action. 34 CFR 106.3.\2\
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\2\ The current regulations also permit recipients to group
students in physical education classes and activities by ability as
assessed by objective standards of individual performance developed
and applied without regard to sex (34 CFR 106.34(b)) and to ``make
requirements based on vocal range or quality which may result in a
chorus or choruses of one or predominantly one sex.'' (34 CFR
106.34(f)).
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Single-sex schools: The Title IX statute exempts from its coverage
the admissions practices of non-vocational elementary and secondary
schools.\3\
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\3\ Section 1681(a)(1) of Title IX states that in regard to
admissions to educational institutions, the law applies only to
institutions of vocational education, professional education, and
graduate higher education, and to public institutions of
undergraduate higher education. As such, non-vocational elementary
and secondary schools are exempt.
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Accordingly, the regulations do not prohibit recipients from
adopting single-sex admissions policies in non-vocational elementary
and secondary schools. See 34 CFR 106.15(d). However, the regulations
specifically provide that an LEA may ``exclude any person from
admission'' to a non-vocational elementary or secondary school ``on the
basis of sex'' only if ``such recipient otherwise makes available to
such person, pursuant to the same policies and criteria of admission,
courses, services, and facilities comparable to each course, service,
and facility offered in or through such schools.'' (34 CFR 106.35(b))
\4\ In other words, under the current regulations, an LEA cannot use a
single-sex admissions policy--which is not itself subject to Title IX's
prohibition--as the predicate for otherwise causing students, on the
basis of sex, to be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance. For
example, school districts may not establish a single-sex school for one
sex that provides the district's only performing arts curriculum.
Students of
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the other sex also must have access to a comparable school with that
curriculum. It has been our longstanding interpretation, policy, and
practice to require that the ``comparable school'' must also be single-
sex.
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\4\ These provisions on single-sex schools do not apply to
private elementary and secondary schools.
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An LEA may offer a single single-sex school if such an action
constitutes remedial or affirmative action. (34 CFR 106.3) In addition,
while the statutory exemption precludes the Department from examining
an LEA's justification for a single-sex school, LEAs also should be
aware of constitutional requirements in this area.\5\ LEAs may be
challenged in court litigation on constitutional grounds.
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\5\ The Supreme Court has decided two significant constitutional
cases specifically regarding single-sex education. United States v.
Virginia, 518 U.S. 515 (1996) (State-sponsored, male-only military
college violated Equal Protection Clause); Mississippi University
for Women v. Hogan, 458 US 718 (1982) (State-sponsored, female-only
nursing school violated the Equal Protection Clause.)
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Authority: 20 U.S.C. 1681, 1682.
Dated: May 3, 2002.
Rod Paige,
Secretary of Education.
[FR Doc. 02-11477 Filed 5-7-02; 8:45 am]
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