[Federal Register Volume 64, Number 42 (Thursday, March 4, 1999)]
[Notices]
[Pages 10505-10506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5332]


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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES


Nondiscrimination on the Basis of Age

AGENCY: National Endowment for the Arts.

ACTION: Review of NEA programs for age distinctions.

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SUMMARY: As required by the Age Discrimination Act of 1975 (the Act), 
see 42 U.S.C. 6101 et seq., the National Endowment for the Arts (NEA) 
has reviewed its programs for any age distinctions it imposes on its 
recipients by regulation, policy, or administrative practice in order 
to determine whether these distinctions are permissible under the Act.
    The NEA's review finds that all of the NEA's programs are free from 
any forms of age discrimination. However, because some projects of the 
NEA's education program do focus on students grades pre-K through 12, 
special attention is given to that program in this review.
    The NEA's education program does not invoke the rules against age 
discrimination, see 45 CFR 1156.6, because the program does not exclude 
or deny individuals the opportunity to participate. Moreover, even if 
the NEA's education program were determined to violate the rules 
against age

[[Page 10506]]

discrimination, the NEA finds that the program would remain viable 
because it falls under an exception listed in 45 CFR Section 1156.7.
    45 CFR Section 1156.6 contains both a general rule and specific 
rules against age discrimination, and the NEA's education program 
complies with both. The general rule states that no person shall be 
excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under any program or activity receiving 
Federal financial assistance. See 45 CFR Section 1156.6(a). The 
language defining the NEA's education program indicates that the 
program does not violate this general rule because the program does not 
limit its coverage of participants based upon age. See National 
Endowment for the Arts: Grants to Organizations FY2000, 11. The 
curriculum-based projects of the NEA's education program may focus on 
students grades pre-K through 12, but because these projects do not 
exclude, deny benefits to, or discriminate against non-students of any 
age group, the projects still comply with the rules against age 
discrimination. See id. More importantly, the education program's 
mission statement clearly illustrates the NEA's hope that the program 
will expand opportunities for children and adults to participate in and 
increase their understanding of the arts. See id. For instance, the 
field/discipline-based projects of the NEA's education program provide 
learning activities for children, youths, and adults. See id. Thus, the 
program is inclusive by nature, not exclusive.
    The specific rules against age discrimination essentially state 
that a program cannot directly or indirectly (e.g., contractually, by 
license, etc.) use age distinctions or take any other actions that may 
exclude participation, deny or limit benefits, or discriminate on the 
basis of age. See id. The NEA's education program, however, does not 
violate these specific rules. The NEA finds that its education program 
complies with the specific rules because none of the program's projects 
exclude participants, deny or limit benefits, or discriminate based 
upon age through either ``direct'' or ``indirect'' means.
    Even if the curriculum-based projects of the NEA's education 
program were determined to violate 45 CFR Section 1156.6, the NEA finds 
that these projects would fall under an exception provided in 45 CFR 
Section 1156.7. 45 CFR Section 1156.7(a) provides, in pertinent part, 
that a recipient of Federal financial assistance is ``permitted to take 
an action otherwise prohibited by [Section] 1156.6 if the action 
reasonably takes into account age as a factor necessary to the normal 
operation or the achievement of any statutory objective of a program or 
activity.'' The curriculum-based projects of the NEA's education 
program satisfy the exception because the projects take student-status 
(based upon age) into account as a factor necessary to the normal 
operation of the program. In the case of the NEA's projects, the normal 
operation of these projects inherently requires the use of age because 
grades pre-K through 12 logistically include mostly children. These 
projects comply with the exception under 45 CFR Section 1156.7(a) 
because 1) age is used to determine whether a person is a student (pre-
K through 12); 2) as an educational service to schools, the curriculum-
based projects, by nature, must determine whether they are serving 
students if they are to continue the normal operation of the program; 
3) age can reasonably determine student-status; and 4) measuring 
student-status on an individual basis represents an impractical 
endeavor.
    Because the NEA's education program encourages the participation of 
all age groups and because the curriculum-based projects do not exclude 
participation, deny or limit benefits, or discriminate based upon age, 
the NEA finds that its education program complies with the rules 
against age discrimination as established by 45 CFR 1156.

DATES: Comments must be filed on or before March 26, 1999.

FOR FURTHER INFORMATION CONTACT: Karen Elias, Deputy General Counsel, 
(202) 682-5418.
Karen Elias,
Deputy General Counsel.
[FR Doc. 99-5332 Filed 3-3-99; 8:45 am]
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