[Federal Register Volume 66, Number 12 (Thursday, January 18, 2001)]
[Rules and Regulations]
[Pages 4627-4639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-583]


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DEPARTMENT OF ENERGY

10 CFR Parts 1040 and 1042

RIN: 1901-AA87


Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: This final rule adds a new part to the Code of Federal 
Regulations to replace existing Department of Energy (DOE) regulations 
for the enforcement of Title IX of the Education Amendments of 1972, as 
amended (``Title IX''). Title IX prohibits recipients of Federal 
financial assistance from discriminating on the basis of sex in 
education programs or activities. The provisions of this final rule are 
the same as a common rule published by the Department of Justice on 
August 30, 2000, for Federal agencies that did not already have Title 
IX implementing regulations. DOE adopts the provisions of the common 
rule in order to promote consistent and adequate enforcement of Title 
IX.

EFFECTIVE DATE: February 20, 2001.

FOR FURTHER INFORMATION CONTACT: Sharon Wyatt, Paralegal Specialist, 
Office of Civil Rights and Diversity, Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20285. Telephone: (202) 586-
2256.

SUPPLEMENTARY INFORMATION:

I. Background

    On June 13, 1980, DOE published a final rule (10 CFR part 1040) to 
implement various nondiscrimination statutes, including Title IX of the 
Education Amendments of 1972. 45 FR 40514. DOE's Title IX regulations, 
which prohibit discrimination on the basis of sex in educational 
programs or activities operated by recipients of

[[Page 4628]]

Federal financial assistance, are found principally in subpart C of 10 
CFR part 1040.
    On August 30, 2000, 20 Federal departments and agencies published a 
final common rule to provide for the enforcement of Title IX by 
participating Federal agencies that had not previously promulgated 
Title IX implementing regulations (``Title IX common rule''). 65 FR 
52858. The Department of Justice coordinated development of the Title 
IX common rule, consistent with its responsibility under Executive 
Order 12250 to ensure the consistent and effective implementation of 
Title IX and other civil rights laws. DOE, as one of four Federal 
agencies that had already promulgated Title IX regulations, did not 
join in the common rulemaking.
    Upon further consideration, and on the basis of the common notice 
of final rulemaking, DOE has decided to replace its existing 
regulations with the provisions of the common rule. DOE's current 
regulations have not been amended since 1980 and do not reflect 
intervening developments, including certain Supreme Court decisions, 
the Civil Rights Restoration Act of 1987 (Public Law 100-259), and 
various Executive orders. By adopting the common rule, DOE brings its 
regulations up-to-date and, by adopting the language and form of the 
Title IX common rule, should make it easier for recipients of DOE 
financial assistance to comply with Title IX requirements.

II. Overview of the Rule

    Subpart A of this final rule sets forth definitions as well as 
provisions concerning remedial action and affirmative action, required 
assurances, adoption of grievance procedures, and notification of 
nondiscrimination policies. The effect of state and other laws and 
other requirements is also explained. Subpart B addresses the scope or 
coverage of Title IX, and Subpart C addresses nondiscrimination on the 
basis of sex in admission and recruitment practices with respect to 
students.
    Subpart D addresses nondiscrimination on the basis of sex in 
education programs or activities. Specific areas covered in this 
subpart are housing, access to course offerings, access to schools 
operated by local education agencies, counseling, financial assistance, 
employment assistance to students, health and insurance benefits and 
services, consideration of marital and parental status, and athletics.
    Subpart E covers the prohibitions of discrimination on the basis of 
sex in employment in educational programs or activities. Specific 
aspects of employment that are addressed include hiring and employment 
criteria, recruitment, compensation, job classification and structure, 
promotion and termination, fringe benefits, consideration of marital or 
parental status, leave practices, advertising, and preemployment 
inquiries as to parental and marital status. This subpart also includes 
a provision to exempt from Title IX coverage employment actions where 
sex is a bona fide occupational qualification.
    Finally, Subpart F contains provisions that reference DOE's list of 
covered programs and incorporate DOE's procedures for implementation 
and enforcement of Title IX.
    By adopting the provisions of the Title IX common rule in this 
rule, DOE is not imposing any new substantive requirements, beyond the 
requirements of Title IX, on recipients of DOE funding.
    As shown in the following ``cross-walk'' table, some of the 
provisions of new part 1042 (numbered to correspond to the common rule) 
appear in different order than in the existing regulations in part 
1042:

------------------------------------------------------------------------
                                                 Part 1040 (current
                Part 1042                           regulations)
------------------------------------------------------------------------
Subpart A
    1042.100.............................  1040.21
    1042.105.............................  1040.23
    1042.110.............................  1040.7
    1042.115.............................  1040.4
    1042.120.............................  1040.4(b)(1)
    1042.125.............................  1040.24
    1042.130.............................  1040.8
    1042.135.............................  1040.5
    1042.140.............................  1040.6
Subpart B
    1042.200.............................  1040.22
    1042.205.............................  1040.25
    1042.210.............................  1040.26
    1042.215.............................  1040.27
    1042.220.............................  1040.28
    1042.225.............................  1040.29
    1042.230.............................  1040.30
    1042.235.............................  1040.27
Subpart C
    1042.300.............................  1040.31
    1042.305.............................  1040.32
    1042.310.............................  1040.33
Subpart D
    1042.400.............................  1040.34
    1042.405.............................  1040.35
    1042.410.............................  1040.36
    1042.415.............................  1040.37
    1042.420.............................  1040.38
    1042.425.............................  1040.39
    1042.430.............................  1040.40
    1042.435.............................  1040.41
    1042.440.............................  1040.42
    1042.445.............................  1040.43
    1042.450.............................  1040.44
    1042.455.............................  1040.45
Subpart E
    1042.500.............................  1040.47
    1042.505.............................  1040.48
    1042.510.............................  1040.49
    1042.515.............................  1040.50
    1042.520.............................  1040.51
    1042.525.............................  1040.52
    1042.530.............................  1040.53
    1042.535.............................  1040.54
    1042.540.............................  1040.55
    1042.545.............................  1040.56
    1042.550.............................  1040.57
Subpart F
    1042.600.............................  Appendix A
    1042.605.............................  1040.46
------------------------------------------------------------------------

    The only deviation in numbering between part 1042 and the Title IX 
common rule is in subpart F. Subpart F of the Title IX common rule is 
titled ``Procedures'' and contains Sec. ____.600, ``Notice of covered 
programs,'' that requires each participating agency to publish, within 
60 days of the common rule's effective date, a notice of the programs 
covered by its Title IX regulations, and to periodically republish the 
notice listing the programs. In addition, most participating agencies 
have included in subpart F a Sec. ____.605 that incorporates by 
reference the agencies' procedures for enforcing Title VI of the Civil 
Rights Act of 1964, as amended (42 U.S.C. 2000d, et seq.). DOE already 
has published a list of covered programs as appendix A to 10 CFR part 
1040. Therefore, DOE includes in subpart F, titled ``Other 
Provisions,'' a Sec. 1042.600, ``Covered programs,'' which simply 
references the list of covered programs in appendix A to part 1040. DOE 
has followed other agencies in including in subpart F a Sec. 1042.605, 
``Enforcement procedures,'' that incorporates the procedures for 
enforcing Title VI in subparts G and H of part 1040.
    This final rule includes various compliance deadlines included in 
the Title IX common rule, including deadlines for self-evaluation 
(Sec. 1042.110(c)) and initial notification of the recipient's 
nondiscrimination policy (Sec. 1042.140(a)(2)). Most DOE recipients 
already comply with these requirements, and DOE does not intend this 
rule to require any additional actions by them. DOE notes that the 
preamble to the final Title IX common rule explains that recipient 
educational institutions that have conducted a self-evaluation under 
Title IX need not, as a result of the Title IX common rule, conduct a 
new self-evaluation. 65 FR 52863.

[[Page 4629]]

III. Public Comment

    This rule imposes no new substantive requirements on recipients of 
DOE financial assistance. These revisions to DOE's Title IX regulations 
only conform DOE's regulations to the Title IX common rule adopted by 
other Federal agencies and amend the text to reflect changes in the law 
that have occurred since DOE published its Title IX regulations in 
1980. Thus, this final rule is not a significant rule involving equal 
employment opportunity that must be proposed for public comment under 
Executive Order 12067, section 1-305. Nor is an opportunity for public 
comment required by the rulemaking provisions of the Administrative 
Procedure Act, 5 U.S.C. 553.
    Furthermore, the provisions of this final rule were proposed by the 
Department of Justice and public comment invited for a period of 60 
days. See 64 FR 58567 (Oct. 29, 1999). DOJ received a total of 22 
comments, five of which were submitted by other Federal agencies. The 
preamble to the final Title IX common rule contains a summary of the 
public comments and the participating agencies' responses to those 
comments. See 65 FR 52860-52864.
    In light of the opportunity for public comment provided by the 
Department of Justice, and DOE's obligation under Executive Order 
12250, section 1-402, to promulgate regulations ``consistent with the 
requirements prescribed by the Attorney General,'' to the extent 
permitted by law, no purpose would be served by inviting public comment 
on these regulations.

IV. Procedural Requirements

A. Review Under Executive Order 12866

    This final rule has been determined not to be a ``significant 
regulatory action'' under Executive Order 12866, ``Regulatory Planning 
and Review,'' (58 FR 51735, October 4, 1993). Accordingly, this action 
was not subject to review under that Executive Order by the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget.

B. Review Under Executive Order 12250

    This final rule has been reviewed by the Attorney General in 
accordance with the provisions of Executive Order 12250, ``Leadership 
and Coordination of Nondiscrimination Laws,'' (3 CFR, 1980 Comp., p. 
298).

C. Review Under Executive Order 12067

    These regulations were submitted for review by the Equal Employment 
Opportunity Commission pursuant to Executive Order 12067, ``Providing 
for Coordination of Federal Equal Employment Opportunity Programs,'' (3 
CFR, 1978 Comp., p. 206).

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) 
generally requires a Federal agency to perform a detailed assessment of 
costs and benefits of any rule imposing a Federal mandate with costs to 
State, local, or tribal governments, or to the private sector, of $100 
million or more. These Title IX regulations, which enforce a statutory 
prohibition on discrimination on the basis of sex, will not result in 
the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year, nor will they significantly or uniquely affect small governments. 
No further action is required by the Unfunded Mandates Reform Act of 
1995.

E. The Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. DOE is not required by law to 
propose this financial assistance regulation for public comment. 
Accordingly, the Regulatory Flexibility Act requirements do not apply 
to this rulemaking, and no regulatory flexibility analysis has been 
prepared.

F. Paperwork Reduction Act of 1995

    No new information or record keeping requirements are imposed by 
this rulemaking. Accordingly, no clearance by the Office of Management 
and Budget is required under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). The information collections in this rule are 
covered by OMB Control No. 1910-0400.

G. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this final rule falls into a 
class of actions that would not individually or cumulatively have a 
significant impact on the human environment, as determined by DOE's 
regulations implementing the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.) Specifically, this rule is covered under the 
Categorical Exclusion in paragraph A5 to subpart D, 10 CFR part 1021, 
which covers rulemakings that interpret or amend an existing regulation 
without changing the environmental effect of the regulation. 
Accordingly, neither an environmental assessment nor an environmental 
impact statement is required.

H. Executive Order 13132

    These Title IX regulations will not have substantial direct effects 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. These Title IX regulations do not 
subject recipients of Federal funding to any new substantive 
obligations because all recipients of Federal funding that operate 
education programs or activities have been bound by Title IX's anti-
discrimination provision since 1972. Therefore, in accordance with 
section 6 of Executive Order 13132, DOE has determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. No further action 
is required.

I. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3 of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to eliminate drafting errors and 
ambiguity; write regulations to minimize litigation; provide a clear 
legal standard for affected conduct rather than a general standard; and 
promote simplification and burden reduction. Section 3(c) of Executive 
Order 12988 requires Executive agencies to review regulations in light 
of applicable standards in section 3(a) and section 3(b) to determine 
whether they are met. DOE has completed the required review and 
determined that, to the extent permitted by law, this final rule meets 
the relevant standards of Executive Order 12988.

J. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress 
promulgation of this final rule prior to its effective date. The report 
will state that it has been determined that the rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 10 CFR Parts 1040 and 1042

    Administrative practice and procedure, Civil rights, Colleges and 
universities, Education, Educational facilities, Educational research, 
Educational study programs, Equal educational opportunity, Equal

[[Page 4630]]

employment opportunity, Grant programs-education, Investigations, 
Marital status discrimination, Reporting and recordkeeping 
requirements, Schools, Sex discrimination, Student aid, Women.

    Issued in Washington, D.C. on January 2, 2001.
T.J. Glauthier,
Deputy Secretary.

    For the reasons stated in the preamble, DOE hereby amends chapter X 
of Title 10 of the Code of Federal Regulations as set forth below:

PART 1040--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS

    1. The authority citation is revised to read as follows:

    Authority: 20 U.S.C. 1681-1686; 29 U.S.C. 794; 42 U.S.C. 2000d 
to 2000d-4a, 3601-3631, 5891, 6101-6107, 6870, 7101 et seq.; and 50 
U.S.C. 2401 et seq.

    2. Section 1040.1 is amended by designating the current text as 
paragraph (a) and adding paragraphs (b) and (c) to read as follows:


Sec. 1040.1  Purpose.

* * * * *
    (b) DOE regulations on enforcement of nondiscrimination on the 
basis of handicap in programs or activities conducted by DOE are in 
part 1041 of this chapter.
    (c) DOE regulations on enforcement of nondiscrimination on the 
basis of sex, under Title IX of the Education Act Amendments of 1972, 
as amended, are in part 1042 of this chapter.

Subpart C--[Removed and Reserved]

    3. Subpart C of 10 CFR part 1040 is removed and reserved.

    4. Part 1042, is added to chapter X to read as follows:

PART 1042--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION 
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

Subpart A--Introduction
Sec.
1042.100   Purpose and effective date.
1042.105   Definitions.
1042.110   Remedial and affirmative action and self-evaluation.
1042.115   Assurance required.
1042.120   Transfers of property.
1042.125   Effect of other requirements.
1042.130   Effect of employment opportunities.
1042.135   Designation of responsible employee and adoption of 
grievance procedures.
1042.140   Dissemination of policy.
Subpart B--Coverage
1042.200   Application.
1042.205   Educational institutions and other entities controlled by 
religious organizations.
1042.210   Military and merchant marine educational institutions.
1042.215   Membership practices of certain organizations.
1042.220   Admissions.
1042.225   Educational institutions eligible to submit transition 
plans.
1042.230   Transition plans.
1042.235   Statutory amendments.
Subpart C--Discrimination on the Basis of Sex in Admission and 
Recruitment Prohibited
1042.300   Admission.
1042.305   Preference in admission.
1042.310   Recruitment.
Subpart D--Discrimination on the Basis of Sex in Education Programs or 
Activities Prohibited
1042.400   Education programs or activities.
1042.405   Housing.
1042.410   Comparable facilities.
1042.415   Access to course offerings.
1042.420   Access to schools operated by LEAs.
1042.425   Counseling and use of appraisal and counseling materials.
1042.430   Financial assistance.
1042.435   Employment assistance to students.
1042.440   Health and insurance benefits and services.
1042.445   Marital or parental status.
1042.450   Athletics.
1042.455   Textbooks and curricular material.
Subpart E--Discrimination on the Basis of Sex in Employment in 
Education Programs or Activities Prohibited
1042.500   Employment.
1042.505   Employment criteria.
1042.510   Recruitment.
1042.515   Compensation.
1042.520   Job classification and structure.
1042.525   Fringe benefits.
1042.530   Marital or parental status.
1042.535   Effect of state or local law or other requirements.
1042.540   Advertising.
1042.545   Pre-employment inquiries.
1042.550   Sex as a bona fide occupational qualification.
Subpart F--Other Provisions
1042.600   Covered programs.
1042.605   Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688; 
42 U.S.C. 7101 et seq.; and 50 U.S.C. 2401 et seq.

Subpart A--Introduction


Sec. 1042.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 
and 906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 
1687, 1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these 
Title IX regulations is February 20, 2001.


Sec. 1042.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Department of Energy, or 
by a recipient, as a condition to becoming a recipient of Federal 
financial assistance.
    Designated agency official means the Director, Office of Civil 
Rights and Diversity or any official to whom the Director's functions 
under this part are relegated.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution 
of graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including 
funds made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.

[[Page 4631]]

    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market 
value of the property is not, upon such sale or transfer, properly 
accounted for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one 
of its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor 
of science degree, whether or not leading to a certificate of any 
higher degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional 
degree in such field is awarded by an institution of undergraduate 
higher education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a 
program of academic study that leads to a first professional degree in 
a field for which there is a national specialized accrediting agency 
recognized by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years 
of college-level study beyond the high school level, leading to a 
diploma or an associate degree, or wholly or principally creditable 
toward a baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or 
any person, to whom Federal financial assistance is extended directly 
or through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth in this 10 CFR 
Part 1042.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.


Sec. 1042.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome 
the effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation 
therein by persons of a particular sex. Nothing in these Title IX 
regulations shall be interpreted to alter any affirmative action 
obligations that a recipient may have under Executive Order 11246, 3 
CFR, 1964-1965 Comp., p. 339; as amended by Executive Order 11375, 3 
CFR, 1966-1970 Comp., p. 684; as amended by Executive Order 11478, 3 
CFR, 1966-1970 Comp., p. 803; as amended by Executive Order 12086, 3 
CFR, 1978 Comp., p. 230; as amended by Executive Order 12107, 3 CFR, 
1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of February 20, 2001:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.


Sec. 1042.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
the Department of Energy must ensure that applications for Federal 
financial assistance or awards of Federal financial assistance contain, 
be accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which

[[Page 4632]]

these Title IX regulations apply will be operated in compliance with 
these Title IX regulations. An assurance of compliance with these Title 
IX regulations shall not be satisfactory to the designated agency 
official if the applicant or recipient to whom such assurance applies 
fails to commit itself to take whatever remedial action is necessary in 
accordance with Sec. 1042.110(a) to eliminate existing discrimination 
on the basis of sex or to eliminate the effects of past discrimination 
whether occurring prior to or subsequent to the submission to the 
designated agency official of such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, 
such assurance shall obligate the recipient or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
real property or structures are used to provide an education program or 
activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of 
the Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 
1685-1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.


Sec. 1042.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of 
the fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Secs. 1042.205 through 1042.235(a).


Sec. 1042.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by 
Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by 
Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by 
Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by 
Executive Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by 
Executive Order 12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 
of the Public Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of 
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay 
Act of 1963 (29 U.S.C. 206); and any other Act of Congress or Federal 
regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, 
athletic or other league, or association that would render any 
applicant or student ineligible to participate or limit the eligibility 
or participation of any applicant or student, on the basis of sex, in 
any education program or activity operated by a recipient and that 
receives Federal financial assistance.


Sec. 1042.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.


Sec. 1042.135  Designation of responsible employee and adoption of 
grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply 
with and carryout its responsibilities under these Title IX 
regulations, including any investigation of any complaint communicated 
to such recipient alleging its noncompliance with these Title IX 
regulations or alleging any actions that would be prohibited by these 
Title IX regulations. The recipient shall notify all its students and 
employees of the name, office address, and telephone number of the 
employee or employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.


Sec. 1042.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission 
and employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made 
in such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Secs. 1042.300 through 1042.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec. 1042.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of February 20, 2001 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of

[[Page 4633]]

the policy described in paragraph (a) of this section in each 
announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment 
is permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.

Subpart B--Coverage


Sec. 1042.200  Application.

    Except as provided in Secs. 1042.205 through 1042.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.


Sec. 1042.205  Educational institutions and other entities controlled 
by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application 
of these Title IX regulations would not be consistent with the 
religious tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the 
institution, identifying the provisions of these Title IX regulations 
that conflict with a specific tenet of the religious organization.


Sec. 1042.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.


Sec. 1042.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions 
of higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one 
sex and principally to persons of less than nineteen years of age.


Sec. 1042.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Secs. 1042.225 and 1042.230, and Secs. 1042.300 through 
1042.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Secs. 1042.300 through 1042.310. Except as 
provided in paragraphs (d) and (e) of this section, Secs. 1042.300 
through 1042.310 apply to each recipient. A recipient to which 
Secs. 1042.300 through 1042.310 apply shall not discriminate on the 
basis of sex in admission or recruitment in violation of Secs. 1042.300 
through 1042.310.
    (d) Educational institutions. Except as provided in paragraph (e) 
of this section as to recipients that are educational institutions, 
Secs. 1042.300 through 1042.310 apply only to institutions of 
vocational education, professional education, graduate higher 
education, and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Secs. 1042.300 through 1042.310 do not apply to any public institution 
of undergraduate higher education that traditionally and continually 
from its establishment has had a policy of admitting students of only 
one sex.


Sec. 1042.225  Educational institutions eligible to submit transition 
plans.

    (a) Application. This section applies to each educational 
institution to which Secs. 1042.300 through 1042.310 apply that:
    (1) Admitted students of only one sex as regular students as of 
June 23, 1972; or
    (2) Admitted students of only one sex as regular students as of 
June 23, 1965, but thereafter admitted, as regular students, students 
of the sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex 
in admission or recruitment in violation of Secs. 1042.300 through 
1042.310.


Sec. 1042.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 1042.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and 
the name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to 
admitting students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected 
to apply for, be admitted to, and enter each class during the period 
covered by the plan.

[[Page 4634]]

    (c) Nondiscrimination. No policy or practice of a recipient to 
which Sec. 1042.225 applies shall result in treatment of applicants to 
or students of such recipient in violation of Secs. 1042.300 through 
1042.310 unless such treatment is necessitated by an obstacle 
identified in paragraph (b)(3) of this section and a schedule for 
eliminating that obstacle has been provided as required by paragraph 
(b)(4) of this section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 1042.225 applies shall include in its transition plan, 
and shall implement, specific steps designed to encourage individuals 
of the previously excluded sex to apply for admission to such 
institution. Such steps shall include instituting recruitment programs 
that emphasize the institution's commitment to enrolling students of 
the sex previously excluded.


Sec. 1042.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such 
individual has received such award in a single-sex pageant based upon a 
combination of factors related to the individual's personal appearance, 
poise, and talent. The pageant, however, must comply with other 
nondiscrimination provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other 
State or local government entity) to which the assistance is extended, 
in the case of assistance to a State or local government;
    (ii)(A) A college, university, or other post-secondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the 
application of 20 U.S.C. 1681 to such operation would not be consistent 
with the religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, 
or other post-secondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.

Subpart C--Discrimination on the Basis of Sex in Admission and 
Recruitment Prohibited


Sec. 1042.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Secs. 1042.300 through 1042.310 apply, except as 
provided in Secs. 1042.225 and 1042.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Secs. 1042.300 through 1042.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on 
the basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity 
in question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether

[[Page 4635]]

a person satisfies any policy or criterion for admission, or in making 
any offer of admission, a recipient to which Secs. 1042.300 through 
1042.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 1042.235(d), shall treat disabilities related 
to pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status 
of an applicant for admission, including whether such applicant is 
``Miss'' or ``Mrs.'' A recipient may make pre-admission inquiry as to 
the sex of an applicant for admission, but only if such inquiry is made 
equally of such applicants of both sexes and if the results of such 
inquiry are not used in connection with discrimination prohibited by 
these Title IX regulations.


Sec. 1042.305  Preference in admission.

    A recipient to which Secs. 1042.300 through 1042.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity 
that admits as students only or predominantly members of one sex, if 
the giving of such preference has the effect of discriminating on the 
basis of sex in violation of Secs. 1042.300 through 1042.310.


Sec. 1042.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which 
Secs. 1042.300 through 1042.310 apply shall not discriminate on the 
basis of sex in the recruitment and admission of students. A recipient 
may be required to undertake additional recruitment efforts for one sex 
as remedial action pursuant to Sec. 1042.110(a), and may choose to 
undertake such efforts as affirmative action pursuant to 
Sec. 1042.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Secs. 1042.300 through 1042.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that 
admit as students only or predominantly members of one sex, if such 
actions have the effect of discriminating on the basis of sex in 
violation of Secs. 1042.300 through 1042.310.

Subpart D--Discrimination on the Basis of Sex in Education Programs 
or Activities Prohibited


Sec. 1042.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
1042.400 through 1042.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Secs. 1042.300 through 1042.310 do not 
apply, or an entity, not a recipient, to which Secs. 1042.300 through 
1042.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Secs. 1042.400 
through 1042.455, in providing any aid, benefit, or service to a 
student, a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining 
whether such person satisfies any requirement or condition for the 
provision of such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a 
student or applicant, including eligibility for in-state fees and 
tuition;
    (6) Aid or perpetuate discrimination against any person by 
providing significant assistance to any agency, organization, or person 
that discriminates on the basis of sex in providing any aid, benefit, 
or service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or 
activity not operated wholly by such recipient, or that facilitates, 
permits, or considers such participation as part of or equivalent to an 
education program or activity operated by such recipient, including 
participation in educational consortia and cooperative employment and 
student-teaching assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.


Sec. 1042.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of

[[Page 4636]]

housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval 
of housing, or otherwise, assists any agency, organization, or person 
in making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such 
housing as is provided to students of one sex, when compared to that 
provided to students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.


Sec. 1042.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.


Sec. 1042.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of 
sex, or require or refuse participation therein by any of its students 
on such basis, including health, physical education, industrial, 
business, vocational, technical, home economics, music, and adult 
education courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than 
one year from February 20, 2001. With respect to physical education 
classes and activities at the secondary and post-secondary levels, the 
recipient shall comply fully with this section as expeditiously as 
possible but in no event later than three years from February 20, 2001.
    (2) 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) 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.
    (4) Where use of a single standard of measuring skill or progress 
in a physical education class has an adverse effect on members of one 
sex, the recipient shall use appropriate standards that do not have 
such effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively 
with human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or 
quality that may result in a chorus or choruses of one or predominantly 
one sex.


Sec. 1042.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such 
recipient, unless such recipient otherwise makes available to such 
person, pursuant to the same policies and criteria of admission, 
courses, services, and facilities comparable to each course, service, 
and facility offered in or through such schools.


Sec. 1042.425  Counseling and use of appraisal and counseling 
materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that 
uses testing or other materials for appraising or counseling students 
shall not use different materials for students on the basis of their 
sex or use materials that permit or require different treatment of 
students on such basis unless such different materials cover the same 
occupations and interest areas and the use of such different materials 
is shown to be essential to eliminate sex bias. Recipients shall 
develop and use internal procedures for ensuring that such materials do 
not discriminate on the basis of sex. Where the use of a counseling 
test or other instrument results in a substantially disproportionate 
number of members of one sex in any particular course of study or 
classification, the recipient shall take such action as is necessary to 
assure itself that such disproportion is not the result of 
discrimination in the instrument or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.


Sec. 1042.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of 
sex; or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of 
availability of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or 
other form of financial assistance is allocated to each student 
selected under paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial

[[Page 4637]]

assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient 
awards athletic scholarships or grants-in-aid, it must provide 
reasonable opportunities for such awards for members of each sex in 
proportion to the number of students of each sex participating in 
interscholastic or intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic 
teams for members of each sex to the extent consistent with this 
paragraph (c) and Sec. 1042.450.


Sec. 1042.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates 
Secs. 1042.500 through 1042.550.


Sec. 1042.440  Health and insurance benefits and services.

    Subject to Sec. 1042.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, 
or provide such benefit, service, policy, or plan in a manner that 
would violate Secs. 1042.500 through 1042.550 if it were provided to 
employees of the recipient. This section shall not prohibit a recipient 
from providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.


Sec. 1042.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of 
the program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in 
paragraph (b)(1) of this section, shall ensure that the separate 
portion is comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 1042.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave 
policy for its students, or in the case of a student who does not 
otherwise qualify for leave under such a policy, a recipient shall 
treat pregnancy, childbirth, false pregnancy, termination of pregnancy, 
and recovery therefrom as a justification for a leave of absence for as 
long a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated 
to the status that she held when the leave began.


Sec. 1042.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently 
from another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide 
necessary funds for teams for one sex in assessing equality of 
opportunity for members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
February 20, 2001. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural

[[Page 4638]]

athletics at the secondary or post-secondary school level shall comply 
fully with this section as expeditiously as possible but in no event 
later than three years from February 20, 2001.


Sec. 1042.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.

Subpart E--Discrimination on the Basis of Sex in Employment in 
Education Programs or Activities Prohibited


Sec. 1042.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any 
education program or activity operated by such recipient in a 
nondiscriminatory manner and shall not limit, segregate, or classify 
applicants or employees in any way that could adversely affect any 
applicant's or employee's employment opportunities or status because of 
sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Secs. 1042.500 
through 1042.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one 
sex, if the giving of such preferences has the effect of discriminating 
on the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Secs. 1042.500 through 1042.550 
apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of 
nepotism policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for 
pregnancy, childbirth, false pregnancy, termination of pregnancy, leave 
for persons of either sex to care for children or dependents, or any 
other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.


Sec. 1042.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.


Sec. 1042.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily 
or exclusively at entities that furnish as applicants only or 
predominantly members of one sex if such actions have the effect of 
discriminating on the basis of sex in violation of Secs. 1042.500 
through 1042.550.


Sec. 1042.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal 
work on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working 
conditions.


Sec. 1042.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 1042.550.


Sec. 1042.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service 
of employment not subject to the provision of Sec. 1042.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the 
basis of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in 
benefits on the basis of sex.


Sec. 1042.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an

[[Page 4639]]

employee or applicant for employment that treats persons differently on 
the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or 
exclude from employment any employee or applicant for employment on the 
basis of pregnancy, childbirth, false pregnancy, termination of 
pregnancy, or recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to 
Sec. 1042.235(d), a recipient shall treat pregnancy, childbirth, false 
pregnancy, termination of pregnancy, recovery therefrom, and any 
temporary disability resulting therefrom as any other temporary 
disability for all job-related purposes, including commencement, 
duration, and extensions of leave, payment of disability income, 
accrual of seniority and any other benefit or service, and 
reinstatement, and under any fringe benefit offered to employees by 
virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an 
employee with insufficient leave or accrued employment time to qualify 
for leave under such a policy, a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy, and recovery 
therefrom as a justification for a leave of absence without pay for a 
reasonable period of time, at the conclusion of which the employee 
shall be reinstated to the status that she held when the leave began or 
to a comparable position, without decrease in rate of compensation or 
loss of promotional opportunities, or any other right or privilege of 
employment.


Sec. 1042.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Secs. 1042.500 through 1042.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.


Sec. 1042.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.


Sec. 1042.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made 
equally of such applicants of both sexes and if the results of such 
inquiry are not used in connection with discrimination prohibited by 
these Title IX regulations.


Sec. 1042.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Secs. 1042.500 
through 1042.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action is essential to successful operation of 
the employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.

Subpart F--Other Provisions


Sec. 1042.600  Covered programs.

    The financial assistance programs to which this part applies are 
listed in Appendix A to 10 CFR part 1040.


Sec. 1042.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural 
provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d) are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 10 CFR part 1040, subparts G and H.
[FR Doc. 01-583 Filed 1-17-01; 8:45 am]
BILLING CODE 6450-01-P