14994
Federal Register
/Vol. 71, No. 57/Friday, March 24, 2006/Rules and Regulations
DEPARTMENT OF EDUCATION34 CFR Parts 75, 76, and 108
RIN 1870–AA12
Equal Access to Public SchoolFacilities for the Boy Scouts ofAmerica and Other Designated YouthGroups
AGENCY
:
Office for Civil Rights,Department of Education.
ACTION
:
Final regulations.
SUMMARY
:
The Secretary adds a new partto title 34 of the Code of FederalRegulations and amends 34 CFR parts75 and 76 to implement the provisionsof the Boy Scouts of America EqualAccess Act (Act). This Act directs theSecretary of Education, through theOffice for Civil Rights (OCR), to ensurecompliance with this new law. Theregulations address equal access topublic school facilities by the BoyScouts of America and other designatedyouth groups.
DATES
:
These regulations are effectiveApril 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 telecommunicationsdevice for the deaf (TDD), you may call1–877–521–2172.Individuals with disabilities mayobtain this document in an alternativeformat (e.g., Braille, large print,audiotape, or computer diskette) onrequest to the contact person listedunder
FOR FURTHER INFORMATION
CONTACT
.
SUPPLEMENTARY INFORMATION
:
Theseregulations implement the Boy Scouts of America Equal Access Act, 20 U.S.C.7905. On January 8, 2002, the Presidentsigned into law the No Child LeftBehind Act of 2001 (NCLB), Pub. L.107–110, amending the Elementary andSecondary Education Act of 1965(ESEA). The Act is included in theseamendments to the ESEA and is foundin section 9525 of the ESEA. The Actapplies to any public elementary school,public secondary school, localeducational agency (LEA), or Stateeducational agency (SEA) that has adesignated open forum or limited publicforum and that receives funds madeavailable through the Department of Education (Department). Under the Act,these entities may not deny equal accessor a fair opportunity to meet to, ordiscriminate against, any groupofficially affiliated with the Boy Scoutsof America (Boy Scouts) or any otheryouth group listed in title 36 of theUnited States Code (as a patrioticsociety) (Title 36 youth group) thatwishes to conduct a meeting within thecovered entity’s designated open forumor limited public forum.The Act authorizes the Secretary toimplement this law by issuing andsecuring compliance with rules ororders with respect to the Act’srequirements through OCR. The Act alsodirects the Secretary, through OCR, toenforce this law in a manner consistentwith the procedure used under section602 of the Civil Rights Act of 1964. If a covered public elementary school,public secondary school, LEA, or SEAdoes not comply with the Act orregulations issued by the Department, itwould be subject to the Department’senforcement actions.On October 19, 2004, the Secretarypublished a notice of proposedrulemaking (NPRM) for theseregulations in the
Federal Register
(69FR 61556). In the preamble to theNPRM, the Secretary discussed on pages61557 through 61559 the significantregulations proposed to implement theAct. These included the following:
•
Providing definitions for thefollowing statutory terms: ‘‘designatedopen forum,’’ ‘‘outside youth orcommunity group,’’ ‘‘to sponsor anygroup officially affiliated with the BoyScouts of America,’’ and ‘‘to sponsorany group officially affiliated with anyother youth group listed in title 36 of the United States Code (as a patrioticsociety).’’
•
Explaining that neither State norlocal law obviates or alleviates theobligation to comply with the Act andits implementing regulations.
•
Providing that the obligation of public elementary schools, publicsecondary schools, LEAs, and SEAs tocomply with the Act is not limited bythe nature or extent of their authority tomake decisions about the use of schoolfacilities.
•
Clarifying that equal access underthe Act includes not only access toschool facilities for meetings before,during, or after school, but also includesaccess to other activities related to anintention by any group officiallyaffiliated with the Boy Scouts or anyother Title 36 youth group to conduct ameeting within a covered entity’sdesignated open forum or limited publicforum. These other activities include, but are not necessarily limited to, meansof communication and recruitment.
•
Explaining that in order to be equal,the access provided to any groupofficially affiliated with the Boy Scoutsor any other Title 36 youth group must be on terms that are no less favorablethan the most favorable terms providedto one or more outside youth orcommunity groups.
•
Clarifying that public schools,LEAs, and SEAs can charge fees for thisaccess, but only on terms that are noless favorable than the most favorableterms provided to one or more outsideyouth or community groups.
•
Noting that the Act does not requireany school, agency, or school served byan agency to which the Act applies tosponsor any group officially affiliatedwith the Boy Scouts or any other Title36 youth group.
•
Incorporating the proceduralprovisions applicable to title VI of theCivil Rights Act of 1964 (Title VI).
•
Amending 34 CFR 75.500 and76.500 to add the Act and theregulations in part 108 to the list of Federal statutes and regulations onnondiscrimination with which grantees,under 34 CFR 75.500, and States andsubgrantees, under 34 CFR 75.600, thatare covered entities must comply.The significant differences betweenthe NPRM and these final regulationsare as follows:
•
We have added definitions of ‘‘group officially affiliated with anyother Title 36 youth group,’’ ‘‘groupofficially affiliated with the BoyScouts,’’ ‘‘premises or facilities,’’ and‘‘Title 36 youth group’’ to §108.3.
•
We have added language to §108.5that a covered entity may require thatany group seeking equal access underthe Act inform the covered entitywhether the group is officially affiliatedwith the Boy Scouts or with any otherTitle 36 youth group. We have alsoadded language that a covered entity’sfailure to request this information is nota defense to a covered entity’snoncompliance with the Act or itsimplementing regulations.
•
We have restructured and modified§108.6 so that the section more clearlyexplains the circumstances and termsunder which access is required by theAct and its implementing regulations.
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We have added language to §108.6regarding nondiscrimination under theAct and its implementing regulations.
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We have deleted some language inproposed §108.8, renumbered thissection as §108.9, and added a new§108.8 addressing assurances of compliance.
•
We have added language to §108.9to address the scope of fundtermination.
Analysis of Comments and Changes
In response to the Secretary’sinvitation in the NPRM, over 3,000parties submitted comments on the
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