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Tuesday,

March 9, 2004

Part VII

Department of
Education
34 CFR Part 106
Nondiscrimination on the Basis of Sex in
Education Programs or Activities
Receiving Federal Financial Assistance;
Proposed Rules

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11276 Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / Proposed Rules

DEPARTMENT OF EDUCATION available at OCR’s Web site on the framework for determining under what
Internet at: www.ed.gov/ocr. circumstances single-sex schools and
34 CFR Part 106 Individuals with disabilities may classes may be provided in elementary
RIN 1870–AA11
obtain this document in an alternative and secondary education and for
format (e.g., Braille, large print, ensuring that, when they are provided,
Nondiscrimination on the Basis of Sex audiotape, or computer diskette) on they are provided in a manner that
in Education Programs or Activities request to the contact person listed ensures nondiscrimination on the basis
Receiving Federal Financial under FOR FURTHER INFORMATION of sex consistent with recipients’ Title
Assistance CONTACT. IX obligations.
SUPPLEMENTARY INFORMATION: When Title IX was enacted in 1972
AGENCY: Office for Civil Rights, and when the current regulations were
Department of Education. Invitation to Comment issued in 1975, discrimination against
ACTION: Notice of proposed rulemaking. We invite you to submit comments female students was widespread at all
regarding these proposed regulations. levels of education, including
SUMMARY: The Secretary proposes to We invite you to assist us in elementary and secondary education.
amend the regulations implementing complying with the specific Since then, the educational
Title IX of the Education Amendments requirements of Executive Order 12866 opportunities for young women and
of 1972 (Title IX), which prohibits sex and its overall requirement of reducing girls, and the commitment of educators
discrimination in federally assisted regulatory burden that might result from to those opportunities, have increased.
education programs. These proposed these proposed regulations. Thus, at the time that the current
amendments would clarify and modify During and after the comment period, regulations were issued, it was not
Title IX regulatory requirements you may inspect all public comments unreasonable to base the regulations on
pertaining to the provision of single-sex about these proposed regulations in a presumption that, if recipients were
schools and classes 1 in elementary and room 5036, 330 C Street, SW., permitted to provide single-sex classes
secondary schools. The proposed Washington, DC 20202–6132, between beyond the most limited of
amendments would expand flexibility the hours of 9:30 a.m. and 4 p.m., circumstances, discriminatory practices
for recipients that may be interested in Eastern time, Monday through Friday would likely continue.
providing single-sex schools or classes, except Federal holidays. Over the past 30 years, the situation
and they would explain how single-sex has changed dramatically. While there
schools or classes may be provided Assistance to Individuals With are still more gains to be made, schools
consistent with the requirements of Disabilities in Reviewing the are now far more equitable in their
Title IX. Rulemaking Record treatment of female students. Those
DATES: We must receive your comments On request, we will supply an changes are due in no small measure to
on or before April 23, 2004. appropriate aid, such as a reader or Title IX and our regulations. In the
ADDRESSES: Address all comments about print magnifier, to an individual with a meantime, educational research has
our proposed regulations to Kenneth L. disability who needs assistance to suggested that in certain circumstances,
Marcus, U.S. Department of Education, review comments or other documents in single-sex education provides
400 Maryland Avenue, SW., room 5000, the public rulemaking record for these educational benefits for some students.3
Mary E. Switzer Building, Washington, proposed regulations. If you want to Therefore, we have determined that
DC 20202–1100. If you prefer to send schedule an appointment for this type of
3 See, e.g., U.S. Department of Education, Office
your comments through the Internet, aid, please contact the person listed
of Educational Research and Improvement, Single-
you may address them to us at the U.S. under FOR FURTHER INFORMATION Sex Schooling: Perspectives From Practice and
Government Web site: CONTACT. (If you use a TDD, you may Research (1993) (stating that ‘‘[t]he research
www.regulations.gov. call 1–877–521–2172.) synthesis produced for this conference and the
summary of the conference proceedings suggest that
Or you may send your Internet Overview single-sex education provides educational benefits
comments to us at the following for some students’’). We recognize that there is
address: singlesexcomments@ed.gov. Title IX prohibits discrimination on presently a debate among researchers and educators
For all comments submitted, you the basis of sex in education programs regarding the effectiveness of single-sex education.
should specify the subject as ‘‘Single- and activities that receive Federal Compare Cornelius Riordan, What Do We Know
financial assistance.2 The statute and About the Effects of Single-Sex Schools in the
Sex Proposed Regulations Comments.’’ Private Sector?: Implications for Public Schools, in
existing regulations contain specific Gender in Policy and Practice: Perspectives on
FOR FURTHER INFORMATION CONTACT:
provisions regarding single-sex classes, Single-Sex and Coeducational Schooling, 10, 13–22,
Sandra G. Battle, U.S. Department of schools, and extracurricular activities. 24–28 (Amanda Datnow & Lea Hubbard eds., 2002)
Education, 400 Maryland Avenue, SW., After almost 30 years of progress (stating that ‘‘[s]ingle-sex schools remain an
room 5036, Mary E. Switzer Building, under Title IX and our regulations, we
effective form of school organization for
Washington, DC 20202–1100. disadvantaged students’’); Herbert W. Marsh, Effects
have reexamined our regulatory of Attending Single-Sex and Coeducational High
Telephone: (202) 205–5526. provisions applicable to single-sex Schools on Achievement, Attitudes, and Sex
If you use a telecommunications elementary and secondary education. Differences, Journal of Educational Psychology,
device for the deaf (TDD), you may call For the reasons described in this
1989, Vol. 81, No. 1, 70, 80 (finding in study of
1–877–521–2172. For additional copies Catholic schools that when outcomes for seniors
preamble, we are proposing were controlled for background characteristics in
of this document, you may call the amendments to our regulations that their sophomore year ‘‘almost no school-type effects
Customer Service Team for the Office would provide additional flexibility in were statistically significant* * * [and] there was
for Civil Rights (OCR) at (202) 205–5413 permitting single-sex schools and
no tendency favoring students from single-sex or
or 1–800–421–3481. This notice of coed schools’’). See also American Association of
classes at the elementary and secondary University Women, Separated by Sex: A Critical
proposed rulemaking will also be education levels consistent with the Look at Single-Sex Education for Girls 2 (1998)
requirements of Title IX. The proposed (stating ‘‘[t]here is no evidence that single-sex
1 The current regulations use the terms ‘‘class,’’ education in general ‘works’ or is ‘better’ than
‘‘course,’’ ‘‘course offering’’, and ‘‘extracurricular regulations would provide the coeducation’’ but also stating that ‘‘[s]ingle-sex
activity.’’ For the sake of simplicity, we solely use educational programs produce positive results for
the term ‘‘class’’ in this preamble. 2 20 U.S.C. 1681(a). some students in some settings’’).

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Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / Proposed Rules 11277

amendments permitting additional determinations in resolving any permit recipients more flexibility in
flexibility in providing single-sex complaints related to these issues.6 The providing single-sex schools and classes
educational options, while proposed amendments do not require to opposition against any additional
incorporating appropriate safeguards, single-sex schools or classes but provide flexibility. In preparing these proposed
are appropriate. When the current additional flexibility to offer them, and regulations, we considered comments
regulations were issued, it may have they require that recipients continue to on both the critical issues raised in the
been appropriate to provide limited ensure that their policies and practices NOIR and on other issues raised by
flexibility for single-sex educational do not result in discrimination on the commenters.
opportunities, as discriminatory basis of sex. Recipients that chose to
practices were still prevalent. However, Application
operate single-sex schools or classes
given the current environment, we would be required to comply with our In summary, and unless otherwise
believe that additional flexibility is final regulations, but we are not noted, the proposed amendments for
warranted, and that this flexibility will proposing to require recipients to apply classes and schools would apply to
not compromise equal educational to OCR for approval of a proposed elementary and secondary education
opportunities for male and female single-sex school or class. OCR will and to both public or private 10
students. In fact, these amendments will provide technical assistance to recipients. The proposed amendments
help provide educational benefits to recipients, upon request, when the exempt certain charter schools from
some students. Department approves final regulations. certain proposed requirements related to
These proposed amendments reflect Pursuant to a provision of the No single-sex schools. Furthermore, under
our analysis of the Title IX statute, its Child Left Behind Act of 2001,7 on May the proposed amendments public and
legislative history, and the current 8, 2002, the Department published private recipients would be prohibited
regulations, as well as relevant case law guidelines on the existing regulatory from operating single-sex elementary
under Title IX.4 The proposed requirements in a document entitled and secondary vocational institutions
amendments describe standards that, if ‘‘Guidelines on current Title IX and from offering single-sex vocational
adopted, would be used by the Office requirements related to single-sex education classes in coeducational
for Civil Rights of the U.S. Department classes and schools’’ (Guidelines).8 elementary and secondary schools.
of Education (Department) in making Simultaneously, we published a notice We discuss the substantive issues
determinations about whether of intent to regulate (NOIR), indicating under the sections of the proposed
recipients’ single-sex schools and that the Secretary intends to propose amendments to which they pertain. We
classes are consistent with our Title IX amendments to our Title IX regulations discuss our proposed non-substantive
regulations for the purposes of in order to provide more flexibility to changes in the technical amendments
continued receipt of Federal financial educators to establish single-sex schools section at the end of the preamble.
assistance.5 OCR would make these and classes at the elementary and Current Requirements and Proposed
4 Because
secondary levels and to provide Substantive Changes for Single-Sex
the requirements of the Equal
Protection Clause of the 14th Amendment to the additional public educational choices to Classes
U.S. Constitution also protect the rights of public parents.9 The purpose of the NOIR was
school students who may be subject to sex-based to begin the process of obtaining early Current Regulations (34 CFR 106.34)
classifications, in developing the proposed input from the public on this issue prior Generally Prohibit Single-Sex Classes
amendments, we have also considered Supreme
Court decisions involving constitutional challenges to amending the regulations. There are limited exceptions to the
to single-sex education. The Supreme Court has In response to this invitation we general prohibition on single-sex classes
issued no opinions regarding single-sex programs in received approximately 170 comments.
elementary and secondary school education. Soon
and activities in the current regulations
after the original Title IX regulations were adopted
We are pleased with this response and in 34 CFR 106.34.11 For coeducational
in 1975, the Court, by an evenly divided vote and the public interest expressed regarding
without an opinion, let stand a decision of the this issue. We have found that the 10 Private elementary and secondary schools are
Third Circuit Court of Appeals allowing, under the comments fulfilled the aim of the NOIR subject to the proposed requirements pertaining to
Equal Protection Clause, a school district that also classes if they receive a grant or subgrant of Federal
operated coeducational high schools to have two to focus public attention and comment
funds from the Department. Private schools with
comparable single-sex high schools. Vorchheimer v. on key issues. In summary, the students who participate in programs conducted by
School District of Philadelphia, 532 F.2d 880 (3d comments reflected a spectrum of LEAs that are funded under Federal programs such
Cir. 1976), affirmed by an equally divided Court,
430 U.S. 703 (1977) (per curiam). We also
opinion, ranging from enthusiastic as Title I of the Elementary and Secondary
support for amending the regulations to Education Act or the Individuals with Disabilities
considered the Court’s decisions in two more recent Education Act are not considered recipients of
constitutional challenges in the context of single-
Federal funds unless they otherwise receive a grant
sex postsecondary education, United States v. 6 Similarly, OCR would make these
or subgrant of Federal funds. Such private schools
Virginia (Virginia), 518 U.S. 515 (1996), and determinations if OCR were to initiate a compliance are not subject to these regulations, but the LEA
Mississippi University for Women v. Hogan review on these issues. See 34 CFR 100.7, made must ensure that its programs, including services to
(Hogan), 458 U.S. 718 (1982). applicable to Title IX by 34 CFR 106.71.
5 In addition, recipients that are public entities,
private school students, are consistent with Title IX.
7 On January 8, 2002, the President signed into
Also, the proposed amendments pertaining to
such as public school districts, are subject to the sex law the No Child Left Behind Act of 2001 (‘‘No single-sex schools do not apply to recipients that
discrimination prohibitions of the Equal Protection Child Left Behind’’ or ‘‘NCLB’’), which reauthorized operate private, nonvocational elementary or
Clause of the 14th Amendment to the U.S. the Elementary and Secondary Education Act of secondary schools.
Constitution. Public elementary and secondary 1965 (ESEA). Section 5131(c) of the ESEA required 11 These exceptions allow (1) single-sex groupings
schools are also subject to the requirements of the
the Department to issue guidelines for local within physical education classes that result from
Equal Educational Opportunities Act of 1974
educational agencies (LEAs) regarding the the application of objective standards of physical
(EEOA), 20 U.S.C. 1701–1721, which, among other
applicable law on single-sex classes and schools ability, 34 CFR 106.34(b); (2) separation of students
things, contains prohibitions against the
within 120 days of the enactment of NCLB. Section by sex in physical education classes during
involuntary assignment of students to schools on
the basis of sex. 20 U.S.C. 1703(c), 1705, and 5131(a) of the ESEA describes permissible uses for participation in contact sports, 34 CFR 106.34(c); (3)
1720(c). Public school and private school recipients Innovative Assistance Programs funds, and the separation of students by sex for portions of classes
may also be subject to State or local laws guidelines were required because section in elementary and secondary schools dealing
prohibiting single-sex classes or schools. Recipients 5131(a)(23) permits ‘‘programs to provide same- exclusively with human sexuality, 34 CFR
may wish to consult legal counsel regarding how gender schools and classrooms (consistent with 106.34(e); or (4) choruses based on vocal range or
these additional legal authorities may affect any applicable law).’’ quality, which may result in a single-sex or
8 67 FR 31102–03 (2002).
particular single-sex schools or classes they propose predominantly single-sex grouping, 34 CFR
to offer. 9 67 FR 31098–99 (2002). 106.34(f).

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11278 Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / Proposed Rules

elementary and secondary schools, the schools would be able to apply the Diversity of Educational Options
existing regulations in 34 CFR 106.34 proposed substantive amendments to (Proposed 34 CFR 106.34(b)(1)(i)(A))
prohibit recipients from conducting their nonvocational classes, but the
proposed amendments would not apply A recipient may have an important
single-sex classes or activities or
to vocational classes. governmental interest to evenhandedly
requiring or refusing participation in
support diverse educational options.
classes or activities on the basis of sex. Recipient’s Important Governmental or Thus, the proposed amendments would
Application of Proposed Single-Sex Educational Objective (Proposed 34 CFR permit a recipient to offer single-sex
Class Amendments (Proposed 34 CFR 106.34(b)(1)(i)) classes based on its objective to provide
106.34(b)) The proposed amendments would a diversity of educational options from
Except for specified exceptions, the require that a single-sex class be based which individual students and their
prohibitions against excluding any on a recipient’s important governmental parents may choose.16 For example, a
student from classes on the basis of sex or educational objective,14 which may recipient may determine that students
as set out in the current regulations be either—(1) to provide a diversity of and parents would prefer the option of
apply to all classes and activities, educational options to students and single-sex classes because they believe
including extracurricular activities, and parents, provided that the single-sex they would provide a benefit not
to all coeducational recipient nature of the class is substantially available in coeducational classes. A
institutions at all levels of education. related to achievement of that objective; recipient may also determine that it
Our proposed substantive changes or (2) to meet the particular, identified would be appropriate to offer single-sex
would apply both to elementary and educational needs of its students, classes because it has reliable
secondary public 12 and private 13 provided that the single-sex nature of information that single-sex classes
recipients. The proposed amendments the class is substantially related to would meet its educational objective.
also would specify that the recipient meeting those needs.15 In either case, These proposed amendments, as
that operates the school is responsible the recipient’s important governmental further described in the following
for ensuring compliance with the or educational objective in providing a paragraphs, also require that a recipient
proposed provisions for single-sex single-sex class must be implemented that operates a nonvocational
classes. evenhandedly. We have identified and coeducational elementary or secondary
Proposed 34 CFR 106.34(b) would not incorporated into the proposed school may not authorize or offer a
apply to postsecondary education. regulations these two important nonvocational single-sex class unless it
Coeducational postsecondary schools objectives—diversity of educational provides a substantially equal
would continue to be subject to the options and meeting the particular, coeducational class 17 in the same
requirements of the general prohibition identified needs of its students—either subject pursuant to 34 CFR
contained in the existing regulations, of which could be the basis for single- 106.34(b)(1)(ii).
and they would not be permitted to offer sex classes. Because there may be A recipient may also provide a
single-sex classes pursuant to the differences in the way achievement of substantially equal single-sex class in
provisions of these proposed these two important objectives work, we the same subject for the other sex.
amendments. The existing general discuss them separately in paragraphs Furthermore, as discussed in the
prohibition is in 34 CFR 106.34(a) of the that follow. In our discussion of the following paragraphs under proposed 34
proposed regulations. proposed procedural requirement to CFR 106.34(b)(1)(iii) and (2), to provide
Since vocational education schools conduct periodic evaluations of single- a diversity of options in an evenhanded
were the only type of elementary and sex classes, we provide suggestions as to manner, a substantially equal single-sex
secondary schools to which Congress the types of information that a recipient class may be required in some
specifically applied Title IX admissions might use to determine whether a circumstances.
requirements, we have limited the single-sex class could be created or
prohibition on single-sex classes to maintained consistent with these 16 This process includes a determination that the

vocational education. proposed amendments. single-sex nature of the class is substantially related
We invite specific comments on to meeting the objective identified.
Recipients operating vocational
whether there may be additional 17 In Virginia, in response to a lower court ruling
schools would continue to be subject to
important governmental or educational that an institution’s policies restricting admission to
the general prohibition against males unlawfully discriminated against females, the
objectives that could also be the basis
excluding students from classes on the State attempted to remedy the discrimination by
for single-sex classes that should be establishing a separate program for females at a
basis of sex, and, thus, would not be
incorporated into our final regulations. neighboring women’s college. There was no
permitted to offer single-sex classes substantially equal coeducational program. The
pursuant to the proposed amendments. 14 In two cases, under the 14th Amendment to the Court found that the women’s program was not
Some school districts offer their Constitution, in the public postsecondary education substantially equal to the men’s program. Virginia,
vocational education curriculum in school context where there were allegations of 518 U.S. at 554. In Hogan the male plaintiff was
denial of equal opportunity because of sex, the denied admission on the basis of his sex, and the
comprehensive coeducational schools, State did not offer either an all-male or a
Supreme Court has required that the proponent of
rather than in separate vocational a sex-based classification demonstrate that the coeducational nursing program within a reasonable
schools. Even in these elementary and classification serves an important governmental traveling distance from his residence. The only
secondary schools that are not objective and that the sex-based classification is option available was a coeducational institution at
substantially related to the achievement of that a considerable distance. The Court stated: ‘‘A
vocational schools, the proposed similarly situated female would not have been
objective. Virginia, 518 U.S. at 532–533; Hogan, 458
amendments do not change the U.S. at 724. required to choose between forgoing credit and
applicability of the current general 15 Our proposed amendments for classes differ in bearing that inconvenience.’’ Hogan, 458 U.S. at
regulatory prohibition against single-sex this regard from those for schools due to differences 723, n.8. The U.S. Supreme Court has not addressed
in the Title IX statute. Classes in recipient the issue of whether for constitutional purposes
vocational education classes. These substantial equality would require a public entity
elementary and secondary schools are covered by
the statute and our existing regulations. As to provide a substantially equal single-sex school or
12 Proposed 34 CFR 106.34(b) applies to
explained further in the following section on class for students of the excluded sex or whether
recipients that operate coeducational nonvocational schools, admissions to a recipient’s nonvocational providing those students the opportunity to attend
public charter schools. elementary and secondary schools are not covered a substantially equal coeducational school or class
13 See footnote 10. by the Title IX statute. would be sufficient.

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Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / Proposed Rules 11279

The recipient must provide a diversity The proposed amendments provide sex class would best address that need,
of educational options in an that a single-sex nonvocational class and to address that need appropriately.
evenhanded manner. However, a single- may be provided only if a substantially Finally, although different results for
sex class for each sex, in the same equal coeducational class is provided to boys and girls, in some instances, may
subject, generally is not required. For the other sex in the same subject. (See be permissible under the proposed
example, if the rationale for a single-sex 34 CFR 106.34(b)(1)(ii) of the proposed amendments, a recipient must treat
class is the school’s desire to provide a amendments.) A recipient may also male and female students equally in
diversity of options based on parental or choose to provide a substantially equal identifying whether they have particular
student preference and the school uses single-sex class for the other sex in the educational needs that may be met by
surveys of parents and students to same subject. Furthermore, under providing single-sex classes and in
determine which options would be proposed 34 CFR 106.34(b)(1)(iii), a responding to those needs.
desirable, the survey must include recipient must provide a substantially As discussed in later paragraphs, OCR
parents and students of both sexes. If equal single-sex class for the other sex will examine situations in which a
the results of the survey show a strong if such a class is necessary to implement recipient provides significantly more
preference for a single-sex class in its objectives in an evenhanded single-sex class opportunities to
chemistry for girls, while for boys there manner.19 students of one sex than to students of
is no expressed interest in any single- Under the proposed amendments, if the other sex to determine if they are the
sex classes, the school in this example the particular, identified educational result of discrimination. A recipient that
would not violate these proposed needs of both sexes are the same, and a offers single-sex classes solely in the
provisions by creating a single-sex single-sex class is substantially related context of evenhandedly providing
chemistry class for girls without to meeting those needs for each sex, substantially equal single-sex classes, as
creating a single-sex class for boys. then students of both sexes must be well as coeducational classes, to both
However, the school would be required provided substantially equal single-sex boys and girls is not likely to experience
to provide a substantially equal classes in the same subject if a single- compliance problems with proposed 34
coeducational chemistry class. sex class is provided for one sex. CFR 106.34.
As discussed in later paragraphs, However, there may be legitimate
differences in particular, identified Substantially Equal Coeducational Class
consistent with the requirement that Required (Proposed 34 CFR
single-sex classes be provided in an educational needs between some male
and female students, as well as 106.34(b)(1)(ii))
evenhanded manner, OCR will examine
legitimate differences in whether those The proposed amendment to the
situations in which recipients offer
needs may best be addressed in single- regulations in 34 CFR 106.34(b)(1)(ii)
significantly more single-sex class
sex classes. Thus, depending on a would require that student participation
opportunities to students of one sex
recipient’s evenhanded assessment of in single-sex classes be on a voluntary
than to students of the other sex to
the particular, identified educational basis. This provision clarifies for
determine if they are the result of
needs of male and female students, a recipients that the general prohibition in
discrimination. A recipient that offers
recipient may provide a different single- the existing regulations against
single-sex classes solely in the context
sex class to girls, as compared to boys. assigning students to single-sex classes
of evenhandedly providing substantially
Thus, the result might be differences in continues to apply and is not
equal single-sex classes, as well as
subject area or in numbers of single-sex substantively affected by these proposed
coeducational classes, to both boys and classes offered to girls, as compared to
girls is not likely to experience amendments.20 Unless a substantially
boys. equal coeducational class is provided,
compliance problems with proposed 34 For example, a school decides to
CFR 106.34. enrollment in a single-sex class is not
identify and address the highest priority voluntary. Thus, the proposed
Meeting Students’ Particular, Identified need of sixth grade male and female amendments require that if a recipient
Educational Needs (Proposed 34 CFR students who are working below grade provides a single-sex class, it must also
106.34(b)(1)(i)(B)) level and to determine if single-sex provide students with the opportunity
classes may be substantially related to to enroll in a coeducational class in the
The proposed amendments would meeting the identified need. The school
also permit a recipient, under same subject that is substantially equal
makes a supportable determination that to the single-sex class. For example, if
appropriate circumstances, to offer the highest priority educational need of
single-sex classes based on its objective a high school provided a single-sex
these girls is in science and that a Advanced Placement Calculus class for
to meet the particular, identified single-sex science class would best
educational needs of its students. In boys, it would need to provide a
address that need. If, as part of its coeducational Advanced Placement
order to carry out this objective a evenhanded assessment process, the
recipient may, using reliable Calculus class for boys and girls.
school also makes a supportable In order to ensure that participation in
information and sound educational determination that a subject other than
judgment, determine that a single-sex any single-sex class is voluntary, a
science is the highest priority need of recipient should notify parents or
class in a given subject is likely to the male students working below grade
provide some students educational guardians of their option to enroll their
level, the proposed amendments would children in a single-sex class on a
benefits.18 A recipient must treat male not require the school to offer a single- voluntary basis and receive
and female students in an evenhanded sex science class for these boys. The authorization from parents or guardians
manner in the process of identifying school would be required to offer a
particular educational needs, substantially equal coeducational 20 The current regulations, in 34 CFR 106.34(a),
determining if a single-sex class would science class. The school also would, state, in part: ‘‘A recipient shall not provide any
be substantially related to meeting those however, be required to address the course or otherwise carry out any of its education
needs, and meeting the educational highest priority educational need of program or activity separately on the basis of sex,
needs of both sexes. or require or refuse participation therein by any of
these boys, to consider whether a single- its students on such basis.’’ The proposed
amendments include this provision in proposed 34
18 See footnote 16. 19 See also 34 CFR 106.34(b)(2). CFR 106.34(a) without substantive revisions.

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11280 Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / Proposed Rules

to place their children in a single-sex classes does not mean that the classes this proposed section would require that
class. would need to be identical; the evaluations of all single-sex classes be
proposed amendment requires that conducted to ensure that single-sex
Implementing the Recipient’s Objective
policies applicable to the classes and classes are based upon genuine
in an Evenhanded Manner (Proposed 34
benefits provided in them be justifications and that they do not rely
CFR 106.34(b)(1)(iii))
substantially equal. The proposed on overly broad generalizations about
As mentioned previously, under amendments in 34 CFR 106.34(b)(3) the different talents or capacities of
proposed 34 CFR 106.34(b)(1)(iii), a outline the types of factors that the male and female students. In addition,
recipient must implement its objective Department will consider in comparing this proposed section would require that
in an evenhanded manner. single-sex classes to each other and to evaluations be conducted to ensure that
Evenhandedness requires the recipient coeducational classes in making the any single-sex classes offered are
to provide each sex an equal determination of whether they are substantially related to achievement of
opportunity to benefit from the ‘‘substantially equal.’’ That is, we will the objective for the classes as required
important governmental or educational use these factors to evaluate whatever by proposed 34 CFR 106.34(b)(1)(i).
objective it seeks to achieve by combination of single-sex and
providing single-sex classes. As the The proposed amendments do not
coeducational classes a recipient is
examples in the section on educational prescribe the type of information that a
providing in a given subject to
needs illustrate, this provision generally recipient must use in making decisions
determine if they are substantially
does not require a single-sex class for to provide single-sex classes or in
equal. The list of factors is not intended
each sex in the same subject. However, conducting evaluations, but the
to be exhaustive and other relevant
a recipient must provide a substantially following are types of information that
factors that affect the educational
equal single-sex class for the other sex may be useful and appropriate. For
benefits provided in these classes will
if such a class is necessary to implement example, a recipient may identify
be considered on a case-by-case basis.
its objectives in an evenhanded manner. The list includes the following factors: particular educational needs using
Even if a substantially equal single-sex • Admissions policies and criteria.21 district or school-based data including
class is not required for the other sex, • Educational benefits provided, standardized test scores; class grades;
the recipient may choose to provide including the quality, range, and attendance; suspension and expulsion
such a class consistent with Title IX and content of curriculum and other services rates; incidence of pregnancy; 23 and
the proposed amendments. and the quality and availability of low levels of participation among
If a recipient provides significantly books, instructional materials, and members of one sex in certain
more single-sex opportunities to technology.22 curriculum areas. Research or other
students of one sex than to students of • Qualifications of faculty and staff. reliable evidence may be the basis for
the other sex, OCR will examine • Quality, accessibility, and determining that a single-sex class is
whether this is the result of availability of facilities and resources substantially related to meeting the
discrimination, taking into account the provided for the class. particular, identified needs. Research,
reasonable period of time needed to Under the proposed standard, each developed by an agency, organization,
plan and establish single-sex classes. A factor evaluated does not need to be social scientist, or by another school
recipient that offers single-sex classes identical, but each must be substantially district, may assist a recipient in making
solely in the context of evenhandedly equal. that determination if it is reliable and
providing substantially equal single-sex applicable to the recipient’s
Procedural Safeguard: Periodic
classes, as well as coeducational classes, circumstances. Similarly, the recipient
Evaluations (Proposed 34 CFR
to both girls and boys is not likely to may conduct its own district or school-
106.34(b)(4))
experience compliance problems with based research. In addition, a recipient
Proposed 34 CFR 106.34(b)(4) would may have other reliable evidence such
proposed 34 CFR 106.34(b)(1)(iii).
We invite specific comments on require that recipients periodically as teacher, parental, or student
whether OCR needs more information evaluate their single-sex classes to feedback.
on how to assess if a recipient is ensure nondiscrimination. Specifically,
We invite specific comments as to
implementing its objective in an 21 This factor covers prerequisites to admission
how often a recipient should be
evenhanded manner. such as prior course requirements or grade point required to conduct periodic
Single-Sex Class for Excluded Sex average. evaluations pursuant to proposed 34
(Proposed 34 CFR 106.34(b)(2))
22 The factors describe the types of educational
CFR 106.34(b)(4).
benefits that the Department will compare in
Proposed 34 CFR 106.34(b)(2) clarifies determining whether recipients are treating male Current and Proposed Requirements for
and female students in a nondiscriminatory Single-Sex Schools
that in some circumstances the manner. The assessment is solely to determine
requirements of proposed paragraph whether equality of opportunity in access to Current Regulations (Current 34 CFR
(b)(1) of this section may require a curricular offerings is provided in compliance with 106.35)
recipient to provide a substantially Title IX and is not intended to require any
particular curricular offerings by a school district.
equal single-sex class for the excluded Thus, the provision is consistent with the
The current regulations describe
sex. Department of Education Organization Act (as well requirements related to admissions to
as similar provisions in the Elementary and elementary and secondary schools
Factors for Determining Substantially Secondary Education Act, as amended by the No operated by LEAs.24 Paragraph (a) of 34
Equal (Proposed 34 CFR 106.34(b)(3)) Child Left Behind Act of 2001), which provides in
relevant part: ‘‘No provision of a program
CFR 106.35 of the current regulations
The proposed amendments in 34 CFR administered by the Secretary or by any other specifies that recipients that are LEAs
106.34(b)(1) permit a recipient to officer of the Department shall be construed to are prohibited from discriminating on
provide a single-sex class as long as the authorize the Secretary or any such officer to the basis of sex in admissions to
recipient provides students who are exercise any direction, supervision, or control over
the curriculum, program of instruction,
excluded from that class on the basis of administration, or personnel of any educational 23 Cf. 34 CFR 106.40, which is not affected by the
sex a substantially equal class. This institution, school, or school system * * * except proposed amendments.
requirement to have substantially equal to the extent authorized by law.’’ 20 U.S.C. 3403(b). 24 34 CFR 106.35.

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Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / Proposed Rules 11281

vocational education institutions.25 assistance, including private schools, amendments permit a recipient to
Consistent with the Title IX statute as may not offer single-sex institutions of provide a single-sex public school as
discussed later, we are proposing to vocational education.30 long as the recipient provides students
amend this portion of the regulations to We are proposing to amend existing who are excluded from that school on
make clear that all public and private 34 CFR 106.35(b) to remove from that the basis of sex substantially equal
vocational institutions that receive section the requirements pertaining to opportunities in another school.
Federal financial assistance are nonvocational schools operated by LEAs The proposed amendments substitute
prohibited from discriminating on the and to move those requirements, with the phrase ‘‘substantially equal’’ for the
basis of sex in admissions. substantive amendments, to proposed term ‘‘comparable’’ used in the existing
Paragraph (b) of the current 34 CFR 34 CFR 106.34. Under the proposed regulations for comparing the policies
106.35 describes requirements amendments, subject to conditions and applicable to and benefits provided to
applicable to recipients that are LEAs requirements described in the following students in a single-sex school and
that operate single-sex public schools. paragraphs, a recipient that operates students excluded from the school on
The current regulations do not prohibit public nonvocational elementary or the basis of sex. The Supreme Court
recipients from having single-sex secondary schools may not operate a applied a ‘‘substantially equal’’ standard
admissions for these types of schools.26 single-sex nonvocational elementary or in the context of evaluating the
The Title IX statute, which only covers secondary school unless it provides constitutionality of single-sex
admissions to specified types of students of the other sex substantially postsecondary institutions,34 and we
educational institutions, does not equal opportunities in a single-sex have adopted this standard here. We
include elementary and secondary school, single-sex educational unit,31 or intend to convey the concept that
schools among the types of institutions a coeducational school. The proposed although the policies and benefits
with covered admissions (except with amendments also provide for an compared do not need to be identical,
respect to those that are also institutions exception to this requirement for certain they do need to be substantially equal.
of vocational education, for which charter schools. The requirements As discussed in the next section, the
admissions are covered as discussed in pertaining to single-sex elementary and proposed amendments would expand
previous paragraphs).27 As a result, our secondary schools are in paragraph (c) the list of factors to be considered in
current regulations do not prohibit of proposed 34 CFR 106.34. making a determination as to whether
single-sex admissions to public While Title IX does not prohibit a the benefits provided are substantially
nonvocational elementary and district from assigning students to equal.
secondary schools. The equal protection single-sex schools because admissions The proposed amendments
requirements of the 14th Amendment to to nonvocational elementary and specifically provide that the
the Constitution apply to admissions to secondary schools are exempt from Title substantially equal opportunities may
IX coverage, recipients are cautioned be provided in a single-sex school or in
public entities, such as school districts
that assigning students to single-sex a coeducational school.35 Thus, the
and State educational agencies
schools—rather than allowing students proposed amendments would change
(SEAs). 28
to voluntarily select between those our interpretation of 34 CFR 106.35(b) of
The current regulations require that,
schools and substantially equal the current regulations that the benefits
in the event that an LEA provides a
coeducational schools—could violate provided to students excluded from a
nonvocational elementary or secondary
the Constitution and the requirements of single-sex school must be provided in a
school or educational unit for students
the Equal Educational Opportunities single-sex setting.36 Our prior
of one sex, then it must provide
Act of 1974 (EEOA),32 which prohibits interpretation was based upon the
students of the other sex, under the
the assignment of students to schools on premise that Title IX required recipients
‘‘same policies and criteria of the basis of sex. to provide a single-sex school for each
admission, courses, services, and
Substantially Equal Educational sex to ensure that students of both sexes
facilities comparable to each course,
Opportunities Required (Proposed 34 were provided an equal opportunity to
service, and facility offered in or
CFR 106.34(c)) attend a single-sex school.
through such schools.’’ 29 Upon further analysis, we have
Proposed Amendments for Single-Sex The proposed amendments do not determined that, since Title IX is silent
Schools (Proposed 34 CFR 106.34(c) and regulate admissions to public regarding its application to admissions
34 CFR 106.35) nonvocational elementary and to nonvocational elementary and
secondary schools.33 Thus, unlike our secondary schools, creation of an
We are proposing to amend the proposed amendments for single-sex unequal number of single-sex schools
current compliance provisions classes, they do not propose to require for girls and boys does not implicate
applicable to admissions to elementary a recipient to justify establishing a Title IX. The basis for this interpretation
and secondary vocational schools in 34 single-sex school. The proposed is Congress’s decision not to cover
CFR 106.35(a), which will be
admissions to nonvocational elementary
redesignated as 34 CFR 106.35, to 30 Our interpretation is based on the Title IX
and secondary schools in Title IX.37
remove the reference to LEAs. statute, which covers admissions to vocational
Recipients of Federal financial schools. 34 CFR 106.15(c) and (d).
34 In evaluating educational benefits and
31 Both the current regulations and the proposed

amendments use the phrase ‘‘education unit.’’ For opportunities provided to male and female students
25 This provision implements the Title IX statute,
the purposes of these provisions we interpret the in single-sex postsecondary education institutions
which provides specifically that admissions to term ‘‘education unit’’ to mean a ‘‘school within a for 14th Amendment equal protection purposes, the
certain types of educational entities, including school,’’ and we are specifically referring to a Supreme Court has required a standard of
institutions of vocational education, are covered by school that is housed within another school. For the ‘‘substantial equality.’’ Virginia, 518 U.S. at 554.
Title IX. 20 U.S.C. 1681(a)(1). sake of clarity and simplicity, we will generally use 35 See footnote 15.
26 See 34 CFR 106.15(d).
the term ‘‘school’’ instead of either ‘‘school within 36 67 FR 31103 (2002).
27 20 U.S.C. 1681(a)(1). a school’’ or ‘‘education unit’’ in explaining the 37 The legislative history of Title IX supports this
28 See footnote 14 for information about the equal requirements of the proposed amendments. interpretation. When admissions coverage under
protection requirements that apply to admissions 32 20 U.S.C. 1703(c); see footnote 5 on consulting
Title IX was being considered, Congress was aware
requirements for public entities. legal counsel. that single-sex nonvocational elementary and
29 34 CFR 106.35(b). 33 20 U.S.C. 1681(a)(1). Continued

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11282 Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / Proposed Rules

Because Title IX does not cover content of curriculum and other services approve or reject proposed charter
admissions to these types of educational and the quality and availability of school applications on a non-
institutions, we have determined that books, instructional materials, and discriminatory basis. Such a chartering
Title IX does not impose an obligation technology.40 authority is not required to provide
on these recipients to avoid sex-based • Quality and range of extra- substantially equal educational
disparities in providing the opportunity curricular offerings. opportunities to the other sex if the
to attend a single-sex nonvocational • Qualifications of faculty and staff. chartering authority is merely reviewing
elementary or secondary school. • Geographic accessibility. and approving charter school
The lack of coverage of admissions to • Quality, accessibility, and applications and is not independently
public nonvocational elementary and availability of facilities and resources.41 operating those schools itself. Moreover,
secondary schools does not relieve Each factor does not have to be the chartering authority may have no
recipients from all obligations to identical in order for two schools to be control over what types of programs are
students of the excluded sex. Consistent substantially equal. As specified in proposed as charter schools, including
with Title IX, students of both sexes proposed 34 CFR 106.34(c)(3)(ii), OCR whether they are single-sex. Therefore,
must be provided nondiscriminatory will assess the aggregate of benefits requiring a chartering authority to
access to substantially equal educational provided by each school as a whole in provide the other sex substantially equal
benefits. This means that students making these determinations. educational opportunities in a single-
excluded from a single-sex school, on Exception for Certain Charter Schools sex school or coeducational school
the basis of sex, must be provided (Proposed 34 CFR 106.34(c)(2)) would require the chartering authority
substantially equal educational benefits Title IX does not apply to admissions to find an additional group of
in another school. However, based on to nonvocational elementary and community leaders, developers, or
our analysis of the Title IX statute, secondary schools under 20 U.S.C. parents who would meet the required
under the proposed amendments the 1681(a)(1); therefore, these types of application criteria and would be
other school may be coeducational or single-sex charter schools are not willing to provide to the other sex
single-sex. prohibited by Title IX. If a public, substantially equal educational
nonvocational single-sex charter school opportunities in another charter school.
Factors for Determining Substantially
is part of a school district or LEA that Similarly, a group of community
Equal (Proposed 34 CFR 106.34(c)(3))
includes other schools, the proposed leaders, developers, or parents who
The current regulations provide a wish to establish a single-sex charter
amendments would hold the LEA that
description of the types of factors that school that is its own LEA should not
operates the schools responsible for
OCR would consider in determining be required to establish two schools in
ensuring that students in the LEA who
whether two schools, a single-sex school order to meet Title IX requirements.
are excluded on the basis of sex from
and a school available to students Given the Title IX exemption for
the single-sex charter school are
excluded on the basis of sex from that admissions to nonvocational elementary
provided substantially equal
school, are substantially equal. The and secondary schools and the
opportunities and benefits consistent
proposed regulations, in 34 CFR functions some chartering authorities
with proposed 34 CFR 106.34(c)(1) and
106.34(c)(3)(i), expand upon the current perform, we have determined that Title
(c)(3). An LEA will be considered to be
description of factors that OCR would IX does not impose such an obligation
‘‘operating’’ a charter school that is part
consider in comparing schools for this on these chartering authorities and that
of the LEA. Accordingly, the LEA must
purpose.38 Furthermore, the list of such an obligation on chartering
ensure that it provides the sex excluded
factors is not intended to be exhaustive, authorities would unduly burden and
from a charter school substantially equal
but it is intended to provide recipients inhibit the creation of single-sex charter
educational opportunities in a single-
with a more specific set of criteria. schools that are their own LEAs.
sex school or coeducational school.
Other relevant factors that affect the The proposed amendments exempt Therefore, the proposed amendments
educational benefits provided in these nonvocational charter schools that are exempt nonvocational charter schools
schools will be considered on a case-by- single-school LEAs from the that are single-school LEAs from the
case basis. The list includes the requirements that apply to other requirements that apply to other
following factors: recipients that operate public recipients that operate public
• Admissions policies and criteria.39 nonvocational elementary and nonvocational elementary and
• Educational benefits provided, secondary schools. A chartering secondary schools. We note that the
including the quality, range, and authority that receives Federal funds, obligations of public chartering
and that charters a nonvocational, authorities, including LEAs and SEAs,
secondary schools existed. Because information
single-sex public charter school that is may differ under the U.S. Constitution,
about these schools was not sufficient to support a since admissions policies are covered
decision regarding admissions coverage, at least one its own LEA, may charter a single-sex
member of Congress urged the Department of charter school for one sex without under the 14th Amendment.42
Health, Education and Welfare (HEW) to conduct a
study and indicated that Congress then could make
ensuring that the other sex is provided Current Requirements Related to
an informed decision. 92nd Cong., 118 Cong. Rec. substantially equal educational Classes and Proposed Technical
5804, 5807, 5812–13 (1972). HEW did not conduct opportunities in a single-sex school or Changes
such a study. Moreover, although several coeducational school. A chartering
substantive amendments to Title IX have been
authority that receives Federal financial General Requirements and Other
enacted since that time, Congress has not amended
assistance, of course, must review and Modifications (Proposed 34 CFR
this provision of the statute. 106.34(a) and 34 CFR 106.43)
38 We have added additional factors consistent

with the Court’s opinions addressing single-sex 40 See


footnote 22. With respect to classes and activities
education at postsecondary institutions. See 41 Thenew factors in the proposed amendment in physical education, the existing
Virginia, 518 U.S. at 547–54; Hogan, 458 U.S. at 723 are—the educational benefits provided; the quality
n.8.
regulations in 34 CFR 106.34(a)
and range of extra-curricular offerings; the
39 This factor covers prerequisites to admission qualifications of faculty and staff; geographic provided transition periods for
such as prior course requirements or grade point accessibility; and the availability of classroom
average. facilities and resources. 42 See footnote 5 on consulting legal counsel.

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Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / Proposed Rules 11283

recipients to comply with the Similarly, the exception provided in we are proposing to move it, with no
regulations. Recipients at the the proposed amendments in 34 CFR modifications, to Subpart D of our
elementary school level had to comply 106.34(a)(2) is the same exception regulations, as a separate provision,
within one year from the effective date provided in the current regulations in proposed 34 CFR 106.43, entitled
of the regulations, and recipients at the 34 CFR 106.34(b). This provision ‘‘Standards for measuring skill or
secondary level and postsecondary level permits grouping of students in physical progress in physical education classes.’’
had to comply within three years. education classes by ability as assessed
by objective standards of individual Executive Order 12250
Because these timeframes for
compliance expired many years ago, performance developed and applied Pursuant to Executive Order 12250,
this provision is obsolete. Existing without regard to sex. This exception which provides for the Attorney General
paragraph (a) of 34 CFR 106.34 will be would also continue to apply to to review proposed regulations
removed when final regulations are elementary and secondary education implementing Title IX, the Acting
issued, and the regulations will be and postsecondary education. Assistant Attorney General for Civil
renumbered. The exception provided in the Rights has reviewed this notice of
Some of the existing provisions of 34 proposed amendment to the regulations proposed rulemaking and approved it
CFR 106.34 apply to postsecondary, as in 34 CFR 106.34(a)(3) is similar, but not for publication.
well as elementary and secondary, identical, to the exception provided in
the current regulations in 34 CFR Executive Order 12866
coeducational schools. Our proposed
amendments would not affect the 106.34(e). The proposed amendment This rule is considered by the
continued applicability of those existing permits separation by sex in classes or Department to be a ‘‘significant
provisions to postsecondary portions of classes in elementary and regulatory action’’ under Executive
institutions. However, because we are secondary schools that deal ‘‘primarily’’ Order 12866, section 3(f), Regulatory
proposing other amendments, the with human sexuality. The current Planning and Review. Accordingly, this
numbering of these existing exceptions regulations require that ‘‘portions of the rule has been submitted to the Office of
would change, as discussed in the classes’’ in elementary and secondary Management and Budget (OMB) for
following paragraphs. schools must deal ‘‘exclusively’’ with review.
human sexuality in order to separate
We are proposing to retain the general 1. Potential Costs and Benefits
students by sex. The proposed
prohibition against separation on the Under Executive Order 12866, we
amendment changes ‘‘exclusively’’ to
basis of sex, which applies to have assessed the potential costs and
‘‘primarily’’ because we recognize that
coeducational schools at all levels of benefits of this regulatory action.
issues of human sexuality that may
education, that is in the existing The potential costs associated with
require privacy may be raised in
regulations prior to paragraph (a) of 34 the proposed regulations are those
situations that are not devoted
CFR 106.34. Due to other modifications resulting from statutory requirements
exclusively to human sexuality, such as
that we are proposing, the general sexual assault or harassment counseling and those we have determined to be
prohibition would be renumbered and or defense classes. In addition, we necessary for administering this
become paragraph (a) of 34 CFR 106.34. recognize that recipients may choose to program effectively and efficiently.
Because our proposed amendments offer classes that focus on issues of In assessing the potential costs and
provide an exception to allow for single- human sexuality that may require benefits—both quantitative and
sex classes in nonvocational elementary privacy. This provision continues to qualitative—of this regulatory action,
and secondary schools that may apply apply only to elementary and secondary we have determined that the benefits
to classes of any type, except for education, and it is based on issues of would justify the costs for those
vocational education classes, we are privacy.43 recipients that would choose to provide
also proposing to delete the We are also proposing to retain in 34 single-sex schools or classes.
introductory listing of specific types of CFR 106.34(a)(4) the exception currently We have also determined that this
classes to which the general prohibition provided in 34 CFR 106.34(f), which regulatory action would not unduly
applies. permits grouping students for chorus interfere with State, local, and tribal
Recipients are generally prohibited based on vocal range or quality even if governments in the exercise of their
from separating students on the basis of it results in a single-sex or governmental functions.
sex within coeducational physical predominantly single-sex chorus. This
education classes or activities by 34 CFR Summary of Potential Costs and
exception continues to apply to
106.34(a). We are proposing to retain in Benefits
elementary and secondary education
34 CFR 106.34(a)(1) the exception and postsecondary education, and it is The proposed regulations do not
currently provided in 34 CFR 106.34(c) based on real differences between the require recipients to provide single-sex
that permits separation of students by sexes. schools or classes and thus do not
sex within physical education classes or Paragraph (d) of existing 34 CFR require recipients to incur any
activities during participation in 106.34 does not address access to additional costs. Rather, the benefit of
wrestling, boxing, rugby, ice hockey, classes, but rather addresses the proposed regulations is the
football, basketball, and other sports the nondiscrimination in assessments of expanded flexibility to provide single-
purpose or major activity of which skills or progress in physical education sex schools or classes, if such classes are
involves bodily contact. Other physical classes. It applies to elementary, desired. If recipients choose to continue
education classes in elementary and secondary, and postsecondary physical to operate schools or classes under their
secondary schools would be covered by education classes, and it applies to both current policies or practices and choose
proposed 34 CFR 106.34(b) regardless of single-sex and coeducational physical not to provide single-sex schools or
whether the purpose or major activity education classes in coeducational classes, no added costs will be incurred.
involves bodily contact. These classes schools. In order to avoid confusion Those recipients that choose to provide
may be offered on a single-sex basis about the application of this provision, single-sex schools or classes may incur
consistent with the requirements of our the additional expense to administer
proposed amendments. 43 92nd Cong., 118 Cong. Rec. 5803 (1972). them. The costs associated with

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11284 Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / Proposed Rules

providing single-sex schools or classes Assessment of Educational Impact PART 106—NONDISCRIMINATION ON


under the proposed regulations will THE BASIS OF SEX IN EDUCATION
range from minimal to substantial, The Secretary particularly requests PROGRAMS OR ACTIVITIES
depending on what options recipients comments on whether these proposed RECEIVING FEDERAL FINANCIAL
choose to provide. regulations would require transmission ASSISTANCE
of information that any other agency or
2. Clarity of the Regulations authority of the United States gathers or 1. The authority citation for part 106
Executive Order 12866 and the makes available. continues to read as follows:
Presidential memorandum on ‘‘Plain Authority: 20 U.S.C. 1681 et seq., unless
Language in Government Writing’’ Federalism otherwise noted.
require each agency to write regulations Executive Order 13132 requires us to 2. Section 106.34 is revised to read as
that are easy to understand. follows:
The Secretary invites comments on ensure meaningful and timely input by
how to make these proposed regulations State and local elected officials in the
§ 106.34 Access to classes and schools.
easier to understand, including answers development of regulatory policies that
have federalism implications. (a) Except as provided for in this
to questions such as the following: section or otherwise in this part, a
• Are the requirements in the ‘‘Federalism implications’’ means
recipient shall not provide or otherwise
proposed regulations clearly stated? substantial direct effects on the States,
carry out any of its education programs
• Do the proposed regulations contain on the relationship between the
or activities separately on the basis of
technical terms or other wording that National Government and the States, or
sex or require or refuse participation
interfere with their clarity? on the distribution of power and therein by any of its students on the
• Does the format of the proposed responsibilities among the various basis of sex.
regulations (grouping and order of levels of government. The proposed (1) This section does not prohibit
sections, use of headings, paragraphing, regulations in 34 CFR 106.34 and 34 separation of students by sex within
etc.) aid or reduce their clarity? CFR 106.35 may have federalism physical education classes or activities
• Would the proposed regulations be implications, as defined in Executive
easier to understand if we divided them during participation in wrestling,
Order 13132. We encourage State and boxing, rugby, ice hockey, football,
into more (but shorter) sections? (A local elected officials to review and
‘‘section’’ is preceded by the symbol basketball, and other sports the purpose
provide comments on these proposed or major activity of which involves
‘‘§ ’’ and a numbered heading; for
regulations. bodily contact.
example, § 106.35 Access to institutions
(2) This section does not prohibit
of vocational education.) Electronic Access to This Document
• Could the description of the grouping of students in physical
proposed regulations in the You may view this document, as well education classes and activities by
SUPPLEMENTARY INFORMATION section of as all other Department of Education ability as assessed by objective
this preamble be more helpful in documents published in the Federal standards of individual performance
making the proposed regulations easier Register, in text or Adobe Portable developed and applied without regard
to understand? If so, how? Document Format (PDF) on the Internet to sex.
• What else could we do to make the (3) Classes or portions of classes in
at the following site: http://www.ed.gov/
proposed regulations easier to elementary and secondary schools that
news/fedregister. deal primarily with human sexuality
understand?
Send any comments that concern how To use PDF you must have Adobe may be conducted in separate sessions
the Department could make these Acrobat Reader, which is available free for boys and girls.
proposed regulations easier to at this site. If you have questions about (4) Recipients may make requirements
understand to the person listed in the using PDF, call the U.S. Government based on vocal range or quality that may
ADDRESSES section of the preamble. Printing Office (GPO), toll free, at 1– result in a chorus or choruses of one or
888–293–6498; or in the Washington, predominantly one sex.
Regulatory Flexibility Act Certification DC, area at (202) 512–1530. (b)(1) Classes. General standard.
The Secretary certifies that these Subject to the requirements in this
Note: The official version of this document
proposed regulations would not have a paragraph, a recipient that operates a
is the document published in the Federal
significant economic impact on a nonvocational coeducational elementary
Register. Free Internet access to the official
substantial number of small entities. or secondary school may provide
edition of the Federal Register and the Code
These proposed regulations do not nonvocational single-sex classes, if—
of Federal Regulations is available on GPO
require recipients to provide single-sex (i) Each single-sex class is based on
Access at: http://www.gpoaccess.gov/nara/
classes or schools, but rather expand the recipient’s objective—
index.html. (A) To provide a diversity of
flexibility for recipients that may be
interested in doing so. (Catalog of Federal Domestic educational options to parents and
Assistance Number does not apply.) students, provided that the single-sex
Paperwork Reduction Act of 1995 nature of the class is substantially
These proposed regulations do not List of Subjects in 34 CFR Part 106 related to meeting that objective; or
contain any information collection (B) To meet the particular, identified
requirements. Education, Sex discrimination. educational needs of its students,
Dated: March 3, 2004. provided that the single-sex nature of
Intergovernmental Review the class is substantially related to
Rod Paige,
This program is not subject to meeting those needs;
Secretary of Education.
Executive Order 12372 and the (ii) In accordance with the
regulations in 34 CFR part 79 because it For the reasons discussed in the requirements of paragraph (a) of this
is not a program or activity of the preamble, the Secretary proposes to section, the recipient provides a
Department that provides Federal amend part 106 of title 34 of the Code substantially equal coeducational class
financial assistance. of Federal Regulations as follows: in the same subject; and

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Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / Proposed Rules 11285

(iii) The recipient implements its (c)(1) Schools. Except as provided in educational benefits provided by each
objective in an evenhanded manner. paragraph (c)(2) of this section, a school as a whole.
(2) Single-sex class for excluded sex. recipient that operates a public (Authority: Secs. 901, 902, Education
A recipient that provides a single-sex nonvocational elementary or secondary Amendments of 1972, 86 Stat. 373, 374; 20
class may be required, subject to the school shall not, on the basis of sex, U.S.C. 1681, 1682)
requirements of paragraph (b)(1) of this exclude any person from admission to
section, to provide a substantially equal any school that it operates unless it 3. Section 106.35 is revised to read as
single-sex class for the excluded sex. provides the other sex substantially follows:
(3) Substantially equal. Factors that equal educational opportunities in a
the Department will consider in single-sex school, single-sex education § 106.35 Access to institutions of
determining whether classes are vocational education.
unit, or coeducational school.
substantially equal include the (2) Exception. A nonvocational public A recipient shall not, on the basis of
following: the policies and criteria of charter school that is not part of a local sex, exclude any person from admission
admission; the educational benefits educational agency with other schools to any institution of vocational
provided, including the quality, range, may be operated as a single-sex charter education operated by that recipient.
and content of curriculum and other school without regard to the
services and the quality and availability (Authority: Secs. 901, 902, Education
requirements in paragraph (c)(1) of this
Amendments of 1972, 86 Stat. 373, 374; 20
of books, instructional materials, and section.
U.S.C. 1681, 1682)
technology; the qualifications of faculty (3) Substantially equal. (i) Factors that
and staff; and the quality, accessibility, the Department will consider in 4. Section 106.43 is added to subpart
and availability of facilities and determining whether schools or D to read as follows:
resources provided to the class. education units are substantially equal
(4) Periodic evaluations. The recipient include the following: The policies and § 106.43 Standards for measuring skill or
must conduct periodic evaluations to criteria of admission; the educational progress in physical education classes.
ensure that single-sex classes are based benefits provided, including the quality, If use of a single standard of
upon genuine justifications and do not range, and content of curriculum and measuring skill or progress in physical
rely on overly broad generalizations other services and the quality and education classes has an adverse effect
about the different talents or capacities availability of books, instructional on members of one sex, the recipient
of male and female students and that materials, and technology; the quality shall use appropriate standards that do
any single-sex classes are substantially and range of extra-curricular offerings; not have that effect.
related to achievement of the objective the qualifications of faculty and staff;
for the classes. geographic accessibility; and the (Authority: Secs. 901, 902, Education
(5) Definition. For purposes of this quality, accessibility, and availability of Amendments of 1972, 86 Stat. 373, 374; 20
paragraph, the term ‘‘classes’’ includes facilities and resources; and U.S.C. 1681, 1682)
all education activities provided for (ii) This determination involves an [FR Doc. 04–5156 Filed 3–8–04; 8:45 am]
students by a school or in a school. assessment in the aggregate of the BILLING CODE 4000–01–P

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