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Friday,

May 5, 2000

Part IV

Department of
Education
34 CFR Parts 100, 104, 106, and 110
Conforming Amendments to the
Regulations Governing Nondiscrimination
on the Basis of Race, Color, National
Origin, Disability, Sex, and Age Under
the Civil Rights Restoration Act of 1987;
Proposed Rule

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26464 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

DEPARTMENT OF EDUCATION your comments addresses and to arrange Act prohibits discrimination on the
your comments in the same order as the basis of age in all programs or activities
34 CFR Parts 100, 104, 106, and 110 proposed regulations. that receive Federal financial assistance.
RIN 1870–AA10
We invite you to assist us in The proposed conforming change is to
complying with the specific amend each of these regulations to add
Conforming Amendments to the requirements of Executive Order 12866 a definition of ‘‘program or activity’’ or
Regulations Governing and its overall requirement of reducing ‘‘program’’ that adopts the statutory
Nondiscrimination on the Basis of regulatory burden that might result from definition of ‘‘program or activity’’ or
Race, Color, National Origin, Disability, these proposed regulations. Please let us ‘‘program’’ enacted as part of the CRRA.
Sex, and Age Under the Civil Rights know of any further opportunities we We believe that adding this statutory
Restoration Act of 1987 should take to reduce potential costs or definition to the regulatory language is
increase potential benefits while the best way to avoid confusion on the
AGENCY: Office for Civil Rights, preserving the effective and efficient part of recipients, students, parents, and
Department of Education. administration of the program. other interested parties about the scope
ACTION: Notice of proposed rulemaking. During and after the comment period, of civil rights coverage. This proposal
you may inspect all public comments also conforms to a notice of proposed
SUMMARY: The Secretary proposes to about these proposed regulations in rulemaking (NPRM) to establish Title IX
amend the regulations governing room 5036, 330 C Street, SW., common regulations for 24 Federal
nondiscrimination on the basis of race, Washington, DC, between the hours of agencies published on October 29, 1999.
color, national origin, sex, handicap, 9:30 a.m. and 5 p.m., Eastern time, (64 FR 58568) That proposed common
and age to conform with statutory Monday through Friday of each week rule incorporated the statutory
amendments made by the Civil Rights except Federal holidays. definitions of ‘‘program or activity’’ or
Restoration Act of 1987 (CRRA). These ‘‘program’’ enacted as part of the CRRA.
amendments would add a definition of Assistance to Individuals With
The Department’s civil rights
‘‘program or activity’’ or ‘‘program’’ that Disabilities in Reviewing the
regulations, when originally issued and
adopts the statutory definition of Rulemaking Record
implemented, were interpreted by the
‘‘program or activity’’ or ‘‘program’’ On request, we will supply an Department to mean that acceptance of
enacted as part of the CRRA. appropriate aid, such as a reader or Federal assistance by a school resulted
DATES: We must receive your comments print magnifier, to an individual with a in broad institutional coverage. In Grove
on or before July 5, 2000. disability who needs assistance to City College v. Bell, 465 U.S. 555, 571–
review the comments or other 72 (1984) (Grove City College), the
ADDRESSES: Address all comments about
documents in the public rulemaking Supreme Court held, in a Title IX case,
these proposed regulations to Jeanette J.
record for these proposed regulations. If that if the Department provides student
Lim, U.S. Department of Education, 400
you want to schedule an appointment financial assistance to a college, the
Maryland Avenue, SW., room 5036
for this type of aid, you may call (202) Department has jurisdiction to ensure
MES, Washington, DC 20202–1100. If
205–8113 or (202) 260–9895. If you use Title IX compliance in the specific
you prefer to send your comments
a TDD, you may call the Federal program receiving the assistance, in this
through the Internet, use the following
Information Relay Service at 1–800– case, the student financial aid office, but
address: comments@ed.gov
877–8339. that the Federal student financial
You must include the term ‘‘CRRA’’
in the subject line of your electronic Overview assistance would not provide
message. jurisdiction over the entire institution.
The Department of Education Following the Supreme Court’s decision
FOR FURTHER INFORMATION CONTACT: (Department or ED) proposes to amend in Grove City College, the Department
Jeanette J. Lim. Telephone: (202) 205– these civil rights regulations to conform did change its interpretation, but not the
5557. If you use a telecommunications to provisions of the Civil Rights language, of these regulations to be
device for the deaf (TDD), you may call Restoration Act (CRRA), regarding the consistent with the Court’s restrictive,
the TDD number at (202) 260–0471 or scope of coverage under civil rights ‘‘program specific’’ definition of
the Federal Information Relay Service at statutes administered by the ‘‘program or activity’’ or ‘‘program.’’
1–800–877–8339. Department. These statutes include Title Since Title IX was patterned after Title
For additional copies of this NPRM, VI of the Civil Rights Act of 1964, as VI, Grove City College significantly
individuals may call OCR’s Customer amended, 42 U.S.C. 2000d, et seq. (Title narrowed the scope of jurisdiction of
Service Team at 202–205–5557 or toll- VI), Title IX of the Education Title VI and two other statutes based on
free at 1–800–421–3481. Amendments of 1972, 20 U.S.C. 1681, et it: The Age Discrimination Act and
Individuals with disabilities may seq., (Title IX), Section 504 of the Section 504. See S. Rep. No. 100–64,
obtain this document in an alternative Rehabilitation Act of 1973, as amended, 100th Cong., 1st Sess. 2–3, 11–16 (1987).
format (e.g., Braille, large print, 29 U.S.C. 794 (Section 504), and the Age Then, in 1988, the CRRA was enacted
audiotape, or computer diskette) on Discrimination Act of 1975, 42 U.S.C. to ‘‘restore the prior consistent and long-
request to OCR’s Customer Service 6101, et seq. (Age Discrimination Act). standing executive branch interpretation
Team listed in the preceding paragraph. Title VI prohibits discrimination on the and broad, institution-wide application
SUPPLEMENTARY INFORMATION: basis of race, color, and national origin of those laws as previously
in all programs or activities that receive administered.’’ 20 U.S.C. 1687 note 1.
Invitation to Comment Federal financial assistance; Title IX Congress enacted the CRRA in order to
We invite you to submit comments prohibits discrimination on the basis of remedy what it perceived to be a serious
regarding these proposed regulations. sex in education programs or activities narrowing by the Supreme Court of a
To ensure that your comments have that receive Federal financial assistance; longstanding administrative
maximum effect in developing the final Section 504 prohibits discrimination on interpretation of the coverage of the
regulations, we urge you to identify the basis of disability in all programs or regulations. At that time, the
clearly the specific section or sections of activities that receive Federal financial Department reinstated its broad
the proposed regulations that each of assistance; and the Age Discrimination interpretation to be consistent with the

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Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 26465

CRRA, again without changing the disparate effect on individuals based on Department, all of their operations are
language of the regulations. It was and race, color, national origin, sex, subject to the nondiscrimination
remains the Department’s consistent disability, or age, as applicable. Those requirements of the regulations. For
interpretation that—with regard to the criteria or practices may constitute example, if a public school district
differences between the interpretation of impermissible discrimination based on receives funds from the Department
the regulations given by the Supreme legal standards that include under the Safe and Drug Free Schools
Court in Grove City College and the consideration of their educational and Communities Act, the entire school
language of the CRRA—the CRRA, necessity.) district is covered, not just the district’s
which took effect upon enactment, The statutory definition, which is Safe and Drug Free Schools and
superseded the Grove City College being incorporated into the regulations, Communities component. Additionally,
decision and, therefore, the regulations addresses four broad categories of for example, if a college or university
must be read in conformity with the recipients: (1) State or local receives student financial assistance
CRRA. governmental entities. (2) Colleges, from the Department, all of the
This interpretation reflects the universities, other postsecondary operations of the college or university
understanding of Congress, as expressed educational institutions, public systems are covered, not solely the operations of
in the legislative history of the CRRA, of higher education, local educational the student financial assistance office.
that the statutory definition of ‘‘program agencies (LEAs), systems of vocational In addition, the legislative history of the
or activity’’ or ‘‘program’’ would take education, and other school systems. (3) CRRA made it clear that ‘‘all of the
effect immediately, by its own force, Private entities, such as corporations, operations’’ was not limited to
without the need for Federal agencies to partnerships, and sole proprietorships, traditional educational operations, but
amend their existing regulations. S. Rep. including those whose principal was intended to include other benefits
No. 100–64 at 32. The legislative history business is providing education. (4) and services of the educational
also evidences congressional concern Entities that are established by a institution, such as faculty and student
about the Department’s immediate need combination of two or more of the first housing, campus shuttle bus services,
to address complaints and findings of three types of entities. and commercial activities, such as
Under the first part of the definition,
discrimination in federally assisted cafeterias and bookstores.
if State and local governmental entities
schools under the CRRA definition of Under the third part of the definition,
receive financial assistance from the
‘‘program or activity,’’ citing examples in the case of private entities not already
Department, the ‘‘program or activity’’
to demonstrate why the CRRA was listed under the second part of the
or ‘‘program’’ in which discrimination is
‘‘urgently’’ needed. S. Rep. No. 100–64 definition, if the federally assisted entity
prohibited includes all of the operations
at 11–16. or organization is principally engaged in
of any State or local department or
The proposed regulatory change the business of education (or health
agency to which the Federal assistance
discussed previously would eliminate care, housing, social services, or parks
is extended. For example, if the
an issue recently raised by the Third and recreation), then the entire
Department provides financial
Circuit Court of Appeals in Cureton v. corporation, partnership, or other
assistance to a State educational agency,
NCAA, 198 F. 3d 107 (1999) (Cureton). private organization or sole
all of the agency’s operations are subject
That court determined that, because the proprietorship is the covered ‘‘program
to the nondiscrimination requirements
Department did not amend its Title VI or activity’’ or ‘‘program.’’ For example,
of the regulations. In addition, ‘‘program
regulations after the CRRA amended or activity’’ or ‘‘program’’ also includes if an individual elementary or
Title VI, application of the Department’s all of the operations of the entity of a secondary school that is neither part of
Title VI regulations to disparate impact State or local government that an LEA nor part of an assisted private
discrimination claims is ‘‘program distributes the Federal assistance to ‘‘school system’’ receives financial
specific’’ (i.e., limited to specific another State or local governmental assistance from the Department, the
programs in an institution affected by agency or department and all of the school will be covered on an institution-
the Federal funds), rather than operations of the State or local wide basis under this portion of the
institution-wide (i.e., applicable to all of governmental entity to which the definition of ‘‘program or activity’’ or
the operations of the institution financial assistance is extended. For ‘‘program’’ because it is an entity
regardless of the use of the Federal example, if the Department provides principally engaged in the business of
funds). The Department disagrees with financial assistance under Title I of the providing education. For example, if a
the Cureton decision for the reasons Elementary and Secondary Education proprietary trade school receives
described in this preamble. That Act to a State educational agency and student financial assistance from the
decision would thwart clearly expressed the State educational agency distributes Department, all of its operations are
congressional intent. In any event, the the financial assistance to a local covered by the nondiscrimination
proposed regulatory changes would educational agency, then all of the requirements of the regulations.
address the concerns raised by the Third operations of the State educational Also under the third part of the
Circuit in that the regulations would agency are subject to the definition, if a private entity is not
track the statutory language and apply nondiscrimination requirements of the principally engaged in the business of
to both disparate impact discrimination regulations, and all of the operations of education or health care, housing, social
and different treatment discrimination. the local educational agency are services, or parks and recreation and the
(‘‘Different treatment,’’ i.e., intentional covered. Department extends financial assistance
discrimination, refers to policies or Under the second part of the to the private entity ‘‘as a whole,’’ all of
practices that treat individuals definition of ‘‘program or activity’’ or the private entity’s operations at all of
differently based on their race, color, ‘‘program,’’ if colleges, universities, its locations would be covered. If the
national origin, sex, disability, or age, as other postsecondary institutions, public Department were to extend general
applicable. That different treatment is systems of higher education, local assistance, that is, assistance that is not
generally barred by the civil rights educational agencies, systems of designated for a particular purpose, to
statutes and regulations. ‘‘Disparate vocational education, or other public or this type of corporation or other private
impact’’ refers to criteria or methods of private schools or school systems entity, that would be considered
administration that have a significant receive financial assistance from the financial assistance to the private entity

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26466 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

‘‘as a whole.’’ In other instances in established Title IX jurisdiction only In addition, we are proposing
which a geographically separate facility over the financial aid program, not the conforming changes that delete
receives assistance under the third part entire institution. However, Congress’ references to ‘‘program’’ or ‘‘program or
of this definition, the coverage would be 1988 enactment of the CRRA activity’’ in the existing regulations that
limited to the geographically separate counteracted this decision by defining do not refer to the CRRA broad
facility that receives the assistance. ‘‘program or activity’’ and ‘‘program’’ to definition of that phrase and to continue
Under the fourth part of the provide expressly that Title IX covers all the longstanding Department
definition, if an entity of a type not educational programs of a recipient interpretation of the statutes and
already covered by one of the first three institution. Because of this statutory regulations. For example, in some
parts of the definition is established by change, the words ‘‘or benefits from’’ are instances, we have proposed to delete
two or more of the entities listed under no longer necessary as a regulatory ‘‘program’’ or ‘‘program or activity’’ and
the first three parts of the definition, matter. For the same reason, we propose substitute ‘‘Federal financial assistance’’
then all of the operations of that new to delete the words ‘‘or benefits from’’ or ‘‘aids, benefits, or services.’’ In
entity are covered. Under the illustrative from the Section 504 regulations. These others, we have proposed to change
example in the legislative history, a deletions do not affect the reach of Title ‘‘programs and activities’’ to ‘‘programs
public school district (an entity listed IX or Section 504. or activities’’ to conform the regulations
under the second part of the definition) The Department of Education’s to the phrase used in the CRRA—when
and a private corporation (an entity existing Title VI regulations, it is used in the broad manner defined
listed under the third part of the promulgated in 1964 by the Department in the CRRA. We have not proposed to
definition) may establish a new modify the term ‘‘activity’’ when it
of Health, Education, and Welfare in 29
company, which is a public-private appears separately from the phrase
FR 16298 and 29 FR 16988 and in 1965
partnership designed to provide ‘‘program or activity’’ and is used in a
in 30 FR 16988, include an assurance
remediation, training, and employment manner unrelated to the CRRA phrase
requirement for institutions in
to high school students who are at risk ‘‘program or activity.’’
§ 100.4(d)(2) that has created confusion
of dropping out of school. If the new It is important to note that the
with regard to the scope of ‘‘program or
company applied for and received proposed changes would not in any way
activity’’ and ‘‘program’’ under Title VI.
financial assistance from the alter the requirement of the CRRA that
One example is the previously
Department, then, as an entity listed a proposed or effectuated fund
referenced decision in Cureton. The
under the fourth part of the definition, termination be limited to the particular
all of its operations would be covered, current provision states, in part, ‘‘The program or programs ‘‘or part thereof’’
even if the assistance from the assurance * * * shall be applicable to that discriminates or, as appropriate, to
Department went only to one division or the entire institution unless the all of the programs that are infected by
component of the new company. applicant establishes, to the satisfaction the discriminatory practices. See S. Rep.
The proposed regulations also would of the responsible Department official, No. 100–64, at 20 (‘‘The [CRRA] defines
modify or delete some existing sections that the institution’s practices in ‘program’ in the same manner as
of the Department regulations that have designated parts or programs of the ‘program or activity,’ and leaves intact
become superfluous following the CRRA institution will in no way affect its the ‘or part thereof’ pinpointing
enactment, to conform with the CRRA practices in the program of the language.’’).
definitions of ‘‘program or activity’’ or institution for which Federal financial We propose to replace the current
‘‘program.’’ These proposed regulations assistance is sought * * *.’’ (34 CFR definition of ‘‘program’’ in 34 CFR
would not change the requirements of 100.4(d)(2)) This NPRM proposes to 100.13 with the proposed definition of
the existing regulations. This is delete that portion of the assurance to ‘‘program or activity’’ and ‘‘program.’’
consistent with the approach in the avoid any further confusion. As We propose to add the definition of
Title IX common rule NPRM in which previously stated, it was appropriate to ‘‘program or activity’’ and ‘‘program’’ to
it was noted that regulatory language in apply the CRRA statutory definition of 34 CFR 106.2. We propose to add the
ED’s Title IX regulations made ‘‘program or activity’’ to the regulations. definition of ‘‘program or activity’’ to 34
superfluous by the enactment of the For the same reasons, portions of the CFR 104.3 and to 34 CFR 110.3.
CRRA was omitted in that proposed rule illustrations in § 100.5 (b) and (d) would Because, as previously explained, the
(64 FR 58571). be deleted, since they could create proposed changes merely incorporate
The Department’s Title IX regulations, similar confusion. Specifically, current statutory language and do not alter the
promulgated in 1975, defined § 100.5(b) states that, with regard to Department’s consistent position that
‘‘recipient’’ as an entity ‘‘to whom university graduate research, training, the regulations must be read in
Federal financial assistance is extended demonstration, or other grants, ‘‘the conformity with the CRRA, the
directly or through another recipient prohibition extends to the entire Department views these changes as
and that operates an education program university unless it satisfies the technical in nature. However, the
or activity that receives or benefits from responsible Department official that Department is inviting public comment
such assistance.’’ At that time, the practices with respect to other parts or on the proposed changes, consistent
words ‘‘or benefits from’’ were programs of the university will not with its policy of involving interested
necessary to clarify that all of the interfere, directly or indirectly, with members of the public in its rulemaking
operations of a university or other fulfillment of the assurance required process. Conforming changes to the
educational institution that receives with respect to the graduate school.’’ nonregulatory guidance in Appendix B
Federal funds— not just the particular Similarly, current § 100.5(d) states that of Part 100, Appendix A of Part 104, and
programs receiving financial ‘‘In construction grants the assurances Appendix A of Part 106 will be
assistance—are covered by Title IX’s required will be adapted to the nature published in the Federal Register in a
nondiscrimination requirements. As of the activities to be conducted in the separate notice. Nothing in these
previously discussed, this interpretation facilities for construction of which the proposed changes affects coverage
was rejected by the Supreme Court in grants have been authorized by under the Federal employment
1984 in Grove City College, which held Congress.’’ These proposed deletions nondiscrimination statutes, including
that Federal student financial aid would not affect the reach of Title VI. Title VII of the Civil Rights Act of 1964,

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Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 26467

Title I of the Americans with sections, use of headings, paragraphing, List of Subjects
Disabilities Act, and the Age etc.) aid or reduce their clarity?
34 CFR Part 100
Discrimination in Employment Act. • Would the proposed regulations be
easier to understand if we divided them Administrative practice and
Executive Order 12866 procedure, Civil rights.
into more (but shorter) sections? (A
1. Potential Costs and Benefits ‘‘section’’ is preceded by the symbol ‘‘§’’ 34 CFR Part 104
Under Executive Order 12866, we and a numbered heading; for example,
§ 100.2 Application of this regulation.) Civil Rights, Equal educational
have assessed the potential costs and opportunity, Equal employment
benefits of this regulatory action. • Could the description of the
proposed regulations in the opportunity, Individuals with
The potential costs associated with
SUPPLEMENTARY INFORMATION section of disabilities.
the proposed regulations are those
resulting from statutory requirements this preamble be more helpful in 34 CFR Part 106
and those we have determined as making the proposed regulations easier
Education, Sex discrimination.
necessary for administering these to understand? If so, how?
programs effectively and efficiently. • What else could we do to make the 34 CFR Part 110
In assessing the potential costs and proposed regulations easier to Administrative practice and
benefits—both quantitative and understand? procedure, Aged, Civil rights, Grant
qualitative—of this regulatory action, Send any comments that concern how programs—education, Loan programs—
we have determined that there probably the Department could make these education.
will be no cost impacts because this proposed regulations easier to
understand to the person listed in the Dated: March 29, 2000.
regulatory action merely clarifies
longstanding Department policy and ADDRESSES section of the preamble. Richard W. Riley,
does not change the Department’s Secretary of Education.
Regulatory Flexibility Act Certification For the reasons discussed in the
practices in addressing issues of
discrimination. The Secretary certifies that these preamble, the Secretary proposes to
We have also determined that this proposed regulations would not have a amend parts 100, 104, 106, and 110 of
regulatory action would not unduly significant economic impact on a title 34 of the Code of Federal
interfere with State, local, and tribal substantial number of small entities. Regulations as follows:
governments in the exercise of their These regulations implement statutory
governmental functions. amendments and longstanding PART 100—NONDISCRIMINATION
Department policy. UNDER PROGRAMS RECEIVING
Summary of Potential Costs and FEDERAL ASSISTANCE THROUGH
Benefits Paperwork Reduction Act of 1995 THE DEPARTMENT OF EDUCATION
Recently, the Third Circuit Court of These proposed regulations do not EFFECTUATION OF TITLE VI OF THE
Appeals interpreted existing regulations contain any information collection CIVIL RIGHTS ACT OF 1964
inconsistently with the language of the requirements.
1. The authority citation for part 100
CRRA and our existing practices. The Assessment of Educational Impact continues to read as follows:
Department disagrees with that
decision. However, these proposed The Secretary particularly requests Authority: Sec. 602, 78 Stat. 252; 42 U.S.C.
comments on whether these proposed 2000d–1, unless otherwise noted.
regulations would clarify the
Department’s policy and practice in regulations would require transmission § 100.2 [Amended]
light of that decision—and would do of information that any other agency or
2. Section 100.2 is amended by
that only a short time after the court authority of the United States gathers or
removing the words ‘‘program for
decision, thereby ensuring continuity in makes available.
which’’ and adding, in their place,
that policy and practice and avoiding Electronic Access to This Document ‘‘program to which’’ and removing the
changes in the behavior of recipients words ‘‘assisted programs and
within the Third Circuit that could You may view this document, as well
as all other Department of Education activities’’ and adding, in their place,
occur if Federal civil rights jurisdiction ‘‘financial assistance’’.
were changed. Therefore, it is possible documents published in the Federal
that there will be no costs associated Register, in text or Adobe Portable § 100.3 [Amended]
with the proposed regulations. Document Format (PDF) on the Internet 3. Section 100.3(d) is amended by
at either of the following sites: removing the words ‘‘the benefits of a
2. Clarity of the Regulations http://ocfo.ed.gov/fedreg.htm program’’, and adding, in their place,
Executive Order 12866 and the http://www.ed.gov/news.html the word ‘‘benefits’’.
President’s Memorandum of June 1, To use the PDF you must have the
1998 on ‘‘Plain Language in Government Adobe Acrobat Reader Program with § 100.4 [Amended]
Writing’’ require each agency to write Search, which is available free at either 4. Section 100.4 is amended as
regulations that are easy to understand. of the previous sites. If you have follows—
The Secretary invites comments on questions about using the PDF, call the A. Removing the words ‘‘to carry out
how to make these proposed regulations U.S. Government Printing Office (GPO), a program’’ in the first sentence of
easier to understand, including answers toll free, at 1–888–293–6498; or in the paragraph (a)(1);
to questions such as the following: Washington, DC, area at (202) 512–1530. B. Removing the words ‘‘except a
• Are the requirements in the Note: The official version of this document
program’’ and adding, in their place, the
proposed regulations clearly stated? is the document published in the Federal
words ‘‘except an application’’ in the
• Do the proposed regulations contain Register. Free Internet access to the official first sentence of paragraph (a)(1);
technical terms or other wording that edition of the Federal Register and the Code C. Removing the words ‘‘for each
interferes with their clarity? of Federal Regulations is available on GPO program’’ and the words ‘‘in the
• Does the format of the proposed Access at: http://www.access.gpo.gov/nara/ program’’ in the fifth sentence of
regulations (grouping and order of index.html paragraph (a)(1);

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26468 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

D. Removing the words ‘‘State (g) The term program or activity and 11. The authority citation for part 104
programs’’ and adding, in their place, the term program mean all of the continues to read as follows:
the words ‘‘Federal financial operations of— Authority: 20 U.S.C. 1405; 29 U.S.C. 794.
assistance’’ in the heading of paragraph (1)(i) A department, agency, special
(b); purpose district, or other § 104.2 [Amended]
E. Removing the words ‘‘to carry out instrumentality of a State or of a local 12. Section 104.2 is amended by
a program involving’’ and adding, in government; or removing the word ‘‘each’’ wherever it
their place, the word ‘‘for’’ in paragraph (ii) The entity of such State or local appears and adding, in its place, the
(b); and government that distributes such word ‘‘the’’; and by removing the words
F. Revising paragraph (d)(2). assistance and each such department or ‘‘or benefits from’’.
The revision reads as follows: agency (and each other State or local 13. Section 104.3 is amended by
government entity) to which the redesignating paragraphs (k) and (l) as
§ 100.4 Assurances required. assistance is extended, in the case of paragraphs (l) and (m), respectively;
* * * * * assistance to a State or local adding a new paragraph (k); and adding
(d) * * * government; an authority citation following
(2) The assurance required with (2)(i) A college, university, or other paragraph (k) to read as follows:
respect to an institution of higher postsecondary institution, or a public
education, hospital, or any other system of higher education; or § 104.3 Definitions.
institution, insofar as the assurance (ii) A local educational agency (as * * * * *
relates to the institution’s practices with defined in 20 U.S.C. 8801), system of (k) Program or activity means all of
respect to admission or other treatment vocational education, or other school the operations of—
of individuals as students, patients, or system; (1)(i) A department, agency, special
clients of the institution or to the (3)(i) An entire corporation, purpose district, or other
opportunity to participate in the partnership, or other private instrumentality of a State or of a local
provision of services or other benefits to organization, or an entire sole government; or
such individuals, shall be applicable to proprietorship— (ii) The entity of such State or local
the entire institution. (A) If assistance is extended to such government that distributes such
corporation, partnership, private assistance and each such department or
* * * * * organization, or sole proprietorship as a
5. Section 100.5 is amended as agency (and each other State or local
whole; or government entity) to which the
follows— (B) Which is principally engaged in
A. Revising paragraph (b); and assistance is extended, in the case of
the business of providing education,
B. Removing the last sentence of assistance to a State or local
health care, housing, social services, or
paragraph (d). government;
parks and recreation; or (2)(i) A college, university, or other
The revision reads as follows: (ii) The entire plant or other
postsecondary institution, or a public
§ 100.5 Illustrative application. comparable, geographically separate
system of higher education; or
facility to which Federal financial
* * * * * (ii) A local educational agency (as
assistance is extended, in the case of
(b) In a research, training, defined in 20 U.S.C. 8801), system of
any other corporation, partnership,
demonstration, or other grant to a vocational education, or other school
private organization, or sole
university for activities to be conducted system;
proprietorship; or (3)(i) An entire corporation,
in a graduate school, discrimination in (4) Any other entity that is established
the admission and treatment of students partnership, or other private
by two or more of the entities described
in the graduate school is prohibited, and organization, or an entire sole
in paragraph (g)(1), (2), or (3) of this
the prohibition extends to the entire proprietorship—
section; any part of which is extended (A) If assistance is extended to such
university. Federal financial assistance.
* * * * * corporation, partnership, private
(Authority: 42 U.S.C. 2000d–4) organization, or sole proprietorship as a
§ 100.6 [Amended] * * * * * whole; or
6. Section 100.6(b) is amended by 9. Appendix A to part 100 is amended (B) Which is principally engaged in
removing the words ‘‘of any program by revising the heading of part 1 and the the business of providing education,
under’’ in the last sentence and adding, heading of part 2 to read as follows: health care, housing, social services, or
in their place, the word ‘‘in’’. parks and recreation; or
Appendix A to Part 100—Federal
(ii) The entire plant or other
§ 100.9 [Amended] Financial Assistance to Which These
comparable, geographically separate
Regulations Apply
7. Section 100.9(e) is amended by facility to which Federal financial
removing the word ‘‘programs’’ in the Part 1—Assistance Other Than Continuing assistance is extended, in the case of
first sentence and adding, in its place, Assistance to States any other corporation, partnership,
the words ‘‘Federal assistance statutes’’. * * * * * private organization, or sole
8. Section 100.13 is amended by Part 2—Continuing Assistance to States proprietorship; or
removing ‘‘for any program,’’ and (4) Any other entity which is
* * * * * established by two or more of the
‘‘under any such program’’ in paragraph
(i); removing ‘‘for the purpose of PART 104—NONDISCRIMINATION ON entities described in paragraph (k)(1),
carrying out a program’’ in paragraph (j); THE BASIS OF HANDICAP IN (2), or (3) of this section; any part of
and revising paragraph (g) and adding PROGRAMS OR ACTIVITIES which is extended Federal financial
an authority citation following RECEIVING FEDERAL FINANCIAL assistance.
paragraph (g) to read as follows: ASSISTANCE (Authority: 29 U.S.C. 794(b))
§ 100.13 Definitions. 10. The heading for part 104 is revised * * * * *
* * * * * to read as set forth above. 14. Section 104.4 is amended by—

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A. Removing the words ‘‘or benefits and adding, in their place, the word removing the words ‘‘the program’’, and
from’’ in paragraphs (a) and (b)(5); ‘‘Accessibility’’ and by removing the adding, in their place, the words ‘‘the
B. Removing the words ‘‘programs or words ‘‘each program or activity to placement’’; and
activities’’ wherever they appear in which this part applies so that the I. Removing the words ‘‘such a
paragraph (b)(3), and adding, in their program or activity, when viewed in its program’’ in the last sentence of
place, ‘‘aids, benefits, or services’’; entirety,’’ in the first sentence and paragraph (c)(4), and adding, in their
C. Removing the words ‘‘or benefiting adding, in their place, the words ‘‘its place, the words ‘‘a free appropriate
from’’ in paragraph (b)(6); and program or activity so that when each public education’’.
D. In paragraph (c), removing the part is viewed in its entirety, it’’; by
word ‘‘Programs’’ in the heading and removing the words ‘‘offer programs and § 104.35 [Amended]
adding, in its place, the words ‘‘Aids, activities to’’ in the last sentence and 23. Section 104.35(a) is amended by
benefits, or services’’; removing the adding, in their place, the word ‘‘serve’’ removing the words ‘‘program shall’’
words ‘‘from the benefits of a program’’ in paragraph (b); and by removing the and adding, in their place, the words
and adding, in their place, the words word ‘‘program’’ in paragraph (e)(3). ‘‘program or activity shall’’ and by
‘‘from aids, benefits, or services’’, and removing the word ‘‘a’’ before the word
removing the words ‘‘from a program’’ § 104.31 [Amended] ‘‘regular’’ and by removing the word
and adding, in their place, the words 21. Section 104.31 is amended by ‘‘program’’ before the word ‘‘and’’.
‘‘from aids, benefits, or services’’. removing the words ‘‘or benefit from’’
wherever they appear; and by removing § 104.37 [Amended]
§§ 104.4, 104.6, 104.12, 104.33 [Amended] the words ‘‘programs and activities’’ and 24. Section 104.37(c)(1) is amended
15. Remove the word ‘‘program’’ and adding, in their place, the words by removing the words ‘‘programs and
add, in its place, the words ‘‘program or ‘‘programs or activities’’. activities’’ in the first sentence and
activity’’ in the following sections: adding, in their place, the words ‘‘aids,
A. Section 104.4(b)(4); § 104.33 [Amended] benefits, or services’’; and by removing
B. Section 104.6(a)(3), wherever it 22. Section 104.33 is amended by— the words ‘‘in these activities’’ in the
appears; A. Removing the words last sentence.
C. Section 104.12(a), (c) introductory ‘‘individualized education program’’
and adding, in their place, the words § 104.38 [Amended]
text, and (c)(1); and
D. Section 104.33(a). ‘‘Individualized Education Program’’ in 25. Section 104.38 is amended by—
paragraph (b)(2); A. Removing the word ‘‘programs’’ in
§ 104.5 [Amended] B. Removing the words ‘‘in or refer the section heading;
16. Section 104.5(a) is amended in the such person to a program other than the B. Removing the words ‘‘operates a’’
first sentence by removing the words one that it operates’’ and adding, in and adding, in their place, the word
‘‘for a program or activity’’ and by their place, the words ‘‘or refer such a ‘‘provides’’;
removing the words ‘‘the program’’ and person for aids, benefits, or services C. Removing the words ‘‘program or
adding, in their place, the words ‘‘the other than those that it operates or activity or an’’ after the word ‘‘care’’ and
program or activity’’. provides’’ in the first sentence in adding, in their place, the word ‘‘or’’;
paragraph (b)(3); D. Removing the words ‘‘program or
§ 104.8 [Amended] C. Removing the words ‘‘in or refers activity’’ after the word ‘‘education’’;
17. Section 104.8(a) is amended by such person to a program not operated’’ E. Removing the words ‘‘from the
removing the words ‘‘programs and in the second sentence of paragraph program or activity’’;
activities’’ in the second sentence and (c)(1), and adding, in their place, the F. Revising the word ‘‘aid’’ to read
adding, in their place, the words words ‘‘or refers such person for aids, ‘‘aids’’; and
‘‘programs or activities’’. benefits, or services not operated or G. Removing the words ‘‘under the
provided’’; program or activity’’.
§ 104.11 [Amended]
D. Removing the words ‘‘of the
18. Section 104.11 is amended by— program’’ in the second sentence of § 104.39 [Amended]
A. Removing the words ‘‘programs paragraph (c)(1) and adding, in their 26. Section 104.39 is amended by—
assisted’’ and adding, in their place, the place, the words ‘‘of the aids, benefits, A. Removing the word ‘‘programs’’ in
words ‘‘programs or activities assisted’’ or services’’; the section heading;
in paragraph (a)(2); E. Removing the words ‘‘in or refers B. Removing the words ‘‘operates a’’
B. Removing the word ‘‘programs’’ such person to a program not operated’’ and adding, in their place, the word
and revising ‘‘apprenticeship’’ to read in paragraph (c)(2), and adding, in their ‘‘provides’’ in paragraph (a);
‘‘apprenticeships’’ in the last sentence place, the words ‘‘or refers such person C. Removing the word ‘‘program’’
of paragraph (a)(4). for aids, benefits, or services not after the word ‘‘education’’ in paragraph
C. Removing the word ‘‘programs’’ operated or provided’’; (a);
and adding the words ‘‘those that are’’ F. Removing the words ‘‘from the D. Removing the words ‘‘from such
before ‘‘social or recreational’’ in program’’ in paragraph (c)(2), and program’’ in paragraph (a);
paragraph (b)(8). adding, in their place, the words ‘‘from E. Removing the words ‘‘the
the aids, benefits, or services’’; recipient’s program’’ in paragraph (a),
Subpart C to Part 104—[Amended] G. Removing the words ‘‘in the and adding, in their place, the words
19. The heading of Subpart C is program’’ in paragraph (c)(2), and ‘‘that recipient’s program or activity’’;
amended by removing the word adding, in their place, the words ‘‘in the and
‘‘Program’’. aids, benefits, or services’’; F. Removing the words ‘‘operates
H. Removing the words ‘‘If placement special education programs shall
§ 104.22 [Amended] in a public or private residential operate such programs’’ in paragraph
20. Section 104.22 is amended in program’’ and adding, in their place, the (c), and adding, in their place, the words
paragraph (a) by removing the words words ‘‘If a public or private residential ‘‘provides special education shall do
‘‘Program accessibility’’ in the heading placement’’ in paragraph (c)(3); and so’’.

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26470 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

§ 104.41 [Amended] instrumentality of a State or local A. Removing the word ‘‘and’’ in the
27. Section 104.41 is amended by government; or section heading and adding, in its place,
removing the words ‘‘programs and (ii) The entity of a State or local the word ‘‘or’’;
activities’’ wherever they appear in the government that distributes such B. Removing the words ‘‘or benefits
section and adding, in their place, the assistance and each such department or from’’ in the first sentence of paragraph
words ‘‘programs or activities’’; and by agency (and each other State or local (a); and
removing the words ‘‘or benefit from’’ government entity) to which the C. Removing the words ‘‘Programs not
wherever they appear in the section. assistance is extended, in the case of operated’’ in the heading of paragraph
assistance to a State or local (d), and adding, in their place, the
§ 104.43 [Amended] government; words ‘‘Aid, benefits or services not
28. Sections 104.43 is amended by— (2)(i) A college, university, or other provided’’.
A. Removing the words ‘‘program or postsecondary institution, or a public
activity’’ in paragraph (a) and adding, in system of higher education; or § 106.40 [Amended]
their place, the words ‘‘aids, benefits, or (ii) A local educational agency (as 39. Section 106.40 is amended by
services’’; and defined in 20 U.S.C. 8801), system of removing the words ‘‘in the normal
B. Removing the words ‘‘programs vocational education, or other school education program or activity’’ in
and activities’’ in paragraph (d), and system; paragraph (b)(2); and by removing the
adding, in their place, the words (3)(i) An entire corporation, words ‘‘instructional program in the
‘‘program or activity’’. partnership, other private organization, separate program’’ in paragraph (b)(3)
or an entire sole proprietorship— and adding, in their place, the words
§ 104.44 [Amended] (A) If assistance is extended to such
29. Section 104.44 is amended by— ‘‘separate portion’’.
corporation, partnership, private
A. Removing the words ‘‘program of’’ organization, or sole proprietorship as a § 106.51 [Amended]
in the second sentence of paragraph (a); whole; or
B. Removing the words ‘‘in its 40. Section 106.51 is amended by
(B) Which is principally engaged in removing the words ‘‘or benefits from’’
program’’ in paragraph (c); and the business of providing education,
C. Removing the words ‘‘under the in paragraph (a)(1).
health care, housing, social services, or
education program or activity operated parks and recreation; or PART 110—NONDISCRIMINATION ON
by the recipient’’ in paragraph (d)(1). (ii) The entire plant or other THE BASIS OF AGE IN DEPARTMENT
§ 104.47 [Amended] comparable, geographically separate OF EDUCATION PROGRAMS OR
facility to which Federal financial ACTIVITIES RECEIVING FEDERAL
30. Section 104.47 is amended by
assistance is extended, in the case of FINANCIAL ASSISTANCE
removing the words ‘‘programs and
any other corporation, partnership,
activities’’ in paragraph (a)(1), and 41. The authority citation for part 110
private organization, or sole
adding, in their place, the words ‘‘aids, continues to read as follows:
proprietorship; or
benefits, or services’’. (4) Any other entity that is established Authority: 42 U.S.C. 6101 et seq., unless
§ 104.51 [Amended] by two or more of the entities described otherwise noted.
31. Section 104.51 is amended by in paragraph (h)(1), (2), or (3) of this
section; any part of which is extended §§ 110.1, 110.20 [Amended]
removing the words ‘‘or benefit from’’
wherever they appear in the section; Federal financial assistance. 42. Remove the words ‘‘programs and
and by removing the word ‘‘and’’ before (Authority: 20 U.S.C. 1687) activities’’ in the last sentence of § 110.1
the word ‘‘activities’’ and adding, in its and the first sentence of § 110.20 and
* * * * * add, in their place, the words ‘‘programs
place, the word ‘‘or’’.
§ 106.4 [Amended]
or activities’’.
PART 106—NONDISCRIMINATION ON 43. Section 110.3 is amended by
34. Section 106.4 is amended by
THE BASIS OF SEX IN EDUCATION adding in alphabetical order a new
removing the word ‘‘each’’ and adding,
PROGRAMS OR ACTIVITIES definition of ‘‘Program or activity’’ and
in its place, the word ‘‘the’’ in the first
RECEIVING FEDERAL FINANCIAL adding an authority citation following
sentence of paragraph (a).
ASSISTANCE the definition to read as follows:
§ 106.6 [Amended]
32. The heading for part 106 is revised § 110.3 What definitions apply?
to read as set forth above. 35. Section 106.6 is amended by
removing the words ‘‘or benefits from’’ * * * * *
33. Section 106.2 is amended by— Program or activity means all of the
A. Redesignating paragraphs (h) in paragraph (c).
operations of—
through (r) as paragraphs (i) through (s), § 106.11 [Amended] (a)(1) A department, agency, special
respectively; purpose district, or other
36. Section 106.11 is amended by
B. Adding a new paragraph (h) and
removing the word ‘‘each’’ and adding, instrumentality of a State or local
adding an authority citation following
in its place, the word ‘‘the’’; and by government; or
paragraph (h); and
C. Amending redesignated paragraph removing the words ‘‘or benefits from’’. (2) The entity of a State or local
(i) to remove the words ‘‘or benefits government that distributes such
Subparts D and E of Part 106— assistance and each such department or
from’’. [Amended]
The addition reads as follows: agency (and each other State or local
37. The headings of Subparts D and E government entity) to which the
§ 106.2 Definitions. are amended by removing the word assistance is extended, in the case of
* * * * * ‘‘and’’ and adding, in its place, the word assistance to a State or local
(h) Program or activity and program ‘‘or’’. government;
means all of the operations of— (b)(1) A college, university, or other
(1)(i) A department, agency, special § 106.31 [Amended] postsecondary institution, or a public
purpose district, or other 38. Section 106.31 is amended by— system of higher education; or

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(2) A local educational agency (as facility to which Federal financial § 110.17, and add, in its place, the
defined in 20 U.S.C. 8801), system of assistance is extended, in the case of words ‘‘program or activity’’.
vocational education, or other school any other corporation, partnership,
system; private organization, or sole § 110.35 [Amended]
(c)(1) An entire corporation, proprietorship; or 45. Section 110.35(c)(2) is amended
partnership, other private organization, (d) Any other entity that is established by removing the word ‘‘Federal’’ in the
or an entire sole proprietorship— by two or more of the entities described first sentence.
(i) If assistance is extended to such in paragraph (a), (b), or (c) of this
corporation, partnership, private section; any part of which is extended § 110.37 [Amended]
organization, or sole proprietorship as a Federal financial assistance.
whole; or 46. Section 110.37(b)(2) is amended
(ii) Which is principally engaged in (Authority: 42 U.S.C. 6107) by removing the words ‘‘program or
the business of providing education, * * * * * activity’’ and adding, in their place,
health care, housing, social services, or ‘‘Federal financial assistance’’.
§§ 110.16, 110.17 [Amended]
parks and recreation; or [FR Doc. 00–10567 Filed 5–4–00; 8:45 am]
(2) The entire plant or other 44. Remove the word ‘‘program’’
BILLING CODE 4000–01–U
comparable, geographically separate wherever it appears in § 110.16 and in

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