Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 62530-62543 [E6-17858]
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Federal Register / Vol. 71, No. 206 / Wednesday, October 25, 2006 / Rules and Regulations
DEPARTMENT OF EDUCATION
34 CFR Part 106
RIN 1870–AA11
Nondiscrimination on the Basis of Sex
in Education Programs or Activities
Receiving Federal Financial
Assistance
Office for Civil Rights,
Department of Education.
ACTION: Final regulations.
AGENCY:
SUMMARY: The Secretary amends the
regulations implementing Title IX of the
Education Amendments of 1972 (Title
IX), which prohibits sex discrimination
in federally assisted education programs
and activities. These amendments
clarify and modify Title IX regulatory
requirements pertaining to the provision
of single-sex schools, classes,1 and
extracurricular activities in elementary
and secondary schools. The
amendments expand flexibility for
recipients to provide single-sex
education, and they explain how singlesex education may be provided
consistent with the requirements of
Title IX.
DATES: These regulations are effective
November 24, 2006.
FOR FURTHER INFORMATION CONTACT:
Sandra G. Battle, U.S. Department of
Education, 400 Maryland Avenue, SW.,
Room 6125, Potomac Center Plaza,
Washington DC 20202–1100.
Telephone: (202) 245–6767.
If you use a telecommunications
device for the deaf (TDD), you may call
1–877–521–2172. For additional copies
of this document, you may call the
Customer Service Team for the Office
for Civil Rights (OCR) at (202) 245–6800
or 1–800–421–3481.
Individuals with disabilities may
obtain this document in an alternative
format (e.g., Braille, large print,
audiotape, or computer diskette) on
request to the contact person listed
under FOR FURTHER INFORMATION
CONTACT.
Title IX
prohibits discrimination on the basis of
sex in education programs and activities
that receive Federal financial
assistance.2 The Department’s Title IX
regulations implement Title IX’s
nondiscrimination requirements in
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SUPPLEMENTARY INFORMATION:
1 The requirements for classes and extracurricular
activities are the same. For the sake of simplicity,
we generally use the term ‘‘class’’ in the preamble
analysis of comments and changes. A noted
exception is our discussion of comments from the
public regarding extracurricular activities
specifically.
2 20 U.S.C. 1681(a).
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education programs and activities
assisted by the Department.3 These
amendments to the regulations establish
new standards that OCR will use in
determining 4 whether recipients that
choose to operate single-sex elementary
and secondary classes, extracurricular
activities, and schools 5 are doing so
consistent with their Title IX obligations
not to discriminate on the basis of sex
for the purposes of receiving financial
assistance from the Department.
On March 9, 2004, the Secretary
published a notice of proposed
rulemaking (NPRM) for this part in the
Federal Register (69 FR 11276). We
explained that these amendments to the
regulations are intended to provide
recipients with additional flexibility in
providing single-sex classes,
extracurricular activities, and schools in
elementary and secondary education. At
the same time, these amendments
ensure for students that single-sex
classes, extracurricular activities, and
schools are provided in a
nondiscriminatory manner. In the
preamble to the proposed regulations,
on pages 11276 through 11282, we
discussed the major changes needed to
accomplish these objectives.6 These
changes included the following:
3 34
CFR part 106.
would make these determinations in
resolving any complaints or compliance reviews
related to these issues. See 34 CFR 100.7, made
applicable to the Title IX regulations by § 106.71.
5 These regulations do not require single-sex
classes, extracurricular activities, or schools.
6 The NPRM also discussed minor and technical
changes including:
• Amending § 106.34(a) to delete obsolete
timeframes; to move the general prohibition against
providing education programs or activities
separately on the basis of sex or refusing or
requiring participation in education programs or
activities on the basis of sex from an undesignated
part of the former § 106.34 published in 1980 to
§ 106.34(a); and, because the proposed amendments
provided for an exception that would permit singlesex classes in nonvocational elementary and
secondary schools of any type, except for vocational
education classes or vocational extracurricular
activities, to delete from § 106.34 the introductory
listing of specific types of classes to which the
general prohibition applies.
• Amending § 106.34(a) to move the exceptions
to the general prohibition, relating to physical
education, sex education, and chorus, to
§ 106.34(a)(1) and (2), (a)(3) and (a)(4), respectively,
and to expand the exception for sex education,
§ 106.34(a)(3), to include classes in elementary and
secondary education that deal ‘‘primarily’’ with
human sexuality, rather than only those that deal
‘‘exclusively’’ with human sexuality.
• Amending § 106.35 to clarify that the
prohibitions against sex discrimination in
admissions to vocational education schools apply to
all recipients, public and private, and to move the
requirements, including the substantive
amendments, related to nonvocational schools
operated by local educational agencies (LEAs) to
§ 106.34(c).
• Adding a new § 106.43 and moving to it, from
§ 106.34(d) of the former regulations, the provision
4 OCR
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• Amending § 106.34(b) to add a new
exception to the general prohibition
against single-sex classes and
extracurricular activities. The exception
applies to nonvocational classes and
extracurricular activities in elementary
and secondary coeducational schools
that are not vocational schools.7 Under
this exception a recipient would be
permitted to offer a single-sex class or
extracurricular activity if (1) the
purpose of the class or extracurricular
activity is achievement of an important
governmental or educational objective,
and (2) the single-sex nature of the class
or extracurricular activity is
substantially related to achievement of
that objective. (Proposed
§ 106.34(b)(1)(i)). The two important
objectives described in the proposed
regulations were to provide a diversity
of educational options to parents and
students and to meet the particular,
identified educational needs of
students. (Proposed § 106.34(b)(1)(i)).
The proposed amendments also
described, for those recipients that
choose to provide single-sex classes or
extracurricular activities under this new
exception, requirements necessary to
ensure nondiscrimination. Under these
requirements, as described in the
proposed regulations, the recipient must
treat male and female students in an
evenhanded manner in implementing
its objective, and it must always provide
a substantially equal coeducational class
or extracurricular activity in the same
subject or activity. (Proposed
§ 106.34(b)(1)(ii), (iii)). The proposed
amendments provided that, in addition
to the required substantially equal
coeducational class or extracurricular
activity in the same subject or activity,
a substantially equal single-sex class or
extracurricular activity for students of
the other sex may be required to ensure
nondiscriminatory implementation.
(Proposed § 106.34(b)(2)). The proposed
amendment provided a non-exhaustive
list of factors that the Department will
regarding standards for measuring skill or progress
in physical education.
7 As explained in the preamble to the proposed
regulations, the requirements for classes and
extracurricular activities apply to recipients that
operate public and private nonvocational
coeducational schools. Private elementary and
secondary schools are subject to the requirements
pertaining to classes if they receive a grant or
subgrant of Federal funds from the Department.
Private schools with students who participate in
programs conducted by LEAs that are funded under
Federal programs such as Title I of the Elementary
and Secondary Education Act of 1965, as amended,
or the Individuals with Disabilities Education Act
are not considered recipients of Federal funds
unless they otherwise receive a grant or subgrant of
Federal funds. These private schools are not subject
to these amended regulations, but the LEA must
ensure that its programs, including services to
private school students, are consistent with Title IX.
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consider in determining whether classes
or extracurricular activities are
substantially equal (Proposed
§ 106.34(b)(3)), and required the
recipient to conduct periodic
evaluations to ensure nondiscrimination
(Proposed § 106.34(b)(4)). The proposed
regulations defined ‘‘classes’’ to include
all education activities provided for
students by a school or sponsored by a
school, and it was intended to include
extracurricular activities.8 (Proposed
§ 106.34(b)(5)).
• Amending § 106.34(c) to include
from former § 106.35, with substantive
changes, the nondiscrimination
requirements applicable to the operation
of nonvocational single-sex public
schools.9 The proposed amendment
provided generally that a recipient that
operates a public nonvocational
elementary or secondary school may
operate a single-sex school only if it
provides substantially equal
opportunities for students of the other
sex in another school and that the other
school may be either single-sex or
coeducational. (Proposed § 106.34(c)(1)).
As explained in the preamble to the
proposed regulations, this represents a
change in interpretation of Title IX.
Under the prior interpretation, if a
recipient operated a single-sex public
school for students of one sex, we
required it to offer a comparable singlesex school for students of the other sex.
The proposed amendments also
exempted nonvocational public charter
schools that are single-school LEAs from
the requirement to provide a
substantially equal school for students
of the other sex. (Proposed
§ 106.34(c)(2)). In addition, the
proposed amendments provided a nonexhaustive list of factors the Department
would use in determining whether the
schools are substantially equal and
provided that the Department will use
an aggregate approach in making this
determination. (Proposed
§ 106.34(c)(3)).
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Significant Changes Between the
Proposed Regulations and the Final
Regulations
• Clarification that § 106.34(b)(1)
through (5) applies to extracurricular
activities, as well as to classes: We have
added the term ‘‘extracurricular
activities’’ throughout § 106.34(b)(1)
through (5) to clarify that these
provisions apply to both classes and
extracurricular activities. As described
8 69
FR 11276, footnote 1.
explained in the preamble to the proposed
regulations, the requirements pertaining to the
provision of single-sex schools do not apply to
recipients that operate private, nonvocational
elementary or secondary schools.
9 As
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later in this section, we are also
clarifying the scope of coverage of
paragraph (b)(1) through (4) of § 106.34.
• Clarification that a recipient’s
objective must be ‘‘important’’: Section
106.34(b)(1) of the proposed regulations
specified, in paragraph (i), that each
single-sex class or extracurricular
activity must be based on the
‘‘recipient’s objective.’’ Recipients that
are public entities must have an
important governmental objective and
recipients that are private entities must
have an important educational
objective. We have clarified this
provision in the final regulations by
adding the word ‘‘important’’ to
describe the recipient’s objective.
• Revisions of ‘‘diversity of
educational options’’ objective: The
proposed regulations stated that a
‘‘diversity of educational options to
parents and students’’ was an important
objective that may serve as a basis for
providing single-sex classes. (Proposed
§ 106.34(b)(1)(i)(A)). We have revised
the regulatory language to clarify that
this objective is ‘‘to improve educational
achievement of its students, through a
recipient’s overall established policy, to
provide diverse educational
opportunities, provided that the singlesex nature of the class or extracurricular
activity is substantially related to
achieving that objective.’’
• Clarification that participation in
single-sex classes and extracurricular
activities must be completely voluntary:
The proposed regulations in
§ 106.34(b)(1)(ii) referenced the
requirements of § 106.34(a) to ensure
together with the requirement to
provide a coeducational class, that
recipients did not assign students
involuntarily to single-sex classes. New
paragraph (iii) of § 106.34(b)(1) provides
that student enrollment in single-sex
classes and extracurricular activities
must be completely voluntary.
To accommodate the addition of this
new paragraph, we have renumbered
the other paragraphs in this section. The
requirement for evenhanded treatment
of male and female students is now in
§ 106.34(b)(1)(ii), the requirement that
participation in single-sex classes and
extracurricular activities must be
completely voluntary is in
§ 106.34(b)(1)(iii), and the requirement
to provide a substantially equal
coeducational class or extracurricular
activity is in § 106.34(b)(1)(iv). We also
have removed the reference to
paragraph (a) in this paragraph because
it is no longer needed.
• Clarification of aggregate approach
regarding the assessment of substantial
equality of classes in § 106.34(b)(3) and
schools in § 106.34(c)(3): We have
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clarified the description of the
Department’s use of an aggregate
approach for considering factors in
assessments of substantial equality by
deleting § 106.34(c)(ii) of the proposed
regulations, which was misunderstood
by commenters, and by adding the
clarifying language, ‘‘either individually
or in the aggregate as appropriate,’’ to
§ 106.34(b)(3), regarding factors the
Department will consider in the
assessment of substantial equality of
classes, and to § 106.34(c)(3), regarding
factors the Department will consider in
the assessment of substantial equality of
schools, in the final regulations.
• Addition of ‘‘intangible features’’ to
factors in § 106.34(b)(3) and (c)(3);
addition of ‘‘geographic accessibility’’
factor in § 106.34(b)(3): The proposed
regulations provided non-exhaustive
lists of factors in § 106.34(b)(3) and
(c)(3) that the Department will consider
in comparing classes or extracurricular
activities and schools, respectively, for
the purposes of determining
compliance. We have added ‘‘intangible
features’’ and ‘‘reputation of faculty’’ as
an example of an intangible feature to
both lists of factors in the final
regulations. We also have added
‘‘geographic accessibility’’ as a factor in
§ 106.34(b)(3) because it may be relevant
in certain circumstances in compliance
determinations.
• Modification of provisions on
periodic evaluations: The proposed
regulations in § 106.34(b)(4) required
that recipients conduct periodic
evaluations of single-sex classes to
ensure, among other things, that the
classes and activities are based on
genuine justifications and do not rely on
overly broad generalizations about the
different talents or capacities of either
sex. Title IX also does not permit singlesex classes or extracurricular activities
to rely on overly broad generalizations
about the preferences of either sex.
Therefore, we added the word
‘‘preferences’’ to § 106.34(b)(4). We also
have added the term ‘‘important’’ to
clarify that the evaluation must ensure
that the single-sex class or
extracurricular activity is substantially
related to the recipient’s important
objective.
• Clarification addressing the
frequency of the procedural requirement
for periodic evaluations: In the
preamble to the proposed regulations,
we requested comments regarding how
often recipients should conduct the
periodic evaluations required by
§ 106.34(b)(4). The proposed regulations
were silent on this issue. The final
regulations add a new paragraph (ii) to
§ 106.34(b)(4) that specifies that
evaluations for the purposes of
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§ 106.34(b)(4)(i) must be conducted at
least every two years.
• Scope of coverage of § 106.34(b)(1)
through (4): The proposed regulations in
§ 106.34(b)(5) defined ‘‘class’’ for the
purposes of § 106.34(b)(1) through (4),
and that definition was intended to
cover academic classes and
extracurricular activities. We have
determined that rather than define
‘‘class,’’ it is clearer and more useful to
include a provision on the scope of
coverage of paragraph (b)(1) through (4)
of § 106.34. We have revised
§ 106.34(b)(5) to provide that paragraph
(b)(1) through (4) applies to classes and
extracurricular activities provided by a
recipient directly or through another
entity, and to clarify that paragraph
(b)(1) through (4) does not apply to
interscholastic, club, or intramural
athletics, which are subject to the
requirements of §§ 106.41 and 106.37(c).
• Definition of ‘‘school’’ and ‘‘school
within a school’’: The proposed
regulations in § 106.34(c)(1) referred to
a single-sex education unit. For the
purposes of this paragraph, we consider
an ‘‘education unit’’ to mean a ‘‘school
within a school’’ and that term to mean
a school that is housed within another
school. We believe that the term ‘‘school
within a school’’ and this explanation
are clearer, more accurate, and more
useful to recipients than the term
‘‘education unit.’’ For this reason we
have added a new paragraph (4) to
§ 106.34(c) that defines the term
‘‘school’’ for the purposes of paragraph
(c)(1) through (3) to include a ‘‘school
within a school’’ and explains that the
latter term means ‘‘an administratively
separate school located within another
school.’’ We have deleted the term
‘‘single-sex education unit’’ from
§ 106.34(c)(1) because it is no longer
necessary in light of the new definition.
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Analysis of Comments and Changes
In response to the Secretary’s
invitation in the preamble to the
proposed regulations, we received
approximately 5,860 comments on the
proposed regulations. An analysis of the
comments and of the changes in the
regulations since publication of the
proposed regulations follows.
We group major issues according to
subject under the appropriate sections
of the final regulations. Generally, we
do not address technical or minor
changes and suggested changes that the
law does not authorize the Secretary to
make.
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Section 106.34. Access to Classes and
Schools
1. Research
Comments: Some commenters
recommended that the Department
postpone amendment of the regulations.
Among the comments were
recommendations that we wait until
pilot projects were conducted, until
completion of a Departmentcommissioned study on single-sex
schools, or until the completion of
additional scientific research that
concludes that single-sex education is
beneficial to students.
Discussion: Title IX has always
permitted single-sex schools under
conditions that ensure
nondiscrimination. Existing educational
research suggests that single-sex
education may provide benefits to some
students under certain circumstances.
For an overview of the literature
assessing single-sex schools, see Single
Sex Versus Coeducational Schooling: A
Systematic Review, U.S. Department of
Education, Office of Planning,
Evaluation and Policy Development,
2005, available on the Department’s
Web site. Although there is a debate
among educators on the effectiveness of
single-sex education, the final
regulations permit each recipient to
make an individualized decision about
whether single-sex educational
opportunities will achieve the
recipient’s important objective and
whether the single-sex nature of those
opportunities is substantially related to
achievement of that important objective
consistent with the nondiscrimination
requirements of these regulations.
Changes: None.
2. Legal Standards for Single-Sex
Classes (§ 106.34(b))
Comments: Some commenters
objected to amending the regulations to
permit additional flexibility to provide
single-sex education because they were
concerned that sex discrimination may
result. Some commenters were
particularly concerned about sex
discrimination resulting from single-sex
classes, given that the former
regulations had restricted single-sex
classes to very limited circumstances.
Some commenters expressed the view
that single-sex public education is
generally illegal, analogizing it to racesegregated public education, which is
unconstitutional. Some commenters
expressed the view that the
amendments were inconsistent with
standards pertaining to sex
discrimination under the Equal
Protection Clause of the 14th
Amendment to the U.S. Constitution
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(Equal Protection Clause) and that
recipients who implemented programs
consistent with these regulations might
be subject to litigation. Some
commenters recommended that the final
regulations provide notice about
constitutional requirements.
Discussion: The Title IX statute
requires equal educational opportunity
regardless of sex, and both Title IX and
the regulations 10 have always permitted
single-sex nonvocational elementary
and secondary schools.11 With respect
to schools, Congress both required that
recipients that operate public schools
conduct their education program or
activity in a manner that does not
discriminate on the basis of sex and
permitted these recipients to operate
single-sex schools within their school
districts consistent with the
nondiscrimination requirements. In
issuing the original Title IX regulations,
the former Department of Health,
Education, and Welfare chose to require
generally that classes be coeducational
to ensure nondiscrimination. 45 CFR
86.34 (1975). Given that Congress
intended for school districts to be
operated in a manner that both prohibits
sex discrimination and permits the
operation of single-sex schools under
conditions that ensure
nondiscrimination, we believe that it is
consistent with the intent of Congress to
permit recipients additional flexibility
to offer single-sex classes as long as they
are offered under conditions that ensure
nondiscrimination. These regulations
permit recipients to continue to operate
solely coeducational classes and
provide the requirements that will
ensure that, if recipients choose to
provide single-sex classes, they will do
so in a nondiscriminatory manner.
Although the Supreme Court has
ruled race-segregated public education
per se unconstitutional,12 the Court has
10 Comments pertaining solely to the legal
standards applicable to schools are discussed in
subsequent paragraphs in connection with
§ 106.34(c)(1) through (4), which provides
requirements for single-sex schools.
11 20 U.S.C. 1681(a)(1); § 106.15(d) and former
§ 106.35 published in 1980. Title IX also includes
exemptions for voluntary youth organizations (e.g.,
Boy Scouts and Girl Scouts), Boys’ and Girls’
Nation or State conferences, and father-son and
mother-daughter activities. 20 U.S.C. 1681(a)(6)(B),
(7), and (8). The Title IX regulations historically
have permitted sex-separate athletic teams if
selection is based on competitive skill or the
activity involved is a contact sport (§ 106.41(b)) and
sex-separate physical education activities involving
a contact sport (former § 106.34(c) or § 106.34(a)(1)
in these final regulations). The Title IX regulations
also historically have permitted sex separation in
classes on human sexuality (former § 106.34(e) or
§ 106.34(a)(3) in these final regulations) and for
pregnant students, on a voluntary basis
(§ 106.40(b)(1) and (3)).
12 Brown v. Board of Education, 347 U.S. 483
(1954).
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not struck down the legality of singlesex public elementary or secondary
education 13 under either Title IX or the
Constitution.14 In analyzing whether
sex-separate admissions policies in
public postsecondary undergraduate
institutions were consistent with the
standards of the Equal Protection
Clause, the Supreme Court has
indicated that to justify a sex-based
classification the public entity must
demonstrate that it is based on an
important governmental objective and
that exclusion of students of the other
sex is substantially related to
achievement of that objective.15 The
Supreme Court has ruled that the
‘‘justification must be genuine, not
hypothesized or invented post hoc in
response to litigation’’ and that ‘‘it must
not rely on overbroad generalizations
about the different talents, capacities, or
preferences of males and females.’’ 16
Subsequent paragraphs describe how
the Title IX regulations also prohibit
treatment based on overly broad sexbased generalizations.
With respect to the comments about
consistency of these regulations with
Equal Protection Clause standards, the
Department enforces its Title IX
regulations, which prohibit
discrimination on the basis of sex in
education programs and activities by
public and private recipients of Federal
assistance. The Equal Protection Clause
prohibits sex discrimination by public
actors, such as public school districts. If
possible, the regulatory provisions of
Title IX are informed by constitutional
principles, but because the scope of the
Title IX statute differs from the scope of
13 There are no Supreme Court opinions on the
issue of single-sex public elementary and secondary
education. In 1977, the Court, by an evenly divided
vote and without an opinion, let stand a decision
allowing, under the Equal Protection Clause, a
school district that also operated coeducational
high schools to operate two comparable single-sex
high schools, one for girls and one for boys.
Vorchheimer v. School District of Philadelphia, 532
F.2d 880 (3rd Cir. 1976), affirmed by an equally
divided Court, 430 U.S. 703 (1977) (per curiam).
More recently, the Court determined in a case
involving the Virginia Military Institute that, by
denying females the educational opportunities
provided to males in a single all-male
postsecondary school, the State had denied equal
protection to females. United States v. Virginia, 518
U.S. 515 (1996).
14 The Court uses different standards to evaluate
classifications based on race, as compared to sex,
to determine if they are consistent with the U.S.
Constitution. Racial classifications are analyzed
under the standard of strict scrutiny, whereas sexbased classifications are analyzed under the
standard of intermediate scrutiny. Grutter v.
Bollinger, 539 U.S. 306, 326–327 (2003); Virginia,
518 U.S. at 532–533.
15 Virginia, 518 U.S. at 533, quoting Mississippi
University for Women v. Hogan, 458 U.S. 718, 724
(1982).
16 Virginia, 518 U.S. at 533.
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the Equal Protection Clause,17 these
regulations do not regulate or
implement constitutional requirements
or constitute advice about the U.S.
Constitution. Rather, they implement
Title IX by establishing the
nondiscrimination requirements that the
Department will enforce with respect to
recipients that choose to provide singlesex education. These regulations do not
require that recipients implement
single-sex education. Recipients may
wish to consult legal counsel regarding
how the Equal Protection Clause or
other applicable legal authorities
prohibiting sex discrimination 18 may
affect any particular single-sex school or
class they propose to offer.
Changes: None.
3. Procedural Safeguards
Comments: Some commenters
recommended additional requirements,
such as pre-approval of single-sex
classes or schools by the Department,
specific data maintenance requirements
in the regulations, reporting
requirements to the Department, and
routine review or monitoring by the
Department to ensure
nondiscrimination.
Discussion: We believe that these
regulations and our current enforcement
requirements and procedures are
sufficient to ensure compliance. These
regulations recognize that recipients
that implement single-sex education
will have differing objectives addressing
differing student populations and that
requiring a particular data set in the
regulations could be both over-inclusive
and under-inclusive. The Department
has authority to access recipient records
and other sources of information to
determine compliance.19 Recipients
17 For example, as explained in the Department’s
‘‘Guidelines on current title IX requirements related
to single-sex classes and schools,’’ although
recipients that operate public schools are subject to
constitutional requirements pertaining to their
justification for establishing single-sex schools,
because the Title IX statute does not cover
admissions to nonvocational elementary and
secondary schools, the Department is generally
precluded from examining the recipient’s
justification. 67 FR 31101, 31103 (May 8, 2002).
18 Recipients that are public entities, such as
public school districts, are subject to the sex
discrimination prohibitions of the Equal Protection
Clause. Public elementary and secondary schools
are also subject to the requirements of the Equal
Educational Opportunities Act of 1974, 20 U.S.C.
1701–1721 (EEOA), which, among other things,
contains prohibitions against the involuntary
assignment of students to sex-separate schools on
the basis of sex. 20 U.S.C. 1703(c), 1705, and
1720(c). Recipients also are subject to private
litigation under Title IX for intentional
discrimination on the basis of sex. Public school
and private school recipients also may be subject
to State or local laws prohibiting single-sex classes
or schools.
19 Section 106.71, incorporating by reference 34
CFR 100.6(c).
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have an ongoing responsibility to
maintain compliance with Title IX and
these regulations.20 Additionally, the
amended regulations require a recipient
to periodically conduct self-evaluations.
If students and their parents believe
there has been a violation of these
regulations, they may file a complaint
alleging discrimination under the
recipient’s grievance procedures.21
Students, parents, and third parties may
also file complaints with the
Department’s Office for Civil Rights
(OCR) if they believe discrimination in
violation of these regulations has
occurred. See, e.g., 34 CFR 100.7(b), (c),
and (d), which are incorporated by
reference in 34 CFR 106.71. In addition,
OCR has authority to conduct periodic
compliance reviews of recipients to
ensure compliance.22 If OCR finds that
a recipient has failed to comply with the
Title IX regulations, OCR will negotiate
with the recipient to secure compliance
by voluntary means, and will take
action to enforce 23 if voluntary
compliance cannot be achieved.
Changes: None.
4. Effect on Other Issues
Comments: Some commenters
expressed concern that additional
flexibility for single-sex education might
result in a reversion to sex-based
stereotypes or roles. Some commenters
indicated concern that single-sex
education may have negative effects on
socialization of children. Another
commenter was concerned that
recipients might not be aware that the
amendments do not affect Federal law
that prohibits recipient employers from
making job assignments on the basis of
sex.
Discussion: With respect to
commenters who expressed concern
that increased flexibility to provide
single-sex education might result in a
reversion to sex-based stereotypes or
roles, the regulations establish
substantive and procedural
requirements to ensure
nondiscrimination. The regulations
make it clear that a recipient’s failure to
have a justification, i.e., an important
objective and a substantial relationship
between the important objective and the
sex-based means to further that
objective, that is genuine would be sex
discrimination. Thus, the regulations
also make it clear that a recipient’s use
of overly broad sex-based
20 Section
106.4.
106.8(b).
22 Section 106.71, incorporating 34 CFR 100.7.
23 Enforcement options include commencement
of proceedings to terminate Federal funds
administratively or referral to the Department of
Justice for judicial enforcement. 20 U.S.C. 1682.
21 Section
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generalizations in connection with
offering single-sex education would be
sex discrimination. With respect to
commenters who were concerned about
the effect of single-sex education on the
socialization of students, we reiterate
that these regulations do not require
single-sex education. Rather, they
permit a recipient that has determined
that single-sex education may be
beneficial for some portion of its student
population to offer single-sex education
consistent with the requirements in
these regulations.
These regulations do not change the
prohibitions on sex discrimination in
employment, or any other area not
specifically addressed in these
amendments, in the Title IX regulations.
Among other things, the Title IX
regulations prohibit recipients from
making job assignments on the basis of
sex, § 106.51(b)(4), and from classifying
jobs as being for males or females,
§ 106.55(a). Both of these provisions
would prohibit schools from assigning
teachers to single-sex classes based on
their sex.
Changes: None.
5. Important Objective (§ 106.34(b)(1)(i))
Comments: Some commenters
objected to the description, in the
preamble to the proposed regulations, of
the recipient’s objective for establishing
a single-sex class as being an important
‘‘educational’’ objective because they
perceived that the educational objective
requirement imposed a lesser standard
than the important ‘‘governmental’’
objective requirement.
Discussion: The same Title IX
nondiscrimination standards apply to
classes, whether public or private
recipients operate them. We used two
terms, ‘‘important educational
objective’’ and ‘‘important governmental
objective,’’ in recognition of the fact that
the regulatory provisions on single-sex
classes apply to both private and public
recipients. Recipients that are public
actors, such as school districts, must
have an important governmental
objective to use any sex-based
classification for the purposes of the
Equal Protection Clause. Accordingly,
for public recipients the same important
governmental objective that would
satisfy the requirements of the Equal
Protection Clause will satisfy this
portion of the regulations for the
purposes of Title IX. Private recipients
are not subject to the Equal Protection
Clause because they are not
governmental agencies. Thus, it is not
appropriate to describe the objective for
private recipients as an important
‘‘governmental’’ objective. However,
with respect to single-sex classes, unlike
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single-sex schools, the same demanding
standards apply under Title IX for both
public and private recipients. Thus, the
regulations impose a Title IX
requirement on private recipients that is
analogous to the requirement for public
recipients that they base any single-sex
class on an ‘‘important governmental
objective.’’ The analogous requirement
for private recipients is that they must
base any single-sex class on an
‘‘important educational objective.’’ In
addition, because some commenters
perceived that the reference to an
important ‘‘educational’’ objective was a
lesser standard than important
‘‘governmental’’ objective, we have
added the term ‘‘important’’ to modify
the term ‘‘objective’’ in the regulatory
language in § 106.34(b)(1)(i).
Changes: The term ‘‘important’’ has
been added to modify the term
‘‘objective’’ in § 106.34(b)(1)(i).
6. Diversity Objective
(§ 106.34(b)(1)(i)(A))
Comments: Some commenters
objected to the diversity of educational
options rationale for single-sex classes.
Some of these commenters expressed
the view that providing diverse
educational options was not an
important governmental interest for the
purposes of the constitutional test for
sex-based classifications. Some
commenters stated that there is not an
important governmental interest in a
sex-based educational option as a
diverse option without a requirement
that the recipient demonstrate that the
single-sex option advances educational
goals, because otherwise the single-sex
nature of the class would always be
justified as substantially related to
achievement of the objective, which is
circular.
Some commenters argued that
implementation of diversity of
educational options was an
impermissible justification for singlesex classes because it might permit
classes to be based on sex-based
stereotypes or overly broad
generalizations about the different
talents, capacities, or preferences of
either sex.
Discussion: The Department
continues to believe that, for the
purposes of justifying a single-sex class
under Title IX, a recipient can have an
important governmental or educational
objective evenhandedly to provide the
opportunity to choose among diverse
educational opportunities, provided that
the single-sex nature of the class is
substantially related to achieving that
important objective. Although the
Supreme Court has not decided the
specific issue of whether this objective
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is an important governmental or
educational objective for the purposes of
justifying a sex-based classification
under either Title IX or the Equal
Protection Clause, the Court has
suggested it would uphold the
evenhanded provision of single-sex
public educational opportunities,
among a diversity of educational
opportunities.24
Given that Title IX encompasses
broad nondiscrimination requirements,
with narrow statutory exceptions,25 our
intent is to establish regulatory
exceptions for single-sex classes
consistent with the statutory approach.
We have clarified that a recipient’s
evenhanded provision of single-sex
classes for the purpose of improving
educational achievement of its students,
through a recipient’s overall established
policy to provide diverse educational
opportunities consistent with the
requirements of these regulations meets
the nondiscrimination requirements of
Title IX.
In this regard, subject to the
requirements of these regulations, some
recipients might determine that the
diversity of educational opportunities
they provide to students would
appropriately include providing singlesex opportunities in addition to
coeducational opportunities.26 The
regulations also require that the singlesex nature of any class offered pursuant
to this objective must be substantially
related to achievement of the
objective.27
The purpose of providing diverse
educational opportunities is to engage
parents in the education of their
children and students in their own
education with the goal of improving
student outcomes. This will provide
parents the opportunity to choose
single-sex classes as well as other
diverse opportunities because they
24 In considering admissions policies at the
postsecondary level, the Court stated that ‘‘we do
not question the State’s prerogative evenhandedly
to support diverse educational opportunities.’’
Virginia, 518 U.S. at 534, n.7. Responding to the
Virginia Military Institute’s defense that its maleonly admissions policy was established and
maintained to further a State policy of diversity, the
court recognized that the reality that ‘‘single-sex
education affords pedagogical benefits to at least
some students’’ was uncontested in the litigation
and that ‘‘it is not disputed that diversity among
public educational institutions can serve the public
good.’’ 518 U.S. at 535. See also Virginia, 518 U.S.
at 564 (Chief Justice Rehnquist, concurring.)
25 Jackson v. Birmingham Board of Education,
544 U.S. 167, 175 (2005).
26 For example, a recipient may seek to achieve
an educational benefit for its students such as
improvement in class work.
27 For example, a recipient may have evidence
that some boys and girls show educational
improvement in single-sex classes during their
adolescent years.
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believe that these classes will help their
children. In support of this objective
and to further bolster the connection
between the diversity justification and
the legitimate interest in providing
diverse educational opportunities, the
final regulations clarify that the
provision of single-sex classes must be
pursuant to a recipient’s established
policy of offering diverse educational
opportunities. This means that the range
of choices offered to students and
parents is not limited to single-sex
schools and classes and coeducational
schools and classes. A school or school
district may not simply establish a
single-sex class and declare that the
class by definition promotes diversity
and is therefore consistent with these
regulations. This ensures that a singlesex class in fact must be related to the
important objective of improving
educational achievement of its students,
through a recipient’s overall established
policy to provide diverse educational
opportunities.
At the school district level examples
of diverse educational opportunities
that a recipient might offer as part of an
overall established policy include
charter schools, magnet schools,
coeducational schools, single-sex
schools, coeducational schools that offer
both coeducational and single-sex
classes, or other forms of public school
opportunities. At the school level, this
policy may include a range of elective
classes or the opportunity to take classes
at other schools.
A recipient’s justification, i.e., an
important objective and a substantial
relationship between the important
objective and the sex-based means to
further the objective, must be genuine.
Thus, recipients are prohibited from
determining which classes to offer on a
single-sex basis or providing single-sex
classes on the basis of overly broad
generalizations about the different
talents, capacities, or preferences of
either sex. However, to the extent that
a recipient offers single-sex classes,
consistent with the requirements of
these regulations, among its diverse
educational opportunities, these
regulations recognize that a parent or
guardian may make an individualized
decision to select from those
opportunities regarding enrollment of
his or her child.
Changes: We have revised
§ 106.34(b)(1)(i)(A) to clarify that singlesex classes offered under this objective
are offered to improve educational
achievement of its students, through an
overall established policy of providing
diverse educational opportunities.
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7. Needs Objective (§ 106.34(b)(1)(i)(B))
Comments: Numerous commenters
questioned, on a variety of grounds,
whether the amendments permitting
single-sex classes to address particular,
identified educational needs met the
requirements of Title IX or met the test
for sex-based classifications under the
Equal Protection Clause. Numerous
commenters expressed concern that the
regulations did not require a recipient to
articulate the educational benefit that it
would be trying to achieve pursuant to
the particular, identified educational
needs objective or to produce evidence
that the class would achieve the benefit
described in the objective. Numerous
commenters indicated that the proposed
regulations did not require a recipient to
compile evidence that the single-sex
nature of its class is substantially related
to the particular, identified educational
need or educational benefit the recipient
seeks to provide. Several commenters
were concerned that recipients would
establish single-sex classes based on
administrative convenience.
Commenters also objected to the
implementation of the particular
educational need objective for single-sex
classes because it might permit classes
to be based on sex-based stereotypes or
overly broad generalizations about the
different talents, capacities, or
preferences of either sex.
Discussion: The Supreme Court has
not decided the issue of whether the
particular, identified educational needs
objective is an important governmental
or educational objective for the
purposes of justifying a sex-based
classification under either Title IX or
the Equal Protection Clause. However,
the Court has indicated in Equal
Protection Clause decisions that an
array of ‘‘important objectives’’ can
support sex-based classifications,
including ‘‘to advance full development
of the talent and capacities of our
Nation’s people.’’ 28 We believe that a
recipient’s evenhanded provision of
single-sex classes to meet the particular,
identified educational needs of its
students in order to improve
educational outcomes for its students is
consistent with the objective found by
the Court of ‘‘advance[ment of] full
development of the talent and capacities
of our Nation’s people.’’ Thus, we
continue to believe that meeting the
particular, identified educational need
of students is an important
governmental or educational objective
for recipients for the purposes of Title
28 Virginia, 518 U.S. at 533 (internal quotations
omitted; citations omitted). See also Hogan, 458
U.S. at 728 (finding that in limited circumstances,
sex-based classifications can be justified.)
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62535
IX, and that, if single-sex classes are
evenhandedly implemented pursuant to
this objective and consistent with the
safeguards in these amended
regulations, they will meet the
nondiscrimination requirements of Title
IX.29
The regulations require a recipient to
evenhandedly identify the particular
educational needs of students of both
sexes. A student’s particular, identified
educational need is evidenced by
limited or deficient educational
achievement.30 After the needs of its
students have been evenhandedly
identified, a recipient then
evenhandedly determines how to meet
those needs. This determination must be
made on a nondiscriminatory basis and
should include nondiscriminatory
consideration of whether a single-sex
class would meet the particular needs
identified for its male and female
students. Establishment of a single-sex
class requires a determination, based on
an analysis of evidence, that the singlesex nature of the class would be
substantially related to the achievement
of a recipient’s important objective of
meeting the particular, identified
educational needs of its students.
Administrative convenience cannot
justify sex-based classifications under
Title IX.31 As discussed previously
regarding single-sex classes, to provide
the opportunity to choose among
diverse educational opportunities,
under Title IX, a recipient’s
justification, i.e., an important objective
and a substantial relationship between
the important objective and the sexbased means used to further that
objective, must be genuine and cannot
be based on overly broad generalizations
about the different talents, capacities, or
preferences of either sex.32
Changes: We have made a
nonsubstantive revision to
§ 106.34(b)(1)(i)(B) to change the term
‘‘meeting those needs’’ to ‘‘achieving
that objective’’ in order to reflect the
language used by the Supreme Court in
Virginia. Our previous language was
intended to convey this concept.
29 See
Virginia, 518 U.S. at 534, n.7.
example, limited educational achievement
may be shown when students are not taking higher
level courses; deficient educational achievement
may be shown when students have remedial needs.
31 See Wengler v. Druggists Mutual Insurance
Company, 446 U.S. 142, 151–52 (1980)(citing
cases); Frontiero v. Richardson, 411 U.S. 677, 689–
90 (1973).
32 See Virginia, 518 U.S. at 533. See also Hogan,
458 U.S. at 726; Craig v. Boren, 429 U.S. 190, 198
(1976) (holding that sex cannot be used as a proxy
for other more germane bases of classification.)
30 For
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8. Social Needs (§ 106.34(b)(1)(i)(B))
Comments: Two commenters
responded to OCR’s invitation for
comments on whether there were
additional important governmental or
educational objectives that could be the
basis for single-sex classes that should
be incorporated into the final
regulations. They proposed to add as an
important objective one that addresses
social problems affecting students, i.e.,
social needs. The types of social needs
they mentioned included pregnancy,
discipline problems, drug or alcohol
abuse, delinquency, and criminal
activity.
Discussion: We recognize that a
recipient’s educational mission may
legitimately extend beyond strictly
academic objectives and outcomes, that
their classes may provide social
benefits, in addition to academic
benefits, to students, and that positive
social outcomes for students can have a
positive effect on their educational
outcomes. Thus, it may be consistent
with a recipient’s broad educational
mission to provide classes and
extracurricular activities to meet the
types of social needs described by these
commenters. We interpret the
regulations pertaining to a recipient’s
important objective to meet particular,
identified educational needs as already
covering the types of social needs
described by these commenters. For
example, under the educational needs
objective a school district that has high
school students who are pregnant or are
parents may determine that it is
important to help students address a
related particular, identified need, and
may offer a single-sex class 33 to meet
that need consistent with these
regulations as long as the single-sex
nature of the class is substantially
related to the objective and the other
requirements of § 106.34(b) are met. For
this reason, it is unnecessary to change
the regulations pertaining to a
recipient’s important objective to add a
separate social needs objective.
Changes: None.
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9. Evenhanded Implementation
(§ 106.34(b)(1)(ii))
Comments: In the preamble to the
proposed regulations, we invited
specific comments on whether OCR
needs more information on how to
assess if a recipient is implementing its
objective in an evenhanded manner.
Commenters indicated that they found
the evenhanded implementation
standard vague and subjective and
33 Compare with § 106.40(b)(1) and (3), regarding
pregnant students.
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found that it did not provide sufficient
guidance.
Discussion: Under Title IX, subject to
the other requirements of these
regulations, evenhanded 34
implementation of the recipient’s
important objective means that a
recipient that offers single-sex classes in
connection with achieving its important
objective must provide equal
educational opportunity to students
regardless of their sex, with the end
result that it must provide substantially
equal classes.35
A recipient’s important objective may
be providing diverse educational
opportunities to students pursuant to
§ 106.34(b)(1)(i)(A). That choice of
diverse educational opportunities,
including the single-sex or
coeducational class opportunity, must
be provided evenhandedly to male and
female students. In this regard,
evenhanded implementation of singlesex opportunities requires an
evenhanded assessment of what to offer.
This means that the recipient must
determine, in a manner that provides
equal educational opportunity to male
and female students, which classes in
which subjects should be offered as a
single-sex opportunity and to whom
(i.e., does it have an obligation to offer
a particular single-sex class to students
of both sexes or is it permissible to offer
it to students of one sex only; see the
discussion in subsequent paragraphs),
and then offer those classes
evenhandedly to students. A recipient
may collect pre-enrollment information
from its student and parent populations
in an evenhanded manner as part of its
determination of the types of classes in
which students would enroll. In a
school in which male and female
students sought to enroll in single-sex
classes in the same subjects, the
recipient would be required to
accommodate them evenhandedly,
absent a non-discriminatory reason,
which would result in male and female
students being provided single-sex
classes in the same subjects.
34 In Virginia, 518 U.S. at 534, n.7, the Court
noted that briefs submitted by amici argued that
‘‘diversity in educational opportunities is an
altogether appropriate governmental pursuit and
that single-sex schools can contribute importantly
to such diversity,’’ and the Court stated: ‘‘We do not
question the Commonwealth’s prerogative
evenhandedly to support diverse educational
opportunities.’’ The Court indicated that its
decision addressed only the facts presented by the
Virginia Military Institute’s program, a unique
educational opportunity available only at one
public institution for students of one sex.
35 Virginia, 518 U.S. at 554 (Virginia failed to
show ‘‘substantial equality in the separate
educational opportunities’’ offered in the two
institutions).
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If a recipient’s important objective is
meeting the particular, identified
educational needs of students pursuant
to § 106.34(b)(1)(i)(B), evenhanded
implementation requires the recipient’s
unbiased assessment, based on
evidence, of the educational needs of
students of both sexes within a
particular setting. After the needs of
students have been identified, the
recipient then determines how to meet
those needs on an evenhanded basis.
The regulations permit a recipient to
consider in an evenhanded manner
whether a single-sex class would meet
the particular, identified educational
needs for male or female students, or for
students of both sexes, and whether the
single-sex nature of such a class would
be substantially related to the
achievement of the objective of meeting
the particular, identified need.
For example, if a recipient has
evidence that providing a single-sex
class in a particular subject would meet
the particular, identified educational
needs of students of one sex and that the
single-sex nature of the class is
substantially related to achievement of
the objective, (i.e., meeting the needs of
students of that sex), subject to the other
requirements of these regulations, the
recipient may offer that class on a
single-sex basis to students of that sex.
If the recipient also has evidence that
providing a single-sex class in that same
subject would meet the particular,
identified educational needs of students
of the other sex and that the single-sex
nature of the class would be
substantially related to meeting those
needs, then the requirement that the
recipient implement its objective
evenhandedly would require that,
absent a non-discriminatory reason, it
provide a single-sex class in that subject
to students of the other sex as well. On
the other hand, if a recipient has
evidence that providing a single-sex
class in that subject would not meet the
particular, identified needs of students
of the other sex or that the single-sex
nature of the class would not be
substantially related to achievement of
that objective, the recipient is not
required to provide a single-sex class to
students of the other sex, but would be
required to offer a substantially equal
coeducational class in that subject.
However, although a single-sex class
would not be required in that subject,
evenhanded implementation of the
recipient’s objective does require the
recipient to determine, based on its
assessment of educational needs of
students, whether a class in another
subject should be offered on a single-sex
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basis to meet the particular, identified
needs of students of the excluded sex.
Changes: None.
10. Voluntary Participation
(§ 106.34(b)(1)(iii))
Comments: Commenters
recommended that we clarify the
regulations to require clearly that
student participation in single-sex
classes must be voluntary. Some
commenters were concerned, unless the
regulations were clear about this
requirement, that in situations in which
many students of one sex voluntarily
chose a single-sex class that a recipient
might, for administrative convenience,
assign or attempt to ‘‘steer’’ students of
the other sex to a single-sex class, even
if they wanted to enroll in a
coeducational class. A commenter
recommended that the regulations be
revised to require that recipients notify
parents or guardians of all their options,
including the option of enrolling their
child in a single-sex class.
Discussion: The proposed regulations
in § 106.34(b)(1)(ii) were intended to
require recipients to offer single-sex
classes only on a completely voluntary
basis, by requiring a recipient to provide
a coeducational class in the same
subject, in conjunction with the
requirement in § 106.34(a) that a
recipient may not require participation
in classes on the basis of sex. We agree
with commenters that the proposed
regulations may not have been as clear
as we intended, and we have revised the
regulations to require clearly that
participation in single-sex classes must
be completely voluntary.
Unless a recipient offers enrollment in
a coeducational class in the same
subject, enrollment in a single-sex class
is not voluntary. In order to ensure that
participation in any single-sex class is
completely voluntary, if a single-sex
class is offered, the recipient is strongly
encouraged to notify parents, guardians,
and students about their option to enroll
in either a single-sex or coeducational
class and receive authorization from
parents or guardians to enroll their
children in a single-sex class.
Changes: We have added new
regulatory language in § 106.34(b)(1)(iii),
clearly requiring that student
participation in a single-sex class must
be completely voluntary. For the sake of
clarity, we have also deleted the
reference in paragraph (b) of § 106.34 to
the requirements of paragraph (a) of that
section.
11. Coeducational Class
(§ 106.34(b)(1)(iv))
Comments: Some commenters
expressed concern that if a recipient
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provides a single-sex class for students
of one sex, the regulations always
require a coeducational class, but they
do not always require a single-sex class
for students of the other sex. Some
commenters argued that it would be a
denial of equal opportunity to provide
a single-sex class or other benefit,
service, or opportunity for students of
one sex, but not for the other. Some
commenters expressed the view that a
recipient could legally provide a singlesex class for students of one sex,
without a corresponding single-sex class
for students of the other sex, only if the
purpose was to remediate
discrimination.
Discussion: The regulations always
require a recipient that offers a singlesex class to offer a substantially equal
coeducational class in the same subject
to all students, including students
excluded from the single-sex class. A
recipient must provide single-sex
classes in an evenhanded manner when
seeking to fulfill its important objectives
either to provide a diversity of
educational opportunities or to address
particular, identified educational needs.
Thus, if a recipient’s procedure
includes obtaining information from
parents and students about interest in
enrolling in potential single-sex classes
in order to provide a diversity of
educational opportunities, the recipient
must include students of both sexes and
their parents. Similarly, if a recipient is
seeking to address educational needs of
students, the recipient must treat male
and female students in an evenhanded
manner when identifying particular
educational needs, determining if a
single-sex class would meet those
needs, and meeting the educational
needs of both sexes. A recipient may not
decide simply to offer single-sex classes
only to students of one sex, but rather
may do so only if it can show (1)
students of the other sex are not
interested in having the option to
voluntarily enroll in a single-sex class if
the recipient is seeking to further its
important objective of providing diverse
educational opportunities, or (2)
students of the other sex do not have
educational needs that can be addressed
by a single-sex class if the recipient is
seeking to meet the educational needs of
its students. Thus, under these
circumstances, the recipient would not
be denying students of the other sex a
substantially equal class by providing
them only a substantially equal
coeducational class in the same subject
as the single-sex class.
Additionally, OCR will examine
recipients that provide significantly
more single-sex opportunities to
students of one sex than to students of
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62537
the other sex to determine if this is the
result of sex discrimination.
Changes: We have added to
§ 106.34(b)(1)(iv) the words ‘‘to all other
students, including students of the
excluded sex’’ to clarify the scope of
this requirement.
12. Private Schools (§ 106.34(b)(1)(iv))
Comments: Two commenters sought a
revision to the regulations to provide an
exemption, under certain
circumstances, for coeducational
recipient private schools from the
requirement that they provide a
substantially equal coeducational class
if they provided a single-sex class to
students of both sexes.
Discussion: Because all recipients are
subject to Title IX and because a
substantially equal coeducational class
option for students is essential to
prevent involuntary assignment to a
single-sex class on the basis of sex, Title
IX does not permit a categorical
exception to this requirement. However,
in some cases, parents of all students in
a particular grade in a private school
may provide their completely voluntary
consent to the private school to offer a
single-sex class with no coeducational
class. If the parents of the affected
students in a class in a private school
enroll their children, or the students
themselves enroll, in a single-sex class
on a completely voluntary basis, and
there are no students who would choose
to enroll in a coeducational class in that
subject, these regulations do not require
the school to provide a coeducational
class in that subject.
Changes: None.
13. Substantially Equal Classes
(§ 106.34(b)(1)(iv) and (b)(2))
Comments: Some commenters stated
that the regulations needed to state
specifically that recipients are required
to provide students of both sexes equal
educational opportunities. Some
commenters objected to the term
‘‘substantially equal’’ in the proposed
regulations because it might be
interpreted as a lower standard than a
requirement of equal educational
opportunity. Some commenters stated
that the term ‘‘substantially equal’’ was
too vague and that recipients would not
understand what was required for
compliance.
Discussion: Section 106.34(b)(1)(ii) of
the proposed regulations provided that
a recipient that offered a single-sex class
to students of one sex was required to
offer a substantially equal coeducational
class in the same subject, and
§ 106.34(b)(2) provided that a recipient
that offered a single-sex class to
students of one sex also may be required
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to offer a substantially equal single-sex
class for the excluded sex. Section
106.34(b)(3) of the proposed regulations
described factors that the Department
would consider in comparing classes.
We disagree with the comments that
the substantially equal standard for
comparing and measuring classes is a
lower standard or is too vague. The
substantially equal standard in these
regulations is informed by, and
consistent with, the nondiscrimination
requirements of the Equal Protection
Clause. The Supreme Court compared
two single-sex postsecondary
institutions and used the term
‘‘substantial equality’’ in measuring
whether the standards of the Equal
Protection Clause were met.36 This
standard ensures that students who are
excluded from a single-sex class will be
provided a class with tangible and
intangible features substantially equal to
the corresponding features in the singlesex class. We recognize, however, that
in comparing classes, a recipient may
provide students with a substantially
equal class even if the classes are not
identical in every respect.
Changes: None.
14. Factors (§ 106.34(b)(3))
Comments: Some commenters
suggested that the proposed list of
factors to be used in determining
whether a class meets the requirements
of § 106.34(b)(1)(iv) or (b)(2) should
include intangible factors because the
Supreme Court considered intangible
features, as well as tangible features, in
comparing single-sex educational
institutions to determine if Equal
Protection standards had been met.
Some commenters recommended that
additional factors be added to the list
including educational methods, singlesex opportunities, factors that would
capture sex-stereotyping, and motive for
creating single-sex classes.
Discussion: Section 106.34(b)(3) of the
proposed regulations listed several
factors that the Department proposed to
consider in comparing classes and
determining if a class provided to
students of the excluded sex is
substantially equal to the single-sex
class. The list of factors, which was not
intended to be exhaustive, included—
the policies and criteria of admission;
the educational benefits provided,
including the quality, range, and
content of curriculum and other
services, and the quality and availability
of books, instructional materials, and
technology; the qualifications of faculty
and staff; and the quality, accessibility,
36 Virginia, 518 U.S. at 554 (citing Sweatt v.
Painter, 339 U.S. 629, 633 (1950)).
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and availability of facilities and
resources. Under the substantially equal
standard, classes are not required to be
identical, and there may be differences
in factors that may be justified for
legitimate, nondiscriminatory reasons or
because the differences are not
significant enough, alone or aggregated
together, to constitute sex
discrimination under these regulations.
Alternatively, a substantial difference
(or differences) of an unjustified nature
in the benefits, treatment, services, or
opportunities that constitute one factor
in the respective classes, if significant
enough, in and of itself, to cause the
classes not to be substantially equal, is
sex discrimination under these
regulations. Also, when factors for
determining substantial equality of the
respective classes are considered in the
aggregate, if there is a pattern of
differences of an unjustified nature that
favors one class with regard to the
benefits, treatment, services, or
opportunities provided to students to
the extent that the pattern of differences
is significant enough to cause the
classes not to be substantially equal, this
pattern constitutes sex discrimination
under these regulations. Because, as
described in a subsequent section on
schools, commenters who objected to a
provision in the proposed regulations
regarding the aggregate approach for
assessing the substantial equality in
schools misunderstood it, we have
clarified the regulatory language for
both classes and schools by adding the
term ‘‘either individually or in the
aggregate as appropriate.’’
The Supreme Court considered
intangible and tangible features in
comparing postsecondary institutions
for the purposes of the Equal Protection
Clause.37 The Department will consider
all relevant factors in determining
whether classes meet the requirements
of § 106.34(b)(1)(iv) or (b)(2) and agrees
that, for the purposes of assessing
compliance with Title IX, intangible
features should be considered whenever
relevant.
Although we have not listed other
factors suggested by commenters, the
Department will consider all relevant
factors in any case investigation. The
list of factors is not exhaustive. We note
that some aspects of single-sex
education that commenters suggested be
included in the list of factors will be
considered in connection with
compliance with other parts of these
regulations.
Although we did not receive
comments from the public, we are
adding geographic accessibility as a
37 Virginia,
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factor pertaining to substantial equality
of classes. In most cases a recipient’s
substantially equal classes for a
particular school will be in the same
school building, and geographic
accessibility will not be relevant to
substantial equality. There are, however,
situations in which geographic
accessibility will be relevant for classes.
For example, if a recipient operates a
consortium of schools whereby students
at three neighboring high schools take
some classes at the school to which they
are assigned on the basis of their
residence and are permitted to take
certain other classes, which are not
offered at their assigned school, at one
of the neighboring schools, location, i.e.,
geographic accessibility, of the classes
in the same subject, would be relevant
to the issue of substantial equality. The
list of factors described in the
regulations is not exhaustive. However,
because the proposed regulations listed
geographic accessibility as a factor for
schools, but not for classes, it is
important to ensure that recipients have
notice that geographic accessibility is
also a factor for classes.
Changes: We have revised the
regulatory language to clarify the
aggregate approach in assessing
substantial equality in classes by adding
the clarifying term, ‘‘either individually
or in the aggregate as appropriate.’’
Section 106.34(b)(3) of the final
regulations provides in relevant part:
‘‘Factors the Department will consider,
either individually or in the aggregate as
appropriate, in determining whether
classes or extracurricular activities are
substantially equal include. * * *’’
We have revised the list of factors in
§ 106.34(b)(3) to be considered in
comparing classes to include
‘‘intangible features’’ and ‘‘reputation of
faculty’’ as an example of an intangible
feature. We have also revised the list of
factors to include ‘‘geographic
accessibility.’’
15. Periodic Evaluations for Classes
(§ 106.34(b)(4))
Comments: In the preamble to the
proposed regulations we invited specific
comments as to how often a recipient
should be required to conduct periodic
evaluations. Comments ranged from
yearly, biennially, or variable depending
on the single-sex classes offered. Of the
four comments received on this issue,
two commenters recommended biennial
evaluation. In addition, commenters
were concerned that the regulations did
not require the evaluation to ensure
against reliance on overly broad
generalizations about the different
preferences of either sex consistent with
Equal Protection Clause requirements.
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Discussion: Recipients have an
ongoing responsibility to comply with
the nondiscrimination requirements of
the Title IX regulations. These
regulations require recipients to conduct
periodic evaluations to ensure that their
single-sex classes are based on
justifications, i.e., an important
objective and a substantial relationship
between the important objective and the
sex-based means used to further that
objective, that are genuine and that do
not rely on overly broad generalizations
about either sex. Part of the periodic
evaluation requirement involves an
assessment of the degree to which the
recipient’s important objective has been
achieved and an assessment of whether
the single-sex nature of the class is
substantially related to achievement of
the recipient’s objective. This
procedural provision requires a
recipient to evaluate its own classes so
that it can take appropriate corrective
action if it identifies compliance
problems. We have determined that
recipients must conduct evaluations at
least every two years in order to meet
this procedural obligation. Recipients
may evaluate single-sex classes more
often because the substantive obligation
to comply is ongoing or because its own
findings have identified issues that may
require a more frequent evaluation. In
addition, if the Department investigates
a recipient and identifies compliance
problems, we may require the recipient
to conduct more frequent evaluations.
Because § 106.71 of the Title IX
regulations, which incorporates the
requirements of 34 CFR 100.6(b) and (c),
requires generally that recipients keep
records to show that they are in
compliance with civil rights
requirements and requires them to
provide the Department access to
information relevant to compliance
determinations, recipients should have
appropriate records to show compliance
with the periodic evaluation
requirement.
We agree that under Title IX, singlesex classes cannot be based on overly
broad generalizations about the talents,
capacities, or preferences of either sex.
As discussed previously, recipients
must make fact-specific determinations.
Changes: We have revised
§ 106.34(b)(4)(i) to add ‘‘or preferences’’
and to delete ‘‘male and female
students’’ and substitute in its place
‘‘either sex.’’ We have also added the
term ‘‘important’’ to clarify that the
evaluation must ensure that the singlesex class or extracurricular activity is
substantially related to the recipient’s
important objective. In addition we have
revised § 106.34(b)(4) to provide that a
recipient must conduct evaluations of
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its classes at least every two years
(§ 106.34(b)(4)(ii)) in order to comply
with the procedural requirement for
periodic evaluations (§ 106.34(b)(4)(i)).
16. Extracurricular Activities
(§ 106.34(b)(1) Through (5))
Comments: None.
Discussion: Section 106.34(b)(1)
through (5) applies to extracurricular
activities, as well as classes.
Changes: We have added the term
‘‘extracurricular activities’’ throughout
§ 106.34(b)(1) through (5) of the
regulations to clarify that these
provisions apply both to classes and
extracurricular activities.
17. Athletics
Comments: Some commenters
objected to the coverage of
extracurricular activities in the
proposed regulations because they
perceived that the amendments would
be applied to athletics, which would
result in undermining the Department’s
longstanding Title IX regulations
requiring equal athletic opportunity for
students of both sexes and would permit
sex discrimination in athletics.
Discussion: The proposed regulations
defined ‘‘classes,’’ for the purposes of
proposed § 106.34(b), to include ‘‘all
education activities provided for
students by a school or in a school’’
(proposed § 106.34(b)(5)), and this
definition was intended to cover
extracurricular activities, as well as
classes. It was not, however, intended to
affect or change the longstanding Title
IX requirements applicable to athletics,
including interscholastic, club, or
intramural athletics.38
Changes: Because some commenters
interpreted the proposed definition as
extending the requirements in
§ 106.34(b)(1) through (4) to athletics,
we have revised § 106.34(b)(5) in the
final regulations. We have determined
that rather than define ‘‘class’’ and
‘‘extracurricular activity,’’ it is clearer
and more useful to include a provision
on the scope of coverage of paragraph
(b)(1) through (4) of § 106.34. We have
revised § 106.34(b)(5) to provide that
paragraph (b)(1) through (4) applies to
classes and extracurricular activities
provided by a recipient covered by
§ 106.34(b)(1) either directly or through
another entity and to clarify that
paragraph (b)(1) through (4) does not
apply to interscholastic, club, or
intramural athletics, which are subject
to the provisions of §§ 106.41 and
106.37(c).
38 Sections
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62539
18. Physical Education Classes
Comments: Commenters objected to
these amendments because they
perceived that they would weaken the
current Title IX regulatory standards
pertaining to physical education classes
in a manner that would permit sex
discrimination. Commenters indicated
that separation in physical activity
should be based on differences in skill,
size, or strength, rather than on the sex
of the student. Some female commenters
described how playing sports with boys
had enhanced their sports skills.
Discussion: The longstanding
regulatory provision that permits
recipients to separate students in
physical education classes on the basis
of ability is not affected by these
amendments.39 Similarly, the regulatory
exception that permits recipients to
separate students by sex within physical
education classes or activities during
participation in contact sports 40 is not
affected by these amendments. The
amended regulations provide a recipient
the additional flexibility to offer singlesex classes, including physical
education classes, if all the
requirements of § 106.34(b)(1) through
(5) are met. These requirements, which
are discussed in previous paragraphs,
require a recipient that provides a
single-sex class, including a physical
education class, to provide substantially
equal classes to students of both sexes.
These requirements prohibit
discrimination on the basis of sex,
including physical education classes,
which means that single-sex classes
must be based on a justification, i.e., an
important objective and a substantial
relationship between the important
objective and the sex-based means used
to further the objective, that is genuine
and not based on overly broad sex-based
generalizations about either sex.
Changes: None.
19. Legal Standards for Single-Sex
Schools (§ 106.34(c)(1))
Comments: In addition to the general
concerns about legal standards
discussed in previous paragraphs, some
commenters had specific concerns about
the legal standards applicable to the
proposed regulations regarding singlesex schools. Some commenters objected
to permitting any ‘‘new’’ single-sex
schools (i.e., after the effective date of
Title IX), citing the reasoning in a
Federal district court decision, as
contrary to congressional intent.
39 Compare former § 106.34(b) with § 106.34(a)(2)
of these final regulations.
40 Compare former § 106.34(c) with § 106.34(a)(1)
of these final regulations.
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A commenter objected to the
proposed regulations on schools on the
basis that sex-segregated schools violate
the Equal Educational Opportunity Act
of 1974 (EEOA),41 citing a Federal
appellate court decision 42 holding that
a sex-segregated assignment plan
violated the EEOA.
Some commenters objected to the
proposed provisions on schools because
public recipients are subject to both
Title IX and the Equal Protection
Clause, but the regulatory requirements
did not require constitutionally
sufficient justifications for sex-based
classifications.
Discussion: The Title IX regulations
have permitted single-sex nonvocational
schools since the regulations were
issued in 1975. Thus, it is not a change
that these regulations continue to permit
single-sex schools. Both the plain
language of the statute and legislative
intent support this interpretation.
Section 901 of Title IX covers
admissions only to certain types of
educational entities named in the
statute.43 Because nonvocational
elementary and secondary schools are
not among those listed, admission to
these schools is not covered. The
legislative history of Title IX shows that
Congress was aware of the existence of
public single-sex elementary and
secondary schools and that Congress
understood that, by exempting
admissions to these schools from the
general prohibitions, single-sex
admissions policies could continue.44
Our longstanding and current
interpretation that the Department is
precluded from examining a recipient’s
justifications for offering single-sex
schools is based on the plain language
of Title IX and its legislative history. As
the commenter pointed out, involuntary
assignment to single-sex public schools
violates the EEOA.
Changes: We have made a
nonsubstantive revision to § 106.34(c) to
add ‘‘General Standard’’ to the title of
this provision to make it consistent with
§ 106.34(b). We also revised the
statement of the general standard for
single-sex schools to align it more
closely to the statute. Section
106.34(c)(1) requires, subject to an
exception for certain charter schools,
discussed in a later paragraph, a
41 20
U.S.C. 1701 through 1721.
States v. Hinds County Sch. Bd., 560
F.2d 619 (5th Cir. 1977).
43 20 U.S.C. 1681(a)(1). The nondiscrimination
provisions of section 901 of Title IX apply to
admissions to institutions of vocational education,
professional education, and graduate higher
education, and to public institutions of
undergraduate higher education.
44 118 Cong. Rec. 5804, 5807, 5812–13 (1972).
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42 United
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recipient that operates a public,
nonvocational single-sex elementary or
secondary school to provide a
substantially equal single-sex school or
coeducational school to students of the
excluded sex.
20. Schools for Excluded Sex
(§ 106.34(c)(1))
Comments: Some commenters
objected to amending the regulations to
permit a recipient to offer a single-sex
school to students of one sex and to
offer either a coeducational or a singlesex school to students of the excluded
sex, rather than requiring that excluded
students also be offered a single-sex
school. Commenters objected to this
change in our previous interpretation of
the Title IX statute. They stated that to
provide students of one sex the
opportunity to attend a single-sex
school, but not to provide students of
the other sex an equal opportunity to
attend a single-sex school, is
discriminatory treatment on the basis of
sex in violation of the requirements of
Title IX and the Equal Protection
Clause.
Discussion: The Title IX statute does
not cover admissions to nonvocational
elementary and secondary schools.45
We have determined that, by excluding
these schools from the admissions
coverage, Congress was not only
permitting recipients to operate public
schools with single-sex admissions
policies without sanction under Title
IX,46 but it also was permitting
recipients to operate single-sex schools
without requiring them also to provide
a corresponding single-sex school for
students of the excluded sex, again
without sanction under Title IX. We no
longer interpret Title IX to require that
if a recipient offers a single-sex school
for students of one sex, it must offer
students of the other sex a
corresponding single-sex school. The
regulations now require, in
§ 106.34(c)(1), that the recipient must
provide a substantially equal school to
students of both sexes,47 but the school
may be a coeducational or single-sex
school.
Changes: None.
45 20 U.S.C. 1681(a)(1) (‘‘in regard to admissions
to educational institutions, this section shall apply
only to institutions of vocational education,
professional education, and graduate higher
education, and to public institutions of higher
education’’).
46 118 Cong. Rec. 5804, 5807, 5812–13 (1972).
47 Subject to the exception for certain public
charter schools in § 106.34(c)(2).
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21. Substantially Equal Schools
(§ 106.34(c)(1))
Comments: Many commenters had the
same concerns regarding the regulatory
language in § 106.34(c)(1) used to
describe the standard for comparing and
measuring schools as they had for
classes. As discussed in previous
paragraphs regarding requirements for
classes, commenters were concerned
that the term ‘‘substantially equal,’’ as
used in the proposed regulations for
comparing benefits provided to
students, described a lower standard
than the equal educational opportunity
standard required by Title IX and the
Equal Protection Clause.
Discussion: Title IX does not cover
admissions to nonvocational elementary
and secondary schools. Title IX does
require that a recipient that operates
public schools must not provide a
single-sex school to students of one sex
and discriminate against students of the
excluded sex with respect to the
educational opportunities the recipient
provides them in another school,
regardless of whether the other school is
coeducational or single-sex. Under the
original Title IX regulations, if an LEA
chose to provide a single-sex school, the
standard for comparison of benefits and
treatment provided to students in
schools was described as ‘‘comparable.’’
Under the final regulations the standard
of comparison for schools is described
as ‘‘substantially equal.’’
As discussed under the paragraphs on
single-sex classes, we disagree with the
comments that the substantially equal
standard is a lower standard for
comparing schools than is required
under Title IX or the Equal Protection
Clause. This standard ensures that
students who are excluded from a
single-sex school will be provided a
school with tangible and intangible
features substantially equal to the
corresponding features in the single-sex
school. We recognize, however, that in
comparing two schools, a recipient may
provide students with a substantially
equal school even if the schools are not
identical in every respect.
Changes: None.
22. School Within a School
(§ 106.34(c)(1) and (c)(4))
Comments: None.
Discussion: Section 106.34(c)(1) of the
proposed regulations referred to a
school or ‘‘education unit.’’ We
explained in the preamble to the
proposed regulations that ‘‘education
unit’’ meant a ‘‘school within a school,’’
which was a school located within
another school. We believe that it is
important for recipients to have this
information included in the regulations.
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Changes: We have deleted the term
‘‘education unit’’ from § 106.34(c)(1)
and added a new paragraph (4) that
defines ‘‘school’’ to include ‘‘school
within a school’’ and explains what we
mean by a ‘‘school within a school.’’
23. Limited Charter Schools Exception
(§ 106.34(c)(2))
Comments: Some commenters
objected to the provision in the
proposed regulations that would exempt
nonvocational public single-sex charter
schools that are single-school LEAs from
the requirements that apply to other
public schools. Many of these
commenters stated that public charter
schools, like other public schools that
receive Federal funds, are subject to the
requirements of Title IX and the U.S.
Constitution. They believed that all
single-sex public schools should be
required to demonstrate an exceedingly
persuasive justification for limiting
admission to one sex. One commenter
noted that recipients authorizing the
operation of single-sex charter schools,
as opposed to the individual schools
themselves, are likewise subject to the
constitutional and Title IX
requirements. One commenter stated
that the Department’s rationale that it
would be unduly burdensome to require
single-sex charter schools that are
single-school LEAs to create a single-sex
charter school for students of the
excluded sex was not a valid reason to
excuse those schools from the
constitutional requirements of the Equal
Protection Clause.
Discussion: The constitutional
standard referenced in the comments is
not a Title IX requirement. The Title IX
statute does not cover admissions to
nonvocational elementary and
secondary schools.48 Given Congress’
intent, OCR does not have the authority
to require recipients to provide a
justification for single-sex
nonvocational elementary or secondary
schools. Accordingly, the regulatory
amendment regarding single-sex schools
is consistent with Title IX. Of course,
public schools are subject to
constitutional requirements, including
the Equal Protection Clause, which
requires that a recipient demonstrate
that its sex-based classification serves
an important governmental objective
and that the sex-based classification is
substantially related to the achievement
of that objective.
With regard to public charter schools,
it would be impracticable to require
either chartering authorities, which are
merely approving applications for—but
are not operating—single-sex charter
48 20
U.S.C. 1681(a)(1).
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schools, or the groups of community
leaders, developers, or parents who seek
to establish a single-sex charter school
that will be a single-school LEA under
State law, to establish and operate an
additional substantially equal school to
meet the needs of the other sex. Because
it would be unlikely that those groups
would be able to create two
substantially equal charter schools,
absent the exception in § 106.34(c)(2)
those groups would be unable to
establish a single-sex charter school.
Title IX does not require such a rigid
approach. On the other hand, any LEA
that operates multiple schools,
including charter schools, must comply
with § 106.34(c)(1). The notion of
excepting certain types of schools from
the Title IX requirements is not new.
Pursuant to § 106.35 of the former
regulations, private schools that
received Federal assistance were
permitted to operate single-sex schools
without providing the excluded sex
with a comparable school. The
requirements of § 106.34(c)(1) of these
regulations do not apply to recipients
that operate private, nonvocational
elementary or secondary schools.
Changes: We have made a
nonsubstantive revision to describe
more precisely the single-school LEAs
that are entitled to this exception.
24. Chartering Authorities
Comments: A commenter noted that a
school board that serves as a chartering
authority of public charter schools
should not be found to have violated
Title IX if it approves a charter school
application for a single-sex charter
school, but does not provide the
resources to establish a single-sex
school for students of the excluded sex.
Additionally, the commenter suggested
that the final regulations include a
statement clarifying that Title IX does
not obligate a chartering authority that
is an LEA to approve an application for
a single-sex charter school.
Discussion: Title IX would require all
chartering authorities that receive
Federal financial assistance to review,
and approve or reject, applications in a
nondiscriminatory manner. Nothing in
Title IX or these regulations requires
that applications for single-sex charter
schools be approved. Title IX simply
requires that the same standards be
applied to a proposed single-sex charter
school, regardless of which sex the
charter school proposes to serve. An
LEA will be considered to be
‘‘operating’’ a charter school that is part
of the LEA. Thus, if a recipient LEA
chartering authority approves an
application for a single-sex charter
school that will be part of the LEA, the
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LEA must comply with the
requirements of § 106.34(c)(1) and must
provide students of the excluded sex
with a substantially equal single-sex
school or coeducational school. As
stated in the discussion of
§ 106.34(c)(2), however, if a chartering
authority’s role is merely approving an
application for a single-sex charter
school that is a single-school LEA, the
chartering authority will not be required
to provide the students of the excluded
sex with a substantially equal school.
State charter school laws govern
whether a charter school will be a
public school within the LEA or
whether it will be a single-school LEA.
Changes: None.
25. Factors (Proposed § 106.34(c)(3)(i))
Comments: Several commenters
stated that the proposed list of factors
used to compare schools must include
intangible factors.
Discussion: Readers should refer to
the prior discussion of this issue under
the classes section of this analysis.
Changes: We have removed paragraph
designation (i) from § 106.34(c)(3). With
respect to the list of factors (in proposed
§ 106.34(c)(3)(i))), we have revised the
regulations to include ‘‘intangible
features’’ and to list ‘‘reputation of
faculty’’ as an example of an intangible
feature on the non-exhaustive list of
factors. Further changes with respect to
the consideration of these factors
(proposed § 106.34(c)(3)(ii)) are
discussed in the next section.
26. Aggregate Approach (Proposed
§ 106.34(c)(3)(ii))
Comments: Some commenters
objected to the proposed ‘‘aggregate’’
approach 49 for comparing the benefits
and treatment provided to students in
single-sex schools and the benefits and
treatment provided to students excluded
from those schools. Commenters were
concerned that this approach would
permit inequities between schools that
would constitute discrimination on the
basis of sex against the students in one
of the schools in violation of Title IX
and the U.S. Constitution. A commenter
stated that the proposed aggregate
approach would condone inequities
between a single-sex and coeducational
school as long as the inequities balanced
in some unspecified way.
Discussion: Commenters
misunderstood the aggregate approach
49 The proposed amendments in § 106.34(c)(3)(i)
provided a non-exhaustive list of factors that the
Department would consider in determining whether
schools were substantially equal, and in
§ 106.34(c)(3)(ii) provided that ‘‘this determination
involves an assessment in the aggregate of the
educational benefits provided by each school as a
whole.’’
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in the proposed regulations to permit
inequities that would be prohibited by
Title IX. This perception of the
proposed provision was inconsistent
with the intent of the proposed
provision and of the substantial equality
standard.
We have revised the regulations to
provide more clarity on the aggregate
approach. The same regulatory language
added in these final regulations to
clarify the aggregate approach for
assessing substantial equality of classes,
§ 106.34(b)(3), has also been added to
the regulatory language on assessing
substantial equality of schools, and
§ 106.34(c)(ii) of the proposed
regulations has been deleted in the final
regulations. For more information about
assessments of substantial equality,
readers should refer to the prior
discussion in this analysis of how
compliance with the requirement of
substantial equality will be assessed for
classes.
Changes: Section 106.34(c)(3) has
been revised to clarify the aggregate
approach in assessing substantial
equality of schools, by adding the term
‘‘either individually or in the aggregate
as appropriate’’ so that the regulatory
language now provides in relevant part:
‘‘Factors the Department will consider,
either individually or in the aggregate as
appropriate, in determining whether
schools are substantially equal include
* * *.’’ Section 106.34(c)(3)(ii) of the
proposed regulations has been deleted
and the section has been renumbered to
reflect this change.
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27. Periodic Evaluations
Comments: Some commenters stated
that the regulations should require
recipients to periodically evaluate
single-sex schools.
Discussion: As discussed in previous
paragraphs, we interpret the Title IX
admissions exception for nonvocational
elementary and secondary schools to
prevent the Department from regulating
the justifications for single-sex schools.
For that reason we have not included a
requirement for periodic evaluations,
similar to the requirement for single-sex
classes. Regardless of the lack of this
additional procedural requirement for
schools, recipients continue to be
subject to the substantive requirements
of Title IX and our Title IX regulations,
and they continue to be subject to
investigation if there is a complaint or
compliance review.50 Recipients that
voluntarily monitor their single-sex and
50 34 CFR 100.6(c); 34 CFR 100.7(a)(b). As
discussed in previous paragraphs, public schools
and school districts are also subject to the Equal
Protection Clause.
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coeducational schools for compliance
with these regulations are in the best
position to achieve compliance.
Changes: None.
Executive Order 12250
Pursuant to Executive Order 12250,
which provides for the Attorney General
to review regulations implementing
Title IX, the Attorney General has
reviewed and approved these final
regulations for publication.
Executive Order 12866
We have reviewed these final
regulations in accordance with
Executive Order 12866. Under the terms
of the order we have assessed the
potential costs and benefits of this
regulatory action.
The potential costs associated with
the final regulations are those resulting
from statutory requirements and those
we have determined to be necessary for
administering this program effectively
and efficiently.
In assessing the potential costs and
benefits of these final regulations, we
have determined that the benefits of the
regulations justify the costs.
We have also determined that this
regulatory action would not unduly
interfere with State, local, and tribal
governments in the exercise of their
governmental functions.
Summary of Potential Costs and
Benefits
The benefit of the final regulations is
the expanded flexibility to provide
single-sex schools, classes, or
extracurricular activities, if they are
desired. The final regulations do not
require recipients to provide single-sex
schools, classes, or extracurricular
activities and thus do not require
recipients to incur any additional costs.
If recipients choose to continue to
operate schools, classes, or
extracurricular activities under their
current policies or practices and choose
not to provide single-sex education, no
added costs will be incurred. Those
recipients that choose to provide singlesex schools, classes, or extracurricular
activities may incur additional
expenses. The costs associated with
providing single-sex education under
the final regulations will range from
minimal to substantial, depending on
what options recipients choose to
provide.
Paperwork Reduction Act of 1995
These regulations do not contain any
information collection requirements.
Assessment of Educational Impact
In the NPRM we requested comments
on whether the proposed regulations
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would require transmission of
information that any other agency or
authority of the United States gathers or
makes available.
Based on the response to the NPRM
and on our review, we have determined
that these final regulations do not
require transmission of information that
any other agency or authority of the
United States gathers or makes
available.
Electronic Access to This Document
You may view this document, as well
as all other Department of Education
documents published in the Federal
Register, in text or Adobe Portable
Document Format (PDF) on the Internet
at the following site: https://www.ed.gov/
news/fedregister.
To use PDF you must have Adobe
Acrobat Reader, which is available free
at this site. If you have questions about
using PDF, call the U.S. Government
Printing Office (GPO), toll free, at 1–
888–293–6498; or in the Washington,
DC, area at (202) 512–1530.
These final regulations also will be
available at OCR’s Web site on the
Internet at: https://www.ed.gov/ocr.
Note: The official version of this document
is the document published in the Federal
Register. Free Internet access to the official
edition of the Federal Register and the Code
of Federal Regulations is available on GPO
Access at: https://www.gpoaccess.gov/nara/
index.html.
(Catalog of Federal Domestic Assistance
Number does not apply.)
List of Subjects in 34 CFR Part 106
Education, Sex discrimination.
Dated: October 20, 2006.
Margaret Spellings,
Secretary of Education.
For the reasons discussed in the
preamble, the Secretary amends part
106 of title 34 of the Code of Federal
Regulations as follows:
I
PART 106—NONDISCRIMINATION ON
THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES
RECEIVING FEDERAL FINANCIAL
ASSISTANCE
1. The authority citation for part 106
continues to read as follows:
I
Authority: 20 U.S.C. 1681 et seq., unless
otherwise noted.
2. Section 106.34 is revised to read as
follows:
I
§ 106.34
Access to classes and schools.
(a) General standard. Except as
provided for in this section or otherwise
in this part, a recipient shall not provide
or otherwise carry out any of its
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education programs or activities
separately on the basis of sex, or require
or refuse participation therein by any of
its students on the basis of sex.
(1) Contact sports in physical
education classes. This section does not
prohibit separation of students by sex
within physical education classes or
activities during participation in
wrestling, boxing, rugby, ice hockey,
football, basketball, and other sports the
purpose or major activity of which
involves bodily contact.
(2) Ability grouping in physical
education classes. This section does not
prohibit grouping of students in
physical education classes and activities
by ability as assessed by objective
standards of individual performance
developed and applied without regard
to sex.
(3) Human sexuality classes. Classes
or portions of classes in elementary and
secondary schools that deal primarily
with human sexuality may be
conducted in separate sessions for boys
and girls.
(4) Choruses. Recipients may make
requirements based on vocal range or
quality that may result in a chorus or
choruses of one or predominantly one
sex.
(b) Classes and extracurricular
activities. (1) General standard. Subject
to the requirements in this paragraph, a
recipient that operates a nonvocational
coeducational elementary or secondary
school may provide nonvocational
single-sex classes or extracurricular
activities, if—
(i) Each single-sex class or
extracurricular activity is based on the
recipient’s important objective—
(A) To improve educational
achievement of its students, through a
recipient’s overall established policy to
provide diverse educational
opportunities, provided that the singlesex nature of the class or extracurricular
activity is substantially related to
achieving that objective; or
(B) To meet the particular, identified
educational needs of its students,
provided that the single-sex nature of
the class or extracurricular activity is
substantially related to achieving that
objective;
(ii) The recipient implements its
objective in an evenhanded manner;
(iii) Student enrollment in a singlesex class or extracurricular activity is
completely voluntary; and
(iv) The recipient provides to all other
students, including students of the
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excluded sex, a substantially equal
coeducational class or extracurricular
activity in the same subject or activity.
(2) Single-sex class or extracurricular
activity for the excluded sex. A recipient
that provides a single-sex class or
extracurricular activity, in order to
comply with paragraph (b)(1)(ii) of this
section, may be required to provide a
substantially equal single-sex class or
extracurricular activity for students of
the excluded sex.
(3) Substantially equal factors. Factors
the Department will consider, either
individually or in the aggregate as
appropriate, in determining whether
classes or extracurricular activities are
substantially equal include, but are not
limited to, the following: the policies
and criteria of admission, the
educational benefits provided,
including the quality, range, and
content of curriculum and other services
and the quality and availability of
books, instructional materials, and
technology, the qualifications of faculty
and staff, geographic accessibility, the
quality, accessibility, and availability of
facilities and resources provided to the
class, and intangible features, such as
reputation of faculty.
(4) Periodic evaluations. (i) The
recipient must conduct periodic
evaluations to ensure that single-sex
classes or extracurricular activities are
based upon genuine justifications and
do not rely on overly broad
generalizations about the different
talents, capacities, or preferences of
either sex and that any single-sex
classes or extracurricular activities are
substantially related to the achievement
of the important objective for the classes
or extracurricular activities.
(ii) Evaluations for the purposes of
paragraph (b)(4)(i) of this section must
be conducted at least every two years.
(5) Scope of coverage. The provisions
of paragraph (b)(1) through (4) of this
section apply to classes and
extracurricular activities provided by a
recipient directly or through another
entity, but the provisions of paragraph
(b)(1) through (4) of this section do not
apply to interscholastic, club, or
intramural athletics, which are subject
to the provisions of §§ 106.41 and
106.37(c) of this part.
(c) Schools. (1) General Standard.
Except as provided in paragraph (c)(2)
of this section, a recipient that operates
a public nonvocational elementary or
secondary school that excludes from
admission any students, on the basis of
PO 00000
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Fmt 4701
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62543
sex, must provide students of the
excluded sex a substantially equal
single-sex school or coeducational
school.
(2) Exception. A nonvocational public
charter school that is a single-school
local educational agency under State
law may be operated as a single-sex
charter school without regard to the
requirements in paragraph (c)(1) of this
section.
(3) Substantially equal factors. Factors
the Department will consider, either
individually or in the aggregate as
appropriate, in determining whether
schools are substantially equal include,
but are not limited to, the following:
The policies and criteria of admission,
the educational benefits provided,
including the quality, range, and
content of curriculum and other services
and the quality and availability of
books, instructional materials, and
technology, the quality and range of
extracurricular offerings, the
qualifications of faculty and staff,
geographic accessibility, the quality,
accessibility, and availability of
facilities and resources, and intangible
features, such as reputation of faculty.
(4) Definition. For the purposes of
paragraph (c)(1) through (3) of this
section, the term ‘‘school’’ includes a
‘‘school within a school,’’ which means
an administratively separate school
located within another school.
(Authority: 20 U.S.C. 1681, 1682)
3. Section 106.35 is revised to read as
follows:
I
§ 106.35 Access to institutions of
vocational education.
A recipient shall not, on the basis of
sex, exclude any person from admission
to any institution of vocational
education operated by that recipient.
(Authority: 20 U.S.C. 1681, 1682)
4. Section 106.43 is added to subpart
D to read as follows:
I
§ 106.43 Standards for measuring skill or
progress in physical education classes.
If use of a single standard of
measuring skill or progress in physical
education classes has an adverse effect
on members of one sex, the recipient
shall use appropriate standards that do
not have that effect.
(Authority: 20 U.S.C. 1681, 1682)
[FR Doc. E6–17858 Filed 10–24–06; 8:45 am]
BILLING CODE 4000–01–P
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Agencies
[Federal Register Volume 71, Number 206 (Wednesday, October 25, 2006)]
[Rules and Regulations]
[Pages 62530-62543]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-17858]
[[Page 62529]]
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Part III
Department of Education
-----------------------------------------------------------------------
34 CFR Part 106
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance; Final Rule
Federal Register / Vol. 71, No. 206 / Wednesday, October 25, 2006 /
Rules and Regulations
[[Page 62530]]
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DEPARTMENT OF EDUCATION
34 CFR Part 106
RIN 1870-AA11
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary amends the regulations implementing Title IX of
the Education Amendments of 1972 (Title IX), which prohibits sex
discrimination in federally assisted education programs and activities.
These amendments clarify and modify Title IX regulatory requirements
pertaining to the provision of single-sex schools, classes,\1\ and
extracurricular activities in elementary and secondary schools. The
amendments expand flexibility for recipients to provide single-sex
education, and they explain how single-sex education may be provided
consistent with the requirements of Title IX.
---------------------------------------------------------------------------
\1\ The requirements for classes and extracurricular activities
are the same. For the sake of simplicity, we generally use the term
``class'' in the preamble analysis of comments and changes. A noted
exception is our discussion of comments from the public regarding
extracurricular activities specifically.
---------------------------------------------------------------------------
DATES: These regulations are effective November 24, 2006.
FOR FURTHER INFORMATION CONTACT: Sandra G. Battle, U.S. Department of
Education, 400 Maryland Avenue, SW., Room 6125, Potomac Center Plaza,
Washington DC 20202-1100. Telephone: (202) 245-6767.
If you use a telecommunications device for the deaf (TDD), you may
call 1-877-521-2172. For additional copies of this document, you may
call the Customer Service Team for the Office for Civil Rights (OCR) at
(202) 245-6800 or 1-800-421-3481.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: Title IX prohibits discrimination on the
basis of sex in education programs and activities that receive Federal
financial assistance.\2\ The Department's Title IX regulations
implement Title IX's nondiscrimination requirements in education
programs and activities assisted by the Department.\3\ These amendments
to the regulations establish new standards that OCR will use in
determining \4\ whether recipients that choose to operate single-sex
elementary and secondary classes, extracurricular activities, and
schools \5\ are doing so consistent with their Title IX obligations not
to discriminate on the basis of sex for the purposes of receiving
financial assistance from the Department.
---------------------------------------------------------------------------
\2\ 20 U.S.C. 1681(a).
\3\ 34 CFR part 106.
\4\ OCR would make these determinations in resolving any
complaints or compliance reviews related to these issues. See 34 CFR
100.7, made applicable to the Title IX regulations by Sec. 106.71.
\5\ These regulations do not require single-sex classes,
extracurricular activities, or schools.
---------------------------------------------------------------------------
On March 9, 2004, the Secretary published a notice of proposed
rulemaking (NPRM) for this part in the Federal Register (69 FR 11276).
We explained that these amendments to the regulations are intended to
provide recipients with additional flexibility in providing single-sex
classes, extracurricular activities, and schools in elementary and
secondary education. At the same time, these amendments ensure for
students that single-sex classes, extracurricular activities, and
schools are provided in a nondiscriminatory manner. In the preamble to
the proposed regulations, on pages 11276 through 11282, we discussed
the major changes needed to accomplish these objectives.\6\ These
changes included the following:
---------------------------------------------------------------------------
\6\ The NPRM also discussed minor and technical changes
including:
Amending Sec. 106.34(a) to delete obsolete timeframes;
to move the general prohibition against providing education programs
or activities separately on the basis of sex or refusing or
requiring participation in education programs or activities on the
basis of sex from an undesignated part of the former Sec. 106.34
published in 1980 to Sec. 106.34(a); and, because the proposed
amendments provided for an exception that would permit single-sex
classes in nonvocational elementary and secondary schools of any
type, except for vocational education classes or vocational
extracurricular activities, to delete from Sec. 106.34 the
introductory listing of specific types of classes to which the
general prohibition applies.
Amending Sec. 106.34(a) to move the exceptions to the
general prohibition, relating to physical education, sex education,
and chorus, to Sec. 106.34(a)(1) and (2), (a)(3) and (a)(4),
respectively, and to expand the exception for sex education, Sec.
106.34(a)(3), to include classes in elementary and secondary
education that deal ``primarily'' with human sexuality, rather than
only those that deal ``exclusively'' with human sexuality.
Amending Sec. 106.35 to clarify that the prohibitions
against sex discrimination in admissions to vocational education
schools apply to all recipients, public and private, and to move the
requirements, including the substantive amendments, related to
nonvocational schools operated by local educational agencies (LEAs)
to Sec. 106.34(c).
Adding a new Sec. 106.43 and moving to it, from Sec.
106.34(d) of the former regulations, the provision regarding
standards for measuring skill or progress in physical education.
---------------------------------------------------------------------------
Amending Sec. 106.34(b) to add a new exception to the
general prohibition against single-sex classes and extracurricular
activities. The exception applies to nonvocational classes and
extracurricular activities in elementary and secondary coeducational
schools that are not vocational schools.\7\ Under this exception a
recipient would be permitted to offer a single-sex class or
extracurricular activity if (1) the purpose of the class or
extracurricular activity is achievement of an important governmental or
educational objective, and (2) the single-sex nature of the class or
extracurricular activity is substantially related to achievement of
that objective. (Proposed Sec. 106.34(b)(1)(i)). The two important
objectives described in the proposed regulations were to provide a
diversity of educational options to parents and students and to meet
the particular, identified educational needs of students. (Proposed
Sec. 106.34(b)(1)(i)). The proposed amendments also described, for
those recipients that choose to provide single-sex classes or
extracurricular activities under this new exception, requirements
necessary to ensure nondiscrimination. Under these requirements, as
described in the proposed regulations, the recipient must treat male
and female students in an evenhanded manner in implementing its
objective, and it must always provide a substantially equal
coeducational class or extracurricular activity in the same subject or
activity. (Proposed Sec. 106.34(b)(1)(ii), (iii)). The proposed
amendments provided that, in addition to the required substantially
equal coeducational class or extracurricular activity in the same
subject or activity, a substantially equal single-sex class or
extracurricular activity for students of the other sex may be required
to ensure nondiscriminatory implementation. (Proposed Sec.
106.34(b)(2)). The proposed amendment provided a non-exhaustive list of
factors that the Department will
[[Page 62531]]
consider in determining whether classes or extracurricular activities
are substantially equal (Proposed Sec. 106.34(b)(3)), and required the
recipient to conduct periodic evaluations to ensure nondiscrimination
(Proposed Sec. 106.34(b)(4)). The proposed regulations defined
``classes'' to include all education activities provided for students
by a school or sponsored by a school, and it was intended to include
extracurricular activities.\8\ (Proposed Sec. 106.34(b)(5)).
---------------------------------------------------------------------------
\7\ As explained in the preamble to the proposed regulations,
the requirements for classes and extracurricular activities apply to
recipients that operate public and private nonvocational
coeducational schools. Private elementary and secondary schools are
subject to the requirements pertaining to classes if they receive a
grant or subgrant of Federal funds from the Department. Private
schools with students who participate in programs conducted by LEAs
that are funded under Federal programs such as Title I of the
Elementary and Secondary Education Act of 1965, as amended, or the
Individuals with Disabilities Education Act are not considered
recipients of Federal funds unless they otherwise receive a grant or
subgrant of Federal funds. These private schools are not subject to
these amended regulations, but the LEA must ensure that its
programs, including services to private school students, are
consistent with Title IX.
\8\ 69 FR 11276, footnote 1.
---------------------------------------------------------------------------
Amending Sec. 106.34(c) to include from former Sec.
106.35, with substantive changes, the nondiscrimination requirements
applicable to the operation of nonvocational single-sex public
schools.\9\ The proposed amendment provided generally that a recipient
that operates a public nonvocational elementary or secondary school may
operate a single-sex school only if it provides substantially equal
opportunities for students of the other sex in another school and that
the other school may be either single-sex or coeducational. (Proposed
Sec. 106.34(c)(1)). As explained in the preamble to the proposed
regulations, this represents a change in interpretation of Title IX.
Under the prior interpretation, if a recipient operated a single-sex
public school for students of one sex, we required it to offer a
comparable single-sex school for students of the other sex.
---------------------------------------------------------------------------
\9\ As explained in the preamble to the proposed regulations,
the requirements pertaining to the provision of single-sex schools
do not apply to recipients that operate private, nonvocational
elementary or secondary schools.
---------------------------------------------------------------------------
The proposed amendments also exempted nonvocational public charter
schools that are single-school LEAs from the requirement to provide a
substantially equal school for students of the other sex. (Proposed
Sec. 106.34(c)(2)). In addition, the proposed amendments provided a
non-exhaustive list of factors the Department would use in determining
whether the schools are substantially equal and provided that the
Department will use an aggregate approach in making this determination.
(Proposed Sec. 106.34(c)(3)).
Significant Changes Between the Proposed Regulations and the Final
Regulations
Clarification that Sec. 106.34(b)(1) through (5) applies
to extracurricular activities, as well as to classes: We have added the
term ``extracurricular activities'' throughout Sec. 106.34(b)(1)
through (5) to clarify that these provisions apply to both classes and
extracurricular activities. As described later in this section, we are
also clarifying the scope of coverage of paragraph (b)(1) through (4)
of Sec. 106.34.
Clarification that a recipient's objective must be
``important'': Section 106.34(b)(1) of the proposed regulations
specified, in paragraph (i), that each single-sex class or
extracurricular activity must be based on the ``recipient's
objective.'' Recipients that are public entities must have an important
governmental objective and recipients that are private entities must
have an important educational objective. We have clarified this
provision in the final regulations by adding the word ``important'' to
describe the recipient's objective.
Revisions of ``diversity of educational options''
objective: The proposed regulations stated that a ``diversity of
educational options to parents and students'' was an important
objective that may serve as a basis for providing single-sex classes.
(Proposed Sec. 106.34(b)(1)(i)(A)). We have revised the regulatory
language to clarify that this objective is ``to improve educational
achievement of its students, through a recipient's overall established
policy, to provide diverse educational opportunities, provided that the
single-sex nature of the class or extracurricular activity is
substantially related to achieving that objective.''
Clarification that participation in single-sex classes and
extracurricular activities must be completely voluntary: The proposed
regulations in Sec. 106.34(b)(1)(ii) referenced the requirements of
Sec. 106.34(a) to ensure together with the requirement to provide a
coeducational class, that recipients did not assign students
involuntarily to single-sex classes. New paragraph (iii) of Sec.
106.34(b)(1) provides that student enrollment in single-sex classes and
extracurricular activities must be completely voluntary.
To accommodate the addition of this new paragraph, we have
renumbered the other paragraphs in this section. The requirement for
evenhanded treatment of male and female students is now in Sec.
106.34(b)(1)(ii), the requirement that participation in single-sex
classes and extracurricular activities must be completely voluntary is
in Sec. 106.34(b)(1)(iii), and the requirement to provide a
substantially equal coeducational class or extracurricular activity is
in Sec. 106.34(b)(1)(iv). We also have removed the reference to
paragraph (a) in this paragraph because it is no longer needed.
Clarification of aggregate approach regarding the
assessment of substantial equality of classes in Sec. 106.34(b)(3) and
schools in Sec. 106.34(c)(3): We have clarified the description of the
Department's use of an aggregate approach for considering factors in
assessments of substantial equality by deleting Sec. 106.34(c)(ii) of
the proposed regulations, which was misunderstood by commenters, and by
adding the clarifying language, ``either individually or in the
aggregate as appropriate,'' to Sec. 106.34(b)(3), regarding factors
the Department will consider in the assessment of substantial equality
of classes, and to Sec. 106.34(c)(3), regarding factors the Department
will consider in the assessment of substantial equality of schools, in
the final regulations.
Addition of ``intangible features'' to factors in Sec.
106.34(b)(3) and (c)(3); addition of ``geographic accessibility''
factor in Sec. 106.34(b)(3): The proposed regulations provided non-
exhaustive lists of factors in Sec. 106.34(b)(3) and (c)(3) that the
Department will consider in comparing classes or extracurricular
activities and schools, respectively, for the purposes of determining
compliance. We have added ``intangible features'' and ``reputation of
faculty'' as an example of an intangible feature to both lists of
factors in the final regulations. We also have added ``geographic
accessibility'' as a factor in Sec. 106.34(b)(3) because it may be
relevant in certain circumstances in compliance determinations.
Modification of provisions on periodic evaluations: The
proposed regulations in Sec. 106.34(b)(4) required that recipients
conduct periodic evaluations of single-sex classes to ensure, among
other things, that the classes and activities are based on genuine
justifications and do not rely on overly broad generalizations about
the different talents or capacities of either sex. Title IX also does
not permit single-sex classes or extracurricular activities to rely on
overly broad generalizations about the preferences of either sex.
Therefore, we added the word ``preferences'' to Sec. 106.34(b)(4). We
also have added the term ``important'' to clarify that the evaluation
must ensure that the single-sex class or extracurricular activity is
substantially related to the recipient's important objective.
Clarification addressing the frequency of the procedural
requirement for periodic evaluations: In the preamble to the proposed
regulations, we requested comments regarding how often recipients
should conduct the periodic evaluations required by Sec. 106.34(b)(4).
The proposed regulations were silent on this issue. The final
regulations add a new paragraph (ii) to Sec. 106.34(b)(4) that
specifies that evaluations for the purposes of
[[Page 62532]]
Sec. 106.34(b)(4)(i) must be conducted at least every two years.
Scope of coverage of Sec. 106.34(b)(1) through (4): The
proposed regulations in Sec. 106.34(b)(5) defined ``class'' for the
purposes of Sec. 106.34(b)(1) through (4), and that definition was
intended to cover academic classes and extracurricular activities. We
have determined that rather than define ``class,'' it is clearer and
more useful to include a provision on the scope of coverage of
paragraph (b)(1) through (4) of Sec. 106.34. We have revised Sec.
106.34(b)(5) to provide that paragraph (b)(1) through (4) applies to
classes and extracurricular activities provided by a recipient directly
or through another entity, and to clarify that paragraph (b)(1) through
(4) does not apply to interscholastic, club, or intramural athletics,
which are subject to the requirements of Sec. Sec. 106.41 and
106.37(c).
Definition of ``school'' and ``school within a school'':
The proposed regulations in Sec. 106.34(c)(1) referred to a single-sex
education unit. For the purposes of this paragraph, we consider an
``education unit'' to mean a ``school within a school'' and that term
to mean a school that is housed within another school. We believe that
the term ``school within a school'' and this explanation are clearer,
more accurate, and more useful to recipients than the term ``education
unit.'' For this reason we have added a new paragraph (4) to Sec.
106.34(c) that defines the term ``school'' for the purposes of
paragraph (c)(1) through (3) to include a ``school within a school''
and explains that the latter term means ``an administratively separate
school located within another school.'' We have deleted the term
``single-sex education unit'' from Sec. 106.34(c)(1) because it is no
longer necessary in light of the new definition.
Analysis of Comments and Changes
In response to the Secretary's invitation in the preamble to the
proposed regulations, we received approximately 5,860 comments on the
proposed regulations. An analysis of the comments and of the changes in
the regulations since publication of the proposed regulations follows.
We group major issues according to subject under the appropriate
sections of the final regulations. Generally, we do not address
technical or minor changes and suggested changes that the law does not
authorize the Secretary to make.
Section 106.34. Access to Classes and Schools
1. Research
Comments: Some commenters recommended that the Department postpone
amendment of the regulations. Among the comments were recommendations
that we wait until pilot projects were conducted, until completion of a
Department-commissioned study on single-sex schools, or until the
completion of additional scientific research that concludes that
single-sex education is beneficial to students.
Discussion: Title IX has always permitted single-sex schools under
conditions that ensure nondiscrimination. Existing educational research
suggests that single-sex education may provide benefits to some
students under certain circumstances. For an overview of the literature
assessing single-sex schools, see Single Sex Versus Coeducational
Schooling: A Systematic Review, U.S. Department of Education, Office of
Planning, Evaluation and Policy Development, 2005, available on the
Department's Web site. Although there is a debate among educators on
the effectiveness of single-sex education, the final regulations permit
each recipient to make an individualized decision about whether single-
sex educational opportunities will achieve the recipient's important
objective and whether the single-sex nature of those opportunities is
substantially related to achievement of that important objective
consistent with the nondiscrimination requirements of these
regulations.
Changes: None.
2. Legal Standards for Single-Sex Classes (Sec. 106.34(b))
Comments: Some commenters objected to amending the regulations to
permit additional flexibility to provide single-sex education because
they were concerned that sex discrimination may result. Some commenters
were particularly concerned about sex discrimination resulting from
single-sex classes, given that the former regulations had restricted
single-sex classes to very limited circumstances. Some commenters
expressed the view that single-sex public education is generally
illegal, analogizing it to race-segregated public education, which is
unconstitutional. Some commenters expressed the view that the
amendments were inconsistent with standards pertaining to sex
discrimination under the Equal Protection Clause of the 14th Amendment
to the U.S. Constitution (Equal Protection Clause) and that recipients
who implemented programs consistent with these regulations might be
subject to litigation. Some commenters recommended that the final
regulations provide notice about constitutional requirements.
Discussion: The Title IX statute requires equal educational
opportunity regardless of sex, and both Title IX and the regulations
\10\ have always permitted single-sex nonvocational elementary and
secondary schools.\11\ With respect to schools, Congress both required
that recipients that operate public schools conduct their education
program or activity in a manner that does not discriminate on the basis
of sex and permitted these recipients to operate single-sex schools
within their school districts consistent with the nondiscrimination
requirements. In issuing the original Title IX regulations, the former
Department of Health, Education, and Welfare chose to require generally
that classes be coeducational to ensure nondiscrimination. 45 CFR 86.34
(1975). Given that Congress intended for school districts to be
operated in a manner that both prohibits sex discrimination and permits
the operation of single-sex schools under conditions that ensure
nondiscrimination, we believe that it is consistent with the intent of
Congress to permit recipients additional flexibility to offer single-
sex classes as long as they are offered under conditions that ensure
nondiscrimination. These regulations permit recipients to continue to
operate solely coeducational classes and provide the requirements that
will ensure that, if recipients choose to provide single-sex classes,
they will do so in a nondiscriminatory manner.
---------------------------------------------------------------------------
\10\ Comments pertaining solely to the legal standards
applicable to schools are discussed in subsequent paragraphs in
connection with Sec. 106.34(c)(1) through (4), which provides
requirements for single-sex schools.
\11\ 20 U.S.C. 1681(a)(1); Sec. 106.15(d) and former Sec.
106.35 published in 1980. Title IX also includes exemptions for
voluntary youth organizations (e.g., Boy Scouts and Girl Scouts),
Boys' and Girls' Nation or State conferences, and father-son and
mother-daughter activities. 20 U.S.C. 1681(a)(6)(B), (7), and (8).
The Title IX regulations historically have permitted sex-separate
athletic teams if selection is based on competitive skill or the
activity involved is a contact sport (Sec. 106.41(b)) and sex-
separate physical education activities involving a contact sport
(former Sec. 106.34(c) or Sec. 106.34(a)(1) in these final
regulations). The Title IX regulations also historically have
permitted sex separation in classes on human sexuality (former Sec.
106.34(e) or Sec. 106.34(a)(3) in these final regulations) and for
pregnant students, on a voluntary basis (Sec. 106.40(b)(1) and
(3)).
---------------------------------------------------------------------------
Although the Supreme Court has ruled race-segregated public
education per se unconstitutional,\12\ the Court has
[[Page 62533]]
not struck down the legality of single-sex public elementary or
secondary education \13\ under either Title IX or the Constitution.\14\
In analyzing whether sex-separate admissions policies in public
postsecondary undergraduate institutions were consistent with the
standards of the Equal Protection Clause, the Supreme Court has
indicated that to justify a sex-based classification the public entity
must demonstrate that it is based on an important governmental
objective and that exclusion of students of the other sex is
substantially related to achievement of that objective.\15\ The Supreme
Court has ruled that the ``justification must be genuine, not
hypothesized or invented post hoc in response to litigation'' and that
``it must not rely on overbroad generalizations about the different
talents, capacities, or preferences of males and females.'' \16\
Subsequent paragraphs describe how the Title IX regulations also
prohibit treatment based on overly broad sex-based generalizations.
---------------------------------------------------------------------------
\12\ Brown v. Board of Education, 347 U.S. 483 (1954).
\13\ There are no Supreme Court opinions on the issue of single-
sex public elementary and secondary education. In 1977, the Court,
by an evenly divided vote and without an opinion, let stand a
decision allowing, under the Equal Protection Clause, a school
district that also operated coeducational high schools to operate
two comparable single-sex high schools, one for girls and one for
boys. Vorchheimer v. School District of Philadelphia, 532 F.2d 880
(3rd Cir. 1976), affirmed by an equally divided Court, 430 U.S. 703
(1977) (per curiam). More recently, the Court determined in a case
involving the Virginia Military Institute that, by denying females
the educational opportunities provided to males in a single all-male
postsecondary school, the State had denied equal protection to
females. United States v. Virginia, 518 U.S. 515 (1996).
\14\ The Court uses different standards to evaluate
classifications based on race, as compared to sex, to determine if
they are consistent with the U.S. Constitution. Racial
classifications are analyzed under the standard of strict scrutiny,
whereas sex-based classifications are analyzed under the standard of
intermediate scrutiny. Grutter v. Bollinger, 539 U.S. 306, 326-327
(2003); Virginia, 518 U.S. at 532-533.
\15\ Virginia, 518 U.S. at 533, quoting Mississippi University
for Women v. Hogan, 458 U.S. 718, 724 (1982).
\16\ Virginia, 518 U.S. at 533.
---------------------------------------------------------------------------
With respect to the comments about consistency of these regulations
with Equal Protection Clause standards, the Department enforces its
Title IX regulations, which prohibit discrimination on the basis of sex
in education programs and activities by public and private recipients
of Federal assistance. The Equal Protection Clause prohibits sex
discrimination by public actors, such as public school districts. If
possible, the regulatory provisions of Title IX are informed by
constitutional principles, but because the scope of the Title IX
statute differs from the scope of the Equal Protection Clause,\17\
these regulations do not regulate or implement constitutional
requirements or constitute advice about the U.S. Constitution. Rather,
they implement Title IX by establishing the nondiscrimination
requirements that the Department will enforce with respect to
recipients that choose to provide single-sex education. These
regulations do not require that recipients implement single-sex
education. Recipients may wish to consult legal counsel regarding how
the Equal Protection Clause or other applicable legal authorities
prohibiting sex discrimination \18\ may affect any particular single-
sex school or class they propose to offer.
---------------------------------------------------------------------------
\17\ For example, as explained in the Department's ``Guidelines
on current title IX requirements related to single-sex classes and
schools,'' although recipients that operate public schools are
subject to constitutional requirements pertaining to their
justification for establishing single-sex schools, because the Title
IX statute does not cover admissions to nonvocational elementary and
secondary schools, the Department is generally precluded from
examining the recipient's justification. 67 FR 31101, 31103 (May 8,
2002).
\18\ Recipients that are public entities, such as public school
districts, are subject to the sex discrimination prohibitions of the
Equal Protection Clause. Public elementary and secondary schools are
also subject to the requirements of the Equal Educational
Opportunities Act of 1974, 20 U.S.C. 1701-1721 (EEOA), which, among
other things, contains prohibitions against the involuntary
assignment of students to sex-separate schools on the basis of sex.
20 U.S.C. 1703(c), 1705, and 1720(c). Recipients also are subject to
private litigation under Title IX for intentional discrimination on
the basis of sex. Public school and private school recipients also
may be subject to State or local laws prohibiting single-sex classes
or schools.
---------------------------------------------------------------------------
Changes: None.
3. Procedural Safeguards
Comments: Some commenters recommended additional requirements, such
as pre-approval of single-sex classes or schools by the Department,
specific data maintenance requirements in the regulations, reporting
requirements to the Department, and routine review or monitoring by the
Department to ensure nondiscrimination.
Discussion: We believe that these regulations and our current
enforcement requirements and procedures are sufficient to ensure
compliance. These regulations recognize that recipients that implement
single-sex education will have differing objectives addressing
differing student populations and that requiring a particular data set
in the regulations could be both over-inclusive and under-inclusive.
The Department has authority to access recipient records and other
sources of information to determine compliance.\19\ Recipients have an
ongoing responsibility to maintain compliance with Title IX and these
regulations.\20\ Additionally, the amended regulations require a
recipient to periodically conduct self-evaluations. If students and
their parents believe there has been a violation of these regulations,
they may file a complaint alleging discrimination under the recipient's
grievance procedures.\21\ Students, parents, and third parties may also
file complaints with the Department's Office for Civil Rights (OCR) if
they believe discrimination in violation of these regulations has
occurred. See, e.g., 34 CFR 100.7(b), (c), and (d), which are
incorporated by reference in 34 CFR 106.71. In addition, OCR has
authority to conduct periodic compliance reviews of recipients to
ensure compliance.\22\ If OCR finds that a recipient has failed to
comply with the Title IX regulations, OCR will negotiate with the
recipient to secure compliance by voluntary means, and will take action
to enforce \23\ if voluntary compliance cannot be achieved.
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\19\ Section 106.71, incorporating by reference 34 CFR 100.6(c).
\20\ Section 106.4.
\21\ Section 106.8(b).
\22\ Section 106.71, incorporating 34 CFR 100.7.
\23\ Enforcement options include commencement of proceedings to
terminate Federal funds administratively or referral to the
Department of Justice for judicial enforcement. 20 U.S.C. 1682.
---------------------------------------------------------------------------
Changes: None.
4. Effect on Other Issues
Comments: Some commenters expressed concern that additional
flexibility for single-sex education might result in a reversion to
sex-based stereotypes or roles. Some commenters indicated concern that
single-sex education may have negative effects on socialization of
children. Another commenter was concerned that recipients might not be
aware that the amendments do not affect Federal law that prohibits
recipient employers from making job assignments on the basis of sex.
Discussion: With respect to commenters who expressed concern that
increased flexibility to provide single-sex education might result in a
reversion to sex-based stereotypes or roles, the regulations establish
substantive and procedural requirements to ensure nondiscrimination.
The regulations make it clear that a recipient's failure to have a
justification, i.e., an important objective and a substantial
relationship between the important objective and the sex-based means to
further that objective, that is genuine would be sex discrimination.
Thus, the regulations also make it clear that a recipient's use of
overly broad sex-based
[[Page 62534]]
generalizations in connection with offering single-sex education would
be sex discrimination. With respect to commenters who were concerned
about the effect of single-sex education on the socialization of
students, we reiterate that these regulations do not require single-sex
education. Rather, they permit a recipient that has determined that
single-sex education may be beneficial for some portion of its student
population to offer single-sex education consistent with the
requirements in these regulations.
These regulations do not change the prohibitions on sex
discrimination in employment, or any other area not specifically
addressed in these amendments, in the Title IX regulations. Among other
things, the Title IX regulations prohibit recipients from making job
assignments on the basis of sex, Sec. 106.51(b)(4), and from
classifying jobs as being for males or females, Sec. 106.55(a). Both
of these provisions would prohibit schools from assigning teachers to
single-sex classes based on their sex.
Changes: None.
5. Important Objective (Sec. 106.34(b)(1)(i))
Comments: Some commenters objected to the description, in the
preamble to the proposed regulations, of the recipient's objective for
establishing a single-sex class as being an important ``educational''
objective because they perceived that the educational objective
requirement imposed a lesser standard than the important
``governmental'' objective requirement.
Discussion: The same Title IX nondiscrimination standards apply to
classes, whether public or private recipients operate them. We used two
terms, ``important educational objective'' and ``important governmental
objective,'' in recognition of the fact that the regulatory provisions
on single-sex classes apply to both private and public recipients.
Recipients that are public actors, such as school districts, must have
an important governmental objective to use any sex-based classification
for the purposes of the Equal Protection Clause. Accordingly, for
public recipients the same important governmental objective that would
satisfy the requirements of the Equal Protection Clause will satisfy
this portion of the regulations for the purposes of Title IX. Private
recipients are not subject to the Equal Protection Clause because they
are not governmental agencies. Thus, it is not appropriate to describe
the objective for private recipients as an important ``governmental''
objective. However, with respect to single-sex classes, unlike single-
sex schools, the same demanding standards apply under Title IX for both
public and private recipients. Thus, the regulations impose a Title IX
requirement on private recipients that is analogous to the requirement
for public recipients that they base any single-sex class on an
``important governmental objective.'' The analogous requirement for
private recipients is that they must base any single-sex class on an
``important educational objective.'' In addition, because some
commenters perceived that the reference to an important ``educational''
objective was a lesser standard than important ``governmental''
objective, we have added the term ``important'' to modify the term
``objective'' in the regulatory language in Sec. 106.34(b)(1)(i).
Changes: The term ``important'' has been added to modify the term
``objective'' in Sec. 106.34(b)(1)(i).
6. Diversity Objective (Sec. 106.34(b)(1)(i)(A))
Comments: Some commenters objected to the diversity of educational
options rationale for single-sex classes. Some of these commenters
expressed the view that providing diverse educational options was not
an important governmental interest for the purposes of the
constitutional test for sex-based classifications. Some commenters
stated that there is not an important governmental interest in a sex-
based educational option as a diverse option without a requirement that
the recipient demonstrate that the single-sex option advances
educational goals, because otherwise the single-sex nature of the class
would always be justified as substantially related to achievement of
the objective, which is circular.
Some commenters argued that implementation of diversity of
educational options was an impermissible justification for single-sex
classes because it might permit classes to be based on sex-based
stereotypes or overly broad generalizations about the different
talents, capacities, or preferences of either sex.
Discussion: The Department continues to believe that, for the
purposes of justifying a single-sex class under Title IX, a recipient
can have an important governmental or educational objective
evenhandedly to provide the opportunity to choose among diverse
educational opportunities, provided that the single-sex nature of the
class is substantially related to achieving that important objective.
Although the Supreme Court has not decided the specific issue of
whether this objective is an important governmental or educational
objective for the purposes of justifying a sex-based classification
under either Title IX or the Equal Protection Clause, the Court has
suggested it would uphold the evenhanded provision of single-sex public
educational opportunities, among a diversity of educational
opportunities.\24\
---------------------------------------------------------------------------
\24\ In considering admissions policies at the postsecondary
level, the Court stated that ``we do not question the State's
prerogative evenhandedly to support diverse educational
opportunities.'' Virginia, 518 U.S. at 534, n.7. Responding to the
Virginia Military Institute's defense that its male-only admissions
policy was established and maintained to further a State policy of
diversity, the court recognized that the reality that ``single-sex
education affords pedagogical benefits to at least some students''
was uncontested in the litigation and that ``it is not disputed that
diversity among public educational institutions can serve the public
good.'' 518 U.S. at 535. See also Virginia, 518 U.S. at 564 (Chief
Justice Rehnquist, concurring.)
---------------------------------------------------------------------------
Given that Title IX encompasses broad nondiscrimination
requirements, with narrow statutory exceptions,\25\ our intent is to
establish regulatory exceptions for single-sex classes consistent with
the statutory approach. We have clarified that a recipient's evenhanded
provision of single-sex classes for the purpose of improving
educational achievement of its students, through a recipient's overall
established policy to provide diverse educational opportunities
consistent with the requirements of these regulations meets the
nondiscrimination requirements of Title IX.
---------------------------------------------------------------------------
\25\ Jackson v. Birmingham Board of Education, 544 U.S. 167, 175
(2005).
---------------------------------------------------------------------------
In this regard, subject to the requirements of these regulations,
some recipients might determine that the diversity of educational
opportunities they provide to students would appropriately include
providing single-sex opportunities in addition to coeducational
opportunities.\26\ The regulations also require that the single-sex
nature of any class offered pursuant to this objective must be
substantially related to achievement of the objective.\27\
---------------------------------------------------------------------------
\26\ For example, a recipient may seek to achieve an educational
benefit for its students such as improvement in class work.
\27\ For example, a recipient may have evidence that some boys
and girls show educational improvement in single-sex classes during
their adolescent years.
---------------------------------------------------------------------------
The purpose of providing diverse educational opportunities is to
engage parents in the education of their children and students in their
own education with the goal of improving student outcomes. This will
provide parents the opportunity to choose single-sex classes as well as
other diverse opportunities because they
[[Page 62535]]
believe that these classes will help their children. In support of this
objective and to further bolster the connection between the diversity
justification and the legitimate interest in providing diverse
educational opportunities, the final regulations clarify that the
provision of single-sex classes must be pursuant to a recipient's
established policy of offering diverse educational opportunities. This
means that the range of choices offered to students and parents is not
limited to single-sex schools and classes and coeducational schools and
classes. A school or school district may not simply establish a single-
sex class and declare that the class by definition promotes diversity
and is therefore consistent with these regulations. This ensures that a
single-sex class in fact must be related to the important objective of
improving educational achievement of its students, through a
recipient's overall established policy to provide diverse educational
opportunities.
At the school district level examples of diverse educational
opportunities that a recipient might offer as part of an overall
established policy include charter schools, magnet schools,
coeducational schools, single-sex schools, coeducational schools that
offer both coeducational and single-sex classes, or other forms of
public school opportunities. At the school level, this policy may
include a range of elective classes or the opportunity to take classes
at other schools.
A recipient's justification, i.e., an important objective and a
substantial relationship between the important objective and the sex-
based means to further the objective, must be genuine. Thus, recipients
are prohibited from determining which classes to offer on a single-sex
basis or providing single-sex classes on the basis of overly broad
generalizations about the different talents, capacities, or preferences
of either sex. However, to the extent that a recipient offers single-
sex classes, consistent with the requirements of these regulations,
among its diverse educational opportunities, these regulations
recognize that a parent or guardian may make an individualized decision
to select from those opportunities regarding enrollment of his or her
child.
Changes: We have revised Sec. 106.34(b)(1)(i)(A) to clarify that
single-sex classes offered under this objective are offered to improve
educational achievement of its students, through an overall established
policy of providing diverse educational opportunities.
7. Needs Objective (Sec. 106.34(b)(1)(i)(B))
Comments: Numerous commenters questioned, on a variety of grounds,
whether the amendments permitting single-sex classes to address
particular, identified educational needs met the requirements of Title
IX or met the test for sex-based classifications under the Equal
Protection Clause. Numerous commenters expressed concern that the
regulations did not require a recipient to articulate the educational
benefit that it would be trying to achieve pursuant to the particular,
identified educational needs objective or to produce evidence that the
class would achieve the benefit described in the objective. Numerous
commenters indicated that the proposed regulations did not require a
recipient to compile evidence that the single-sex nature of its class
is substantially related to the particular, identified educational need
or educational benefit the recipient seeks to provide. Several
commenters were concerned that recipients would establish single-sex
classes based on administrative convenience.
Commenters also objected to the implementation of the particular
educational need objective for single-sex classes because it might
permit classes to be based on sex-based stereotypes or overly broad
generalizations about the different talents, capacities, or preferences
of either sex.
Discussion: The Supreme Court has not decided the issue of whether
the particular, identified educational needs objective is an important
governmental or educational objective for the purposes of justifying a
sex-based classification under either Title IX or the Equal Protection
Clause. However, the Court has indicated in Equal Protection Clause
decisions that an array of ``important objectives'' can support sex-
based classifications, including ``to advance full development of the
talent and capacities of our Nation's people.'' \28\ We believe that a
recipient's evenhanded provision of single-sex classes to meet the
particular, identified educational needs of its students in order to
improve educational outcomes for its students is consistent with the
objective found by the Court of ``advance[ment of] full development of
the talent and capacities of our Nation's people.'' Thus, we continue
to believe that meeting the particular, identified educational need of
students is an important governmental or educational objective for
recipients for the purposes of Title IX, and that, if single-sex
classes are evenhandedly implemented pursuant to this objective and
consistent with the safeguards in these amended regulations, they will
meet the nondiscrimination requirements of Title IX.\29\
---------------------------------------------------------------------------
\28\ Virginia, 518 U.S. at 533 (internal quotations omitted;
citations omitted). See also Hogan, 458 U.S. at 728 (finding that in
limited circumstances, sex-based classifications can be justified.)
\29\ See Virginia, 518 U.S. at 534, n.7.
---------------------------------------------------------------------------
The regulations require a recipient to evenhandedly identify the
particular educational needs of students of both sexes. A student's
particular, identified educational need is evidenced by limited or
deficient educational achievement.\30\ After the needs of its students
have been evenhandedly identified, a recipient then evenhandedly
determines how to meet those needs. This determination must be made on
a nondiscriminatory basis and should include nondiscriminatory
consideration of whether a single-sex class would meet the particular
needs identified for its male and female students. Establishment of a
single-sex class requires a determination, based on an analysis of
evidence, that the single-sex nature of the class would be
substantially related to the achievement of a recipient's important
objective of meeting the particular, identified educational needs of
its students. Administrative convenience cannot justify sex-based
classifications under Title IX.\31\ As discussed previously regarding
single-sex classes, to provide the opportunity to choose among diverse
educational opportunities, under Title IX, a recipient's justification,
i.e., an important objective and a substantial relationship between the
important objective and the sex-based means used to further that
objective, must be genuine and cannot be based on overly broad
generalizations about the different talents, capacities, or preferences
of either sex.\32\
Changes: We have made a nonsubstantive revision to Sec.
106.34(b)(1)(i)(B) to change the term ``meeting those needs'' to
``achieving that objective'' in order to reflect the language used by
the Supreme Court in Virginia. Our previous language was intended to
convey this concept.
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\30\ For example, limited educational achievement may be shown
when students are not taking higher level courses; deficient
educational achievement may be shown when students have remedial
needs.
\31\ See Wengler v. Druggists Mutual Insurance Company, 446 U.S.
142, 151-52 (1980)(citing cases); Frontiero v. Richardson, 411 U.S.
677, 689-90 (1973).
\32\ See Virginia, 518 U.S. at 533. See also Hogan, 458 U.S. at
726; Craig v. Boren, 429 U.S. 190, 198 (1976) (holding that sex
cannot be used as a proxy for other more germane bases of
classification.)
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[[Page 62536]]
8. Social Needs (Sec. 106.34(b)(1)(i)(B))
Comments: Two commenters responded to OCR's invitation for comments
on whether there were additional important governmental or educational
objectives that could be the basis for single-sex classes that should
be incorporated into the final regulations. They proposed to add as an
important objective one that addresses social problems affecting
students, i.e., social needs. The types of social needs they mentioned
included pregnancy, discipline problems, drug or alcohol abuse,
delinquency, and criminal activity.
Discussion: We recognize that a recipient's educational mission may
legitimately extend beyond strictly academic objectives and outcomes,
that their classes may provide social benefits, in addition to academic
benefits, to students, and that positive social outcomes for students
can have a positive effect on their educational outcomes. Thus, it may
be consistent with a recipient's broad educational mission to provide
classes and extracurricular activities to meet the types of social
needs described by these commenters. We interpret the regulations
pertaining to a recipient's important objective to meet particular,
identified educational needs as already covering the types of social
needs described by these commenters. For example, under the educational
needs objective a school district that has high school students who are
pregnant or are parents may determine that it is important to help
students address a related particular, identified need, and may offer a
single-sex class \33\ to meet that need consistent with these
regulations as long as the single-sex nature of the class is
substantially related to the objective and the other requirements of
Sec. 106.34(b) are met. For this reason, it is unnecessary to change
the regulations pertaining to a recipient's important objective to add
a separate social needs objective.
---------------------------------------------------------------------------
\33\ Compare with Sec. 106.40(b)(1) and (3), regarding pregnant
students.
---------------------------------------------------------------------------
Changes: None.
9. Evenhanded Implementation (Sec. 106.34(b)(1)(ii))
Comments: In the preamble to the proposed regulations, we invited
specific comments on whether OCR needs more information on how to
assess if a recipient is implementing its objective in an evenhanded
manner. Commenters indicated that they found the evenhanded
implementation standard vague and subjective and found that it did not
provide sufficient guidance.
Discussion: Under Title IX, subject to the other requirements of
these regulations, evenhanded \34\ implementation of the recipient's
important objective means that a recipient that offers single-sex
classes in connection with achieving its important objective must
provide equal educational opportunity to students regardless of their
sex, with the end result that it must provide substantially equal
classes.\35\
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\34\ In Virginia, 518 U.S. at 534, n.7, the Court noted that
briefs submitted by amici argued that ``diversity in educational
opportunities is an altogether appropriate governmental pursuit and
that single-sex schools can contribute importantly to such
diversity,'' and the Court stated: ``We do not question the
Commonwealth's prerogative evenhandedly to support diverse
educational opportunities.'' The Court indicated that its decision
addressed only the facts presented by the Virginia Military
Institute's program, a unique educational opportunity available only
at one public institution for students of one sex.
\35\ Virginia, 518 U.S. at 554 (Virginia failed to show
``substantial equality in the separate educational opportunities''
offered in the two institutions).
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A recipient's important objective may be providing diverse
educational opportunities to students pursuant to Sec.
106.34(b)(1)(i)(A). That choice of diverse educational opportunities,
including the single-sex or coeducational class opportunity, must be
provided evenhandedly to male and female students. In this regard,
evenhanded implementation of single-sex opportunities requires an
evenhanded assessment of what to offer. This means that the recipient
must determine, in a manner that provides equal educational opportunity
to male and female students, which classes in which subjects should be
offered as a single-sex opportunity and to whom (i.e., does it have an
obligation to offer a particular single-sex class to students of both
sexes or is it permissible to offer it to students of one sex only; see
the discussion in subsequent paragraphs), and then offer those classes
evenhandedly to students. A recipient may collect pre-enrollment
information from its student and parent populations in an evenhanded
manner as part of its determination of the types of classes in which
students would enroll. In a school in which male and female students
sought to enroll in single-sex classes in the same subjects, the
recipient would be required to accommodate them evenhandedly, absent a
non-discriminatory reason, which would result in male and female
students being provided single-sex classes in the same subjects.
If a recipient's important objective is meeting the particular,
identified educational needs of students pursuant to Sec.
106.34(b)(1)(i)(B), evenhanded implementation requires the recipient's
unbiased assessment, based on evidence, of the educational needs of
students of both sexes within a particular setting. After the needs of
students have been identified, the recipient then determines how to
meet those needs on an evenhanded basis. The regulations permit a
recipient to consider in an evenhanded manner whether a single-sex
class would meet the particular, identified educational needs for male
or female students, or for students of both sexes, and whether the
single-sex nature of such a class would be substantially related to the
achievement of the objective of meeting the particular, identified
need.
For example, if a recipient has evidence that providing a single-
sex class in a particular subject would meet the particular, identified
educational needs of students of one sex and that the single-sex nature
of the class is substantially related to achievement of the objective,
(i.e., meeting the needs of students of that sex), subject to the other
requirements of these regulations, the recipient may offer that class
on a single-sex basis to students of that sex. If the recipient also
has evidence that providing a single-sex class in that same subject
would meet the particular, identified educational needs of students of
the other sex and that the single-sex nature of the class would be
substantially related to meeting those needs, then the requirement that
the recipient implement its objective evenhandedly would require that,
absent a non-discriminatory reason, it provide a single-sex class in
that subject to students of the other sex as well. On the other hand,
if a recipient has evidence that providing a single-sex class in that
subject would not meet the particular, identified needs of students of
the other sex or that the single-sex nature of the class would not be
substantially related to achievement of that objective, the recipient
is not required to provide a single-sex class to students of the other
sex, but would be required to offer a substantially equal coeducational
class in that subject. However, although a single-sex class would not
be required in that subject, evenhanded implementation of the
recipient's objective does require the recipient to determine, based on
its assessment of educational needs of students, whether a class in
another subject should be offered on a single-sex
[[Page 62537]]
basis to meet the particular, identified needs of students of the
excluded sex.
Changes: None.
10. Voluntary Participation (Sec. 106.34(b)(1)(iii))
Comments: Commenters recommended that we clarify the regulations to
require clearly that student participation in single-sex classes must
be voluntary. Some commenters were concerned, unless the regulations
were clear about this requirement, that in situations in which many
students of one sex voluntarily chose a single-sex class that a
recipient might, for administrative convenience, assign or attempt to
``steer'' students of the other sex to a single-sex class, even if they
wanted to enroll in a coeducational class. A commenter recommended that
the regulations be revised to require that recipients notify parents or
guardians of all their options, including the option of enrolling their
child in a single-sex class.
Discussion: The proposed regulations in Sec. 106.34(b)(1)(ii) were
intended to require recipients to offer single-sex classes only on a
completely voluntary basis, by requiring a recipient to provide a
coeducational class in the same subject, in conjunction with the
requirement in Sec. 106.34(a) that a recipient may not require
participation in classes on the basis of sex. We agree with commenters
that the proposed regulations may not have been as clear as we
intended, and we have revised the regulations to require clearly that
participation in single-sex classes must be completely voluntary.
Unless a recipient offers enrollment in a coeducational class in
the same subject, enrollment in a single-sex class is not voluntary. In
order to ensure that participation in any single-sex class is
completely voluntary, if a single-sex class is offered, the recipient
is strongly encouraged to notify parents, guardians, and students about
their option to enroll in either a single-sex or coeducational class
and receive authorization from parents or guardians to enroll their
children in a single-sex class.
Changes: We have added new regulatory language in Sec.
106.34(b)(1)(iii), clearly requiring that student participation in a
single-sex class must be completely voluntary. For the sake of clarity,
we have also deleted the reference in paragraph (b) of Sec. 106.34 to
the requirements of paragraph (a) of that section.
11. Coeducational Class (Sec. 106.34(b)(1)(iv))
Comments: Some commenters expressed concern that if a recipient
provides a single-sex class for students of one sex, the regulations
always require a coeducational class, but they do not always require a
single-sex class for students of the other sex. Some commenters argued
that it would be a denial of equal opportunity to provide a single-sex
class or other benefit, service, or opportunity for students of one
sex, but not for the other. Some commenters expressed the view that a
recipient could legally provide a single-sex class for students of one
sex, without a corresponding single-sex class for students of the other
sex, only if the purpose was to remediate discrimination.
Discussion: The regulations always require a recipient that offers
a single-sex class to offer a substantially equal coeducational class
in the same subject to all students, including students excluded from
the single-sex class. A recipient must provide single-sex classes in an
evenhanded manner when seeking to fulfill its important objectives
either to provide a diversity of educational opportunities or to
address particular, identified educational needs.
Thus, if a recipient's procedure includes obtaining information
from parents and students about interest in enrolling in potential
single-sex classes in order to provide a diversity of educational
opportunities, the recipient must include students of both sexes and
their parents. Similarly, if a recipient is seeking to address
educational needs of students, the recipient must treat male and female
students in an evenhanded manner when identifying particular
educational needs, determining if a single-sex class would meet those
needs, and meeting the educational needs of both sexes. A recipient may
not decide simply to offer single-sex classes only to students of one
sex, but rather may do so only if it can show (1) students of the other
sex are not interested in having the option to voluntarily enroll in a
single-sex class if the recipient is seeking to further its important
objective of providing diverse educational opportunities, or (2)
students of the other sex do not have educational needs that can be
addressed by a single-sex class if the recipient is seeking to meet the
educational needs of its students. Thus, under these circumstances, the
recipient would not be denying students of the other sex a
substantially equal class by providing them only a substantially equal
coeducational class in the same subject as the single-sex class.
Additionally, OCR will examine recipients that provide
significantly more single-sex opportunities to students of one sex than
to students of the other sex to determine if this is the result of sex
discrimination.
Changes: We have added to Sec. 106.34(b)(1)(iv) the words ``to all
other students, including students of the excluded sex'' to clarify the
scope of this requirement.
12. Private Schools (Sec. 106.34(b)(1)(iv))
Comments: Two commenters sought a revision to the regulations to
provide an exemption, under certain circumstances, for coeducational
recipient private schools from the requirement that they provide a
substantially equal coeducational class if they provided a single-sex
class to students of both sexes.
Discussion: Because all recipients are subject to Title IX and
because a substantially equal coeducational class option for students
is essential to prevent involuntary assignment to a single-sex class on
the basis of sex, Title IX does not pe